Sex and the law

>> The ins and outs of the Criminal Code on all matters bawdy and uncommon

by CRAIG SEGAL and PHILIP PREVILLE

These days, court reporters and sex reporters have pretty much the same job. From swinging to lapdancing to public-washroom nookie, sex is being debated in the courtrooms of the nation. What's legal? What's not? Forthwith, a guide to legal sexual activity in Canada.

Legal hooking
The Criminal Code of Canada defines prostitution as accepting money in exchange for "lewd sexual acts." Prostitution per se is actually legal in Canada, but all related activities--including encouraging someone to become a prostitute, living off its avails, soliciting in public--are not.

This distinction results in no end of legal hairsplitting: hookers can't be charged with "living off the avails," but anyone else can. And the Code states that anyone who "lives with or is in the habitual company of a prostitute" is living off its avails. How well do you know your roommate?

Despite being legalized, hookers aren't allowed to stop cars or "impede the free flow" of pedestrians.

MUC police claim that there are between 1,000 and 1,500 prostitutes on the island, about 500 of whom work on the streets. In 1997, MUC police arrested prostitutes for soliciting on 987 occasions; for all other related offenses, they made 565 arrests.

City officials are considering a "red light district" pilot project where adult hookers could openly solicit--though their johns could still be arrested.

How indecent!
What about sex you don't pay for? The Code has it in for "indecent acts," but it's not sure what's indecent and what's not. In the eyes of the law, an act is "indecent" if it offends a majority of Canadians--and the only way to know that is to ask them. "A survey is the best way, but it's very expensive," says lawyer Robert La Haye, the lawyer who helped legalize lapdancing in Canada. Opinion polls on sexual attitudes have helped La Haye win cases in the past.

As of last December, lapdancing isn't considered "indecent." But there are limits: the grope must take place in a semi-private cubicle, in a strip club, and can't involve touching genitals. "She's supposed to stand, not sit on him, and leave her hands on the cubicle walls," says La Haye.

Although such groping is legal, some cities aren't taking it sitting down. Ottawa police say they will continue to enforce a 1996 no-touching bylaw. MUC police are still deciding what to do in the wake of the Supreme Court decision.

The public-private distinction
For an act to be indecent, it has to happen in a public place--and context is everything. While lapdancing cubicles in strip clubs are "private" in the eyes of the law, everyday bathroom cubicles are not. Parks are public no matter how deep into the brush you go. And cars are public too, unless they're in a closed garage.

Then again, to commit an act of "public" indecency, someone has to witness it. This explains one reason why, instead of old-style toilet cubicles, many restaurants and clubs are building separate, fully enclosed rooms for each toilet.

Key question: are police officers valid witnesses to indecent acts? In 1997, a Quebec lower court judge ruled they were not; someone else had to witness the indecency and complain about it before a conviction could be obtained. But that decision was overturned last year, and cops have begun ferreting out randy park-goers once again.

Home bawdy home
The Code's section on "bawdy houses" bring all these issues together. And a bawdy house isn't the same thing as a bordello or whorehouse: it's any place used for either prostitution or "the practice of acts of indecency."

There's no law that says you can't have sex with more than one person at the same time. Lawyer La Haye says you can even profit off it. If you don't want to have group sex in the same house where your kids sleep, you can rent a place and charge your friends a few extra bucks for the effort.

The real problem with swinging has to do with keeping it in a "private" place. In the case of Club l'Orage, the owner's third floor apartment was considered "public." It didn't matter that you needed to know an alarm code to get in: eight hundred people knew it, including the undercover cops with belt cameras who filmed a woman being gang-banged.

The l'Orage case is being appealed; the owners are so confident of winning they've already re-opened l'Orage, on St-Laurent near Mont-Royal. It will be sex-free until the appeal decision is handed down. :

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