Laws of Desire: The Political Morality
of Public Sex
Elaine Craig*
In indecency cases, Canadian courts historically
employed a model of sexual morality based on the
communitys standard of tolerance. However, the
Supreme Court of Canadas recent jurisprudence
addressing the role of morality in the criminal law relies
upon, in order to protect, the fundamental values
enshrined in the Canadian constitution. This article
analyzes the Courts decisions in R. v. Labaye and R. v.
Kouri and demonstrates that these cases represent a
shift in the relationship between law and sexuality. The
author illuminates the possibility of a new approach by
the Court to the regulation of sex. Such an approach
allows for the legal recognition of pleasure behind,
beyond, or outside of legal claims regarding identity,
antisubordination,
and
conventional privacy rights. A new theoretical approach
to the legal regulation of sexuality recognizes the
importance and benefit of challenging mainstream
beliefs about sexuality and subverting certain dominant
sexual norms. Such an approach is firmly grounded in
the principles of liberalism that Labaye reflects.
relationship
equality,
En matire dindcence, les cours canadiennes ont
historiquement utilis un modle de moralit sexuelle
se basant sur la norme de tolrance de la socit.
Cependant, la jurisprudence rcente de la Cour suprme
du Canada sappuie sur les valeurs fondamentales
garanties par la Constitution canadienne, afin de les
protger. Cet article analyse les jugements de la Cour
dans R. c. Labaye et R. c. Kouri et dmontre que ces
affaires reprsentent une mutation du lien entre le droit
et la sexualit. Lauteure expose la possibilit dune
nouvelle approche de la Cour quant la rgulation des
relations sexuelles. Une telle approche permettrait la
reconnaissance judiciaire du plaisir au-del et hors des
revendications touchant lidentit, lanti-subordination,
lgalit des relations et le droit la vie prive. Une
nouvelle approche thorique la rgulation de la
sexualit reconnat limportance et les bnfices de
dfier les croyances majoritaires concernant la sexualit
et de subvertir certains normes dominantes en matire
de sexualit. Une telle approche est fortement base sur
les principes de libralisme qui transparaissent dans
Labaye.
* J.S.D. candidate (Dalhousie Law School) and Trudeau Foundation Scholar. I would like to thank
Ronalda Murphy for suggesting I write this paper, for contributing immensely to the concepts and
arguments developed herein, and for tirelessly reviewing and editing numerous earlier drafts. I would
also like to thank Leslie Green, Richard Devlin, Sheila Wildeman, Heather Hennigar, and the editors
of the McGill Law Journal for invaluable comments on an earlier draft. I would like to acknowledge
the generous financial support provided by the Social Sciences and Humanities Research Council of
Canada and the Trudeau Foundation during the researching and writing of this article.
Elaine Craig 2009
To be cited as: (2009) 54 McGill L.J. 355
Mode de rfrence : (2009) 54 R.D. McGill 355
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Foreword: A Swingers Guide to Montreal
Introduction
I. The Constitution as Custos Morum
A. A Standard of Tolerance for the Community
B. McLachlins Hart of the Community Versus the
Devlin Is in the (Sexual) Details
II. Tolerance, Iconoclastic Sex, and Common Goods
A. Tolerating Group Sex
B. The Liberated Couple: An (Anti-)Icon to Come?
C. Laws of Desire
Conclusion
357
357
360
360
362
371
372
375
379
384
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E. CRAIG THE POLITICAL MORALITY OF PUBLIC SEX
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Foreword: A Swingers Guide to Montreal
The bouncer at Cur Corps will not let you in unless you answer in the
affirmative when he asks if you and your companion are a liberated couple. Once
inside, Cur Corps offers a modest bar and dance floor. [E]very half hour a black
translucent curtain automatically closes around the dance floor at which time the disc
jockey playsfor 8 to 12 minuteslascivious musical pieces. During these periods
… the dance floor fill[s] up with people … [who engage] in sexual acts, ranging from
caresses to masturbation.1 On a busy night you can expect between sixty and one
hundred people on the dance floor at any given time.2 Dont forget the cover charge.
Its six dollars per person. Cash only, folks.
For those who like to fly (or rather swing) solo, Cur Corps isnt the
establishment for you. The rule is couples only at Cur Corps. So single swingers
might consider the club LOrage instead. LOrage is a private club with an annual
membership fee that accepts both couples and singles. It is open to members and their
guests only. What LOrage lacks in decorit consists of [a] number of mattresses …
scattered about the floor of the apartment3it makes up for in terms of sexual
opportunity. Two doors separate access to the third floor from the rest of the bar, one
marked Priv and the other locked with a numeric keypad which only members can
open. This makes a lot of what goes on at LOrage much more involved than what
is usually available at Cur Corps.4
Oh, and one last thing. You need not worry anymore about police raids at either
LOrage or Cur Corps. In 2005, the Supreme Court of Canada refined the
definition of indecency under the Criminal Code and quashed bawdy-house
convictions against the proprietors of these establishments.5
Introduction
Both R. v. Labaye and R. v. Kouri concerned charges against the proprietors of
establishments alleged to be bawdy houses. As defined under section 197 of the
Criminal Code, a common bawdy house is a place that is kept or occupied, or
resorted to … for the purpose of prostitution or for the practice of acts of indecency.6
Counsel for both Mr. Labaye and Mr. Kouri argued that the acts occurring in these
establishments were not indecent under the criminal law. As such, both cases turned
1 Kouri v. R., [2004] R.J.Q. 2061, 191 C.C.C. (3d) 42 at paras. 10-11, affd 2005 SCC 81, [2005] 3
S.C.R. 789, 260 D.L.R. (4th) 643 [Kouri].
2 Taken from the facts as described by Otis J.A. at the Quebec Court of Appeal in Kouri, ibid.
3 R. v. Labaye, 2005 SCC 80, [2005] 3 S.C.R. 728 at para. 7, 260 D.L.R. (4th) 595 [Labaye].
4 Taken from the facts as described by McLachlin C.J.C. in Labaye, ibid.
5 Labaye, ibid.; Kouri, supra note 1.
6 R.S.C. 1985, c. C-46.
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on the statutory interpretation of the term indecent.7 The cases were differentiated
mainly by the extent to which their activities were publicly accessible. In Labaye, the
issue was whether or not the activities of a private members sex club were indecent
under the Criminal Code. Similarly, the issue in Kouri was whether or not the
activities occurring at Cur Corps, as a non-members club, constituted acts of
criminal indecency.
Justice Otis, in her Court of Appeal of Qubec decision quashing the trial courts
bawdy house conviction of James Kouri,8 stated that [b]etween the aesthetic canons
of Alberoni eroticism and the sexual disarray expressed by Houellebecq, in Les
particules lmentaires, there is a gulf which the State cannot force citizens to cross
in the name of moral conformity and behavioural normality.9 The normative
assertions about sexual morality that Justice Otis suggests by her juxtaposition of
Alberonis description of falling in love as the nascent state of a collective
movement involving two individuals10 with the sexual promiscuity of Houellebecqs
characters in The Elementary Particles11 are enormous. But Justice Otis allowed the
appeal and acquitted Mr. Kouri. She did so on the basis that sexual morality is, first
and foremost, the result of the responsibility which human beings assume towards
[themselves]12 and that … Canadian society, which is pluralist and tolerant, does not
condemn sexual modes of expression [that] are not a source of social harm and
are not offensive.13 Justice Otis decision was affirmed by the Supreme Court of
Canada.14
Similarly, in Labaye, the majority of the Court allowed the appeal of Mr.
Labayes bawdy house conviction on the ground that the acts occurring at LOrage
did not constitute indecent acts under the Criminal Code.15 The majority opinion,
7 Neither case involved a constitutional challenge to the bawdy house provisions of the Criminal
Code.
8 James Kouri was the owner and operator of Cur Corps.
9 Kouri, supra note 1 at para. 51.
10 Falling in Love, trans. by Lawrence Venuti (New York: Random House, 1983) at 3. (Falling in
love is a formative state; scientifically it may be termed nascent meaning in more common language
that it is the ignition state of a special collective movement made up of solely two individuals at 5).
11 Trans. by Frank Wynne (New York: Alfred A. Knopf, 2000). Houllebecqs novel is bleak and its
message seems to be, in part, that sex in his modern society is not a good thing. The fact that Justice
Otis locates love and not simply a more positive account of sex itself on the other side of her gulf has
normative content.
12 Kouri, supra note 1 at para. 51. (Editors note: The English version of the court of appeals
judgment, as reprinted in 191 C.C.C. (3d) 42, translates the original envers elles-mmes as towards
each other. However, towards themselves is likely a more accurate translation in this context.)
13 Ibid. Admittedly, it may beg the question somewhat to premise a definition of indecency on what
is or is not offensive.
14 Labaye, supra note 3.
15 The Court heard Labaye and Kouri on the same day, and relied upon the revised legal test for
indecency established by the majority in Labaye to uphold the acquittal in Kouri. The Court treated
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written by Chief Justice McLachlin, determined that only activities which pose a
significant risk of harm will be considered indecent.16 This type of harm must be
contrary to the norms which our society has recognized in its Constitution or similar
fundamental laws, and incompatible with proper societal functioning.17 The group
sex occurring at LOrage was not found to interfere with societys functioning or to
perpetuate serious social harm.
In response to the majoritys refinement of the test of indecency under the
Criminal Code, the dissent in Labaye stated: We are convinced that this new
approach strips of all relevance the social values that the Canadian community as a
whole believes should be protected.18 Did the dissent exaggerate the potential impact
of this decision? Has the Courts majority decision in Labaye relegated our public sex
laws to some sort of normative wasteland in which the state has no recourse to
morality-based policies or actions?
In fact, Chief Justice McLachlins majority decision does invoke an order of
morality. The decision of the Supreme Court of Canada in Labaye very much
establishes an understanding of the regulation of public sex based on moral and
ethical convictions. However, it is grounded in fundamental social, legal, and political
(liberal) valuessuch as autonomy and tolerancerather than in sexual morality. So
which values are necessary for the maintenance of the kind of society cherished by
Canadians? Chief Justice McLachlin relies upon, in order to protect, the fundamental
ethical and social considerations enshrined in the constitution and she does so in a
manner which continues to recognize the importance of community and collective
interests without subjugating minority desires to majoritarian sexual morality.
The structure of Chief Justice McLachlins reasoning in Labaye is implicitly
supported by certain theories of liberalism, such as Ronald Dworkins theory of
liberal equality.19 While relying on principles of liberalism, the majority decision also
responds indirectly to the dissent by emphasizing certain common interests protected
by the principles underpinning the constitution. Some of these interests are
exclusively founded on individual rights; others, as will be discussed in Part II, are
interests that can only be experienced collectively. Labaye represents a shift in the
relationship between law and sexuality, and it illuminates the possible emergence of a
new approach by the Supreme Court of Canada to the regulation of sexan
approach which allows for the legal recognition of pleasure behind, beyond, or
outside of legal claims regarding identity, antisubordination, relationship equality,
and conventional privacy rights. On a theoretical level, Labaye suggests the
these cases as companion cases. Except where otherwise indicated, references to Labaye throughout
this article can be assumed to refer also to the analysis in Kouri.
16 Labaye, supra note 3 at para. 30.
17 Ibid. at para. 29.
18 Ibid. at para. 98.
19 See below for a discussion of Dworkins theory of liberal equality.
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possibility of an approach to the legal regulation of sexuality which recognizes the
importance of challenging mainstream beliefs about sexuality or subverting certain
dominant sexual norms, while maintaining an analysis firmly grounded in principles
of liberalism.
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I. The Constitution as Custos Morum
The dissent in Labaye suggests that the majority decision strips the Canadian
public of the meaning of those social values that it holds most dear. The following
section will demonstrate that the majoritys decision can actually be read as very
much an attempt to give meaning to and protect (to use the dissents words) those
social values that the Canadian community as a whole believes should be
protected.20
A. A Standard of Tolerance for the Community
In further advancing a long line of jurisprudence which has attempted to develop
objective legal criteria to define indecency and obscenity, Chief Justice McLachlin
founded her reasoning in Labaye on the premise that harm is an essential ingredient
of indecency. In doing so, she determined that a communitys standard of tolerance
would no longer be a salient consideration in determining whether a sexual practice
causes harm of the sort that ought to be criminalized.21
Prior to the mid-twentieth century, the common law test for indecency and
obscenity focused on whether the material or activity at issue would tend to deprave
and corrupt other members of society.22 As Chief Justice McLachlin notes in Labaye,
this test stood for almost a century before the Supreme Court of Canada in R. v.
Brodie, emphasizing the need for more objective criteria which wouldnt permit an
adjudicator to rely upon his own sexual morality, adopted a definition of indecency
based on the communitys standard of tolerance for sexually explicit material.23
However, the community standard of tolerance test adopted in Brodie was still
considered difficult to apply in an objective fashion, so it was eventually revised in R.
v. Towne Cinema Theatres Ltd. to incorporate a notion of harm.24
In Towne Cinema, the Court held that there are two ways to establish that
material is obscene: (1) by showing that the material violates a norm of what
Canadians would tolerate other Canadians viewing or doing, or (2) by showing that
20 Labaye, supra note 3 at para. 98.
21 In R. v. Mara, the Court affirmed that the test for indecency is the same as the test for obscenity.
Unless otherwise indicated, references to obscenity can be assumed to also refer to indecencyand
vice versa ([1997] 2 S.C.R. 630, 148 D.L.R. (4th) 75 [Mara]).
22 See R. v. Hicklin (1868), L.R. 3 Q.B. 360.
23 [1962] S.C.R. 681, 32 D.L.R. (2d) 507 [Brodie].
24 [1985] 1 S.C.R. 494, 61 A.R. 35 [Towne Cinema].
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the material would produce a harmful effect on others in society.25 Following Towne
Cinema, in R. v. Butler, the Court directly incorporated the notion of harm into the
community standard of tolerance test: The courts must determine as best they can
what the community would tolerate others being exposed to on the basis of the degree
of harm that may flow from such exposure.26 In other words, what the community
would tolerate others doing or seeing was to be determined based on how much harm
an act or sexually explicit depiction posed. The majority in Labaye suggested that
legal test for obscenity evolved from a community standards test to a harm-based one,
starting with Towne Cinema and culminating in the Courts decisions in Butler and
Little Sisters Book and Art Emporium v. Canada (Minister of Justice).27
Chief Justice McLachlin determined in Labaye that the type of harm identified in
Butler (that being conduct which society formally recognizes as incompatible with
its proper functioning28), must be assessed not by community standards of tolerance,
but rather by those norms which our society has formally recognized in the
constitution or similar fundamental laws:
The inquiry is not based on individual notions of harm, nor on the teachings of
a particular ideology, but on what society, through its fundamental laws, has
recognized as essential. Views about the harm that the sexual conduct at issue
may produce, however widely held, do not suffice to ground a conviction. This
is not to say that social values no longer have a role to play. On the contrary, to
ground a finding that acts are indecent, the harm must be shown to be related to
a fundamental value reflected in our societys Constitution or similar
fundamental laws … Unlike the community standard of tolerance test, the
requirement of formal recognition inspires confidence that the values upheld by
judges and jurors are truly those of Canadian society. Autonomy, liberty,
equality and human dignity are among these values.29
What Chief Justice McLachlin suggests in Labaye is that the criminal law, when
considering or upholding social values, ought to rely upon those values which the
whole society agrees uponnamely, those values reflected in the constitution or
other fundamental laws. Despite the fact that Labaye did not involve a constitutional
challenge but rather a matter of statutory interpretation, the definition of indecency
that Chief Justice McLachlin ultimately adopts turns on constitutional law. However,
given the structure (and premise) of her reasoning, it makes sense that Chief Justice
McLachlin incorporates the constitution into her definition of indecency. In essence,
25 Ibid.
26 [1992] 1 S.C.R. 452 at 485, 89 D.L.R. (4th) 449 [Butler].
27 2000 SCC 69, [2000] 2 S.C.R. 1120, 193 D.L.R. (4th) 193 [Little Sisters]; Labaye, supra note 3 at
para. 21. The dissent disagreed.
28 Butler, supra note 26 at 485.
29 Labaye, supra note 3 at para. 33 [emphasis added].
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her reasoning relies upon, in order to protect, the fundamental ethical and social
considerations enshrined in the Canadian constitution.30
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B. McLachlins Hart of the Community Versus the Devlin Is in the
(Sexual) Details
Responding to Chief Justice McLachlins reasoning, the dissent in Labaye
commented that the existence of harm is not a prerequisite for exercising the states
power to criminalize certain conduct. The existence of fundamental social and ethical
considerations is sufficient.31 Despite this statement, the dispute between the
majority and the dissent in Labaye is not actually over whether social values ought to
play a role in making or enforcing indecency lawsboth adopt reasoning that turns
on an application of social values. Their disagreement is over which social values to
rely upon and what role they ought to play in defining indecency.
Whereas the majoritys reasoning turns on the sexual restrictions and standards a
society can legitimately impose on its members without compromising broader
ethical convictions as articulated by the constitution, the dissent depends on the
justices perception and interpretation of what sexual mores the majority of Canadians
have adopted. This is why the dissent endorses a strikingly quantitative approach to
sexual morality. In defining indecency, the dissent suggests that use can be made of
factual evidence, such as surveys, reports or research regarding Canadians sexual
practices and preferences, and their attitudes toward and levels of tolerance of sexual
acts in various contexts.32 It is also the reason why the dissent suggests that, contrary
to the majoritys opinion, the communitys standard of tolerance remains a salient
consideration in identifying acts of indecency, and that serious harm is not the sole
criterion for determining what the Canadian community will tolerate.33 The dissent
makes this argument on two bases. Firstly, they suggest that morality for the sake of
moralityand here they are referring to majoritarian sexual moresshould be
permitted to play a role in defining the states power to criminalize conduct,
30 McLachlin C.J.C. refers to both the constitution and other similar fundamental laws to inform her
definition of indecency. While she does not specify what these sources might be, presumably they
would include quasi-constitutional laws such as the Canadian Bill of Rights, R.S.C. 1960, c. 44C-12.3,
the Canadian Human Rights Act, R.S.C. 1985, c. H-6, and provincial human rights codes.
31 Supra note 3 at para. 104 [references omitted]. As discussed below, the theoretical foundation for
the dissent is consistent with the approach adopted by Lord Devlin regarding the states right to
criminalize consensual sodomy. See Patrick Devlin, The Enforcement of Morals (London: Oxford
University Press, 1965).
32 Labaye, ibid. at para. 86.
33 Ibid. at para. 97. In this respect, the majority and the dissent are quite far apart. Not only does the
dissent argue that harm is not now and should not become the sole criterion for determining the
standard of tolerance, they also do not agree with the majoritys assertion that Butler suggests
otherwise.
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regardless of whether there is an associated harm.34 Secondly, and perhaps
alternatively, they suggest that activity which is inconsistent with the communitys
sexual morality in and of itself causes harm to the communitys political morality.35
They argue, in other words, that there is always a harm associated with transgressions
of those sexual values held by most Canadians. The former argument concerns issues
of the criminal laws legitimacy and its theory of harm. The latter combines these
concerns over legitimacy and harm with an argument about the significance and role
of community in the maintenance of political morality.
To fully understand the nature of social harm contemplated by the Court, it is
useful to turn to R. v. Malmo-Levine; R. v. Caine, which provides a contextual
background to Labaye and Kouri.36 Malmo-Levine involved a challenge to the
criminalization of marijuana based on section 7 of the Canadian Charter of Rights
and Freedoms.37 In this case, the Supreme Court of Canada rejected the argument that
the harm principle is a tenet of fundamental justice. They determined that while the
presence of harm to others may justify legislative action under the criminal law, the
absence of proven harm does not create an unqualified section 7 barrier to
criminalization. Two important points on this issue should be noted. First, the harm
principle referred to in Malmo-Levine was more akin to the principle as it was
conceived by John Stuart Mill than was the harm principle adopted by the Labaye
majority.38 Second, the claim that the harm principle is a tenet of fundamental justice
and, therefore, a precursor to the use of the criminal law, is related but not identical to
the assertion that some version of the harm principle is the right principle of
interpretation to establish the legal definition of a socially or culturally constructed,
and value-laden, concept such as indecency. Indeed, the Supreme Court of Canada
recognized the validity of this assertion in Butler by incorporating the notion of harm
directly into the community standard of tolerance test.
34 They cite as examples of such: child pornography, incest, polygamy, and bestiality (Ibid. at
para. 109). Whether or not each of these sexual offences has an associated social harm of the type
contemplated by the majority is debatable.
35 Ibid. at para. 109. The dissent argues that [t]here is also harm where what is acceptable to the
community in terms of public morals is compromised. The term public morals refers to sexual
morality. In this context, the word public refers to a quantitative, not qualitative, view of morality.
The concept of harm, or what constitutes harm, is a dilemma the criminal law has always faced. In the
context of indecency, the issue becomes what to base assessments of harm onpolitical morality or
sexual morality?
36 2003 SCC 74, [2003] 3 S.C.R. 571, 233 D.L.R. (4th) 415 [Malmo-Levine].
37 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
38 See J.S. Mill, On Liberty and Considerations on Representative Government, ed. by
R.B. McCallum (Oxford: Basil Blackwell, 1946). Although the dissent in Labaye argues that the
majority relies on John Stuart Mills harm principle (supra note 3 at para. 105), the theory of harm put
forward by McLachlin C.J.C. in Labaye differs from Mills original principle. Her theory of harm
includes attitudinal harm to others and harm to the participants (ibid. at paras. 45-47). It is in this sense
much more accommodating to the use of criminal law.
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Whether morality for the sake of morality is a legitimate foundation for the
criminalization of particular sexual acts has been a matter of considerable debate and
the focus of a great deal of academic literature.39 Indeed, the issue as to what extent
morality ought to be embedded in the criminal law produced the famous mid-
twentieth century exchange between Lord Devlin and H.L.A. Harta debate which
continues today.40 At first blush, the disagreement between the majority and minority
in Labaye might be characterized simply as a reiteration (or manifestation) of the
Hart/Devlin debate. Closer examination reveals that while the dissenting opinion does
mirror Devlins position, the same is not as true when comparing Chief Justice
McLachlins reasoning with Harts position.
Lord Devlin argued that in the interest of self-preservation, a society must be
allowed to coercively restrict sexual conduct that threatens valued social institutions
and that is contrary to the personal sexual morality of most members of society.41
Society, he argued, has a right to enforce certain moral convictions so as to preserve
the particular social environment desired by the majority of its members. Devlins
concern, one shared by the dissent in Labaye, was that without the ability to
criminalize conduct that transgressed those personal morals held by the majority of
citizens, the moral fibre of a society would crumble.42 This same rationale is the basis
for the Labaye dissents suggestion that if the criminal law fails to incorporate the
community standard of tolerance test, the values considered worthy of protection by
the Canadian community as a whole will be stripped of any relevance.43 Upholding
personal morals in the criminal law also grounds the connection the dissent makes
between community views on sexuality and social order.44
Hart responded to Devlins argument by suggesting that in the criminal law, a line
between private and public conduct must be maintained and that without some
associated and provable harm, it would be illiberal for the state to prohibit certain
39 See e.g. Stuart Hampshire, ed., Public and Private Morality (Cambridge: Cambridge University
Press, 1978); Ronald Dworkin, Freedoms Law: The Moral Reading of the American Constitution,
(Cambridge: Harvard University Press, 1996) [Dworkin, Freedoms Law]; Joseph Raz, Ethics in the
Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994). For a
cultural feminist analysis of gendered sexual harm see Robin West, Caring For Justice (New York:
New York University Press, 1997); contra Janet Halley, The Politics of Injury: A Review of Robin
Wests Caring for Justice, online: (2005) 1 Unbound: Harvard Journal of the Legal Left 65
40 See Devlin, supra note 31; H.L.A. Hart, Law, Liberty, and Morality (Stanford: Stanford
University Press, 1977). Their debate was over the Wolfenden Reports recommendation to
decriminalize homosexuality (U.K., H.C., Report of the Committee on Homosexual Offences and
Prostitution, Cmnd 247 in Sessional Papers, vol. 14 (1956-57) 85). See also H.L.A. Hart, The
Morality of the Criminal Law: Two Lectures (Jerusalem: Hebrew University Press, 1965).
41 Devlin, supra note 31.
42 Ibid. at 13.
43 Labaye, supra note 3 at para. 103.
44 Ibid. at para. 108.
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behaviour simply on the basis that the majority is against it.45 He argued that there is
no empirical evidence to suggest that the separation of law and morality would lead
to social decay. There is a distinction, he suggested, between morally driven decisions
regarding the severity of punishment for a certain act (which may be acceptable) and
morally driven decisions to punish that act in the first place (which are not
acceptable). Ultimately, the enforcement of morality for the sake of morality is
illiberal. Moreover, he contended, morality cannot be instantiated through law.
According to Hart, legally coerced morality, or legal moralism, is of no value as a
foundational principle of the criminal law.46
Chief Justice McLachlins approach differs from Harts approach in that she does
endeavour to instantiate moralitypolitical moralitythrough law.47 Hart, relying on
utilitarian theory, distinguished between positive morality and critical morality to
question the role of morality in the law. Positive morality referred to the morality
actually accepted and shared by a given social group.48 Critical morality referred to
the general moral principles used in the criticism of actual social institutions
including positive morality.49 For Hart, therefore, the question is one of the critical
morality about the legal enforcement of positive morality.50
In Labaye, Chief Justice McLachlin instantiates political morality in the law by
interpreting the bawdy house provision of the Criminal Code on the basis that
principles of critical morality are a positive morality. In other words, for Chief Justice
McLachlin, critical morality is a positive morality. The distinction may not be
surprising given the different constitutional traditions in which Harts work and Chief
Justice McLachlins jurisprudence are situated. The values Chief Justice McLachlin
affirms are tolerance and respect for autonomy. She rejects the community standard of
tolerance test and establishes in its place a new standard of tolerance: a standard
required by the constitution of the community. Chief Justice McLachlin does not
jettison morality for moralitys sake from the criminal law. She acknowledges that
harm to values can, in and of itself, constitute the sort of harm that ought to be
prohibited by the criminal law. But she limits the type of values to which she refers;
she relies on ethical values which could serve as a common ground for the resolution
of other, less agreed-upon values. Namely, those values so cherished by Canadian
society that they have been constitutionally entrenched.
45 Hart, Law, Liberty and Morality, supra note 41 at 20-21.
46 Ibid.
47 Hart noted that he would not unequivocally defend Mills anti-paternal harm principle. While he
did think that there may be grounds justifying the legal coercion of the individual other than the
prevention of harm to others, he strictly limited such interference to either physical paternalism
preventing individuals from harming themselvesor provable harm to something beyond morality
(ibid. at 5). Hart considered any principle requiring a lower standard of harm to be a form of legal
moralism.
48 Ibid. at 20.
49 Ibid.
50 Ibid.
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While Chief Justice McLachlins approach to the role of morality in criminal law
differs in this respect from that suggested by Hart, it does find support in the political
theory of one of Harts students. The structure of her reasoning is very consistent with
Ronald Dworkins theory of liberal equality, as well as Dworkins own position on
the role of morality in the criminal regulation of sex.51
Dworkins theory is premised on the argument that a state is only legitimate if it
shows equal concern for the fate of all the citizens over whom it claims dominion.52
He identifies two principles of human dignity that dominate his notion of equal
concern. The principle of intrinsic value suggests that it is objectively important
that human lives be successful rather than wasted and that this is equally important
for each human life.53 The principle of personal responsibility suggests that people
are responsible for making their own choices about what type of life to live, and that
the state ought not to make ethically based distinctions between what is or is not a
good choice.54 Dworkin acknowledges, however, that despite these two principles, it
is impossible for people to engage in political debate completely outside the realm of
their deeply held personal convictions.55 He suggests that, as a result, we must
identify widely shared ethical principles of dignity and personal responsibility and
then resolve our conflicting political principles by determining which policies or
political structures are more securely grounded in those fundamental ethical
convictions that are shared by all or most.56
In knitting together his two principles of human dignity with the ethical
conviction that the value of a good life lies in the inherent value of a skillful
performance of living, Dworkins theory of liberal equality attempts to maintain a
link between personal ethics and political values while honouring the overriding
liberal principle of state neutrality between conceptions of the good. If one ascribes to
51 Ronald Dworkin, Lord Devlin and the Enforcement of Morals (1966) 75 Yale L.J. 986;
Dworkin, Freedoms Law, supra note 39 at 221.
52 Ronald Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate
(Princeton: Princeton University Press, 2006) [Dworkin, Is Democracy Possible Here?]; Ronald
Dworkin, Sovereign Virtue (Cambridge: Harvard University Press, 2000).
53 Dworkin, Is Democracy Possible Here?, ibid. at 9; Dworkin, Sovereign Virtue, ibid. at 5.
54 Dworkin, Is Democracy Possible Here?, ibid. at 10. See also Ronald Dworkin, Liberalism in
Stuart Hampshire, ed., Public and Private Morality, supra note 39, 113 at 127.
55 Is Democracy Possible Here?, ibid. at 104. Dworkin departs from the sort of pure political
liberalism described by John Rawls. See John Rawls, A Theory of Justice (Cambridge: Harvard
University Press, 1971). It may be that Rawls has, in his later work, departed somewhat from such a
strict separation. See e.g. The Basic Liberties and Their Priority in Stephen Darwall, ed., Equal
Freedom: Selected Tanner Lectures on Human Values (Ann Arbor: University of Michigan Press,
1995) 105.
56 Is Democracy Possible Here?, ibid. Dworkin suggests that the tolerance and neutrality demanded
by liberalism do not arise simply from the need to separate the right from the good, but from an
understanding of the gooda model of ethics. See also Ronald Dworkin, Foundations of Liberal
Equality in Darwall, ed., ibid., 190 at 195 [Dworkin, Foundations of Liberal Equality].
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the challenge model of ethics57 and accepts Dworkins principles of human dignity,
then, he asserts, one must believe that a just society is a condition of a good life for
the individuals who live within it.58 In a nutshell, this is Dworkins theory of justice.
He arrives at this account of justice by privileging the notion of autonomy. Autonomy
(more specifically, the equal distribution of autonomy) is both the foundation and
structure of Dworkins theory of liberal equality. His liberal ethical system is not
premised on the overarching and assumed value of a particular type of life, but rather,
it is premised on a particular way of living: the performance of living autonomously.
In what respect does Dworkins theory inform the reasoning adopted by Chief
Justice McLachlin in Labaye? Dworkin recognizes the need to appeal to ethical
convictions of a more general nature in an effort to garner broader appeal or greater
consensus. Similarly, Chief Justice McLachlin relies on more general convictions to
justify the majoritys decision. In the same way that, for Dworkin, autonomy serves as
both the foundation and the structure of his theory of liberal equality, Chief Justice
McLachlin relies upon, in order to protect, the fundamental values enshrined in the
constitution.59 This move is well demonstrated by comparing the reasoning of the
majority opinion to the dissent in Labaye.
There is a distinction made by Chief Justice McLachlin in her majority opinion
that is absent from the dissenting opinion of Justices Bastarache and LeBel. The chief
justice distinguishes between societal and private morality, or what Dworkin would
describe as third person ethics and first person ethics. She begins her decision by
stating that Canadian law on indecent acts, from its origins in the English common
law, has been firmly anchored in societal rather than purely private moral concerns.60
Contrary to the dissents suggestion, the majority decision is based on fundamental
57 Dworkins modelwhat he describes as the challenge model of ethicssuggests that the value of
a good life lies in the inherent value of a skillful performance of living. It is related to the ethical
conviction that what individuals perceive as important or valuable to leading their lives is what is
important or valuable in leading their lives (Dworkin, Foundations of Liberal Equality, ibid.).
58 Ibid. at 195.
59 McLachlin C.J.C. engages this same sort of two-step synthesis in other contexts as well. See e.g.
Rt. Hon. Beverley McLachlin, Freedom of Religion and the Rule of Law: A Canadian Perspective
in Douglas Farrow, ed., Recognizing Religion in a Secular Society (Montreal: McGill-Queens
University Press, 2004) 12 at 29. The chief justice attempts to reconcile the tension between freedom
of religion and the rule of law (what she describes as a dialectic of normative commitmentstwo
different, and at times competing, comprehensive systems of belief) by relying upon Charles Taylors
distinction between goods and hyper-goods. According to Taylor, hyper-goods, or core values, are
those from which all other normative positions are judged. See Sources of the Self: The Making of the
Modern Identity (Cambridge: Harvard University Press, 1989) at 63. McLachlin C.J.C. suggests that
on a societal level, the constitution articulates these goods and hyper-goods. She suggests that the
Charter has articulated freedom of religion as one of our societys goods but that we must also look to
the values (hyper-goods) that freedom of religion protects, these values being autonomy, human
dignity, and respect for the parallel rights of others. This same structure of reasoning is apparent in
Labaye when the majority refers to religion (supra note 3 at para. 34).
60 Labaye, ibid. at para. 15.
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social and ethical considerations: the social and ethical considerations applied in the
majority decision are so fundamental to the morality of Canadians that they are
entrenched in the constitution.
Recall that Dworkin proposes a principle derived from instincts and convictions
about the character and ends of human life that seem particularly congenial to liberal
political principles … [and that] already form the central part of how many of us
imagine living well.61 Dworkin seeks an ethical conviction that could serve as
common ground for the resolution of other, less agreed-upon principles. Chief Justice
McLachlins decision in Labaye, and in particular her reliance on the principles
underpinning the constitution, does precisely this.62
It seems then that Chief Justice McLachlin agrees with the dissents first
argumentthat the scope of harm which the criminal law may target should include
moral harm. The discrepancy lies with what type of morality the criminal law ought
to enforce. The majority determines that it ought to prevent harm to fundamental
values and enforce political morality, not sexual morality. As noted above, however,
the dissent argues that activity inconsistent with the communitys sexual morality in
and of itself causes harm to Canadas fundamental values. This argument is centred
on the definition of harm under the criminal law and is akin to Devlins argument
about community. The argument suggests that harm occurs to the community as a
whole, even if no individual is directly harmed, when the first person ethical
convictions or personal moralities of most people in the community are transgressed
by a minority of people who do not hold such convictions. The dissent argues in
favour of the community standard of tolerance test for indecency on the basis that it is
a product of the values characteristic of the entire community.63 They contend that
indecency may occur even in private where there is no harm to anyone, including the
participants; they do so based on the assertion that indecency laws are about what
Canadians would not abide other Canadians doing.64 Presumably, the argument is
premised on the conviction that a society is more than the sum of its individual parts
and that the value in this collectivitythe gestalt of a societycannot be protected
simply by upholding (in whatever form) the rights of a societys individual members.
Can harm be caused simply by the contravention of those sexual mores that are
dominant in a society? If so, does the majoritys decision overlook, or fail to protect
us from, harm of this sort? One liberal response to this question is to justify such
harm as the cost of freedom. This is Dworkins response to the tension between
freedom of speech and protection of womens equality rights in the pornography
61 Dworkin, Foundations of Liberal Equality, supra note 56 at 207.
62 Conversely, the dissent does not resort to the constitution or more general social values to
establish their analytical approach. Instead they discuss one particular value at length: public (or
majoritarian) morality concerning sex.
63 Labaye, supra note 3 at para. 85.
64 Ibid. at para. 101 [emphasis added].
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debate.65 He suggests that in the face of such tensions, a difficult political choice has
to be made and the American constitution reflects a choice to privilege liberty (to be
more specific, negative liberty). However, the Canadian constitutional tradition does
not privilege liberty to the same extent.66 Regardless, this argument does not
adequately capture the essence of Chief Justice McLachlins reasoning in Labaye.
Her divergence from a purely negative liberty argument is clearly demonstrated by
two aspects of her decision. First, the values she identifies include dignity and
equality in addition to liberty and autonomy. Second, and more significantly, she
identifies three distinct types of harm that threaten these values: harm to the liberty of
those involuntarily confronted with and offended by sexual displays, harm to the
individual participants, and the harm of predisposing individuals to anti-social
behaviour. This last category subsumes the notion of attitudinal harm, which occurs
when degrading images diminish the publics respect for certain groups.67 Protecting
against the possibility of attitudinal harm would not fit well within a cost-of-freedom
claim.68
A liberty claim about the cost of freedom does respond to community-oriented
critiques, but it remains a rights-based claim that inevitably privileges the individual.
Under such a claim, the value of community is located in the fact that individuals can
form a cohesive unit to protect individual autonomy. Therefore, autonomy remains
the foundation for human flourishing. This type of liberty claim is in fact a social
contracttype claim about the laws legitimacy, under which the individualthrough
the concept of rightsremains paramount.69 Labaye and Kouri, however, do not truly
65 See Dworkin, Freedoms Law, supra note 39. Dworkin responds to both the positive liberty and
the equality arguments in favour of censorship made by anti-pornography feminist Catherine
MacKinnon. He argues that [f]reedom of speech, conceived and protected as a fundamental negative
liberty, is the core of the choice modern democracies have made, a choice we must now honor in
finding our own ways to combat the shaming inequalities women still suffer (ibid. at 221). In a more
direct response to communitarian arguments, Dworkin suggests that many of these purported sexual
morals are not actually morals at all. They are prejudices, or ill-considered regurgitations of other
peoples sexual convictions, and it is only the failure to enforce actual ethical convictions that
threatens society in the manner envisioned by Lord Devlin (Lord Devlin and the Enforcement of
Morals, supra note 51 at 1001).
66 One example of this distinction between the Canadian and American constitutional traditions is
found in their differing approaches to issues such as the criminal regulation of sodomy. In Canada,
legal claims regarding sodomy are likely to be framed as (and succeed under) arguments of equality.
See e.g. R. v. M.(C.) (1995), 23 O.R. (3d) 629, 41 C.R. (4th) 134 (C.A.) (holding that a higher age of
consent for anal sex than for vaginal sex violated section 15 of the Charter). In the United States,
similar issues are more likely to be framed as (and succeed under) arguments of sexual liberty and
rights to privacy. See Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003) (striking down state
sodomy laws under the due process clause of the Fourteenth Amendment).
67 Labaye, supra note 3 at paras. 36-51.
68 See e.g. Dworkin, Freedoms Law, supra note 39 at 222. Dworkin dismisses this claim as a
legitimate justification for limiting freedom of speech.
69 Dworkins true community of principle offers a more nuanced liberal response to the
communitarian critique. He notes that the moral environment in which we all live is in good part
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concern the protection of individual rights. Unless one drastically expands the
concept of sexual privacy, reinterprets the concept of an equality-seeking minority
group, or endorses a right to a much broader conception of liberty under section 7 of
the Charter (which the Supreme Court of Canada refused to do in Malmo-Levine),
the notion of rights does not really capture the essence of the legal issue at play in
these cases.
Both Labaye and Kouri involve charges related to members of the sexual
majority engaging in sexual acts, in groups, in semi-public settings. These cases
redefine indecency in a manner that decriminalizes sexual activity by heterosexual
couples paying a cover charge or membership fee to gain entrance to a bar or club
where they can have semi-public sex in large groups. The ability to legally act on
these desires is not based on equality rights, expressive rights, or privacy rights. The
patrons of Cur Corps were not gathering to celebrate their shared minority identity
or to build a sense of community, which might be argued in the case of a gay bar or
bathhouse. Labaye stipulates that the law ought not to interfere with the exercise of
peoples desire to engage in these types of semi-public group sexual acts (or to make
a bit of cash off of other peoples desire to do so). This was not because swingers
belong to a sexual minority which has historically faced oppression by the sexual
majority, not because of the (sexually) expressive content conveyed by group sex, and
not because the state has no place in the bedrooms of our nationafter all, these
activities did not occur in the bedroom.
Instead of invoking the notion of rights, Chief Justice McLachlin invokes the
notion of constitutional democracy.70 It is not that a consideration of individual rights
created by others and that many of our moral judgments arise within the context of communities
(Freedoms Law, ibid. at 237). He contends that communities, as a result of their social practices, give
rise to obligations among and between members. (Ronald Dworkin, Laws Empire (Cambridge:
Harvard University Press, 1986) at 197). While his true community of principle theory does offer a
response to communitarian arguments by acknowledging the role of community, it is a response which
defines community narrowly and remains grounded in notions of individuality. This theory
accommodates notions of community but does so
through a focus on obligationson
responsibilitieswhich are the inextricable correlates to rights. Under a broader account of
community there are some social forms and collective goods which cannot be accounted for through
the concepts of rights and obligations. Joseph Raz, for example, argues that the pursuit of excellence is
a collective good that is needed for autonomy but that is greater than the sum of individual rights (The
Morality of Freedom (Oxford: Clarendon Press, 1986) at 196). Both Charles Taylors politics of
difference and Will Kymlickas version of group rights are arguments based in some respect on this
recognition of the value of collectivity. Taylor argues that there are certain forms of recognition that
cannot be claimed through the vehicle of individual rights. See Charles Taylor, The Politics of
Recognition in Amy Gutmann, ed., Multiculturalism and The Politics of Recognition (Princeton:
Princeton University Press, 1992) 25. Kymlicka would suggest that there is a collective element to this
aspect of individual well-being (Multicultural Citizenship: A Liberal Theory of Minority Rights
(Oxford: Clarendon Press, 1995)).
70 The concept that community is more than just the sum of the individual rights of its members has
been given constitutional significance by the Supreme Court of Canada. See e.g. Reference Re
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is irrelevant to her decision, but that her reasoning is not accurately characterized as a
simple, liberal-rights balancing analysis. Her decision is not communitarian or even
perfectionist.71 Rather, there is a nuance to her reasoning (or perhaps the implications
of her reasoning) which may be more responsive to the dissents concern over
protecting the intangible worth offered by the gestalt of a community. Part II will
discuss the manner in which Chief Justice McLachlins invocation of constitutional
principles maintains the importance of community by promoting the communitys
common interests in both tolerance and sexual desire.
II. Tolerance, Iconoclastic Sex, and Common Goods
In what respect is Labayes approach to the values of community and collectivity
in the definition of indecency distinguishable from straightforward liberal arguments?
Joseph Raz suggests an answer to this question in his distinction between public
interests and common goods.72
Under Razs approach, the common good is a good that benefits everyone in a
given society (albeit to varying degrees), while the public interest is based on a
resolution of the conflicting interests of various citizens. He uses the examples of
pollution-free air and a network of railway tracks to illustrate this distinction. There
may be a public interest in a system of railway tracks. This interest is held not only by
railway users but also by other members of the public, such as railway employees.
However some people may derive no benefit from this good and others may actually
be adversely affected by the railways existence. The railway may, for instance, cause
them to endure noise, pollution, or a decline in the value of their properties. This does
not mean that there is any less of a public interest in the existence of a viable railway
system.73 Raz contrasts this public interest with a common good such as the existence
of clean air: Everyone has a health interest which benefits from unpolluted air. The
Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385. See also Mahe v. Alberta, [1990] 1
S.C.R. 342, 106 A.R. 321. I am grateful to Professor Ronalda Murphy for this point.
71 Perfectionism refers to the assertion that the state is entitled to, or ought to, promote some version
of the good. Liberal perfectionists such as Joseph Raz can be distinguished from communitarians
based on the degree of paternalism they endorse. For a discussion of communitarianism, see e.g.
Michael J. Sandel, Liberalism and the Limits of Justice, 2d ed. (Cambridge: Cambridge University
Press, 1998).
72 Razs theory of liberal perfectionism denies that there is some single criterion of the good life
which the legislator must uphold, but it does accept that some ways of life are simply morally worse
than others and that the legislators job is to discourage them (Jeremy Waldron, Autonomy and
Perfectionism in Razs Morality of Freedom (1989) 62 S. Cal. L. Rev. 1097 at 1102). Given the very
different accounts of liberalism provided by Dworkin and Raz, it might seem incoherent to draw on
both Dworkins theories and Razs theories to support the same decision. The fact is that support for
McLachlin C.J.C.s reasoning is found in aspects of both theories. Certainly the structure of her
reasoning resembles Dworkins theory of liberal equality. However, as the discussion below will
demonstrate, support for her decision can also be found on the basis of theories regarding common or
collective interests.
73 Joseph Raz, Rights and Politics (1995) 71 Ind. L.J. 27 at 35.
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benefit is noncompetitive (one persons enjoyment is not at the expense of anyone
else), and it is similar in nature for everyone.74
Neither common goods nor public interests can necessarily be claimed as rights.75
However, given that common goods benefit everyone in a community in the same
way, it would make sense to suggest that the state, if it is to act in the interests of the
community, must act in a manner consistent with the communitys common goods.76
If this is the case, then where common goods are at stake, so long as the state adopts
policies or enacts and interprets laws in pursuit of such common goods, some notion
of community is maintained and recognition of the value in collectivity is reflected in
these laws and policies. Therefore, a definition of indecency and obscenity which
serves a common good would be consistent with recognition of the role and
importance of community and responsive to the dissents community-based objection
to the majoritys definition.
There are two interrelated common goods served by the majoritys revised
definition of indecency in Labaye. As outlined below, these common goods are
tolerance and the iconoclastic legal recognition of sexual desire.77
A. Tolerating Group Sex
The first, tolerance, is related to another type of good Raz discusses: shared
goods. Raz defines shared goods as goods whose benefit for people depends on
people enjoying the good together and thereby contributing to each others good.78
He uses parties or dances as examples of shared goods; such events are only
enjoyable for their participants to the extent that they can be enjoyed together. The
sexual activities occurring at LOrage and Cur Corps would be of this shared
74 Ibid.
75 For example, think of the common interest in a nuclear bombfree society. This is a non-
competitive benefit that would be similar in nature for everyone (provided that all nuclear bombs were
eliminated simultaneously). However, a legal instrument which would allow someone to claim a right
to a nuclear bombfree society does not exist. See e.g. Operation Dismantle v. The Queen, [1985] 1
S.C.R. 441, 18 D.L.R. (4th) 481. It is not particularly coherent to think of this common interest as an
individual right that might be recognized by a legal system.
76 This would not be the case with respect to public interests. That is to say, the state may or may not
choose to pursue a particular public interest. Regardless of this choice, the state may still act in the
interests of, and therefore maintain value in, the community.
77 It should be noted that liberal theories of state neutrality can also affirm the value of and need for
tolerance. For example, tolerance is integral to Dworkins challenge model of ethics. This role for
tolerance, however, does not diminish the argument that the common good in tolerance affirmed and
promoted by Labaye can be characterized as an investment in the collective, nor does it diminish the
assertion that characterizing tolerance in this fashion makes it more effective as a response to the
dissents communitarian concerns. Moreover, these theories provide different accounts of what
tolerance is and what it does. Under a perfectionist approach, tolerance is valuable not only on an
individual level, but also for what it provides to a community.
78 Raz, Rights and Politics, supra note 73 at 35-36.
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character. After all, these cases were not about the acts of individuals; at issue was the
decency or indecency of orgies, to use the term employed by Chief Justice
McLachlin.79
Shared goods, however, are not to be confused with common goods. Common
goods are those that serve the same interest of every person in a noncompetitive way.
The ability to legally engage in group sex in a semi-public setting does not serve the
interests of every person in Canada. While it is a shared good among those who
desire to engage in group sex in semi-public settings, it is not a common good.
However, one particularly important type of common good is the cultivation of a
culture and a social ambience which make possible a variety of shared goods, that is,
a variety of forms of social association of intrinsic merit.80 The common good
referred to here is the availability of an adequate range of shared goods; in the context
of indecency and obscenity, the ability to choose ones forms of social (sexual)
association.81 The difficulty with recognizing this common good, and it relates to an
issue discussed below in terms of the subjectivity of valuation, is ascertaining which
forms of social association are of intrinsic merit. The social ambiance that Raz
suggests is in the common good makes possible a variety of social forms of intrinsic
merit. Recognizing the malleable nature of the common good is not a suggestion that
anything goes, variety is the spice of life, or the more the merrier. Rather, the
value of a diversity of opportunities in terms of sexual interactions can only sustain
the majoritys definition of indecency against the dissents critique of community if
the types of sexual associations the definition decriminalizes are of intrinsic merit.
But how are we to know whether the group sex conducted at LOrage or Cur
Corps has intrinsic merit? That is to say, in cultivating diverse social forms and
eclectic sexual associations, how does one know which shared goods society ought to
make available? I want to leave this question for the moment in order to explore the
more general, but related, common good at issue here: the common good of tolerance.
It is a common good to live in a tolerant society; in other words, we all benefit from
79 Labaye, supra note 3 at para. 69.
80 Raz, Rights and Politics, supra note 73 at 36. Some reference ought to be made in this context
to the distinction between laws that criminalize an activity, laws that decriminalize an activity, and
laws that actually promote an activity. In terms of the promotion of social forms, decriminalizing this
type of group sexual activity through the redefinition of indecency cannot be equated with, for
example, offering tax incentives to swingers clubs or legal recognition of polyamorous relationships.
Due to the unique character of the law as a social form or potential good, however, the redefinition of
a legal concept which regulates sexuality in a manner which makes some sexual association now
legally available does increase the range of shared goods available. In terms of the intersection
between law and sexuality, the legal options of coercively prohibiting, remaining neutral towards, or
promoting and manipulating particular sexual associations do not reside within distinct categories;
they lie on a spectrum.
81 Raz recognizes the importance of sex as a form of social association. See The Practice of Value
(Oxford: Oxford University Press, 2003) at 153. The issue becomes how to ascertain which sexual
associations it is in the common good to have available to a community.
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living in a tolerant and nondiscriminatory society.82 This point becomes clearer when
we think of the failings of societies other than our own.83 Raz uses the example of an
apartheid society and the ways in which such a system detrimentally affects the lives
of all of its members.
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[An intolerant society] colours the nature of the social relations each can have.
It threatens to make each member complicitous with its bigotry through
association with bigots, through involvement in projects which involve the
display of prejudice and the practice of discrimination. It imposes duties
actively to fight prejudice and discrimination in ones own society in order not
to be tainted by its failures through membership in it; duties which are
burdensome and limit ones ability to pursue other options.84
The common good of living in a society not operating under a system of apartheid is
apparent. To think of an extreme, analogous to an apartheid society in the context of
sexual intolerance and repression, one might consider the treatment of women under
the Talibans regime in Afghanistan, or perhaps less controversially, the fictional,
futuristic theocracy of Margaret Atwoods sexually repressed Republic of Gilead in
The Handmaids Tale:
Whats going on in this room … is not exciting. It has nothing to do with
passion or love or romance or any of those other notions we used to titillate
ourselves with. It has nothing to do with sexual desire … Arousal and orgasm
are no longer thought necessary; they would be a symptom of frivolity merely,
like jazz garters or beauty spots: superfluous distractions for the light-minded.85
The common good of living in a society that has not relegated the female orgasm to
the status of unnecessary trend from a bygone era seems obvious. Less clear for some
is the common good of living in a society that tolerates sexual practices the majority
of Canadians find disgusting, depraved, repulsive, and immoral. As Raz notes,
tolerance is not the approval of many incompatible forms of life; it is not synonymous
with pluralism: [t]oleration is a distinctive moral virtue only if it curbs desires,
inclinations and convictions which are thought by the tolerant person to be in
themselves desirable.86 According
is not
demonstrated by people tolerating a particular sexual act even though it is an act
which they would never engage in. Sexual tolerance is exercised by people tolerating
a sexual act of which they disapprove.
Chief Justice McLachlins definition of indecency and obscenity requires that
we not criminalize as indecent or obscene any sexual act or depiction without an
associated harm even if we find it repulsive, digusting, immoral, and of no intrinsic
theory, sexual
tolerance
to
this
82 See Raz, Rights and Politics, supra note 73 at 38.
83 Ibid. at 38.
84 Ibid. See also Dworkin, Laws Empire, supra note 69 at 196. Dworkins true community of
principle theory also acknowledges the obligations which arise out of membership in a community.
85 Margaret Atwood, The Handmaids Tale (Toronto: Seal Books, 1985) at 116-117.
86 Raz, The Morality of Freedom, supra note 69 at 401.
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merit. Contrast this with the dissents approach to the definition of indecency and
obscenity: [s]ocial morality, which is inherent in indecency offences and is
expressed through the application of the standard of tolerance, must still be allowed
to play a role in all situations where it is relevant.87 The dissents suggestion that
Canadian law should continute to criminalize sexual conduct purely on the basis that
it is immoral from a majoritarian perspective (i.e., it is harmless to others but would
nonetheless be considered immoral by most citizens first person ethics), cannot be an
act of tolerance. To tolerate sexual conduct and depictions despite considering them
to be immoral is to act out of tolerance; it is to protect the common good of a tolerant
society. To limit such tolerance to harmless activities is to act in the public interest.
Chief Justice McLachlin rejects the traditional community standard of tolerance,
and in doing so, she instead sets a standard of tolerance for the community; a standard
which our constitution dictates is necessary to avoid being tainted by membership in
an intolerant society. Her definition demands a standard of tolerance from the
community that is in the common good or interest of each of us to pursue, and that is
incumbent upon any state dedicated to acting in the interests of the community to
maintain.88
B. The Liberated Couple: An (Anti-)Icon to Come?
Setting aside the common good of living in a tolerant society, and returning now
to the related issue of the intrinsic worth or worthlessness of the sexual activities
engaged in at LOrage and Cur Corps, a number of questions arise. Having
87 Labaye, supra note 3 at para. 103.
88 A consideration of the jurisprudential context in which this case was decided provides another
way of thinking about the positive obligation to create certain social forms, in this case the promotion
of some sexual relationships. Laws are never made and cases are never decided in a contextual
vacuum. In considering this case, one ought to recall that the Court was making its determination in
the context of a post-Charter wealth of jurisprudence defining which sorts of sexual relationships will
be recognized, valued, and promoted in Canadian society. See e.g. Halpern v. Canada (A.G.), 65 O.R.
(3d) 161, 225 D.L.R. (4th) 529 (C.A.) [Halpern]; Nova Scotia (A.G.) v. Walsh, 2002 SCC 83, [2002] 4
S.C.R. 325, 221 D.L.R. (4th) 1 [Walsh]; M. v. H., [1999] 2 S.C.R. 3, 171 D.L.R. (4th) 577; A.A. v.
B.B., 2007 ONCA 2, 83 O.R. (3d) 561, 278 D.L.R. (4th) 519. Both legislative and judicial branches of
the Canadian state have focused a great deal of attention in the last twenty years on debating,
redefining, and (particularly with respect to same-sex and common law relationships) formalizing and
privileging through legal recognition, particular types of sexual relationships (Halpern, ibid.; Walsh,
ibid.; M. v. H., ibid.). The state has, therefore, recognized the value of certain social forms. The Court
decided Labaye in an era where some would argue that as a society we have actually increased the
role of law and government in the definition, regulation, and control of human relations (albeit
through positive mechanisms such as tax incentives and property rights, rather than negative legal
mechanisms such as the criminal law). This context may enable the Court (and the community) to
withdraw regulation which might have seemed at least desirable, if not outright necessary, in a
previous legal era. This is consistent with Razs assertion that the state ought to encourage, through
incentive, certain common goods (for example, social forms such as marriage) which promote well-
being by increasing individual autonomy, rather than prohibiting undesirable, but harmless, life
choices (The Morality of Freedom, supra note 70).
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acknowledged that group sex itself cannot be considered a common good in Canadian
society, does Chief Justice McLachlins decision indentify an intrinsic value beyond
the common interest in promoting tolerance?
In fact, there may be an evaluation of the shared goods produced at LOrage
and Cur Corps (and Chief Justice McLachlins approach to them) which, when
considered from a slightly different perspective, suggests that they are sufficiently
possessed of intrinsic worth so as to be useful to the common good of cultivating an
ambiance of eclectic social (sexual) associations.89 The difficulty, however, is in
determining what standards can justly evaluate the potential worth of shared goods.
Raz suggests that specific forms of excellence belong to a kind,90 and he explains
that two elements determine how items or activities can be evaluated for intrinsic
merit:
First is the definition of the kinds of goods to which they relate, which includes
the constitutive standards of excellence for each kind. Second are the ways the
item relates to the kinds. It may fall squarely within them. Or it may, for
example, relate to them ironically, or iconoclastically, or as a source of
allusions.91
In other words, something may be evaluated based not only on how neatly it fits
within the standards of excellence for its genre but also based on how it relates to its
genre.
As Raz suggests, one way in which an item, activity, or law can relate to its genre
is iconoclastically. An iconoclast is one who challenges traditional or popular ideas or
institutions on the basis that those beliefs or institutions are wrong. Iconoclasm is not
the same as subversion. Unlike subversion, iconoclasm is about the formation of
meaning. Iconoclastic transgression takes place within a cultural construct, not
externally to it. Iconoclasm is the intentional destruction, within a culture, of one of
the cultures own icons, symbols, or meanings. Unlike subversion, which aims simply
to deconstruct, iconoclasms purpose is to attack a cherished belief by relying on a new
or different cherished belief. This is why iconoclasm has the capacity to be a shared
good; it is about the collective, and it is done often for political (or religious) reasons.
Illuminating the distinction between iconoclasm and the notion of queer theory
(because of its reliance on the concept of subversion) helps to illustrate how
iconoclasm accommodates new meaning, rather than simply disrupting old
89 While it is important to avoid conflating social forms of two different kinds, it is necessary to
consider the specific activity, relationship, social phenomenon (and therefore the standards of
excellence for that particular genre) to which the law relates. Sexual activity is not synonymous with
laws regulating sexual activity. Law, as a kind, is both a part of, and transcendent to, each of the kinds
that it touches.
90 Raz, The Practice of Value, supra note 82 at 39.
91 Ibid. at 41.
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meaning.92 While the postmodern method of deconstruction used by queer theorists
is, in certain analytical instances, methodologically helpful, it is somewhat self-
destructing.93 The strong deconstructionist approach within queer theory makes it an
unlikely intellectual tool in the search for the intrinsic worth of any shared good.
Most importantly, queer theory does not allow for the notion of genre-based
evaluation. Judgment in kind necessitates the identification and affirmation of
categories and is antithetical to queer theory, and deconstruction generally.
The distinction between an iconoclastic approach and a queer approach is real.
An iconoclast dissents against a popular belief or tradition on the grounds that it is in
error. To disrupt cherished beliefs about sex, or to dissent against traditional sexual
mores on the basis that they are wrong, is not to contest the normative validity of
sexual mores, the possibility of meaning, the existence of categories, or the ability to
judgequite the opposite in fact. An iconoclastic approach to the legal regulation of
sexuality, unlike a queer approach, acknowledges the inevitability of judgment; it
recognizes the social fact that an icon, once shattered, will undoubtedly and
expediently be replaced by a new icon. For this reason, an iconoclastic approach is
better able to account for, contest, and at times work within the liberal political
context in which the legal regulation of sexuality operates in Canadas constitutional
democracy.94
92 Queer theory contests categorization based on sexuality or gender. It argues that gender and sex
categorizations are socially constructed. Sex and gender are constituted through normative practices
and beliefs. Simply stated, the aim of queer theory is to subvert these norms in order to disrupt sex and
gender categorizations so as to eradicate the exclusions which these categorizations perpetuate. Queer
theory would include works such as Judith Butler, Gender Trouble: Feminism and the Subversion of
Identity, 2d ed. (New York: Routledge, 1999); Judith Butler, Bodies That Matter: On the Discursive
Limits of Sex (New York: Routledge, 1993); Gayle Rubin, Thinking Sex: Notes for a Radical
Theory of the Politics of Sexuality in Carole S. Vance, ed., Pleasure and Danger: Exploring Female
Sexuality (Boston: Routledge & Kegan Paul, 1984); Michel Foucault, The History of Sexuality: An
Introduction, vol. 1, trans. by Robert Hurley (New York: Vintage Books, 1998). For queer legal
theorists, see e.g. Brenda Cossman, Sexual Citizens: The Legal and Cultural Regulation of Sex and
Belonging (Stanford: Stanford University Press, 2007); Janet Halley, Split Decisions: How and Why to
Take a Break from Feminism (Princeton: Princeton University Press, 2006) [Halley, Split Decisions].
93 Queer is a positionality in particular relation to a norm, that relation being the deviation from a
norm. To identify as queer, or to queer a concept, social practice, or law, is to identify with a norm
of deviating from the norm.
94 The legal contest over same-sex marriage provides a good example of this. As most queer
theorists will maintain, gays and lesbians fighting for and gaining access to civil marriage does not
subvert this dominant hetero-normative institution. Unquestionably, gay and lesbian marriages operate
within this particular cultural construct. But this very fact reveals their iconoclastic impact. In Canada,
marriage no longer means the legal union of one man and one woman. It is true that gay and lesbian
marriages did not deconstruct the institution of marriage in Canada, but they did change, to some
degree, its icon. (Some argue that same-sex marriage does not change the meaning of marriage but
merely expands the scope of relationships to which it applies. Given that marriage is the description
of a particular type of relationship, this is not a persuasive argument.)
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If the evaluation of the sexual activities engaged in at LOrage or Cur Corps is
based on the iconoclastic effect they have on the legal regulation of human sexuality
or sexual expression, then it may be possible to evaluate the value of decriminalizing
them without facing the task of establishing the standards of excellence for sex. That
is to say, if, in the context of legal regulation, the evaluation of a given sexual act is
based on whether, and the way in which, it challenges traditional or popular ideas
about sex, then the benefit or detriment of the act is its effect. The assessment of an
acts value is relational. It is dependent on there being a genre and a standard of
evaluation for that genre, but it is not dependent on what that standard is. It is not that
iconoclasm is presumptively good. Rather, the benefit or detriment of iconoclasm is
the process of reconsideration that its transgression perpetuates.
This reasoning entails two interrelated normative assumptions. Firstly, it entails an
assumption that there exist standards of excellence for sex, albeit standards that are
constantly evolving and shifting, and due to their relational nature, that are plural in
form.95 In other words, there need not be (nor could there be) one standard of
excellence for sex; however, in any and all sexual contexts there must (and will) be
criteria of evaluation for sex.96 Secondly and correspondingly, it entails an assumption
that some degree of sexual dissent, of challenge to sexual forms, and of this process
of openness, is required in any society.97 The evaluation of how much, and when,
dissent would be good, because it too is a relational concept, can be determined by
resorting to an external standard, such as a harm principle or the promotion of
community tolerance, rather than relying on a standard of excellence that is internal to
the genre itself. In other words, it is possible to assess the value of decriminalizing
95 I am indebted to Professor Leslie Green for observing that, under the argument I am making, any
standards of excellence for sex must be plural in form.
96 Given that the focus of this discussion is on the potential good of iconoclastic jurisprudence, a
standard under this account cannot be static. While it is not possible to assume one standard of
excellence for sex, it is possible to assume that in any sexual act there is always a standard. The
suggestion that a standard can be objective yet unstable in this way may create a certain degree of
unease. The objective element of this assertion stems from Razs observation that while a given value
may not be universal, the act of assigning value to certain genres and activities is universal. Raz
argues that this universalism suggests that, through reason, pluralism can be accommodated. See
Reason, Reasons and Normativity (2008) University of Oxford Legal Studies Research Paper No.
11/2007) (SSRN), online: SSRN
is an assumption that judgment is both necessary and legitimate. Law needs judgment to be
operationalized. Laws reforming, preventative, and distributive functions all require judgment. And
for law to be just, that judgment must not be arbitrary. To avoid arbitrary judgment, the law requires
meaningful criteria; that is to say, it requires standards of excellence.
97 Dissent is an essential criteria for the progress of any community. This is no less true with respect
to sexual dissent than with respect to political dissent. To disaggregate sexual dissent from political
dissent is in many respects a false distinction. Provided an ability to judge is maintained (which is
what the first normative assumption I articulated achieves), it can be said that sexual dissent is
presumptively in the common interest. Both a standardachieved through practice, argument, and
reasonand dissent are necessary to accommodate pluralism.
E. CRAIG THE POLITICAL MORALITY OF PUBLIC SEX
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group sex without attempting to articulate a coherent account of what constitutes
excellent sex (or excellent group sex).
379
So can the reasoning adopted by Chief Justice McLachlin in Labaye be evaluated
based on its relation to human sexuality? Does it produce an iconoclastic impact such
that it serves the common interest in a way that responds to the critique of
community?
C. Laws of Desire
In fact, given that an iconoclastic decision challenges and replaces cherished
beliefs, the Courts decisions in Labaye and Kouri represent some of the most
iconoclastic jurisprudence to date regarding the legal regulation of sexuality in
Canada. In their outcome, these cases challenge two of the most significant pillars of
the regulation of sex in our society. These decisions transgress the heavily fortified
sexual boundary between the public and private realms, and they also challenge the
taboo against the commodification of sex. Most significantly, they do so without
relying on claims of antisubordination, identity, privacy, or safety.
Jeffrey Weeks suggests that our culture often justifies erotic activity on some
basis other than desire, such as reproduction or the consummation of relationships.98
The same could be said with respect to the laws relationship to sexuality. The law
typically adopts an approach to sexual desire and erotic activity that focuses on rights,
responsibilities, and personal morality. Legal analyses concerning issues of sexual
activity and human sexuality are most frequently framed as either claims to privacy,99
identity (or more generally,
claims
antisubordination).101 In the case of sexual minorities, legal arguments and analyses
typically focus on claims of identity or relationship recognition. In the case of sexual
liberty, the emphasis is usually on claims that reify the public/private division or
claims premised on the expressive rights held by individuals. The legal recognition of
to expressive rights,100 or claims of
98 Sexuality, 2d ed. (London: Routledge, 2003) at 21.
99 See e.g. Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841 (1986) (challenging Georgias anti-
sodomy laws on the basis of a liberty interest in sexual privacy); Lawrence v. Texas, supra note 67
(striking anti-sodomy laws on the basis of a constitutional right to privacy under the due process
clause of the American constitution). In the Canadian context, this right to sexual privacy has more
frequently been acquired legislatively (as in Parliaments decriminalization of sodomy in 1967) or
through equality claims. See e.g. R. v. M.(C.), supra note 66. This may be partially due to the
comparatively greater emphasis on equality in the Canadian constitutional context than in the
American constitutional context.
100 See e.g. Butler, supra note 26 and Little Sisters, supra note 27 (obscenity cases which also
included an equality claim).
101 The two most obvious examples being claims of discrimination based on sexual orientation (e.g.
Egan v. Canada, [1995] 2 S.C.R. 513, 24 D.L.R. (4th) 609; Vriend v. Alberta, [1998] 1 S.C.R. 493,
156 D.L.R. (4th) 385) and claims for relationship recognition made by same-sex and common law
couples (e.g. Halpern, supra note 88; M. v. H., supra note 88; Walsh, supra note 88).
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the bodily pleasures behind or outside of an identity, relationship, or sanctuary is
infrequently claimed and less frequently, if ever, granted.
However as noted earlier, privacy rights, expressive rights, and identity claims
fail to aptly characterize the reasoning in Labaye. Both Labaye and Kouri consider
sexual activity in a semi-public setting.102 Neither one involves a group of sexual
actors that could reasonably be described as a sexual minority, and neither case
involves claims regarding freedom of expression.
The jurisprudential construction of sexualitywhat sex means in the context of
its relationship to the lawhas taken many forms. At different times and in different
legal contexts, sex has been about morality, religion, identity, privacy, and class. It has
been about health, gender, expression, violence, family, and love. At one point, it was
even about communism.103 The jurisprudential construction of sexuality has never
really been about the recognition of pleasure or desire. Labaye therefore changes, at
least to some degree, the meaning of the legal regulation of sexuality in Canada.
In Labaye, Chief Justice McLachlin states that [s]exual activity is a positive
source of human expression, fulfilment and pleasure.104 A review of prior case law
defining obscenity demonstrates that legal recognition of the significance of sexual
pleasure was not the focus (or even a focus) of analysis prior to Labaye. In 1962,
when the Supreme Court of Canada first grappled with the British common law
definition of obscenity in a case involving the novel Lady Chatterleys Lover, the
analysis focused on the merits and demerits of legal censorship.105 The Court in
Brodie did not concern itself with the sexual fulfillment and pleasure of Lady
Chatterley, her lover, or the books readers. In 1985106 and 1992,107 when the Court
102 Kouri, in particular, involved sexual activity occurring in a location (a dance floor with seventy
or more people engaged in sexual activity at one time) which could hardly be labelled private. The
Court found that the procedure at the doorin which the bouncer only admitted couples who declared
themselves to be liberatedsufficiently ensured that individuals would not be involuntarily
confronted with offensive sexual conduct that would prove harmful in the sense defined under the first
branch of harm in Labaye. This aspect of the decision related to a consideration of the risk of
unwanted confrontation. The Court did not really attempt to reconstitute the boundaries between
public and private such that large-scale group sex could now be considered a private act. If the
decision were read in this light then it would also have to be characterized as a radical revision of the
laws distinction between public and private in which the private sphere is greatly expanded and the
public sphere significantly contracted.
103 In the 1950s and 1960s in Canada, gays and lesbians were perceived by the government to be
security risks due to purported close ties to communist groups and vulnerability to blackmail.
Hundreds of gays and lesbians were purged from the RCMP and other public service positions. By
1967 the government had a list of over nine thousand suspected homosexuals in the Ottawa area
alone. See Gary Kinsman, Challenging Canadian and Queer Nationalisms in Terry Goldie, ed., In a
Queer Country: Gay and Lesbian Studies in the Canadian Context (Vancouver: Arsenal Pulp Press,
2001) 209 at 211.
104 Labaye, supra note 3 at para. 48.
105 Brodie, supra note 23.
106 Towne Cinema, supra note 24.
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revisited the definition of obscenity, the focus was on incorporating a notion of harm
into the Courts analysis of the communitys attitude toward a particular sexual act or
depiction. Desire, pleasure, and fulfillment were not taken into account.
In 1997, claims about pleasure and desire were actually made by the appellant
bookstore and certain interveners in Little Sisters.108 The Court, however, did not
endorse these claims. Little Sisters involved a constitutional challenge to obscenity
laws based on the discriminatory manner in which customs officials applied the laws
to gay and lesbian material imported by Little Sisters Book and Art Emporium. The
bookstore brought its challenge on the basis of freedom of expression as well as an
equality claim based on sexual orientation. Underpinning the equality argument in
Little Sisters (which was premised on the assertion that pornography figures
differently in gay and lesbian communities than in straight ones) was a claim about
desiresame-sex desire, specifically. The Court rejected this equality claim.109
It may be that, for doctrinal reasons, the Court was not well situated in any of
these pre-Labaye cases to give recognition to the significance of desire and sexual
pleasure. Given the other section 15 jurisprudence regarding sexual orientation that
was developing during the time that Little Sisters was decided, it is not surprising that
the Court was unwilling to accept arguments suggesting that the sexual needs (for
pornography or particular sexual depictions) or the sexual acts of gays and lesbians
were different than those of heterosexuals. More generally, it may be that until the
Court had rejected the community standards of tolerance test there was no conceptual
space for considerations of desire. Considerations regarding desire and sexual
pleasure are more easily incorporated into a definition of indecency centred on actual,
proven harm to sexual participants or other members of society as measured against
the values of liberty, dignity, equality, and autonomy, but not so easily where harm is
measured by the communitys standard of tolerance.
As is the case with respect to the prior case law regarding obscenity, the Supreme
Court of Canada cases defining indecency before Labaye and Kouri cannot be said to
have given rise to a legal recognition of sexual desire. For example, the lap dancing
trilogy of the 1990s, R. v. Tremblay,110 R. v. Mara,111 and R. v. Pelletier,112 all involved
charges against tavern owners whose performers gave lap dances or private shows of
some sexual variety. In Mara and Pelletier, the Court found, applying the community
standard of tolerance test, that the acts were not indecent. In Tremblay, the Court
found that the lap dances did go beyond the community standard of tolerance. None
107 Butler, supra note 26.
108 Supra note 27.
109 Binnie J. did not accept the argument that gay and lesbian pornography has less potential to
cause harm. Based on this and his determination that the community standards of tolerance test was
not about taste and was in fact quite concerned with minority expression, he found that it did not
discriminate on the basis of sexual orientation.
110 [1993] 2 S.C.R. 932, 106 D.L.R. (4th) 413.
111 Supra note 21.
112 [1999] 3 S.C.R. 863, 30 C.R. (5th) 144.
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of these decisions appears to take into consideration, as Chief Justice McLachlin did
in Labaye, that sexual activity is a source of pleasure. This may, however, be due in
part to the factual patterns which gave rise to the indecency charges in these cases:
they each involved the explicit exchange of money for sexual contact of some type.113
It would perhaps have been surprising had the Court provided reasoning which
suggested a legal recognition of sexual desire in cases involving the exchange of
money for sexual contact where sexual desire is presumably not experienced by both
or all of the sexual participants.
Although Labaye also involves an exchange of money for sex, in the form of
cover charges and membership fees, the interrelationship between sex, money, and
desire differs from all of these older cases. Labaye involves reciprocal rather than
unilateral sexual desire. Also, unlike in these older cases, it involves people paying
money to have a sexual interaction, but where money is paid by all of the sexual
actors to a third party. Money is not the motivating factor for any of the sexual
participants; mutual desire to engage in sexual activity is the motivating factor. It is
for this reasonthe mutual desire of the sexual participantsthat Chief Justice
McLachlin determined that the commercial element of these activities was not a
factor suggesting that the activities were indecent.114 What distinguishes the exchange
of sex for money in Labaye from the exchange of sex for money in the lap dancing
trilogy (where the exchange of sex for money was most certainly a determining factor
under the community standards of tolerance test) was the role and type of desire.
Labaye and Kouri stipulate that, absent an associated and provable harm, the law
ought not to interfere with the exercise of a sexual desireeven, in some
circumstances, a sexual desire that takes place in semi-public settings and includes a
commercial element. The intrinsic worth of the shared goods offered at LOrage and
Cur Corps is manifested through the Courts decisions. The fact that desire may be
beyond reason and rationality, and therefore not susceptible to valuation, does not
suggest that the social forms that stem from drives or capacities that exceed the limits
of reason cannot be evaluated based on arguments regarding the standards of
excellence for those social forms or their iconoclastic implications for those
standards. The recognition of desire is a recognition, by law, of something outside
itselfsomething outside of the law. Further, a legal recognition of desire is itself
prima facie iconoclastic because the laws legitimacy is premised on reason. The
113 The only other case in which the Supreme Court of Canada considered the definition of
indecency was R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, 249 D.L.R. (4th) 257 [Clark]. The decision
in Clark ultimately turned on the definition of public place. The case involved charges against a man
seen by his neighbours masturbating in front of his window. Fish J.s decision is certainly a
recognition of the right to privacy and an admonition to nosy neighbours, but the only sexual desire
recognized in the Clark case was secondary and not relational.
114 Kouri, supra note 1 (On the present set of facts, the commercial aspect of the respondents
operation is hardly relevant to this type of harm. The entrance fee was not paid by some to secure the
sexual services of others. It merely enabled all the customers to gain access to the bar and to equally
participate in the activities taking place therein at para. 22).
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iconoclastic effect of these social forms is reflected in the legal recognition of these
pleasure-seeking activities by the highest court in the country. Iconoclasm is not
found simply in the fact that these forms of human relations transgress dominant
sexual normsmany forms of human relations may and do possess intrinsic worth
(or are detrimental) for reasons of their own. Their emergence, however, has resulted
in a change and shift in the laws relationship to human sexuality. In Labaye and
Kouri, the Supreme Court of Canada shattered a long held and stridently protected
legal and social belief that a legitimate exercise of the criminal law power can be
premised, either directly or indirectly, on sexual morality. In doing so, the Court
recognized (if not for the first time, then in a novel way) the value of desire.
The legal recognition of desire changes the laws relationship to sexuality and
provides new meaning to the legal regulation of sex. In other words, it is iconoclastic.
But iconoclasm is not presumptively good. Why would this particular iconoclastic
jurisprudence be a common interest? Why is changing the relationship between law
and sexuality, such that it recognizes the value and significance of sexual pleasure, an
iconoclastic benefit and not a detriment?
Establishing that the legal recognition of desire changes the laws relationship to
sexuality, replaces old meaning and forms new meaning regarding the legal
regulation of sexin other words is iconoclasticdoes not alone make it a common
good. Iconoclasm is not presumptively good. What makes this particular iconoclastic
jurisprudence a common interest? Why does changing the relationship between law
and sexuality, such that it recognizes the value and significance of sexual pleasure,
produce an iconoclastic effect of benefit and not of detriment?
Francisco Valdes identifies the defence of desire as the next strategic move in the
pursuit of sex/gender reform and equality.115 He notes that intimacy and desire are
affirmations of life [and therefore] are diametrically opposed to dogmatic regimes
such as the dominant Euro-American sex/gender system.116 As such, he suggests
(speaking from a preLawrence v. Texas117 American legal context, and specifically
within a claim to the right to sexual privacy) that human intimacy and desire are
neither frivolous nor legally insignificant. Whether it is cross-sex or same-sex desire,
he argues that the defence of desire may be the most significant contribution queer
theory118 has to offer:
115 Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of Sex, Gender, and
Sexual Orientation in Euro-American Law and Society, (1995) 83 Cal. L. Rev. 1 at 368 [Valdes,
Queers, Sissies].
116 Ibid., citing Reinaldo Arenas, Before Night Falls, trans. by Dolores M. Koch (New York:
Penguin Books, 1993) at 93 [footnotes omitted].
117 Lawrence v. Texas, supra note 66. The Supreme Court of the United States found that Texas
criminal prohibition on sodomy between consenting members of the same sex violated the due
process clause of the Fourteenth Amendment.
118 Borrowing Valdes focus on the regulation of desire ought not to be taken as a reliance on queer
theory itself. While Valdes project is substantiveit imagines queer theory as the substantive work of
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The tactic of defending desire thus commits Queer legal theory to winning
respect for the range of yearnings regarding consensual affection and intimacy
that are felt by all humans in one form or another. But because desire is not
rational in the Western sense, this tactic also commits Queer legal theory to
engaging the law beyond the limits of (legal) rationality. This tactic or method
calls forth a joy in and for humanity that is distinct, though not separate, from
the notions (and the limits) of reason or logic that characterize the very culture
of the law. In this sense, this tactic may be the most radical or subversive
contribution of Queer legal theory to critical legal thinking; defending desire
effectively calls for us to come out of the closet with respect to human
pleasure and its worth.119
What common good (that is not already met through a rights paradigm) is served
when the meaning of sexuality within the context of its legal regulation changes in
this way? That is to say, what common good is served when law come[s] out of the
closet with respect to human pleasure and its worth?
For one thing, a legal recognition of the worth in human pleasure serves the
common good of human flourishing. That is to say, a focus on desire and pleasure (in
conjunction with harm) locates well-being and human flourishing as central to the
laws concern in this context. It allows legal analysis to take primary consideration of
the quality of peoples lives. Incorporating concepts of pleasure and desire into the
laws conception of sexuality reveals a more nuanced and truthful account of this
human activityan activity the ubiquity of which is matched only by the historical
degree to which as it has been socially and legally regulated.
Conclusion
Laws which finally recognize sex as having the capacity to be positive,
pleasurable, and fun reflect a reality that the law has not tended to reveal. This is
significant not simply for its celebration of one of the very positive aspects of our
humanity, but also because the laws capacity to better recognize, account for, and
reflect the good of sex might also lend itself to a capacity to better account for and
reflect the bad of sex (particularly for women, children, and sexual minorities). Most
significantly, a legal capacity to better reflect these sexual realities might eventually
facilitate a greater ability to handle those complex and difficult legal circumstances in
which pain and pleasure, desire and fear, intersect, overlap, and at times blur.120
subverting sex and gender normsrecent writers argue that queer legal theory is not a substantive
project but rather a methodology for critique. See generally Halley, Split Decisions, supra note 92. As
suggested above, queer theory, unlike iconoclasm, is less able to accommodate theories of justice,
reflect legal struggles as they actually transpire, or operate within a liberal framework which
operationalizes law through judgment.
119 Valdes, Queers, Sissies, supra note 115 at 369.
120 Issues such as prostitution and sado-masochism, for example, reveal circumstances where the
law has, to date, failed to develop a coherent theory of sexuality accounting for the infinite complexity
that arises when human beings interact sexually. Sexual assault is another example where the law
385
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The decisions of the Supreme Court of Canada in Labaye and Kouri establish an
understanding of the regulation of public sex that is based in morality and that
acknowledges the value of community. Chief Justice McLachlins reasoning, far from
relegating Canadian values to the private domain, invokes our generally agreed-upon,
fundamental ethical convictions for the very purpose of protecting them, and she does
so in a manner that continues to recognize the importance of community and
collective interests without subjugating minority desires to majoritarian sexual
morality. Chief Justice McLachlin relies upon principles reflected
the
constitutionprinciples such as autonomy and equalityto redefine the legal
regulation of public sex in a manner that removes it from the community standard of
tolerance test. She establishes a standard that regulates sexual activity based on
principles considered to be agreeable to all or almost all members of a liberal society.
In this way, her reasoning provides a convincing liberal response to the dissents
communitarian objection to ridding the law of the community standard of tolerance.
Moreover, her decision responds to the dissents critique of community in another
manner. Labaye and Kouri are not premised on claims of identity, privacy, or
expression, and therefore they actually represent the potential for a more significant
shift in the jurisprudence. This interpretation of her decision identifies the
iconoclastic implications of her reasoning and illuminates a shift in the legal
regulation of sexuality towards an accommodation of concepts of pleasure and the
significance of sexual desire. The reasoning in Labaye thus protects our common
interests in tolerance and human flourishing, achieved through the recognition and
affirmation of sexual pleasure, bound by both sexual dissent and liberal judgment.
remains unable to properly account for these complexities. (One area of sexual assault law which has
developed a more sophisticated and realistic account of the complexities regarding sexual desire is
that of consent. However, many other aspects of sexual assault law, such as victim credibility and
similar fact evidence, continue to demonstrate a legal theory of sexuality that fails to reflect any of the
complexities to which I am referring.)
