Court File and Parties

Ontario Court of Justice

Date: 2019-04-26

Court File No.: Kitchener Info# 17-7380

Between:

Her Majesty the Queen

— and —

Jeffrey Shaver

Before: Justice Scott Latimer

Heard on: March 19, 26, 27, 29, 2019

Reasons for Judgment released on: April 26, 2019

Counsel:

• Katherine Enns, for the Crown
• Jeffrey Shaver, on his own behalf

Judgment

LATIMER J.:

[1] Historical Context

[1] In 1930, a procession of nude parades was plaguing the western provinces. These parades were organized by a radical religious sect who used flagrant public nudity as a means of demonstration. The citizenry – and Parliament – were not amused, and the public nudity offence was subsequently written into the Criminal Code under the sub-heading, "Disorderly Conduct".

[2] Eighty-seven years later, on September 13, 2017, Jeffrey Shaver staged a different form of demonstration. Standing on the steps of Waterloo Courthouse, clad only in sneakers and a multi-coloured athletic supporter, he sought to draw attention to an earlier police seizure of his medical marijuana. He succeeded. His attendance garnered local and international attention, and his message was communicated by numerous news outlets. Less happily, his outfit also drew the attention of local police, who arrested him for breaching the public nudity offence. I have heard evidence and argument over the span of four court days. For the reasons that follow, I find him not guilty as charged.

I. FACTS

[3] Mr. Shaver is a medicinal marijuana user. Approximately nine months prior to this public nudity allegation, he was arrested and charged with marijuana possession. He believed his arrest unlawful, as he had been granted a license to possess and consume marijuana for medicinal purposes. He sought to have the charges dropped and his marijuana returned to him. He began to protest using traditional methods, such as signs and placards. After a time, his method changed to include t-shirts with slogans – "RETURN MY WEED AND BONG" – and provocative clothing choices.

[4] Sometimes Mr. Shaver protested near local police stations; sometimes he protested at the Waterloo Courthouse, where he understood the federal prosecutors' office was located. He initially stood with his signs on the sidewalk, later moving to the designated smoking area near the courthouse entrance. This location made him visible to most of the people entering the courthouse, as well as people already inside, on account of the building's large glass panels.

[5] At these attendances, Mr. Shaver often wore a t-shirt emblazoned with one of his protest slogans. Sometimes his lower half was clad only in conventional underwear, with what he described as "full coverage in the back". Sometimes he bypassed the t-shirt and only wore underwear. His protests attracted significant online attention, as well as reporting from local and international news media. Mr. Shaver was clearly interested in the attention; he took pleasure in his testimony to recount the fact that his news articles caused significant internet traffic on local media servers. His objective however, remained unfulfilled: the Crown's office was apparently unwilling to speak with him or withdraw his pending marijuana charges.

[6] On September 11, 2017, Mr. Shaver attended the courthouse and went inside. He was wearing a t-shirt and the multi-coloured athletic supporter that is the focus of these proceedings. He initially received resistance from the officers responsible for court security, but Mr. Shaver advised that he needed to attend the provincial Crown's office to discuss a bail variation related to a recent mischief charge. Somewhat reluctantly, the officers allowed him to enter the building. I am advised that he attended the Crown's office and other locations in the courthouse, largely without incident.

[7] On September 12, Mr. Shaver went to a local police station to submit to a demand for fingerprints. He was dressed only in his athletic supporter and sneakers. Before entering the building, he was approached by two officers. Mr. Shaver captured their interaction on a video recording he made with his phone. He testified that it is his practice to try and record all interactions with the police.

[8] The recording is an exhibit on this proceeding. The officers recognize Mr. Shaver from his prior media attention. They speak respectfully to him, asking seemingly sincere questions about the medicinal marijuana licensing regime. Mr. Shaver, in an equally respectful tone, answers their questions and describes how one can lawfully possess marijuana for medicinal purposes. The recording captures a friendly, pro-social interaction between the police and a member of the community. It is to everyone's mutual credit that it occurred in such a positive manner.

[9] The discussion at a certain point turns to Mr. Shaver's manner of dress. He describes how he had retrofitted his athletic supporter to include a strap of elastic running from the bottom of the cup towards the waistband strap. This elastic travelled between his buttocks, and Mr. Shaver advises that his intention was to cover his anus in the event he bent over while wearing the garment. He advises the officers that it is not his intention to display his body for a sexual purpose, and seems to have previously turned his mind to indecency concerns. He believes his outfit to be legal, "as long as [he] was not deliberately bending over... for a sexual purpose". An officer responds, "That is the definition". Mr. Shaver was subsequently permitted to enter the police station – clad only in the athletic supporter – for the purpose of providing his fingerprints.

[10] On his way home after being fingerprinted, Mr. Shaver was stopped by another officer and served with legal documents relating to a contempt of court application that had been filed by the provincial Crown's office in the Superior Court of Justice. The application was scheduled to be heard in three days, on September 15. Mr. Shaver took the documents and went home.

[11] On September 13, Mr. Shaver returned to the Waterloo Courthouse. This is the date he is alleged on the information to have been nude in a public place. He came to the courthouse that day for two purposes: first, to protest. Second, he wanted to see a Justice of the Peace with regard to the bail variation he had discussed with the Crown's office on September 11. He arrived wearing a t-shirt and shorts, but quickly removed these garments and stood outside the courthouse clad only in his multi-coloured athletic supporter.

[12] Mr. Shaver testified that he chose his outfit as a commentary on the strip search he endured – he believed unlawfully – during the initial marijuana arrest from which all his subsequent protest activity flowed. He chose the courthouse as a protest site because of its connection to the Crown's office, and the symbolic value attached to it. As public property, he believed it would respect peaceful protest to a greater degree than private property. He agreed, in cross-examination, that all manner of people come to the courthouse on a given day, including children and adults of all different backgrounds and beliefs. Indeed, as he responded to Ms. Enns, "pretty much everyone comes to the courthouse", and it could have been anyone standing next to him, or observing him, as he stood near the courthouse entrance wearing the athletic supporter.

[13] Mr. Shaver remained on courthouse property for approximately seventy-five minutes prior to his public nudity arrest. It is clear to me that Mr. Shaver, over his multiple attendances at the courthouse, had become a nuisance in the eyes of courthouse security, and that conversations had occurred with the Crown Attorney's Office regarding whether consent, pursuant to section 174(3) of the Criminal Code, would be provided. Because of this particular subsection, the Attorney General, or her designate, must consent before a peace officer can lay a charge of public nudity.

[14] On the morning of September 13, the police were advised that they had obtained the required consent. Uniform police officers arrived at the courthouse and Mr. Shaver was arrested without incident. He was subsequently taken to a nearby police station.

[15] The arresting officers described Mr. Shaver's attire as "no coverage to the rear, causing his entire bare bum to be exposed and visible to anyone walking by at the time". Neither his genitals nor his anus were visible, nor was any pubic hair.

[16] Before leaving the scene of the courthouse, it is important to note that, while Mr. Shaver was clad in the athletic supporter, no disturbance or any obvious form of disorder took place. I find that as a fact. The witnesses uniformly described a respectful, peaceful individual – clad somewhat absurdly – standing outside the courthouse entrance. Sergeant Christiansen, an officer assigned to the courthouse, testified that he did not witness any hostile interactions, nor did he witness anyone visibly angry or yelling at Mr. Shaver to put on clothes. At the highest, a few people seemed to express shock and surprise, with others joking, upon entering the courthouse, that "[they] didn't need to see that".

[17] Mr. Shaver's arrest occurred at 11:12 a.m., and he was taken to a nearby police cruiser, where he remained until he was driven to a nearby police station. His departure was delayed briefly when the officers inadvertently locked their keys in the cruiser's trunk, requiring a second police vehicle to attend. In the confusion that resulted, the arresting officer neglected to provide Mr. Shaver his rights to counsel until 11:24 a.m., upon their arrival at the police station. Mr. Shaver asked to speak to a lawyer from Hamilton, but he could not remember her full name. He advised that contact information existed on the phone in his backpack that was seized incident to his arrest.

[18] Significant evidence was adduced during the trial regarding the time period that Mr. Shaver was detained at the police station. Given my ultimate conclusion on the merits, I do not see the need to review this portion of the evidence in any great detail. Suffice to say, I accept, as the Crown does, that Mr. Shaver's section 10(b) Charter rights were infringed in two ways: first, when the arresting officer declined to permit him to look at his phone in order to obtain contact information for his counsel of choice. Second, when he was asked during the police caution if he wished to say anything, violating the "hold off" requirement in the s. 10(b) right: see R. v. G.T.D., 2018 SCC 7. Both of these infringements are properly viewed as minor in the circumstances of this case. First, other than the G.T.D. point – which was an inadvertent, and since resolved, problem with the standard wording of the caution – the officers did not seek to ask Mr. Shaver any questions, or interview him in any meaningful way. He was released from custody in a reasonably prompt period of time, without being asked any substantive questions by the police.

[19] Second, and perhaps most importantly, the police conduct during Mr. Shaver's detention was appropriate and Charter-compliant. Indeed, there were aspects that are worthy of acknowledgment, particularly the efforts made by Constable Hill and Sergeant Grandy to determine if they had the capacity to provide access to Mr. Shaver's medical marijuana while in custody. The officers considered the relevant smoking-related legislation, their current physical space, and whether they could accommodate his request, before concluding that the simplest approach was to release Mr. Shaver on an undertaking with a promise to appear. Mr. Shaver's detention was lawful pursuant to the Criminal Code and the Charter. Nothing I have heard, either in evidence or on the clandestine recording made on Mr. Shaver's phone, causes me to reach any alternative conclusion.

II. LAW – PUBLIC NUDITY

[20] Section 174 of the Code creates a criminal offence for anyone who, without lawful excuse, is nude in a public place. Mr. Shaver, however, was never fully nude while at the courthouse. In the circumstances, the Crown relies on the s. 174(2) deeming provision, which enlarges the definition of "nude" to include a person "who is so clad as to offend against public decency and order". More specifically, the Crown's particularized theory in this case is that Mr. Shaver was clad so as to offend against public order.

(1) What does it mean to be "so clad as to offend against public order"?

[21] As previously noted, the public nudity offence has been in the Code since 1931. A review of the jurisprudence reveals that the judicial focus has almost exclusively been on the "public decency" component of the provision. While this case concerns "public order", in my view it is helpful at the outset to observe the rigorous modern criminal standard related to decency. It is not what is in good taste, nor is it a judge-driven assessment of what a community's standards are. The Canadian interpretation of indecency has developed, from Hicklin to Butler to Labaye, to focus on certain significant types of harm that may arise from an accused's conduct. In R. v. Labaye, 2005 SCC 80, at paragraph 40, a majority of the Court stated:

One reason for criminalizing indecent acts and displays is to protect the public from being confronted with acts and material that reduce their quality of life. Indecent acts are banned because they subject the public to unwanted confrontation with inappropriate conduct. This harm is conceptually akin to nuisance. Nevertheless, to call this the "eyesore" basis of criminalization of indecent acts is to trivialize the harm. The harm is not the aesthetic harm of a less attractive community, but the loss of autonomy and liberty that public indecency may impose on individuals in society, as they seek to avoid confrontation with acts they find offensive and unacceptable. The value or interest protected is the autonomy and liberty of members of the public, to live within a zone that is free from conduct that deeply offends them. [Emphasis added.]

[22] It is clear from Labaye that the Crown bears a formidable burden in establishing a "significant risk of harm" in the indecency context. This is entirely appropriate in the criminal context. As the majority opinion, written by the Chief Justice, further explained in paragraph 41:

Much harm in this category does not rise to the levels of harm required by Butler and Little Sisters. Tolerance requires that only serious and deeply offensive moral assaults can be kept from public view on pain of criminal sanction. We live in an age when sexual images, some subtle and some not so subtle, are widely dispersed throughout our public space. However, this does not negate the fact that even in our emancipated society, there may be some kinds of sexual conduct the public display of which seriously impairs the livability of the environment and significantly constrains autonomy… The loss of autonomy and liberty to ordinary people by in-your-face indecency is a potential harm to which the law is entitled to respond. If the risk of harm is significant enough, it may rise to the degree of the test for criminal indecency in Butler — conduct which society formally recognizes as incompatible with its proper functioning. [Emphasis added.]

[23] The particularized Crown theory in this case does not allege that Mr. Shaver's attire offended public decency. That is a reasonable approach, given the present facts and the harm-based test set out in Labaye. Whatever one thinks of Mr. Shaver's manner of dress, it does not rise to the level of a "serious and deeply offensive moral assault". However, that does not end the s. 174(2) inquiry. As Ms. Enns rightly noted, while scantily clad acts that offend against public decency will inevitably also offend public order, the reverse is not necessarily so. There can be circumstances where partial nudity will, as a factual matter, have offended against public order only. It is alleged by the Crown that this is one of those situations, as Mr. Shaver's nearly-nude state must be assessed in the context of his decision to display himself at the courthouse during public hours.

[24] In R. v. Jacob (1996), the Court of Appeal considered whether the public display of a woman's breasts constituted an indecent act pursuant to s. 173(1)(a) of the Criminal Code. In the course of their inquiry, a discussion of s. 174 emerged. In her concurring judgment, Justice Weiler noted that both ss. 173 and 174 reside under the subheading, "Disorderly Conduct". Beginning at p. 25, she addressed how Ms. Jacob's actions might have been received during a s. 174 prosecution:

The wording of s. 174(2) specifically requires the court to consider whether the person who is partially clad offends against public order. A sexual context is not necessarily required in determining whether public order has been offended. In the context of this case that question would be a major consideration...

... Conduct which materially affects the reasonable comfort and convenience of people constitutes a public nuisance. Public order would thus be offended. Social nuisance, including street congestion, and general detrimental effects on passers-by or bystanders, especially children, was considered by Lamer J. in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, as part of the reason justifying the limitation of expression of persons communicating for the purposes of engaging a prostitute. If, as the appellant's counsel suggests, the exposure of Ms. Jacob's breasts constituted expression, it might be that deference to public order would similarly justify limiting it... If the appellant had been charged under s. 174, a court could, in applying the section, consider and balance the competing individual interest of the appellant and the interest of the community in public order. It is quite possible that, under s. 174, even if the appellant met the community standard of tolerance, she could have been convicted for offending public order. The fact that a sexual context is not necessarily required under s. 174 is linked to the fact that it is not always necessary to apply the community standard of tolerance test under s. 174. [Emphasis added.]

[25] In setting out her approach to s. 174 and public order, Weiler J.A. considered the actual impact of Ms. Jacob's conduct on other members of the community, as demonstrated by their reaction to seeing her topless in public. This approach is consistent with Justice Spence's earlier comments in Johnson, supra, at p. 417, describing Parliament's intention in drafting the provision:

...the section was originally aimed at such conduct as was exhibited not infrequently by members of a certain radical religious sect. It was the effect on the public peace of such exhibitions which Parliament aimed to control and prevent by the provisions of what is now s. 170 of the Criminal Code... [Emphases added.]

[26] In summary, being "so clad as to offend against public order" requires evidence of an actual offence to public order or the public peace. Creating the circumstances where public order could be offended, or mere emotional upset, is insufficient. The fact that s. 174 resides under the Code subheading "Disorderly Conduct" provides additional interpretive assistance, as does the Supreme Court's approach to a "disturbance" under s. 175(1)(a), another offence located in the same subheading: see R. v. Lohnes, at 179, 181-2:

The weight of the authorities, the principles of statutory construction and policy considerations, taken together, lead me to the conclusion that the disturbance contemplated by s. 175(1)(a) is something more than mere emotional upset. There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public… [Emphasis added.]

III. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE

[27] In the present case, the evidence of an actual disturbance of the peace, or public order, is somewhat anemic. Beyond his choice of attire, Mr. Shaver did nothing that could reasonably be called disturbing. He did not yell, accost, or block anyone's path into the courthouse. He did not touch himself in any prurient manner. His actions did not manifest a notable outward reaction from the public, other than some bewildered looks and jokes made to the security staff.

[28] The Crown in this case has made much of the fact that Mr. Shaver chose to make a partially nude display of himself at a courthouse, one of the core institutions in our society. I agree with her submissions regarding the expected dignity of the courthouse, and that partial nudity could much more readily offend public order at this location, as opposed to others. I accept as well that Mr. Shaver's intention in dressing as he did may well have been exactly that – to offend the public institution most closely aligned with the state agents that he felt aggrieved by. His provocative choice of outfit demonstrates an intention to draw attention to his cause, without concern for the resulting impact on the public peace. However, based on the evidence adduced before me, the public seems to have been largely unbothered by his public display of his posterior on the courthouse steps. Perhaps that was simply Mr. Shaver's good fortune, that he did not encounter someone for whom his attire "materially affected their reasonable comfort and convenience" (Jacob, supra), or triggered an "externally manifested disturbance of the public peace" (Lohnes, supra). Or perhaps the community, and the administration of justice, is made of sterner stuff than to be disturbed by such a puerile display.

[29] Having considered the evidence as a whole, I find that, while Mr. Shaver intentionally dressed in the manner he did, and intentionally placed himself in a visible spot on the courthouse steps, it has not been proven, beyond a reasonable doubt, that, on September 13, 2017, he was "so clad as to offend against public order". The Crown cannot establish, therefore, that he was "nude" in a public place. I come to this conclusion without having to consider the excuse of "officially induced error", given the information Mr. Shaver had earlier been given by the police regarding his outfit. I would additionally note that the accommodating approach to his attire taken by the police, on September 11 at the courthouse, when he was allowed entry into the building, and on September 12 at the fingerprinting location – while not strictly necessary for my conclusion – further supports my view that the Crown has not made out the charge it has proceeded on.

IV. DISPOSITION

[30] I find Jeffrey Shaver not guilty of the criminal offence of public nudity. That does not, however, end the matter. In the circumstances, I wish to hear submissions from both parties with regard to whether this is an appropriate case for me to exercise my common law jurisdiction with regard to Mr. Shaver's future conduct while on courthouse property.

Released: April 26, 2019

Justice Scott Latimer