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Canadian Supreme Court’s “Swingers” Ruling Sets Dangerous Precedent, Says Organization

By Gudrun Schultz

OTTAWA, Ontario, May 3, 2006 (LifeSiteNews.com) – Last years’ Supreme Court decision to legalize swinger’s clubs and public group sex in Canada dangerously undermined the concept of “social morality” as a basis for future rulings, according to a review by Canada’s Centre for Cultural Renewal.

Published April 28 in Lex View, the Centre’s analytical review on the social impact of court judgements, the review identifies key areas of concern raised by the decision. The primary issue at stake is the court’s retreat from the concept of social morals as the standard for identifying criminal anti-social behaviour.

The court based the swinger’s club ruling on a standard of “harm”, determining that the club in question was permissible because it did not cause significant harm to the public and society.

“With its cryptic utterance that ‘our concern is not with the moral aspect of indecency but with the legal’, the majority abruptly attempts to sever the moral from the legal and tries to sidestep the appearance of moral reasoning altogether,” authors of the review state.

The two dissenting judges in the decision objected to the narrow definition of “harm” used by the court, saying:

“There are multiple criteria for justifying state intervention in criminal matters, even if it restricts human liberty.  Offences under the Criminal Code are thus based on principles and values other than harm…. To place excessive emphasis on the criterion of harm will therefore make it impossible to give effect to the moral principles in respect of which there is a consensus in the community.”

The authors of the review point out the lack of clarity in the decision, which leaves “real uncertainty” about the future application of the harm principle.

“If the Court is tested again on the possession of marijuana for personal use…or on, say, polygamy, or incest between consenting adults (say homosexual sexual incest) how will it respond?  Will it move from the harm principle to a larger concept of social morality that may be contemplated in order to safeguard the values that are integral to a free and democratic society?  It has left itself little room to do so as the dissenting judges pointed out.”

Read the full review:
http://www.culturalrenewal.ca/qry/page.taf?id=114

See previous LifeSiteNews coverage:

Canada Legalizes "Sex Clubs" - "14-year-olds will be exploited"
http://www.lifesitenews.com/ldn/2005/dec/05122104.html

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