Court rules for strip club in bawdy-house case

The news was so good that the lap dancers could barely concentrate on the laps.

The occasion was a ground-breaking court ruling using the Charter of Rights and Freedoms to strike down bawdy-house charges against a venerable, Toronto stripper emporium -- the Brass Rail.

"Were they excited?" said Irving Cooper, owner of the 42-year-old establishment. "Are you kidding? One of the dancers came running up and said, 'I can't tell you how much the tension has lifted because of this.' "

In her ruling, Ontario Court Judge Lauren Marshall said the law is so vague that police are granted intolerably wide discretion to charge confused strippers, customers and bar-owners.

While the ruling went virtually unnoticed by the press, defence lawyer Morris Manning said yesterday it holds resounding implications for an impossibly tangled area of the legal firmament.

"Judge Marshall's ruling was very strongly worded to demonstrate her very serious concern over the existing status of the law and the fact it doesn't give proper guidance to anybody," Mr. Manning said.

"This isn't just a judge saying an act wasn't indecent," he said. "This is a judge saying the law is such a mess that it doesn't give any sense of direction to owners, dancers, police or the public."

Legal specialists agree that the law governing sexual spectacles remains exceptionally muddy.

"The good news is that there has been a very slow liberalization of community standards," said Alan Young, a law professor at York University's Osgoode Hall Law School. "The bad news is that the path of liberalization is fraught with ambiguity and uncertainty."

He said the only constant is that morality squads can be counted upon to apply sex-trade laws most strenuously right around internal budget time.

"We are at a strange crossroads," Prof. Young said. "The highest court pronouncements involve more liberalization, yet we don't see any particular change in police enforcement. People who engage in the sex trade are skating on very thin ice."

It was widely assumed that in issuing the third in a trilogy of rulings on the issue last December, the Supreme Court of Canada had substantially thickened the legal ice.

The case of R v. Pelletier joined two earlier cases -- R v. Tremblay and R v. Mara and East -- in setting standards for when contact between a stripper and a client becomes unacceptably indecent to the community at large.

Taken together, the rulings established that strip club patrons are not naive as to what they may encounter. As a result, mild contact -- including clothed pelvic grinding -- is permissible, provided it takes place in a private area and stops short of explicit sexual behaviour.

Montreal lawyer Robert LaHaye, defence counsel in the Pelletier and Tremblay cases, said in an interview that many people misread the trilogy to have settled the issue of public sex.

The key lies in the wording of the bawdy-house law itself, he said. It states that an operator, "inmate" or customer is guilty if acts of indecency or prostitution take place on the premises.

The trilogy brought a degree of clarity to the indecency branch of the law, but left the prostitution aspect unexplored. Police simply began laying bawdy-house charges on the basis that since lap dances cost money, it amounts to prostitution.

Prof. Young said police are fond of the new tactic because unlike indecency, it is not necessary for the Crown to show that the acts in question would offend "community standards of tolerance."

In contrast with Mr. Manning's victory late last week, Mr. LaHaye lost a bawdy-house case in Quebec City recently that hinged on prostitution. Both cases appear destined for the Supreme Court of Canada.

Prof. Young predicted that if the courts end up restricting the use of the prostitution charges as well, police will move on to laying charges of procuring prostitutes, or living off the avails of prosecution.

"The cycle never ends," Prof. Young said. "Unless we decriminalize this behaviour, the police will always find some avenue to target sexual activity."

The Brass Rail's Mr. Cooper said this was brought home to him when, after 42 years of quiet co-operation with the police, he was charged.

"It was a real slap in the face," the 67-year-old man said. "It is a terrible stigma after 42 years to be called a pimp who runs a bawdy house. Last night was the first night in the past two years that I've had more than five hours sleep."

Mr. LaHaye said a significant event took place last week when the Crown withdrew charges against a South Shore Montreal bar whose patrons allegedly licked and sucked the breasts of dancers.

He said he now advises bars to have private booths with 1.5-metre high walls, which a dancer can grip on top to prove she is not masturbating her clients. Customers can safely fondle any area of a dancer except her genitalia, he added.