Legal Research

Do Naturists Offend Public Order in the 21st Century?

By Yosie Saint-Cyr

Brian Coldin, a naturist and owner of a nude resort in Barrie, Ontario, considers clothing optional even in public places. Coldin has launched a constitutional challenge of the Criminal Code provisions against public nudity, saying the Code limits freedom of expression and is too broad. Coldin?s lawyer, Clayton Ruby, calls the Code?s nudity provisions an oddity, meaning they are outdated and improperly worded.

This constitutional challenge is part of Brian Coldin?s legal defence against allegations of public nudity. He has been charged with three counts of being nude in a public place and two counts of being nude and exposed to public view while on private property. The incidents are alleged to have happened between April 2008 and May 2009 on and around a resort that he operates and at several restaurant drive-thrus.

The alleged odd and unconstitutional provisions of the Criminal Code are written as follows:

Indecent acts
173. (1) Every one who wilfully does an indecent act,
(a) In a public place in the presence of one or more persons, or
(b) In any place, with intent thereby to insult or offend any person,
is guilty of an offence punishable on summary conviction.

Exposure
(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years is guilty of an offence punishable on summary conviction.

Nudity
174. (1) Every one who, without lawful excuse,
(a) is nude in a public place, or
(b) is nude and exposed to public view while on private property, whether or not the property is his own,
is guilty of an offence punishable on summary conviction.

Nude
(2) For the purposes of this section, a person is nude who is so clad as to offend against public decency or order.

Note that police require the permission of the attorney general in order to lay charges under the above sections of the Criminal Code.

Well I guess the attorney general did consent to the charges because the criminal trial started in the fall of 2010. At the hearings, several witnesses were upset, angry and even wept on the witness stand when explaining their encounters with a naked Brian Coldin and how it harmed them.

The rest of the trial has been postponed until May 17, 2011.

Supporters of this constitutional challenge such as the Federation of Canadian Nudists (FCN) say:

Canadian nudity laws are archaic because they define nudity as generally ?indecent? and intended to cause ?harm? to those who witness it.

The FCN has asked the Federal Government several times to review Sections 173 and 174 of the Criminal Code to better reflect present-day attitudes of a more enlightened society toward nudity, particularly in the context of nudist/naturist recreation and lifestyle.

Nudists say they?re just doing what comes naturally.

As the law says, a person is considered ?nude? not only when completely naked, but also if clad in a way that offends against public decency or order.

However, the standards of decency and propriety have varied a lot over time. To decide whether or not being nude in public is ?indecent?. In making its judgment, the court must apply the evolving standards of decency and propriety in the 21st century.

But has society become accepting (tolerant) of public nudity? Or is there increasing public indifference?

Trying to figure that one out is not an easy task.

Our society seems so divided on what is morally right and what is against public decency or order, can there be an acceptable social norm in regard to public nudity in our day and age, such as the standard of the Victorian era?

Are you ready to walk down Yonge Street and see a naked person walking towards you? Or to sit in a cinema beside a nude partaker? Or better yet, to see a witness appear in court in the nude?

Based on the above, is the law so outdated and imperfect that it should be re-examined by Parliament?

I know that I am not quite ready for that.

Full post as published by Slaw.ca on January 27, 2011 (boomark / email).