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complete discussion of these issues, see: Nudity and the Law, a public lecture we organised in 1997. |
Want to march naked on public streets? It's possible, under certain conditions:
Surprised? So were we, when we first found out about it a few years ago. And so was the very right wing group that calls itself "REAL Women". (See below for more on this.)
This stunning fact comes from the very extensive legal research of Peter Simm, author of the brief that convinced Toronto's City Hall to make Hanlan's Point Beach legally nude, and one of Canada's principle authorities on nudity and the law.
Although our members have been nude in the Pride Parade since 1996, the only year we had problems with the police was in 2002, when seven men were arrested for "being nude in a public place." However, a few weeks later, all charges were dropped before the first court appearance, when the Crown Attorney admitted they couldn't get a conviction, i.e. he admitted that nudity at Pride is legal!
It's a little involved, but I'll try to explain it as simply as I can.
Here are the two relevant laws:
Letter of the DayPublished in the Toronto Sun on July 22nd, 1997, and in the June 1997 edition of TNT!MEN Exposed. As a lawyer who has studied the law on nudity, I'd like to clear up a few legal misconceptions in a recent Sun editorial on unclad marchers in Toronto's Pride Parade ("Time to grow up", July 7).The law on public nudity is surprisingly complex. The Sun's editorial correctly states that "total nudity is still against the law." However, even if all you wear are socks, the Supreme Court of Canada says that you are not automatically considered "nude" for purposes of the Criminal Code. You're breaking the law only if "so clad as to offend against public decency." Since all of the marchers in the Pride Parade at least wore shoes, the courts' interpretation of "public decency" comes into play. The legal test isn't whether you would want to attend the Pride Parade and see a few flaccid phalluses filing past (or would even free willy yourself). The test is whether the average Canadian would tolerate Pride Parade-goers seeing such a sight. It is worth remembering that under Ontario Film Review Board guidelines, even a Family-rated film can contain "casual, non-sexual nudity." Context is everythingWhen Gwen Jacob took a topless stroll through Guelph, the Ontario Court of Appeal concluded that any purported evidence of "harm" was highly speculative. It seems doubtful that any better evidence of "harm" could be adduced here. The Court also noted: "No one who was offended was forced to continue looking at her." The Supreme Court of Canada has emphasized that for nudity, context is everything. What's cheered in a tavern on Saturday night could cause a riot in a church Sunday morning. The law does not equate the Pride Parade with the Santa Clause Parade: these events have completely different audiences. And, as your editorial points out, no one can claim astonishment that a Pride Parade contains sights that could embarrass a prudish parent. Don't rain on our parade!Sgt. Harmsen threatened to cancel next year's Pride Parade, complaining, "You wouldn't be able to do those things anywhere else." Even if true, this doesn't mean it's illegal, or that police inaction here amounts to a double standard. The law requires that the particular circumstances be taken into account. A court may well find that the context truly is unique. No other time and place in Canada is like the parade route during Toronto's Pride Parade. There simply isn't "anywhere else" that is a close match. That's probably why Metro Police Deputy Chief Robert Molyneux, the ranking officer involved with the Pride Parade, apparently received a legal opinion that no laws were broken. Having studied the relevant case-law, I would concur. Thankfully we live in a society governed by the rule of law. This means that Sgt. Harmsen's job is to enforce the law -- not to use his badge to make citizens conform to his own personal views on what is or isn't appropriate. |
Each of these laws has been interpreted by the courts, and it is those interpretations that count. More than a quarter century ago, courts ruled that merely being naked in a public place is not automatically considered "committing an indecent act" for the purpose of subsection 173(1).
Subsection 173(2) is obviously inapplicable too: no naked marchers in the TNT!MEN contingent in the Pride Parade are exposing their genitals to kids for a sexual purpose.
In any case, without an obvious sexual component, no-one who is merely nude in a public place can be charged under section 173, since that is covered by section 174. When there are laws written to deal with a specific situation, other laws that might cover something similar cannot be used in their place.
Further, the Supreme Court of Canada has ruled that if you're wearing any piece of clothing -- even just a sock on one foot -- then you are NOT automatically considered "nude" for purposes of subsection 174(1), even if your genitals are completely exposed. Since our marchers are clad in footwear, they are not automatically "nude" for purposes of that law.
Subsection 174(2) deems the marchers to be "nude" if they're "clad so as to offend against public decency". The Supreme Court of Canada has ruled that the test for indecency is not whether the average Canadian would personally choose to watch people marching naked in Toronto's Pride Parade, nor choose to be offended if actually seeing the marchers. Rather, the test is whether a hypothetical "average" Canadian would tolerate the risk of "harm" for those people who observe nudity in the particular context of the Pride Parade.
The Ontario Court of Appeal has also said that in a non-commercial, non-sexual context (like TNT!MEN's parade contingent), mere nudity entails no realistic chance of "harm" to viewers. Another key aspect of the particular context is that no one can legitimately claim to be surprised by seeing nudity in Toronto's Pride Parade.
For the reasons summarized above, Simm has given TNT!MEN his legal opinion that mere nudity in Toronto's Pride Parade does NOT violate any law. Unfortunately, a rogue cop who is ignorant of the law (or just malicious) could still arrest and charge a marcher. However, because of subsection 174(3), a Crown Attorney would have no power to prosecute a charge of public nudity without the specific, personal, written consent of Ontario's Attorney-General.
Still not convinced? Think we're biased? Well, would you believe that the anti-equality group known as "REAL Women" has also found this to be true? In their summer 1998 newsletter, they write:
REALity July-August 1998
The Newsletter of R.E.A.L. WomenA group of men marched completely nude in the 1997 Toronto Gay Pride Parade. Even though this is expressly prohibited by several sections of the Criminal Code, no charges were laid against these men. ... The Metropolitan Toronto Police, 52 Division (responsible for the Gay Pride Day Parade), advised us that the Attorney-General's office had refused its consent to lay such charges. Superintendent James Parkin, also of 52 Division, wrote to say that his Division could not lay charges on the grounds that such charges were not enforceable. In his letter, he attempted to explain why the charges were allegedly unenforceable.
The behaviour of the crowds, the media, and the police at the Pride Parades in 1997, 1998 and 1999 have strongly supported our position that marching naked in the Gay Pride parade is not illegal: the crowds have responded extremely positively to our presence, and each year the police have completely ignored the nudity in the parade, recognising that in that particular context, nudity is not illegal.
On July 5th, 1997, after our entire contingent marched completely naked, the Toronto Star quotes a police spokesperson as saying that the Deputy Chief of Police expressed no concerns other than with crowding: "There's no concern about nudity or obscenity. We have not received any complaints at this time."
On June 29th, 1998, the Toronto Sun said of the Gay Pride parade: "Jim marched with TNT -- Totally Naked Toronto, one of the most photographed, and loved, groups of the day." They go on to say: "No one really seemed to mind the nakedness and that wasn't what the parade was about."
Each year, as we reached the end of the parade, the police have asked those who were naked to put something on. Those of us who wore only tiny cock-covers or see-through outfits were ignored.
Even if it were illegal, it shouldn't be; that kind of punitive, restrictive law harms people by teaching them that their bodies are shameful and dangerous. This kind of noxious prudery contributes to the problems many Canadians have with body image and body acceptance. By challenging and protesting these harmful laws on Gay Pride Day, we hope to raise the issues regarding body shame in the minds of the gay community, and in the general public.
Each year TNT!MEN has left the decision regarding nudity on Pride Day up to the individuals. We provide plenty of "nearly naked" outfits for people to wear if they don't come prepared. We welcome everyone who wants to to join us, wearing as much or as little as you choose.
No doubt most individuals will leave the decision until they are in the parade; our numbers, and the response from the crowd will help us decide one way or another.