Ruling that the act does not qualify as prostitution or a societal threat, as prosecutors contended, Chief Justice Beverley McLachlin wrote in her opinion that the increasing popularity of swingers clubs in the country wasn’t something the legal system should concern itself with.
“Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society,” McLachlin said.
The ruling overturned the conviction of Jean-Paul Labaye, owner of a swingers club in Montreal called L'Orage, who in 2004 was convicted of running a “bawdy house,” the legal term in Canada for any place of business where prostitution or public indecency takes place.
The L'Orage Club touted itself as a place where swingers could meet upon paying a $200 entrance fee. The three-level club had a liquor and restaurant permit for the first two levels and offered a group sex room on the third floor, which also was Labaye’s apartment.
However, because patrons at the club never paid directly for sex, Labaye’s lawyer argued the club was merely a venue for a consensual activity.
Seven of the Court’s nine justices agreed.
“Criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society.” McLachlin said. “The [prosecution] failed to establish this essential element of the offense.”
McLachlin added that moral disapproval of the club was not enough to warrant its closure.
“Attitudes in themselves are not crimes, however deviant they may be or disgusting they may appear,” she said. “The autonomy and liberty of members of the public was not affected by unwanted confrontation with the sexual activity in question only those already disposed to this sort of sexual activity were allowed to participate and watch.”