Among the logical flaws, they immediately tie it into the age of consent issues (which are quite unrelated), as the clubs in question are "adult only". A 14 year old, no matter whether they are legally able to consent sexually, is not a legal adult in Canada.
However, what got me was this little gem, which demonstrates that the authors hadn't even bothered to skim the Labaye ruling:
In general, case law has defined an indecent act as that behavior which either offends the community or has the potential to cause harm to the community in some way.
Contained within Labaye is the following:
21 The shift to a harm-based rationale was completed by this Court’s decisions in R. v. Butler, [1992] 1 S.C.R. 452, and Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69. In Butler, the two-part test for obscenity of Towne Cinema was resolved into a single test, in which the community standard of tolerance was determined by reference to the risk of harm entailed by the conduct:
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. Harm in this context means that it predisposes persons to act in an anti-social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm the lesser the likelihood of tolerance. [Emphasis added; p. 485, per Sopinka J.]
Further, the court goes on to state:
22 The Court in Little Sisters confirmed that harm is an essential ingredient of obscenity. As Binnie J. pointed out, “the phrase ‘degrading and dehumanizing’ in Butler is qualified immediately by the words ‘if the risk of harm is substantial’. ... This makes it clear that not all sexually explicit erotica depicting adults engaged in conduct which is considered to be degrading or dehumanizing is obscene. The material must also create a substantial risk of harm which exceeds the community’s tolerance”(emphasis added, at para. 60).
...
24 Grounding criminal indecency in harm represents an important advance in this difficult area of the law. Harm or significant risk of harm is easier to prove than a community standard. Moreover, the requirement of a risk of harm incompatible with the proper functioning of society brings this area of the law into step with the vast majority of criminal offences, which are based on the need to protect society from harm.
In other words, the court has distanced itself from the ambiguous notion of offense, and tried to root its rulings in the notion of harm done to participants or others as a result of the actions in question.
There are good reasons behind the analysis. Not the least of which is a recognition on the part of the judges that the notion of indecency is vague, and applying arbitrary tests which are based on abstract notions has proven to be a very troublesome thing.
Of course, the alarmists will continue to complain of "judicial activism", and they will continue to tie unrelated issues together in an effort to get the public riled up about the issue.
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