National Affairs Rory Leishman

Following the tawdry example of theatres in England and the United States, the Grand Theatre of London, Ont. recently lured customers with a stage adaptation of the movie The Graduate that featured a lead actress appearing stark naked on the stage. Not to be outdone, London’s Centennial Hall has presented The Puppetry of the Penis, a play in which two male actors exhibit full frontal nudity.

Not so long ago, such shameless displays of public indecency would not have occurred even in one of Canada’s seedier strip clubs, because the offending performers and managers would have been charged under Section 167 of the Criminal Code with presenting “an immoral, indecent or obscene performance, entertainment or representation” – an indictable offence punishable by up to two years in prison. What has happened in the meantime? Has Parliament repealed Section 167 of the Criminal Code?

Not at all. The law is still on the books. The problem in this, as in so many other instances, is that the Supreme Court of Canada has decided not to uphold the law as enacted and originally understood.

That’s fine with many theatrical managers. One wonders what they might stoop to next. Perhaps some day soon, an unscrupulous impresario might decide to strew the stage of a major Canadian theatre with mattresses and invite naked volunteers from the audience to engage in group sex.

That’s inconceivable, you say? Alas, no. In last year’s ruling in Labaye, the Supreme Court of Canada decreed that notwithstanding the law on indecency in the Criminal Code, there is nothing inherently illegal about the presentation of group sex in a public theatre, provided only that the audience receives fair warning of what to expect.

Chief Justice Beverley McLachlin wrote the reasons for the judgement of the court in
Labaye. In describing the sexual antics at issue in this case, she related that people lay on mattresses scattered about the floor and engaged “in acts of cunnilingus, masturbation, fellatio and penetration. On several occasions observed by the police (undercover officers), a single woman engaged in sex with several men, while other men watched and masturbated.”

McLachlin and the majority of her colleagues held that there is nothing “immoral, indecent or obscene” about such conduct within the meaning of the law, because the presentation of an orgy of group sex before a willing audience is not of a nature that “causes harm or presents a significant risk of harm to individuals or society by predisposing others to anti-social behaviour that is incompatible with the proper functioning of society.”

This ruling was entirely unprecedented. It had no basis in either the plain language of the Criminal Code or the previous judgements of the Supreme Court of Canada. In effect, McLachlin and her colleagues proceeded on their own in Labaye to overturn the law on indecency in Canada.

That’s fine with libertarians. They argue that people who are offended by obscene displays of nudity on television or in movies and the theatre should change the channel and boycott the offending movies and theatrical performances.

There might be something to be said for this argument, if there were reason to believe that the public display of lewd behaviour has no adverse effects other than to demean and degrade those who engage and witness such spectacles.

But that, plainly, is not the case. Ever-more-flagrant exhibitions of sexual promiscuity have coarsened our entire culture to the point that many husbands and wives who would not have dreamed of entering a relatively tame strip club 30 years ago now sit complacently through a far more graphic presentation of lewd conduct in the Grand Theatre.

And that’s not the worst of it. Only the naive can suppose that there is no connection between a rising tolerance for obscenity and the epidemic of fornication, adultery and divorce that has undermined the stability of that most fundamental of social institutions, the natural family.

What can be done? There is one obvious remedy: decent citizens can support principled politicians who have a clear understanding of the difference between right and wrong and a firm determination to combat the usurpation of legislative power by the amoral and transgressive elitists who predominate on the Supreme Court of Canada.