Monday, January 2, 2006

It's about freedom of association, not forced compliance and acceptance

I've so far declined to comment on the Supreme Court of Canada's recent ruling regarding the existence of group sex clubs because it shouldn't have become a public issue in the first place.

The definition of indecency is typically measured against what ordinary Canadians will tolerate.

But in their ruling Wednesday, the Supreme Court judges said the test for indecency should not simply be whether an activity violates a "social consensus" of community standards, but the actual harm it causes.

"Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society," Chief Justice Beverley McLachlin wrote in the majority decision.
It is none of my business, nor yours, to dictate what goes on between consenting adults behind closed doors. An orgy in a residental basement is just the same as a swingers club as far as I am concerned, so long as all of the participants are there voluntarily. If you are not interested, don't bother to attend. Make it illegal and it will still go on, just like drug use is as popular as ever, despite laws created to stop it.

The billion dollar gun control regulations have done nothing to prevent gun crime, and laws against prostitution have done little to discourage the sex trade.

The real problem is that "Community Standards" as defined and imposed by government and state courts are indecent because they force those who do not agree to recognize the preferences of a few by granting them special status.

The following 'argument' taken from an article appearing in the Hamilton Spectator sums up the general opposition to the ruling:
The court judgment was taken on the basis of "harm" and that no harm is caused.

"No harm" suggests that we live in a vacuum.

I suggest that we live in a continuum, a society.

In a society we are connected and interconnected.

"Swing clubs" may not have been in violation of the rights charter, however, it saddens me to see both the charter and the law manipulated.

In its protection of religious and racial minorities, the charter is a wonderful document.
So, unless you are a member of a designated religious or racial minority, you have fewer rights because you cause more "harm"? You are only "Equal" if you are part of a publically approved gang?

Jay Jardine sums the situation up nicely:
"Community Standards" and "Harm To Society" could just as easily dribble out of the mouths of any two-bit commie outfit with enough influence and time on their hands to make the case that your cigar room / gun club / McDonald's / fundamentalist church / distillery / private MRI clinic / non-missionary position poses potential "Harm To Society" and goes against their "Community Standards".
Colby Cosh also has some thoughts on the ruling, which was supported 7-2:
The two dissenters from the decision, Bastarache and LeBel, cottoned to this and didn't like it one bit. From their notes to Labaye:
The new approach to indecency proposed by the majority is neither desirable nor workable. Not only does it constitute an unwarranted break with the most important principles of our past decisions regarding indecency, but it also replaces the community standard of tolerance with a harm-based test. Whether or not serious social harm is sustained has never been the determinative test for indecency. Moreover, when the standard of tolerance is established on the basis of the three categories of harm, it becomes impossible to take into account the multitude of situations that could exceed the threshold for indecency. This new harm-based approach also strips of all relevance the social values that the Canadian community as a whole believes should be protected. The existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct: the existence of fundamental social and ethical considerations is sufficient.
Socons will find themselves, presumably to their surprise, in the Bastarache/Lebel camp. They will see some meaning in the phrase "the Canadian community as a whole" where absolutely none exists. They will regard the court as having usurped and destroyed a power of determining "indecency" that belongs to Parliament. In principle I don't like genuine "judicial activism", but this decision also binds future courts; it has the effect of reducing the power of every branch of government, including the judiciary, to assist in outlawing private behaviour and expressive materials. Can't social conservatives tell the difference between judicial activism that expands the power of the state--like adding newly-invented "protected grounds" to discrimination law--and judicial activism that inhibits it?

Nah. What they care about is that the power of the state be used for their own preferred ends.


darcey said...

For me the big one here was that I understand that they pay to enter these clubs. If thats the scenario then we are looking at cases of prostitution. I read recently in some column that the majority of the clients are men and they already balance the clubs out with hookers.

I think that creates a whole new ball game.

Lisa said...


I really don't understand why it matters if people were paying to get into the clubs or not. They are still doing so voluntarily. I'm not into group sex nor prostitution, but because I don't approve of something it doesn't mean it should be outlawed. As I pointed out above, the behaviour is going to continue even if it is outlawed, and its going to be a lot seedier once nanny laws provide economic incentive to the black market.

I stick to my initial position and say that it's none of my business, nor anyone else's accept the patron's that choose to frequent such places. It might be 'indecent' according to the majority of people, but so long as the behaviour is harming noone else, except perhaps the participant, lifestyle choices should not be the business of government.

MapMaster said...

There are already enough voluntary social institutions, such as the church or family, to condemn certain conducts as immoral, and there should be no need to use the power of the state to enforce these views — except that the government's distribution of entitlements is so universal that it has weakened these institutions.

Ian Scott said...

Darcey, you know it is legal to join another club, voluntarily, if you wish? It's the Church. And with your regular tithe, you can participate in all sorts of strange events, such as the absurd and fantastical, barbaric, canabalistic, and insane idea of drinking wine that is turned into blood, and bread that is turned into flesh.

Don't you think there's a possibility that partaking of such activity could be dangerous to children's minds, and perhaps and have a chilling effect on their minds regarding brutality towards other humans?

Ah, yeah... from history, we can see a correlation - the willingness of these church club members to behead, burn to death, kill the eldest born sons, of those who refused to participate in this abracadabra witchcraft of The Church.

Somehow, I doubt that sex clubs will ever expect such brutality from its members.

Pietr said...

Don't forget, governments love this stuff, because the very idea of the 'state' is forced association.