Monday 16 January 2012

Should walking or driving while nude in public be illegal?

Back in the mid 1950s when I was living in Victoria, British Columbia, I was living in my boss’ home and on one weekend, I was lying on the grass in our backyard while I was in my bathing suit. The woman next door threatened to call the police if I didn’t put some other clothes on. I told her to go to Hell. She called the police and they came and told me that I had every right to lie on the grass in our backyard while in my bathing suit since I was on private property.

Now had I being lying on the grass while nude, I would have been arrested even though I was on private property.

Years later, a man in Toronto, Ontario was lying on the grass in Toronto’s large High Park while in his bathing suit. The police were called and he was charged under the city’s nudity law. He represented himself in court and argued that the law permits everyone the right to lie on the ground in their bathing suit if they are near a body of water. Although he was several hundred feet from the lake in the park, he was only a couple of feet from a stream that was going down the hill towards the lake. The court ruled that even a stream of water is a body of water.

The city fathers were so embarrassed with the law that they changed the law and permitted everyone the right to be in their bathing suit no matter where they were.

New York's highest state court ruled that women could be top free in public. Since 1992, women in the highly populous State of New York have enjoyed the right to bare their chests because men could do so. As one New York Justice wrote in his concurring opinion, “One of the most important purposes to be served by the equal protection clause is to ensure that 'public sensibilities' grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government.”

A woman represented herself in the District of Columbia (City of Washington) Court of Appeals and won a court victory stating that the D.C. nudity law did not apply to any body part but genitals. Since then the District of Columbia has been legally female top free because her body parts included her breasts.

When my wife and I were in Rio de Janeiro in 2010, we saw a great many young women going topless on the two main beaches in that city.

Five women who went topless in the Columbus, Ohio Gay Pride parade were arrested. The charges were dropped one month later. Indeed, in the Ohio Law statute, breasts are not considered ‘private parts’. Therefore, women exposing their breasts in public is not considered indecent exposure. In 1998, three of the women who had been arrested three years earlier, sued the city of Columbus for false arrest and won their case . They were paid $15,000 in total for damages. Since then, the police force is being educated not to arrest top free women but warns that if the site of a top free woman causes disturbance, they have the right to ask the topless woman to leave. If she doesn’t, she can be charged with creating a disturbance. Note that not all the cities in Ohio seem to honor this statute.

The Province of Ontario, Canada's most populous province became legally top free due to a criminal court challenge by Gwen Jacob. Because the highest court in Ontario was interpreting a Canadian federal law, this case has set an important precedent for all of the other provinces in Canada. Attempts to change the law to re-criminalize women have not been supported by Canadian voters. Keep in mind that half of the voters are men and they certainly wouldn’t want to re-criminalize that law.

Some twit complained when she saw a woman breast feeding her child while on a subway in Toronto. The court wisely ruled that it is not an offence to breast feed a child in public even if the mother’s breasts can be seen.

It is not an offence to be nude in a nudist camp or at a nude beach because they are on private property. The question however is; ‘Is it illegal to be nude even in the privacy of your home?’ The Supreme Court of Canada ruled on such a case in 2005 that bears retelling.

A man was in his illuminated living room masturbating near an uncovered window one evening and was seen by a man and his wife while in their darkened bedroom that was over 90 feet away. He was arrested and charged under section 173 of the Canadian Criminal Code. The pertinent subsection of section 173 states;

Section 173(1)(a) makes it an offence to wilfully perform an indecent act ‘in a public place in the presence of one or more persons’; s. 173(1)(b), on the other hand, makes it an offence to wilfully commit an indecent act ‘in any place, with intent thereby to insult or offend any person’.

The key words in this subsection are; ‘indecent act’ and ‘public place’

The trial judge convicted the accused under s. 173(1)(a) after finding he had converted his living room into a ‘public place’ but acquitted him under s. 173(1)(b) after finding that it did not appear the accused knew he was being watched or intended to insult or offend any person. The Superior Court and the Court of Appeal of British Columbia upheld the conviction. The Court of Appeal concluded that the accused had “intentionally conducted himself in an indecent way, seeking to draw the attention of others.”

The case finally ended up before the justices of Canada’s Supreme Court. The court said in part;

“The facts as found by the trial judge do not support the accused’s conviction. The accused’s act was not committed in a ‘public place’ within the meaning of ss. 150 and 173(1)(a) of the Criminal Code. A ‘public place’ is defined in s. 150 as “any place to which the public have access as of right or by invitation, express or implied”. ‘Access’ means ‘the right or opportunity to reach or use or visit’ and not the ability of those who are neither entitled nor invited to enter a place to see or hear from the outside, through uncovered windows or open doors, what is transpiring within.” unquote

This raises an interesting question. Back in the mid 1950s, had I been sunbathing in the nude in my backyard and had been seen by the neighbour, under this 2005 ruling, would I be guilty of intentionally conducted myself in an indecent way, seeking to draw the attention of others? If I was nude in the house, the answer would be that it is not an offence to be nude in one’s home even if seen by neighbours but being nude in my backyard is something else again.

Parliament has also created two different offences in ss. 173(1)(a) and 173(1)(b) of the Criminal Code. The former concerns indecent acts committed in a public place in the presence of one or more persons; the latter, indecent acts committed in any place, public or private, with intent to insult or offend any person. Here, the appellant was acquitted under s. 173(1)(b). His conviction under s. 173(1)(a) can therefore not be supported.

Therefore, if I was lying on the grass in my backyard while I was totally nude and was seen by that nosy neighbour, under the 2005 ruling of the Supreme Court of Canada, I would be found innocent unless it could be established that I was lying on the grass nude for the sole purpose of insulting or offending the neighbour. Had she said that I insulted her and offended her by being nude, I would have been convicted. In any case, I didn’t go that far to test the law.

The trial judge was not convinced that the appellant (who was masturbating) had committed an indecent act ‘with intent thereby to insult or offend any person’, as required by s. 173(1)(b) of the Code. He therefore acquitted the appellant of the charge laid against him under that subsection. He was probably acquitted of this aspect of the law because it was established in court that he didn’t even know that he was actually seen masturbating by the neighbours. If he knew that he was being watched and continued masturbating, perhaps the ruling would have been different because the judge may have interpreted that act as someone wishing to insult and offend his neighbours. But surely lying on the grass while nude in your own backyard is not necessarily doing so for the purpose of insulting one’s neighbours especially if you are sunning yourself. If the neighbours don’t like what they are seeing, they have the option of looking somewhere else. They wouldn’t necessarily apply if the neighbours had small children in their own backyard.

An accused named Keir had exposed himself while standing in a private lane next to a public street, from which he was seen by passing girls. Justice Harris in separate but concurring reasons; held that “It was always the law that if this offence was committed in a place visible to any one passing along the streets it was punishable.” If that is so, then it must mean that lying nude on your front lawn which is right next to a public street is against the law.

Speaking for the other four judges of the higher court. Justice Mellish approached the matter differently with respect to the appellant who was masturbating in his living room. His opinion was;

“An indecent act is thus committed not only where the offender is performing it, but also in the place where the witnesses to it are physically situated. I am not at all persuaded that Keir was correctly decided. But even if it was, Keir affords no support for the conviction in this case, since the appellant’s indecent act did not occur in a public place, even within the expanded meaning of Keir.” unquote

In Buhay the accused was charged under the predecessor to s. 173(1)(a). While standing in the front doorway to his house, he had exposed himself to two boys on the street. The trial judge acquitted Mr. Buhay on the ground that he had been charged under the wrong provision: while a lewd comment uttered by the accused in that case afforded sufficient evidence of his intent to insult or offend, warranting a conviction under the predecessor to s. 173(1)(b), the indecent act did not occur in a public place and was therefore not caught by what is now s. 173(1)(a).

The appellant (the masturbator) did not contest the trial judge’s finding that he committed an ‘indecent act’ within the meaning of s. 173(1)(a) of the Criminal Code. He conceded, at least implicitly, that masturbating in an illuminated room near an uncovered window visible to neighbours can be ‘indecent; within the meaning of that section.

The appellant contended however, that he did not wilfully commit this indecent act ‘in a public place in the presence of one or more persons’, as required by s. 173(1)(a). He raised three grounds: first, that his living room was not a ‘public place’ within the meaning of s. 173(1)(a); second, that the complainants were ‘surreptitiously watching him from beneath the blinds of a window in their own private bedroom some distance away’ — and, therefore, not ‘in his presence’, as likewise required by s. 173(1)(a); third, that he cannot be said to have wilfully committed an indecent act in the presence of anyone, since the trial judge found there was no evidence that he knew he was being observed.

Section 150 of the Criminal Code uses the word “access” in reference to a “place” — in this masturbating case, a private home. And my concern is with access to that place ‘as of right or by invitation’. In common usage, ‘access’ to a place to which one is invited or where one has a right to be, refers to entering, visiting or using that place — and not to looking or listening in from the outside. When we are told that someone has access, as of right or by invitation, to an apartment, a workshop, an office, or a garage, this does not include a mere opportunity or ability to look through a window or doorway and to see what is happening inside.

First, interpreting ‘public place’ in a manner consistent with physical as opposed to visual access; renders the whole of s. 173(1) more coherent. The offences under ss. 173(1)(a) and 173(1)(b) are circumscribed in distinct ways. Section 173(1)(a) prohibits indecent acts in public places, while s. 173(1)(b) prohibits indecent acts in any place — public or private — when they are committed with intent to insult or offend against public decency or order.

Parliament has distinguished in the Code between conduct that is criminal because it occurs in a public place and conduct that is criminal because it is exposed to public view. Section 173(1)(a), as we have seen, grounds liability in the fact that the prohibited act is committed in a public place. The offence of nudity is set out in section 174 of the Code:

(1) Every one who, without lawful excuse, (a) is nude in a public place, or (b) is nude and exposed to ‘public view’ while on private property, whether or not the property is his own, is guilty of an offence punishable on summary conviction.
Now under that law, if I had been lying nude in my own backyard, I would have committed an offence contrary to section 174 of the Code.

The key word here is ‘public view’. How do we define it? It is a place where the general public can actually see what is going on. It includes any private place such as a bar or one’s backyard.

It would have been easy however to circumvent the law by the wearing of some microscopic garment. The last paragraph of s. 2051)(a), a deeming provision, accordingly assimilated scantiness of dress to complete nudity provided that scantiness of dress was such as to offend against public decency or order.
This brings to mind a recent decision arrived at in the Superior Court in Bracebridge, Ontario. The appellant (Brian Coldin) had appealed his conviction in that court.

Brian Coldin likes to wear as little as possible and so, with nothing on but sandals and sometimes a necklace to hold his cell phone, he went about the banalities of living: strolling in a park, puttering about his property and enjoying the convenience of drive-through windows at the local A&W and Tim Hortons.

Police in Bracebridge, Ontario, 180 kilometres north of Toronto, charged Mr. Coldin with three counts of being nude in a public place and two counts of being nude while in view of the public while on private property after his unencumbered errands in 2008 and 2009. His lawyers argued that by charging Mr. Coldin when there was no evidence of a sexual or prurient motive or of actual harm, the state infringed on his Charter rights ensuring freedom of expression and liberty.

The businessman and avowed naturist had used his court fight against the charges to challenge the constitutionality of Canada's nudity laws, putting the legal imperative to cover the genitals as much on trial as Mr. Coldin's actions.

His lawyers argued. “Mr. Coldin is a naturist. As a naturist, he believes that being nude in nature fosters greater respect for self, for others and for the environment. He expresses his naturist beliefs by wearing as little clothing as is practical. By charging Mr. Coldin when there was no evidence of a sexual or prurient motive or of actual harm, the state infringed on his Charter rights ensuring freedom of expression and liberty.” unquote

Crown prosecutor Zachary Green balked at the notion. He said in part;

“The Charter does not confer a right to public nudity. Section 174 of the Criminal Code, which prohibits public nudity, protects citizens from those whose state of undress is such that it interferes with other people's use and enjoyment of public places.” unquote

While the constitutional arguments draw from case law, legal analysis and expert testimony, court also heard from people who saw Mr. Coldin on his travels. Eight witnesses described the encounter as creating fear, embarrassment or a reluctance to return to where they saw him. On May 8, 2009, it was Amanda Fernick's first day on the job working the window of a Tim Hortons drive-through in Bracebridge. She told court she leaned out to provide Mr. Coldin change and saw he was not wearing a shirt or pants and his genitals were visible. It rattled her and she walked away from the job. I think she is too sensitive. My immediate response to her actions is “Get a life.”

Four days later, Mr. Coldin was a passenger in a car with two other men, all naked, that pulled up to an A&W drive-through window. The clerk there, Jessica Cramer-Swift, was similarly startled. There was joking inside the car, as the men pretended to look for a wallet in their non-existent pockets, court heard.
Police were called. Mr. Coldin and the driver, John Cropper of Orillia, were both charged with public nudity.

In 1978, the Supreme Court of Canada ruled that ‘nude' does not mean 'shockingly bare,' or 'offensively bare,' it simply means 'completely bare,' without reference to public decency or order. It is an important point. Court heard that Mr. Coldin was wearing at least sandals during each encounter.

If the accused wears some small article of clothing, yet leaves the private areas exposed, he is not completely bare within the meaning of the statute and it could be argued that he is not guilty.

Whether someone's lack of clothing was offensive to public order, used to be decided by a ‘community standards of tolerance’ test, whereby residents of some communities may be more relaxed about such things than others. This was scrapped as being too subjective and now a harm based test is used.

The Supreme Court outlined that merely being an eyesore or eliciting disapproval is not enough. None of the witnesses, Mr. Coldin's lawyer elicited in cross-examination, sought counselling or required assistance.

Mr. Coldin claimed the law violates his Charter right to free expression and that because he was wearing sandals he wasn’t actually nude. Mr. Justice Jon-Jo Douglas didn’t agree with those arguments. The judge said in part in his decision on January 12th:

“A free and democratic society remains so only to the extent that the liberties exercised by each one of us are reasonably circumscribed by the responsibilities of each to one another. Requiring people to wear some modicum of clothing when in public is a reasonable limit.”

He later said;

“Even partial nudity could be against the law if it disturbed public order. Indecent partial dress is criminal. Decent partial dress is not.”

Many years ago while I was still I was practicing law before I retired, I was asked by a client to go into his tavern to watch his female waitresses who were nude except for the shoes they wore and determine in my own mind if they were breaking the law. I concluded that they were not breaking the law for two reasons. The first one was that they were wearing shoes therefore they weren’t actually entirely nude. But the second reason was equally interesting because I concluded that no one in the tavern was insulted or offended by being served beer by semi-nude waitresses where the customers could see everything other than the soles of their feet. The owner of the tavern was never charged and although the tavern later moved elsewhere, it still has partially naked women serving beer to its customers.

But in the case being heard by Justice Douglas, there were at east eight persons who felt insulted, offended and also disturbed at what they were seeing when Mr. Coldin and two of his buddies showed up in a public place nude other than wearing sandals.
There you have it. It is against the law if being nude in a public place if you’re being nude insults or offends people. But what about the thousands of people who participate in a nude-in on public streets? That has occurred in a number of cities and none of those people were charged with offences relating to their public nudity. Well for one thing, there is a public announcement that such a nude-in will take place at a certain street which will be set aside for such an event on a specific day Those kinds of people who would otherwise feel insulted, offended and disturbed at seeing so many naked men and woman of a city street, have the option of not being on that street during that event. This means that those who do watch the event, will not be insulted, offended or disturbed.

Justice Douglas saw the businessman’s actions differently. In his decision, he said in part;

“Defendant Coldin not only chooses to go unclothed, but clearly chooses to do so in places and in a manner that more or less ensures he will be confronting the clothed. Mr. Coldin displayed if not a sense of exhibitionism — then certainly some missionary zeal. He appears more interested in either asserting his right to do so or to somehow converting the clothed among us and is disconnected from the tenets of naturism, however fluid these may be.” unquote

I suppose Coldin could claim that he has the right to attempt to convert clothed people into becoming nudists and that any attempt by the authorities to prevent him from do that is in effect, contrary to his constitutional right to freedom of speech. At the time of the A&W arrest, he said, he and supporters were distributing posters promoting a nude protest rally to be held in front of the local Ontario Provincial Police detachment. If he had been clothed, then there would not have been a problem. He would have been able to exercise his right to free speech.

However, having the constitutional right to exercise free speech does not include insulting and offending and otherwise disturbing clothes people who have no interest in looking at the genitalia of men who have no qualms about displaying them in public.

Eight witnesses described the encounter with Coldin as creating fear, embarrassment or a reluctance to return to where they saw him. Just one complaint alone would be enough to convict this man.

Mr. Coldin was fined $3,000 and given two years’ probation during which he must refrain from public nudity outside of his resort.

Now if you won’t feel insulted, offended or disturbed, I am going to remove my clothes while in my study as it is very warm in that room. Since I am doing it in the privacy of my home and no one can see my genitalia, I know that the police won’t be coming to my door unless an earthquake comes and the walls of my house fall down and I am standing there in my room for everyone to see me in the buff. But even then, I would be acquitted because I wouldn’t be forming the criminal intent to insult, offend or disturb my neighbours while standing nude in all that rubble.

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