The Problem With Legislating Morality

Once again, the Supreme Court has been dragged into the issues where law and morality overlap. This time, it was over "Swingers" Clubs.

In these two cases (and there are two separate rulings: R. v. Kouri and R. v. Labaye - it would be easy to draw the conclusion from the media coverage that there was only one ruling).

Apparently, the charges laid in both cases were "keeping a common bawdy house - section 210 of the Criminal Code". Once again, in setting out the definitions (see section 197), the word "indecency" appears. While the term Prostitution is reasonably well defined in law, indecency has never been well defined. Like the word "obscene", it can mean whatever an individual wants it to mean.

Interestingly, the court majority opinion (the dissenting opinions are also contained in the ruling) on the test for indecency reads "As more fully discussed in the companion case of Labaye, Canadian law does not reduce indecency to what a judge views as morally corrupt. ". In fact, section 4.1.1 of the Labaye ruling is lengthy and details considerably the problems with applying the notion of "indecency" in law.

This collection of letters from CBC give an interesting cross section of public reaction. The reactions published range from very positive to very negative (no surprise). As with any topic involving sexuality, our society is split along a variety of lines - be they religious, moral or simple incomprehension. (I must admit that I can't get myself into a head space where I would want to engage in "swinging" or "partner swapping" - whatever it's called).

The key point that legislators need to awaken to is the notion of defining terms like 'indecency' in law. Like the now-notorious "obscenity trials" in the 1970s when there was a tussle over so-called "adult" magazines in stores. There were numerous attempts to define the word "obscene" in law, and inevitably, a perfectly legitimate exception could always be found. Too broad a definition, and you wind up with a law that can be used to outlaw legitimate artworks and literature, too narrow a definition and it's easy to create something that most people _would_ consider obscene but slides between the cracks in the law.

It's not an easy problem to solve. At least one of the objections in the CBC letters reads "It's another example of the stupidity of a legal system which so narrowly defines things according to a charter that is fundamentally flawed.". Another objector claims "To be sure, Judge Made Laws, such as these, are yet another reason why people are turned off by the Liberal/NDP alliance, since these Parties obviously lack Moral Direction and would, in all likelyhood, agree to the Court's interpretation. ".

Sadly, blaming the charter is simply to miss the point altogether. This case isn't a Charter issue - it's a matter of interpretation of legislation - in this case, the Criminal Code of Canada. It isn't judicial activism either - after reading section 4.1.1 of the Labaye decision, it's quite clear to me that the court was quite comprehensive in its evaluation of the law and its application. The failure here (if there is a failure) is upon the legislators of our nation to adequately define the terminology and use of these terms. The second, common failing among our legislators is a failure to understand how their proposed laws will interact with fundamentals as laid out in the Constitution. They could be forgiven for a failure to understand a centuries old body of case law, but fundamentals such as our Constitution and it's Charter of Rights should be required study for any prospective legislator in this country.

Generally, when I see vague terms like "indecency" or "obscenity" appearing in legislation, my mental alarms go off. What did the legislator intend for that word to mean? Does the current public notion of the concept make sense? (for example, returning to the 1970s "obscenity" cases, at the time "Playboy" was considered 'shocking' by some, today the Victorias Secret catalog is more suggestive than Playboy back then.)

An interesting observation - the so-called "adult" magazines aren't really in the corner stores any more. They've migrated into "adult stores" for the most part, and it doesn't seem to be a problem. Perhaps, we need to realize that we don't need to legislate the morality per se, but rather we need to recognize that society tends to self-regulate to some degree. We do need to have appropriate legislation in place to protect children for example, but when vague, virtually undefinable terms are appearing in the legislation we perhaps need to ask the question whether this is in fact necessary legislation.