The decency of dissent

Thanks to a decision the Supreme Court of Canada made almost two years ago the proprietors of a handful of queer bars and clubs in Toronto’s gay neighbourhood have been encouraging sex among consenting adults on their premises. Police have been quietly watching and are so far tacitly supportive but the limits of the court’s decision still remain unclear.

In 2005 the Supreme Court of Canada overturned a lower court conviction against Jean-Paul Labaye. Labaye was convicted of operating a common bawdy house following a 1997 raid at his Montreal swingers’ club, L’Orage. A common bawdy house is defined in the Criminal Code of Canada as a place “for the purpose of prostitution or the practice of acts of indecency.”

After paying a membership fee patrons at L’Orage could access areas of the club where they could participate in or watch consensual recreational sex among adults.

Before the Supreme Court of Canada struck down Labaye’s conviction the framework used in Canadian law for assessing indecency depended on something the courts called a “community standard” of decency. That standard required judges to make purely subjective and largely arbitrary moral determinations based on what they thought society would find icky, regardless of considerations of individual autonomy or liberty.

In the Labaye case the Supreme Court of Canada decided that the community standard test should be replaced by an assessment of harm. Essentially the court struck down Labaye’s conviction saying that what he and his patrons were doing wasn’t hurting anyone and so should not be criminal.

It’s about informed consent; if you intentionally go somewhere where you know you will witness or participate in consensual sexual activity it’s a free choice that harms no one and should not be subject to prosecution.

The Labaye ruling opened new doors for swingers but it also made way, at least in theory, for a new age of free sexual expression — with some semblance of freedom from interference by law enforcement or government — in Canada’s queer bars and clubs. Two years later some of Toronto’s queer hangouts are continuing a furtive exploration of these newfound freedoms.

Todd Klinck, owner of Goodhandy’s, a popular sex club that opened in downtown Toronto five months after the ruling, couldn’t have been happier with the court’s decision.

“We didn’t even start planning until after [the ruling],” he says. “It very much influenced our decision to open our club.”

Goodhandys’ marketing materials and website leave little room for confusion about what happens there.

“We’re very public online,” smiles Klinck. “We are a club and we have acts here that used to be considered indecent that we don’t believe are anymore. It’s hard to prove that somebody was harmed by seeing something when they’ve had to go up a flight of stairs past a sign that tells them before coming in that it’s clearly an adult-oriented place.”

Klinck says his consultations with police in preparation for Pride Toronto 2007 were professional and constructive. He says he has had little interaction with law enforcement in his time as a club owner.

“Any dealings we’ve had have actually been positive,” he says.

Klinck says last year the Ontario Provincial Police (OPP) made one routine liquor inspection of Goodhandy’s. When an officer approached an area set aside for sex Klinck says he cautioned her.

“Just so you know, you’re welcome to go back there but that’s our sex area,” Klinck says he told the officer.

Klinck says the officer responded without hesitation, “Oh, cool, no problem. I don’t even need to see it.” Klinck says she then smiled and walked away.

“That gave me kind of a gauge that at least the OPP is already aware that this happens in clubs and it isn’t even slightly an issue,” says Klinck.

Richard Edwards, manager of Alibi, a gaybourhood nightclub, says he also has a frank relationship with police.

“We have signs prominently posted,” he says. “They have been through and seen them.”

Though Edwards makes a point to clarify that Alibi is a club with sex in it rather than a sex club, there is no confusion in the community.

“We’ve advertised it for a long time,” says Edwards. “If you are coming to the club you know what you are getting into. Most European bars have the backroom. We’re just catching up. Check any washroom in a downtown gay bar and you’ll find that kind of activity going on.”

It’s an understatement that sex has historically been a bone of contention between the queer community and police. As recently as 2000 Toronto police conducted a raid on the Pussy Palace at Club Toronto in which five male officers raided a bathhouse event for women and trans people.

As part of the fallout from that raid for the past three years all frontline Toronto Police Service personnel have received queer awareness and sensitivity training as part of their annual recertification.

“We’ve come a long way,” says Const Tom Decker, LGBT Liaison of the Toronto Police Service. “That isn’t to say there isn’t a long way to go. The goal is to make this an even better relationship.”

Decker says the police look to the courts for guidelines but goes on to caution that the Labaye ruling does not offer carte blanche protection from prosecution for sex clubs.

The ruling doesn’t explicitly protect queers from harassment by police or government because of backroom or public sex, it just shifts the burden to prosecutors to prove that the sex is somehow harmful. The only way to truly test the limits of the ruling as it applies to sex in queer clubs would be to fight prosecution in the courts. That means if government or police decide to test the limits of the Labaye ruling it could involve some kind of raid on a queer club.

Gary Kinsman, social activist and sociology professor at Laurentian University, does not look as favourably on the ruling as do the club operators. He says the ruling’s application specifically to heterosexual swingers’ clubs means that places like Goodhandy’s may not be protected all.

“The 2005 decision was specifically about heterosexual swingers clubs,” he says. “Whether it can be extended to cover queer sex is still not entirely clear.”

Kinsman wants a more sweeping revision of obscenity laws.

“We need to argue that this decision needs to be extended to cover queer sex in these places and that the bawdy house legislation be repealed,” he says. “The decision clearly does not cover consensual queer sex acts in parks and washrooms which remain criminalized. In my view if people establish a relation of privacy or intimacy for sexual acts, even if in state-defined public place, these acts should not be criminalized. Forms of sex that take place in state-defined public places have been an important part of the sexual histories of queer communities. There are now respectable middle-class forces in our [queer] communities who would like to clamp down on these practices since they see them as threats to their ability to assimilate themselves into a still hetero-dominated society. We have certainly won, through our struggles, important human rights and other victories but this society remains dominated by heterosexual hegemony and our consensual sexualities are still censored and criminalized.”

“There is a difference between what the decision says and what happens on the ground,” says Brenda Cossman, University of Toronto law professor and a director on the board of Pink Triangle Press, which publishes Xtra. “This decision affirms the idea that sex in a private place, however that is defined, is okay. The question is, what constitutes private and where do people have a reasonable expectation of privacy?”

“Who defines what offensive is?” asks Kinsman. “Remember that for many people queer sex per se is still offensive…. The sexual oppression of queer people is a central material basis of our oppression and we need to continue to support struggles for sexual liberation and for control over our own bodies.”

Kinsman is concerned about the future of sexual freedom in Canada, particularly if the Conservatives take a majority in the next federal election.

“The Tories have already tried to raise the age of sexual consent and are interested in further criminalizing queer sex if they can,” he says. “This is why it is really important that our movements and communities not give any support to these kinds of rightwing initiatives.”

Cossman is less worried.

“If it ain’t squeaking, don’t fix it,” she says. “It’s hard to imagine that [the Conservatives] would want to go back and revisit this issue, provided nothing explodes. It’s hard to imagine that they would try to wade in and try to define decency.”

For now Klinck is optimistic about the future of queer sex clubs in Canada.

“I can’t really be concerned about it as a business plan,” he says. “We have to just keep doing what we think is right. That could totally change but I don’t think Canadians want that. I don’t think it would be a priority because they have a lot of other things they have to deal with in the government than to bother with consensual adult behaviour.”