Thursday, 12 January 2012

Court Ruling on Nudity

The Federation of Canadian Naturist (FCN) just sent out the following announcement:

On Thursday, January 12th, the Ontario Court of Justice found Brian Coldin guilty on 4 of the 5 counts of "partial nudity that offended against the public order." (Section 174 of the Canadian Criminal Code) John Cropper who was a co-accused in one count was found not guilty. Mr. Coldin was sentenced to 24 months of probation and a $3,000 fine.  Justice Douglas also dismissed the arguments that the anti-nudity statute was unconstitutional.  Mr. Coldin is considering appealing. 
While the 37 page ruling did not go in Mr. Coldin's favour, it did contain a number of opinions that favour naturists. 
Under the act, nudity without a "lawful excuse" is only illegal if it either offends against (1) public decency or (2) order.  Justice Douglas specifically found that mere nudity in public is not indecent. By his analysis, public nudity which does not risk public order would not be illegal. 
In analyzing the Constitutional Arguments, Justice Douglas recognized naturism as a valid form of expression: 
[161]"...The evidence is very clear that many people, call them naturists, find some fulfillment in the conduct of being nude, and, not simply in private, alone, but being nude in some form of quasi-public place, such as a naturist camp. For them, the conduct of public nudity is imbued with meaning; hence, expressive." 

He further suggested that naturism would be meaningful enough to be protected: 
[166]"In my view, if the prosecution before this court concerned the sort of public nudity engaged in by naturists, at, for example, Mr. Deschenes' private home or his privately owned, but open to the public, naturist park, the matter would be much different. The effect of this laws application in such a circumstance, in my view, would be somewhat analogous to regulating the behaviour of those who celebrate the Seder of Passover or the Eid al-Fitr of Ramadan in private homes, or the Christmas at midnight in a church, which, too, is privately owned by, effectively, the congregation, but nonetheless open to the public.  Without putting too fine a point on it, many would feel far more comfortable in considering the conduct of Mr. Deschenes' naturists as protected expression akin to that given to recognized religious behaviour, than they would the conduct of those at swingers sex club or those engaged in a lap dance.[167]"In such circumstances, one could easily see the conduct as clearly expressive (and, with religious significance) and the law as oppressive thereof." 

Justice Douglas also addressed a common concern of naturists who are either nude in their homes or backyards. Section 174(b) states that it is not only illegal to be nude public but it is illegal to be "nude and exposed to public view while on private property".  Justice Douglas expressed strong concern that this part of the law reaches too far: 
[197]"Thus, what the private reach of the legislation catches is non-indecent, private nudity, if exposed to public view, such as the individual walking from the shower, observable through the bathroom window, the individual getting out of bed, observable through another window, the individual walking to or from the hot tub or pool, visible because the fence or shrubbery is too low."[198]"Can it be said that the legislation as a whole or in part fails because it reaches for and restricts even private nudity, simply because that nudity, while on private property, is exposed to public view. I must admit to some significant concern with this aspect of the legislation. It very much does reach across the boundaries of private property, into, that is, the bedrooms and bathrooms, and backyards of all. It does impose obligations on persons in the very intimacy of their home to build literal or figurative walls to protect against the vision of those who choose to look into their homes. Not only must those who live in glass homes not throw stones, they must buy curtains.  This strikes me as overreach." 
But Justice Douglas declined to rule on the constitutionality of this section because it did not apply to any of the charges that Mr. Coldin was facing.  However, his judgement presents a clear argument for any naturist who would be caught under 174(b). 
You can read the complete ruling at: