R. v. Tremblay, 1993 CanLII 115 (SCC), [1993] 2 SCR 932

R. v. Tremblay, [1993] 2 S.C.R. 932

Jean‑Paul Tremblay, Patricia Tremblay, Peggy Obas Malval, Doris Tremblay, Marleine Jean, Robert Bourdeau, Chantal Girouard, Christiane St‑Louis et Brigitte Tremblay Appellants

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Tremblay

File No.: 22650.

1993: February 23; 1993: September 2.

Present: La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for quebec

Criminal law ‑‑ Indecent act ‑‑ Bawdy-house ‑‑ Public place ‑‑ Nude dancers performing in individual cubicles ‑‑ Clients permitted to be nude and to masturbate while watching performance ‑‑ Whether community tolerance standard offended ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 193(1), 529(3), (4) (am. S.C. 1985, c. 19, s. 123, now R.S.C., 1985, c. C‑46, ss. 210(1), 601(3), (4)).

Trial ‑‑ Procedure ‑‑ Motion to amend charge ‑‑ Motion made late in trial ‑‑ Whether or not serious prejudice to accused.

The appellants were charged with keeping a bawdy-house for the purpose of the practice of indecent acts contrary to s. 193(1) (now s. 210(1)) of the Criminal Code. Nude dancers would perform in individual cubicles for their clients and would assume a variety of suggestive positions. The clients were permitted to remove their clothing and many masturbated during the performance. The management strictly enforced a "no touching" policy and monitored this policy with a peep hole on each room. The peep hole was not used for purposes of voyeurism.

At trial, the Crown's motion to amend the charge by deleting the words "the practice of indecency", and its subsequent motion to include the words "practice of prostitution" were denied because they would cause serious prejudice to the accused. The motions were made late in the trial when virtually all the evidence had been called. The Court of Appeal materially amended the charge and entered a conviction on the basis of the amended charge. The issues before this Court are: (1) whether the Crown should have been permitted to amend the charge substantially, and (2) whether the acts were indecent when viewed in light of the current standard of community tolerance.

Held (Gonthier and La Forest JJ. dissenting): The appeal should be allowed.

Per L'Heureux‑Dubé, Cory and McLachlin JJ.: Although the courts possess reasonably wide powers of amendment under s. 529(3) (now s. 601(3)) of the Criminal Code, persons accused of a crime must know the charge brought against them in order to present a full answer and defence. A court can amend an information or indictment only when the amendment would not result in irreparable prejudice and only if the evidence can support such a charge. Here, to have permitted the amendment so late in the trial would have caused irreparable prejudice to the appellants. It might have been appropriate to allow the proposed amendment much earlier in the trial proceedings provided an adequate adjournment was granted to the appellants to prepare their defence to meet the amended charges. The Court of Appeal's decision to amend the charge materially and enter a conviction on the basis of the amended charge was extraordinary and inappropriate.

The "community standard of tolerance" test for indecency, like the one used in obscenity cases, involves an analysis of the impugned acts involving several considerations. These accepted standards of tolerance, which are contemporary and change with the times, and which reflect the standards of society as a whole, exist and should not be exceeded. The decision as to whether the acts fall below the community standard of tolerance rests with the court. The determination must be made objectively in accordance with the contemporary standards of the Canadian community, and not merely project a judge's own personal ideas of what is tolerable.

The degree of harm ‑‑ in the sense of predisposing persons to act in an anti‑social manner ‑‑ is a factor that the courts can consider in determining the community standard of tolerance. The public harm that might result from the public exposure to the impugned acts is relevant to the determination of whether or not they are indecent.

The circumstances surrounding the act must be taken into account for the community standard of tolerance will vary from place to place and with the composition of the audience. The purpose of the performance and the nature of the warning or notice that is given of the performance may be considered.

The use of expert evidence to assess the community standard of tolerance is advisable. Here, the trial judge, in determining this standard, properly considered the expert opinion of a psychologist and sexologist, a government report studying the problems associated with pornography and prostitution and a police officer who attended at the premises.

No complaints were made about the club's activities, either from neighbours or clients, and this fact too can be considered in deciding whether there was community tolerance for the acts. The community tolerated sexually suggestive acts performed by naked dancers and the acts of both the clients and the dancers came within the range of this tolerance. Both clients and dancers knew exactly what to expect, consented to the activities and could leave at will. Whether the acts of simulated masturbation or masturbation itself are indecent depends on the circumstances. The lack of physical contact, although not determinative, was significant since there was little likelihood of physical harm being caused to either individual. Equally important, the "no contact" rule ensured that the transmission of infectious sexual diseases was prevented and so increased the level of the community tolerance for the acts at issue.

Although the premises here fell within the Criminal Code's definition of a public place, common sense indicates that there are great differences between locations which can come within the definition of public places. The performance of an activity in a closed room in a house, where only two consenting adults are present, is far different from carrying out the same activity in a school yard or a public park. The existence of the monitoring peep hole, even if it were to be used for consensual voyeurism, was hardly enough to render the act any more public, in any significant sense, than it was when performed between the two persons apparently alone in the room. The presence of the peep holes would, if anything, indicate that the acts were not viewed as indecent by any of the persons in the room or by the management enforcing their rule against physical contact.

Per La Forest and Gonthier JJ. (dissenting): The standard for determining whether or not an act is indecent is what the community as a whole is prepared to tolerate and not what was approved of or seen as tasteful by that community. This single standard of tolerance does not vary with the actual audience and is constant, regardless of the time, place or manner of the representation at issue inasmuch as those factors serve to define the audience. The standard is responsive to the various harms which may be caused by obscene activity or depictions. The combination of a given content and a representation together constitute the particular essence of obscenity.

This case did not concern pornographic material but rather a live performance of sexual activity, by both the client and the dancer, in a public place. The acts in issue were not in substance the same as other acts found to be tolerated by the trial judge.

The way in which a representation occurs can contribute to harmfulness or a lack of tolerance by the community. The community was concerned about the activities occurring in the Club and any tolerance that neighbours may have been shown to have had towards the Club did not account for the activity of the client.

The place where the acts occurred was public, i.e., a place to which the public has access, either as of right, or by express or implied invitation. The relative privacy of an activity, while relevant, is but one of many factors to be considered. The division of what is private from what is public rests only in part on the number of persons who may witness the activities in question. It also rests upon the special set of expectations which the public rightly holds with regard to what activity will occur only in private, and what may occur in public. These expectations are not limited to those which may be justified on the basis that there should be no direct exposure of persons, against their will, to the activities in question. They extend to the expectations which the public rightly has in relation to the sphere which is shared by each and every person. While exposure of persons is one of those harms, there are many others which are undoubtedly important -- exploitation, degradation, the undue commercialization of certain activities, and the dangers these harms entail.

There was no evidence to support the conclusion that masturbation in a public place meets the standard of community tolerance. The normality of an act in private cannot be directly relied upon in establishing the tolerance of that act in public when, as here, the act is in part defined by its public character. The very qualities of an act which make it normal in private may not make it normal in public, or tolerated.

The evidence of the expert witness and the reliance placed on the Fraser Committee were misplaced for, although they did consider aspects peripheral to the issue of society's tolerance of masturbation in public, they did not consider that issue itself. The activity here was not the same as that which occurred in other establishments and which was tolerated.

The defence of lack of mens rea was not available. The appellants, although they did not intend to break the law, did intend to do what they did and to operate the club as they did, and so cannot avail themselves of this defence. The defence of officially induced error, too, was not available even though appellants were given reason by official sources to believe they were not breaking the law. A clear connection must exist between the inducement relied upon and the activity of the defendants. The licence (as an establishment for private erotic conversation), which is the most convincing form of inducement, was for activities greatly different from the activities actually occurring at the premises. The defence, moreover, does not operate to prevent the courts from determining what activity is indecent. The application of the defence is usually limited to regulatory offences where the reliance placed on the inducement is more reasonable.

Cases Cited

By Cory J.

Applied: Towne Cinema Theatres Ltd. v. The Queen, 1985 75 (SCC), [1985] 1 S.C.R. 494; considered: R. v. Traynor, [1987] O.J. No. 1943 (Q.L.); R. v. Pelletier (1985), 1985 186 (QC CS), 27 C.C.C. (3d) 77, [1986] R.J.Q. 595; R. v. St. Pierre (1974), 1974 874 (ON CA), 3 O.R. (2d) 642; referred to: Patterson v. The Queen, 1967 22 (SCC), [1968] S.C.R. 157; R. v. De Munck, [1918] 1 K.B. 635; R. v. Webb, [1963] 3 W.L.R. 638; R. v. Lantay, 1965 208 (ON CA), [1966] 3 C.C.C. 270; Vézina v. The Queen, 1986 93 (SCC), [1986] 1 S.C.R. 2; R. v. Moore, 1988 43 (SCC), [1988] 1 S.C.R. 1097; R. v. Geauvreau (1979), 1979 83 (ON CA), 51 C.C.C. (2d) 75; Reference re ss. 193 and 195.1(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123; R. v. Doug Rankine Co. (1983), 1983 3601 (ON SC), 36 C.R. (3d) 154; R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452; R. v. MacLean and MacLean (No. 2) (1982), 1982 3837 (ON CA), 1 C.C.C. (3d) 412; R. v. Giambalvo (1982), 1982 2043 (ON CA), 70 C.C.C. (2d) 324; R. v. Kleppe (1977), 1977 1970 (ON CJ), 35 C.C.C. (2d) 168; R. v. Sequin, 1968 311 (ON SC), [1969] 2 C.C.C. 150; R. v. Belanger (1980), 5 W.C.B. 446; R. v. Laliberté (1973), 1973 1400 (QC CA), 12 C.C.C. (2d) 109.

By Gonthier J. (dissenting)

R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452; Towne Cinema Theatres Ltd. v. The Queen, 1985 75 (SCC), [1985] 1 S.C.R. 494; R. v. Laliberté (1973), 1973 1400 (QC CA), 12 C.C.C. (2d) 109; R. v. Lantay, 1965 208 (ON CA), [1966] 3 C.C.C. 270; R. v. De Munck, [1918] 1 K.B. 635.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 193(1), 529(3), (4) [am. S.C. 1985, c. 19, s. 123], (now R.S.C., 1985, c. C‑46, ss. 210(1), 601(3), (4)).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 150, 163, 197.

Authors Cited

Canada. Special Committee on Pornography and Prostitution. Report of the Special Committee on Pornography and Prostitution. (Fraser Committee Report). Ottawa: 1985.

Roth, Philip. Portnoy's Complaint. London: Cape, 1969.

APPEAL from a judgment of the Quebec Court of Appeal, 1991 3166 (QC CA), [1991] R.J.Q. 2766, 41 Q.A.C. 241, 68 C.C.C. (3d) 439, allowing an appeal from acquittal by Fontaine M.C.J., [1989] R.J.Q. 217. Appeal allowed, La Forest and Gonthier JJ. dissenting.

Robert La Haye and Josée Ferrari, for the appellants.

Germain Tremblay, for the respondent.

The reasons of La Forest and Gonthier JJ. were delivered by

Gonthier J. (dissenting) -- I have had the benefit of the reasons of Justice Cory. As he states, the two issues in this appeal are whether the Court of Appeal erred in setting aside the decision of the trial judge refusing to permit the Crown to amend the charge substantially, and second, whether the acts in question satisfy the community standard of tolerance, and are therefore not indecent. I am in agreement with Cory J. in relation to the first issue, and I am also in agreement with the review of the facts which he presents as they relate to the activities of the appellants. However, there are a number of additional facts relevant in particular to the standard of community tolerance which will be referred to, as required, in the course of these reasons. I respectfully disagree with him on the second issue and would dismiss the appeal confirming in the result the decision of the Court of Appeal.

The Standard of Community Tolerance as Applied to this Case

The test by which the indecency of an act is to be determined for the purposes of the charge in this case is rightly identified by Cory J. as the standard set by what the community is prepared to tolerate. That test was recently affirmed in R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452, where the relevant standard was confirmed to be that which the community as a whole, and not a mere segment of it, was prepared to tolerate, and not what was approved of or seen as tasteful by that community (at p. 476). This single standard of tolerance does not vary with the actual audience and is constant, regardless of the time, place or manner of the representation at issue inasmuch as they serve to define the audience. The standard is responsive to the various harms which may be caused by obscene activity or depictions. As I had occasion to note in that case, at p. 512, it is the combination of a given content and a representation which together constitute the particular essence of obscenity and, as I stated at pp. 517-18:

A host of factors could intervene in the manner of representation to affect the characterization of the material, among which are the medium, the type or the use.

The medium provides a good example....

. . . the likelihood of harm, and the tolerance of the community, may vary according to the medium of representation, even if the content stays the same.

While that case concerned s. 163 of the Criminal Code, R.S.C., 1985, c. C‑46, and various depictions of sexual activity, and this case concerns activity under s. 210 of the Code (formerly R.S.C. 1970, c. C-34, s. 193) rather than a depiction, there is a representation of sexual activity in both instances: the dancer in this case performed in a place to which the public had access, to an audience, albeit of one, who was a member of the public, and the dance was intended for and addressed to a member of the public against remuneration. As a live representation, the impact of the dance is considerably stronger than that of a statue, painting, picture or even movie.

This case, then, does not concern pornographic material, but rather a live performance of sexual activity, by both the client and the dancer, in a public place.

In identifying the acts in question, Cory J. concludes that the performance in question was similar to dancing performances which were tolerated by the police. He refers to the fact that unlike most performances which occur in strip bars, in this case, clients did undress and masturbate when they were in the room viewing the performance of the dancer. He states at p. 000:

Several witnesses testified that the only difference between the performance by the dancers in the Pussy Cat and that of dancers performing in the strip bars was that the client was permitted to take off his clothes and masturbate. The actions and movements of the nude dancers performing in bars were not subject to any police action.

However, in my view the acts which occurred at the Pussy Cat Club were not in substance the same as those which, according to the evidence, occurred elsewhere and were found to be tolerated by the trial judge. This is clear when the three salient features of the performance, namely its live nature, the public locale and the activity of the client are considered. This is so even when the activity of the dancer as a live performance is considered by itself. Johanne Totunov, who was sworn as a witness for the Crown, had approximately seven years experience as a nude dancer in Montreal, and had worked at the Pussy Cat Club as a dancer. She testified that she had never seen a dancer use a vibrator in the course of a nude dance in a club. This was common practice in the Pussy Cat Club, and it is a noteworthy aspect of the performance. It changes the quality of the activity of the dancer as perceived by the client from a dance performance having an erotic quality into something more in the nature of a demonstration of sexual activity. The performance was not merely evocative of sexual imagery and sexuality, but was a performance of a sexual act. Because a vibrator is used for actual stimulation, the activity from the point of view of the dancer is actual masturbation, as opposed to a mere simulation of being in a state of arousal or stimulation. On the basis of the substance of the performance of the dancer alone, the activity in question is clearly distinguished from what was done, and found to be tolerated, elsewhere.

The evidence of Constables Rochon and Cormier does not support the conclusion that the acts of the dancers in the Pussy Cat Club were sufficiently similar in nature to the acts of dancers performed and tolerated elsewhere so as to meet the standard of community tolerance. Constable Rochon states that the acts he saw in the Pussy Cat Club were not the same as those which he had seen occur elsewhere, and his statement is uncontradicted. This opinion concerned the nature of the acts, when seen as a whole. There is no evidence that he had seen dancers use vibrators for acts of masturbation, nor did he state that other dancing performances included all the aspects of the performance at the Pussy Cat Club. His evidence on cross-examination that a number of the parts of the performance at the Pussy Cat Club were equivalent to acts which formed a part of performances he had seen elsewhere, does not detract from his overall assessment.

Constable Cormier gave evidence based on approximately one hundred visits to nude dance clubs which he had made during five and a half years of service with the drug and morals division. His testimony was that, when seen as a whole, the dancing at the Pussy Cat Club was not like that which he had seen elsewhere. In particular, he testified that he had never seen dancers touching their genitals in the way they did at the Pussy Cat. He stated that if he had seen such activity, he would have intervened to do what was "necessary", meaning at a minimum, to issue a warning. This evidence confirms that even the activity of the dancer, considered alone, was not similar to the performances of dancers which were found to occur and be tolerated elsewhere.

In R. v. Butler, supra, at p. 517, I had occasion to note that the way in which a representation occurs can contribute to harmfulness or a lack of tolerance by the community. This case does not concern the depiction of acts of masturbation, or a movie of a dancer, for example, but those activities themselves. The client was not a passive observer of a spectacle. It makes the activities in question less an erotic portrayal, and more like a sexual encounter. The importance of such a distinction, and how it bears on the tolerance that persons may have towards the acts in question, is illustrated by the testimony of Dr. Campbell. The only direct evidence which Dr. Campbell gives regarding tolerance relates to that of persons in the neighbourhood of the Club towards the acts that occurred there. It suggests that their tolerance is based upon, and indeed limited to, the performance of acts where the client would be a mere passive observer:

[translation] Once he knew what was happening, they appeared to me -- "Well, okay, that's what's going on!" -- they wondered -- it was not clear in their minds whether this was prostitution with sexual intercourse, that was not clear to them; they said to me, "So exactly what is it?", and I explained, "Well, as I understand it, they watch", and when I explained that they said "Yes, okay, now we understand, that's all right". Those were the only persons I contacted; there is my wife . . ..

This evidence suggests that there was some basis for the conclusion that the community was concerned about the activities occurring in the Club, but also that any tolerance that neighbours may have been shown to have had towards the Club did not account for the activity of the client.

The second aspect is the public character of the place in which the acts took place. The definition of a public place which is adopted in s. 197 of the Criminal Code, but also in s. 150 in relation to other offences, is very wide indeed. It includes all places to which the public have access, either as of right, or by express or implied invitation. It is true, as pointed out by Cory J., that there is a spectrum of situations or locales, some of which are more open and crowded than others. It is also true that this fact is relevant to the characterization of the acts in question, and that acts which occur in one sort of public place may be tolerated while those which occur in another may not be.

However, this does not mean that acts done in a public place that is less exposed than a school yard or a public park are equivalent to acts which are done in privacy. Cory J. correctly notes that the dancer would be the only one who would be exposed to the masturbation of the client, and that she was a consenting adult. On this basis, it is concluded that the acts were "relatively private". Although the relative privacy of an activity is relevant, as it may bear on the expectations of persons, for example, it is but one of many factors which must be considered. The division of what is private from what is public rests only in part on the number of persons who may witness the activities in question. It also rests upon the special set of expectations which the public rightly holds with regard to what activity will occur only in private, and what may occur in public. These expectations are not limited to those which may be justified on the basis that there should be no direct exposure of persons, against their will, to the activities in question. They extend to the expectations which the public rightly has in relation to the sphere which is shared by each and every person. The public sphere is specially attended to by the law in general, and the Criminal Code in particular, because it is into that sphere that persons enter to earn a living, to conduct business, and to enjoy community life. As such, there are certain harms which occur only in the public realm and which are properly given particular attention as such. While exposure of persons is one of those harms, there are many others which are undoubtedly important, and they include exploitation, degradation, the undue commercialization of certain activities, and the dangers these harms entail.

The law regulates the activity occurring in the public sphere for these and many other reasons. One has to look no further than the structure of the law governing the activities associated with prostitution to gain an appreciation for the many varied interests of peace, security, and public order which are secured by the legal regime governing activity permitted in public. The Criminal Code makes special reference to the common bawdy-house because the activity occurring in those houses may well not be tolerated, regardless of the potential for direct exposure of the general public to the activity: a bawdy-house is "relatively private", but it is nonetheless singled out for special attention by the Criminal Code.

It is not necessary for the purposes of this appeal to address all the policy considerations which support the wide definition of what is a public place in the meaning which has been adopted in the Code. If the removal of the activity occurring in a common bawdy-house from the sight of the general public had of itself a great significance, there would be little need for s. 210 of the Criminal Code.

The third aspect of the activity which occurred at the Pussy Cat Club and which must be noted is the activity of the client. There is no evidence which supports the conclusion that masturbation in a public place meets the standard of community tolerance. Reference was made by the trial judge to the evidence of Dr. Campbell, an expert witness, and the contents of the Fraser Committee. I have had occasion to note above that the evidence of Dr. Campbell which bears directly on the question of tolerance does not support the conclusion that acts of masturbation in public are tolerated, and indeed suggests the opposite. Further, the relevance of expert testimony with regard to the understanding of the community standard of tolerance is limited. This was recognized in Towne Cinema Theatres Ltd. v. The Queen, 1985 75 (SCC), [1985] 1 S.C.R. 494, at p. 515. Two aspects of that decision are relevant here. First, the opinion of experts is always subject to evaluation by the courts. Second, and more importantly, the kind of expert testimony which was at issue in that case was testimony by the Chairman of the Censor Board that a film called Dracula Sucks, the content of which gave rise to the litigation, did not fall below the contemporary community standard of tolerance. The evidence there bore directly on the matter before the Court. The evidence given by Dr. Campbell, who is concerned with human sexual behaviour and treatment of sexual problems, is very different. It relates essentially to the normality of the activity of masturbation which he considered was engaged in by a large portion of the population, but undoubtedly in a private place. While this testimony may bear on how persons may view private acts of masturbation, it is not relevant in the manner accepted at trial. Testimony that an activity is not a perversion may be directly relevant to excluding that activity from the category of those acts which would be indecent wherever they occurred. But such a narrow and straightforward inquiry is not what is at issue here. The normality of an act in private cannot be directly relied upon in establishing the tolerance of that act in public when, as here, the act is in part defined by its public character. All the circumstances of the act must be considered, and the act in all its features must be examined. There is no doubt that the very qualities of an act which make it normal in private may not make it normal in public. The normality of an activity undertaken in private does not demonstrate that the same activity would be tolerated in public.

The evidence of Dr. Campbell is that masturbation per se is tolerated, and the only reference to the specific acts which occurred at the Pussy Cat Club concerns the toleration which persons would have of clients watching the dancers. Equally, his testimony that there would be a tendency for tolerance of the acts in question because of the public health risks which attend prostitution does not amount to an affirmation that masturbation in a public place is tolerated by the public.

For similar reasons, I am also of the view that the reliance placed by the trial judge on the contents of the Fraser Committee is misplaced. A general review of the nature of the sexual activity in its many facets with reference to various social problems associated with these activities is not the same as a review of the societal tolerance of acts of masturbation in public. The Fraser report does not address the latter issue.

Not only is there an absence of evidence supporting the conclusion that masturbation in a public place is tolerated, the relevant evidence in this case is to the contrary. On the basis that the client was in a state of undress, Ms. Totunov described the activity at the Pussy Cat Club as being not comparable to what was done in strip clubs because it was more "osé" or risqué. This testimony, particularly when viewed in light of the fact that not only did the clients undress but they also masturbated while in a state of undress, strongly supports the conclusion reached by both Constables that when the acts are seen as a whole, they are not similar in character to those acts apparently performed and tolerated in strip clubs.

As a result, when all the evidence is considered, there is no basis upon which the activity in question can be viewed as essentially the same as that which occurred in other establishments.

The Court of Appeal referred to and followed its previous decision in R. v. Laliberté (1973), 1973 1400 (QC CA), 12 C.C.C. (2d) 109, a case involving masturbation of clients by masseuses in a massage parlour. Cory J. refers to that case, and distinguishes it, as he does R. v. Lantay, 1965 208 (ON CA), [1966] 3 C.C.C. 270, a decision of the Ontario Court of Appeal. While it is true that in both cases there was physical contact between the client and the woman offering services, the presence of physical contact did not in my view form the basis for the conclusion that masturbation in a place to which the public have access is indecent, or an act of prostitution. Indeed, the latter decision, which is referred to by the former case, relies upon the English authority of R. v. De Munck, [1918] 1 K.B. 635. That case decided at pp. 637-38 that "prostitution is proved if it be shown that a woman offers her body commonly for lewdness for payment in return", intercourse was not a requirement. The law has never required that the most lewd form or variety of an activity which is not tolerated by the community occur in order that such activity be viewed as indecent. It does not do so here.

The decision of the Court of Appeal to reverse the conclusion of the trial judge was correctly based upon a reconsideration of the evidence, and an application of the law to the facts of this case. A conclusion that certain activities are indecent is one which is based on the facts, but in the final analysis is a question of law, since, as mentioned by Cory J. in his reasons at p. 000, "(t)he decision whether (the acts in question are) tolerable according to Canadian community standards rests with the court".

In this case, a consideration of the evidence leads to the conclusion that there was a manifest error in the reasoning of the trial judge. I am in agreement with the decision of Brossard J.A. of the Court of Appeal, at (1991), 1991 3166 (QC CA), 68 C.C.C. (3d) 439, at p. 446, that a consideration of the masturbation by the client leads by itself to the following conclusion:

(translation) . . . in so far as it is not private in nature, carried out before a pure stranger, in a house [the public nature of which] is undeniable, and in a room where he can be seen by third parties, amply satisfies me so as to find the existence of acts of indecency.

In my view, the conclusion must be the same even if it is accepted that viewing by third parties would be limited to security and control purposes.

In the result, it is necessary to consider the arguments raised on behalf of the appellants by way of defences. These arguments were not dealt with below. They may, however, be briefly disposed of. The defences of lack of mens rea and officially induced error are put forward on the common basis that the appellants did not intend to break the law and were given reason, by official sources, to believe that they were not breaking the law. This basis cannot support a defence of lack of mens rea when, as here, the accused intended to do the acts they did and operate the Club in the way they did. As for the defence of officially induced error, it has no application to the facts of this case, for two reasons. First, the most convincing form of inducement referred to in this case, a licence which the appellants obtained, was for activities substantially different from those which ultimately occurred in the Pussy Cat Club, namely a "Bureau de conversations érotiques en personne" ([translation] "Establishment for private erotic conversations"). A clear connection must exist between the inducement relied upon and the activity of the defendants. Second, the defence does not operate to prevent the courts from determining what activity is indecent. The application of the defence is usually limited to regulatory offences where the reliance placed on the inducement is more reasonable. For both these reasons, the defences raised in this case cannot succeed.

In the result, I would dismiss the appeal and affirm the decision of the Court of Appeal on the basis of the second issue, and direct that the matter be returned to the trial court for sentencing.

The judgment of L'Heureux-Dubé, Cory and McLachlin JJ. was delivered by

Cory J. -- There are two principal issues raised on this appeal. The first is whether the Court of Appeal erred in setting aside the decision of the trial judge refusing to permit the Crown to amend substantially the charge late in the trial when virtually all the evidence had been called. The second is whether the acts described in the evidence should be considered as indecent when viewed in light of the current standard of community tolerance.

Factual Background

The appellants were charged with keeping a bawdy-house at 3668 Ontario St. E. for the purpose of the practice of acts of indecency contrary to s. 193(1) of the Criminal Code, R.S.C. 1970, c. C-34, now R.S.C., 1985, c. C-46, s. 210(1).

An example of the wording of the charges faced by the appellants can be found in that brought against Robert Bourdeau:

[translation] Robert Bourdeau, between March 22, 1988 and April 20, 1988, in Montreal, judicial district of Montreal, did unlawfully keep a common bawdy‑house at 3668 Ontario East, by assisting the occupant of premises used for the purpose of the practice of acts of indecency contrary to s. 193(1) of the Criminal Code.

The address given is a house. Affixed to it is a small plaque stating simply the "Pussy Cat". Advertisements appeared in Montreal newspapers giving the name and address of the house and stating that nude dancers would perform for individual clients in a private setting. There were apparently no complaints about the operation of the house from either neighbours or clients.

When a client came to the premises, he was allowed to select a dancer from pictures which were shown to him. He was told that there was to be absolutely no touching; he could not touch the dancer, nor could she touch him.

The client would be taken to a private room that was furnished with a mattress and a chair. In that room the selected dancer would, for a fee of $40, undress and perform an erotic dance for the client on the mattress. For an additional fee of $10 the dancer would caress herself with a vibrator while she danced. During the course of the performance the dancer would assume a variety of suggestive positions while caressing herself in simulated or actual masturbation. The clients were invited to remove their clothes. The evidence disclosed that the majority of them masturbated while the dancer performed.

The rule against physical contact was strictly enforced. There was a small hole the size of a coin located in the wall of each room. This permitted the owners of the establishment to ensure that the rule was respected. The hole in the wall served no other purpose than surveillance by the management. There is certainly no indication that it was used by voyeurs.

The Crown sought to amend the charge by deleting the words "the practice of indecency". The trial judge refused this motion. The Crown then asked that the charge be amended to include the words "practice of prostitution". This motion too was denied on the same grounds as the first, namely that it would cause serious prejudice to the accused.

After the trial was completed, the decision was reserved. On November 9, 1988, Fontaine M.C.J. of the Municipal Court acquitted all the appellants. The Crown launched an appeal and on September 17, 1991 the Court of Appeal of Quebec allowed the appeal, set aside the acquittals and convicted the appellants on the charges brought against them.

Judgments in the Courts Below

Municipal Court (Fontaine M.C.J.), [1989] R.J.Q. 217

For Fontaine M.C.J. the key issue was whether the Pussy Cat constituted a "bawdy-house" as those words were defined in the Criminal Code and in the case law. He noted that there was no evidence either that the house had a reputation for debauchery or that there had been any complaints made about it by local residents. The house appeared to be a private dwelling bearing the small plaque with the words the "Pussy Cat". In his view it therefore did not come within the definition of a bawdy-house that was explored in Patterson v. The Queen, 1967 22 (SCC), [1968] S.C.R. 157.

He then reviewed the evidence that was presented in order to determine whether the activities in the Pussy Cat were indecent. He relied upon the testimony of an expert witness called by the defence. The witness testified that the acts were not indecent but rather were examples of nonpathological voyeurism and exhibitionism and as such, they were tolerated by the community provided they were performed in private. As well the trial judge referred to the Fraser Committee report on pornography.

The trial judge carefully considered the test for indecency set out in Towne Cinema Theatres Ltd. v. The Queen, 1985 75 (SCC), [1985] 1 S.C.R. 494, in these words at p. 224:

[translation] If we apply the information gathered by the Fraser Committee to the case of the Pussy Cat, we can quite readily and logically conclude that the Canadian community in general is prepared to accept that acts of masturbation do not exceed the standards of decency, provided there is no contact between the persons and provided they are between consenting adults in private, even if the premises are open to the public.

This is particularly so as there is no violence connected with these activities of sexual self‑stimulation and self‑gratification and, as the expert witness Dr. Campbell explained, in the circumstances in which they take place this is neither sexual deviance nor a degrading act; although of course part of the public may well disagree with such activities, the fact remains that it is prepared to tolerate other persons engaging in them in private and discreetly, with no coercion and without disturbing individuals who do not agree with such activities or do not wish to take part in them. [Emphasis in original.]

Fontaine M.C.J. found that: (1) the evidence indicated that the clients of the Pussy Cat knew exactly what awaited them; (2) none of them was shocked by what happened in there; (3) the acts of self masturbation were consented to by the adults present; (4) the nude dancing performed at the Pussy Cat was the same as nude dance shows performed in bars in which the dancers touched their bodies and which were not interfered with by the police; (5) there had been no complaints by any private citizens about the activities in the Pussy Cat; and finally, (6) the acts engaged in at the Pussy Cat were not pathological and were tolerated by the community. He concluded that in these circumstances the acts were not indecent acts and therefore, the Pussy Cat was not a common bawdy-house.

Court of Appeal (1991), 1991 3166 (QC CA), 68 C.C.C. (3d) 439, [1991] R.J.Q. 2766

Brossard J.A. (for the majority)

Brossard J.A. found that the conclusions drawn by the expert witness with regard to the nature of the sexual activities which took place at the Pussy Cat and their therapeutic value was not relevant in determining the only issue in the appeal -- whether masturbation in a public place constituted an act of indecency. He noted that the expert did not make a comment on this issue. In his opinion both the Crown and the defence witnesses devoted a great deal more time to the analysis of the dancer's movements than those of the client. He stated at p. 446:

(translation) In my view, I do not even believe it necessary to characterize the acts done by the dancer. The act done by the client, in so far as it is not private in nature, carried out before a pure stranger, in a house whose public nature is undeniable, and in a room where he can be seen by third parties, amply satisfies me so as to find the existence of acts of indecency. I cannot otherwise characterize the sexual act of masturbation done by a man in a place where he can be seen and/or observed by pure strangers.

In the absence of proof to the contrary, he concluded that masturbation in a location other than the privacy of a room in one's home, must be considered an act which exceeded the standards of community tolerance.

With respect to the amendments to the charges, Brossard J.A. concluded that they would not create any prejudice to the appellants. In his opinion, the trial judge should not, at the amendment stage, have considered whether the evidence entered to that point was sufficient to convict the appellants of prostitution. On this point, Brossard J.A. decided that there was evidence of prostitution. He concluded that, under the circumstances, an amendment which limited the charge to the keeping of a common bawdy-house when the specific provision of the Code provided that the premises would meet the definition if they were used either for the purposes of acts of indecency or prostitution was appropriate.

Brossard J.A. turned finally to the question of whether the acts in question constituted acts of prostitution. He determined that all of the classic elements of prostitution were present: solicitation, lewd and even indecent gestures by the dancer to entice the client, sexual gratification of the client and all of this for remuneration. Nonetheless, he inquired whether physical contact was necessary for there to be prostitution. He referred to the decisions in R. v. De Munck, [1918] 1 K.B. 635, R. v. Webb, [1963] 3 W.L.R. 638, and R. v. Lantay, 1965 208 (ON CA), [1966] 3 C.C.C. 270, and concluded that it was not.

Accordingly, Brossard J.A. concluded that the Pussy Cat was a common bawdy-house for the purpose of committing indecent acts as well as prostitution.

Proulx J.A. (concurring reasons)

Proulx J.A. allowed the appeal for reasons that were, in part, different from those of Brossard J.A.

With respect to the request to amend the charges presented by the Crown, Proulx J.A. concluded that the trial judge erred in deciding a procedural matter on the basis of his assessment of the merits of the issue. On the issue of prejudice, he determined that the amendment would not affect the fairness of the trial since its only effect would be to enlarge the scope of the debate on issues of law which had not already been broached.

Proulx J.A. considered prostitution to be the sale of sexual favours or the offering of sexual services in exchange for payment by another. In his view, it is not necessary for there to be complete sexual relations between the service provider and the client in order to constitute prostitution. He concluded that both the offer of sexual services in the newspaper advertisement and the provision of services by the dancer to her client established that the Pussy Cat was a common bawdy-house for the purposes of acts of prostitution.

Points in Issue

1. Did the Court of Appeal err in law when it decided that the amendments to the charge proposed by the Crown should have been permitted by the trial judge?

2. Did the Court of Appeal err in law in its conclusion that the impugned acts were indecent in light of the standard of community tolerance?

Analysis

Should the Information have been Amended?

The Crown brought two motions to amend the information pertaining to each of the appellants. They were brought very late in the trial after all the evidence to be called on behalf of the appellants had been submitted. All that remained was for the Crown to tender evidence as to whether Robert Bourdeau was a "keeper" within the meaning of the section.

In the first motion for amendments, the Crown requested that the words "utilisés à des fins d'actes d'indécence" ([translation] "used for the practice of acts of indecency") be struck from the information. The trial judge rejected this motion stating that if he granted it, the accused would suffer prejudice. He put his position in this way:

[translation] . . . one of the reasons which I see that could cause prejudice to the defence is that all the . . . all these accused persons, from the time ‑‑ and even if you say "Well, your Honour, we are offering, the Crown is offering the defence an adjournment", for say a month to prepare the defence ‑‑ all the accused from the outset have obviously focused their defence on and in terms of the charges brought against them, and so in terms of premises which were a common bawdy‑house, premises used for the practice of acts of indecency; and when premises are kept in that way, there is a defence which is possible. . . .

The Crown's second motion was to include the words "utilisés à des fins de prostitution et pour la pratique d'actes d'indécence" ([translation] "used for purposes of prostitution and for the practice of acts of indecency") in the informations for each of the accused. This second motion was also rejected. The trial judge again noted the prejudice that would result to the accused if such an amendment were to be made at this late stage of the trial. He also found that the evidence did not support the claim that the Pussy Cat was being kept for the purpose of prostitution. The Court of Appeal disagreed with the trial judge on both of these points.

The Criminal Code, R.S.C. 1970, c. C-34, s. 529(3) (as am. by S.C. 1985, c. 19, s. 123) and (4) (now ss. 601(3) and (4)), provides for the amendment of a charge in these terms:

529. . . .

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears

(a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament;

(b) that the indictment or a count thereof

(i) fails to state or states defectively anything that is requisite to constitute the offence,

(ii) does not negative an exception that should be negatived,

(iii) is in any way defective in substance,

and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or

(c) that the indictment or a count thereof is in any way defective in form.

(4) The court shall, in considering whether or not an amendment should be made, consider

(a) the matters disclosed by the evidence taken on the preliminary inquiry,

(b) the evidence taken on the trial, if any,

(c) the circumstances of the case,

(d) whether the accused has been misled or prejudiced in his defence by a variance, error or omission mentioned in subsection (2) or (3), and

(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

By virtue of this section, the courts now possess reasonably wide powers of amendment. Yet, it remains an important principle of criminal law that persons accused of a crime must know the charge brought against them in order to present a full answer and defence (Vézina v. The Queen, 1986 93 (SCC), [1986] 1 S.C.R. 2). A court cannot amend an information or indictment where to do so would cause irreparable prejudice (R. v. Moore, 1988 43 (SCC), [1988] 1 S.C.R. 1097). Moreover, a court cannot amend an information unless the evidence tendered is capable of supporting such a charge.

In the present case it is not necessary to consider whether evidence of prostitution was disclosed during the trial. The prejudice that granting the amendment would cause the appellants is determinative of the issue.

When the motion for the amendment was brought it was obvious that the appellants had prepared their defence on the basis that the acts performed were not indecent. In light of the wording of the original charge the appellants quite properly prepared their entire defence on this issue. This can be seen from the careful and lengthy testimony provided by the expert witness on this very question. To have permitted the amendment at this stage would have caused irreparable prejudice to the appellants. Perhaps much earlier in the trial proceedings it might have been appropriate to allow the proposed amendment provided an adequate adjournment was granted to the appellants to prepare their defence to meet the amended charges. Undoubtedly, the appellants would have needed time to consider their position and to consult and retain experts with regard to the issue as to whether the acts constituted prostitution. That, of course, is speculation. It is sufficient to say that, in the circumstances of this case, the trial judge was correct in his conclusion that to grant the amendment at this late stage would have caused irreparable prejudice to the appellants.

Further, in my view, it was inappropriate for the Court of Appeal to grant the amendment. It is, I think, an extraordinary step for an appellate court to amend the charge materially and then to enter a conviction on the basis of the charge as amended. The unfairness that results from such a procedure was aptly described by Zuber J.A. in R. v. Geauvreau (1979), 1979 83 (ON CA), 51 C.C.C. (2d) 75 (Ont. C.A.). At p. 84 he wrote:

It is part of our law of criminal procedure that a person accused of crime is entitled to know the charge against him, whether contained in an information or an indictment, in reasonably specific terms and he is tried on that charge. This principle retains its vitality even though the formalism of an earlier era has been diminished and trial Courts now possess reasonably wide powers of amendment. However, even though criminal procedure has become less technical and more flexible, the concept of an amendment at an appellate stage involves difficult considerations. An amendment at trial contemplates a continuing ability by the accused to meet an amended charge; the appellate stage occurs long after the evidence has been led, arguments made and facts found. In my view, it would be an extraordinary step for an appellate Court to materially amend the charge and uphold a conviction based on the charge as amended. I would think that such an extraordinary step would require the clearest statutory basis.

Were the Acts in the Circumstances in which they were Committed Indecent?

(i) The Nature of the Acts in Question

After being informed about the rules of the premises and having chosen the picture of the dancer he wished to meet, the client was ushered to the room where the performance was to take place. The sole occupants were the dancer and the client. In the room the dancer once again explained that there was to be no physical contact.

During the course of the 20-minute performance the dancer talked about sex, took off her clothes and caressed her body, including her genitals (with or without the vibrator, depending on the client's choice). Several witnesses testified that the only difference between the performance by the dancers in the Pussy Cat and that of dancers performing in the strip bars was that the client was permitted to take off his clothes and masturbate. The actions and movements of the nude dancers performing in bars were not subject to any police action. The issue is, therefore, whether the acts performed in the Pussy Cat were indecent.

(ii)The Appropriate Test to Determine Indecency: The Community Standard of Tolerance

In Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123, Lamer J. (as he then was), stated at p. 1159 that in determining whether an act is indecent the "community standard of tolerance" test should be applied. That test is similar to the one used in obscenity cases. When applied to the issue of indecency, the community standard test, enunciated in Towne Cinema Theatres Ltd., supra, involves an analysis of the impugned acts in light of the following considerations at p. 508:

(i) [there are] accepted standards of tolerance in the contemporary Canadian community [which should not be exceeded]; (ii) [these] standards must be contemporary as times change and ideas change with them, one manifestation being the relative freedom with which the whole question of sex is discussed; (iii) it is the standards of the community as a whole which must be considered and not the standards of a small segment of that community. . . ; (iv) the decision whether [the acts in question are] tolerable according to Canadian community standards rests with the court; (v) the task is to determine in an objective way what is tolerable in accordance with the contemporary standards of the Canadian community, and not merely to project one's own personal ideas of what is tolerable.

In discussing the meaning of community standard of tolerance in Towne Cinema Theatres Ltd., supra, Dickson C.J. at p. 508 stated:

The cases all emphasize that it is a standard of tolerance, not taste, that is relevant. What matters is not what Canadians think is right for themselves to see. What matters is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it. [Emphasis in original.]

In the same case, Wilson J. provided a helpful distinction between tolerance and taste at p. 522:

The Shorter Oxford English Dictionary defines "toleration" as "the action or practice of tolerating or allowing what is not actually approved." It is apparent from this definition that there is a distinction between that which is not approved and that which is not to be tolerated.

Wilson J., at p. 523, quoted with approval from the decision of R. v. Doug Rankine Co. (1983), 1983 3601 (ON SC), 36 C.R. (3d) 154 (Ont.), at p. 173. There Borins Co. Ct. J. made the following assessment in relation to what may be described as "sex films":

In my opinion, contemporary community standards would tolerate the distribution of films which consist substantially of scenes of people engaged in sexual intercourse. Contemporary community standards would also tolerate the distribution of films which consist of scenes of group sex, lesbianism, fellatio, cunnilingus, and anal sex. However, films which consist substantially or partially of scenes which portray violence and cruelty in conjunction with sex, particularly where the performance of indignities degrades and dehumanizes the people upon whom they are performed, exceed the level of community tolerance.

Wilson J. then continued at p. 523:

In drawing this distinction I do not think that Borins Co. Ct. J. was suggesting that the average Canadian finds the former type of film to his or her taste or that such films are inoffensive to most Canadians. Rather, I think that Borins Co. Ct. J. recognized that whether or not Canadians found the former type of films distasteful, they were prepared to tolerate their being shown.

More recently in R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452, this Court considered the community standard of tolerance in order to determine whether the pornographic material in question constituted such an undue exploitation of sex that it could be labelled obscene. In that case one of the issues the Court considered was when a work might cease to be art and becomes, instead, obscene. Sopinka J. concluded that the final determination of that question might lie with the degree of harm which could result from public exposure to the impugned material. At page 485 he stated:

The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm the lesser the likelihood of tolerance. The inference may be drawn from the material itself or from the material and other evidence. Similarly evidence as to the community standards is desirable but not essential.

That same consideration of the degree of harm which may flow from the questioned work must also be relevant to the determination of the community standard of tolerance with respect to acts which are said to be indecent.

(iii)The Circumstances Surrounding the Act; that is to say the Context in Which It Took Place.

In any consideration of the indecency of an act, the circumstances which surround the performance of the act must be taken into account. Acts do not take place in a vacuum. The community standard of tolerance is that of the whole community. However just what the community will tolerate will vary with the place in which the acts take place and the composition of the audience. For example, entertainment which may be tolerated by the community as appropriate for the patrons of a bar may well be completely inappropriate for an audience of high school students. What is acceptable in a stage production performed for adults may be completely unacceptable if performed for elementary school pupils in a school auditorium. As well, the nature of the warning or notice that is given of the performance may be of significance. No one is compelled to attend a performance of a nude dancer. Nor could it be said that members of the audience were surprised by the performance if notice of the nature of the dancing has been given. Further, the purpose of the performance may be a factor to be taken into account. See for example the reasons of Holden J.A. in R. v. MacLean and MacLean (No. 2) (1982), 1982 3837 (ON CA), 1 C.C.C. (3d) 412 (Ont. C.A.), and Martin J.A. in R. v. Giambalvo (1982), 1982 2043 (ON CA), 70 C.C.C. (2d) 324 (Ont. C.A.).

A number of cases have properly taken into account the surrounding circumstances in determining whether the acts were indecent. In R. v. Traynor, [1987] O.J. No. 1943 (Q.L.) (Ont. Prov. Ct., Crim. Div.), the question was whether a performance in a licensed tavern by a professional singer, dancer and burlesque performer offended the community standards of tolerance. During the course of the performance, the dancer removed all of her clothing except her boots and a g-string while singing a song. She gave the appearance of pressing her breasts and her genitals against a vertical pole. Nosanchuk Prov. Ct. J. stated, in my view correctly, that the following factors were significant in his decision that the performance did not offend the community standards of tolerance:

1. The performance took place in a licenced [sic] tavern, publicly advertised as an adult entertainment lounge;

2. The prospective patrons were forewarned to stop if offended by total nudity;

3. The accused was a professionally trained singer, dancer and actress who had appeared in such a capacity in various parts of the United States, Canada, Australia, England and Japan;

4. The accused enjoyed a celebrity status which resulted in her being a guest on national network television programs hosted by entertainers well known to the North American public;

5. The performance was described in the prosecution evidence as essentially funny, upbeat and comic;

6. The singing and dancing was described as professional and the gestures of the hands and legs and the dancing was in rhythm;

7. The entire act was described as well rehearsed;

8. The audience was appreciative and well behaved;

9. The performance of the accused essentially went no further than exposing her bare breasts and vagina to the patrons in the course of the dance and doing other gyrating motions on the stage.

Thus, the trial judge held that while there were undoubtedly Canadians who would not approve of the type of performance given by the accused, and would find it distasteful, offensive or unacceptable, it did not offend the community standards of tolerance.

In R. v. Pelletier (1985), 1985 186 (QC CS), 27 C.C.C. (3d) 77, [1986] R.J.Q. 595, the Quebec Superior Court used the contextual approach to determine whether the showing at a bar of a video tape which displayed scenes of cunnilingus, fellatio, lesbianism and sexual penetration while nude dancers performed on stage offended the community standards of tolerance. The participants in the video were all nude. On occasion there were close-up shots of the genitals of the man and of the woman. In one scene a woman introduced the handle of a feather duster into her vagina. Another showed a woman observing the sexual antics of the participants and demonstrating by the movement of her hand on her body that they were a source of pleasurable stimulation for her.

In determining what the appropriate level of community standard of tolerance would be in the context of these specific facts, Boilard J. stated at p. 89 that:

(translation) . . . indecency concerns sexual behaviour or its representation which is neither obscene nor immoral but inappropriate according to the Canadian standards of tolerance because of the context in which it takes place. In other words, indecency is not a function of the behaviour itself but rather of the circumstances in which it takes place.

He held that the audience, the place and the context of the representation were essential elements in the determination of indecency. Thus, although he was personally disgusted by the performance, he found that in the context in which it was performed it would not have offended the community's level of tolerance.

Other cases in which the circumstances surrounding the act were determinative of the issue of indecency include R. v. Kleppe (1977), 1977 1970 (ON CJ), 35 C.C.C. (2d) 168 (Ont. Prov. Ct.), R. v. Sequin, 1968 311 (ON SC), [1969] 2 C.C.C. 150 (Ont. Co. Ct.), and R. v. Belanger (1980), 5 W.C.B. 446 (Ont. Co. Ct.).

The Appropriate Consideration of the Evidence in this Case

In this case the trial judge properly recognized that the appropriate standard is not what the community would applaud, appreciate or even accept but rather, the much less stringent standard of community tolerance. He wrote at p. 223:

[translation] Applying this test to the present case, one can say the following: what matters and what is relevant is not what individual Canadians approve for themselves, it is what individual Canadians are prepared to tolerate as an activity in a particular place, without it being shocking, revolting or degrading.

In reaching his decision with regard to the objective standard of community tolerance, the trial judge relied on three sources of evidence. They were first the expert testimony of Dr. Michel Campbell, a psychologist, sexologist and professor at the University of Quebec in Montreal; secondly, the Fraser Committee study on Pornography and Prostitution in Canada and thirdly, the testimony of a former employee of the Pussy Cat and of a police officer who attended at the premises. This approach is eminently reasonable and in accordance with the conclusions of this Court in Towne Cinema Theatres Ltd., supra. There it was held that the use of expert evidence to assess the community standard of tolerance is certainly advisable. Let us then first consider the testimony of Dr. Campbell.

(i) Dr. Campbell's Evidence

Dr. Campbell gave a lengthy and detailed explanation of human sexual behaviour and attitudes. He testified that the incidents of masturbation had increased to where it can now be said that some 90 percent of all men and 50 percent of all women engage in masturbation. In his view the increase was due to a change in attitudes and beliefs which have progressed from the view that masturbation was a harmful activity to the present opinion that for most people masturbation is a healthy and acceptable behaviour.

In the opinion of Dr. Campbell the acts performed in the Pussy Cat were non-pathological acts of voyeurism and exhibitionism which did not cause harm to anyone. He went further and described the acts as constituting "safe sex" since sexually transmitted diseases could obviously not be contracted through this kind of activity. He also testified that the acts in question were neither degrading nor dehumanizing; nor were they perverse. He thus concluded that the acts were not likely to exceed the standards of tolerance of the majority of the Canadian population.

He further expressed the view that Canadians would be more likely to tolerate the activities conducted in the Pussy Cat than acts of prostitution the classic sense involving sexual intercourse, since the public health risks were obviously much less. Furthermore, the fact that the activities in question involved consensual and heterosexual adults increased the likelihood that they would be tolerated.

Unlike the Court of Appeal, I am of the view that it was entirely appropriate for the trial judge to take into account the expert testimony of Dr. Campbell in determining the community standard of tolerance. That testimony was relevant and helpful in arriving at an objective appreciation as to what types of sexual behaviour would be tolerated by the Canadian public. It was on the basis of the statistics provided by Dr. Campbell, which indicated that most Canadians engage in masturbation, that the trial judge concluded that the average Canadian was more likely to tolerate activities which were similar to those in which they engaged in themselves. Obviously, any perception of what would be tolerated will very properly be influenced by what is perceived as normal. What is normal will, in turn, depend upon the extent to which that same activity is engaged in by others. If the act in question is one that is performed by the majority in the community then it is impossible to say that the act itself would not be tolerated by the community. It can then only be the "where" and "when" of the performance of the act, that is to say its surrounding circumstances, that could lead to its being found to be outside the range of community tolerance and therefore indecent. Thus, once the act itself is found to be tolerated then the inquiry must focus on the circumstances surrounding its performance. It was then appropriate and reasonable for the trial judge to take into account and rely upon the expert evidence of Dr. Campbell.

I am supported in this view by the conclusions of Dubin J.A. as he then was in R. v. St. Pierre (1974), 1974 874 (ON CA), 3 O.R. (2d) 642. In that case the trial judge had ruled as inadmissible the testimony of a duly-qualified psychiatrist who stated that depending on the circumstances, an act of cunnilingus as a preliminary to sexual intercourse was perfectly normal and was practised by a large proportion of the population. He also testified that it was a practice which had been increasing in use over the past 20 years. In reversing the trial judge's decision to exclude the evidence, Dubin J.A. stated at pp. 649-50:

Attitudes relating to sexual behaviour are constantly changing. In determining whether the conduct of the accused was a very marked departure from decent conduct, it would have been of great assistance to the jury to have been apprised by an admittedly qualified expert as to sexual practices being carried on in this country, which are not regarded by many as abnormal or perverted. In the absence of such evidence the jury would be left to make the determination dependent solely on their own private views and their own experience.

(ii)The Report of the Fraser Committee on Pornography and Prostitution

The trial judge also made use of the report drafted by the Fraser Committee on Pornography and Prostitution. This committee was established by the Government of Canada to study the problems associated with pornography and prostitution and to carry out a program of socio-legal research in support of their work. It held public hearings and private sessions from coast to coast seeking the views of individuals and groups of Canadians.

In addition, in order to assist the Committee in its efforts to understand the current situation with respect to pornography and prostitution in Canada, the Department of Justice commissioned a number of studies, one of which was the National Population Study. In this study a sample of 2,018 Canadians, representative of all parts of the country except the Yukon and Northwest Territories, answered questions about pornography. Once again I believe that the trial judge was correct in relying upon the Fraser Committee Report and the studies it had reviewed. I would agree with the trial judge's statement at p. 224 that:

[translation] . . . the recommendations of this Committee are a valuable and important tool for measuring the threshold of tolerance of Canadians in general for phenomena such as pornography, prostitution or bawdy‑houses, which it goes without saying clearly includes the phenomenon of what is indecent or what is not.

What matters for the Court is to note that in 1985 the community threshold of tolerance was measured quite adequately by the Fraser Committee, even though the recommendations made were not adopted by Parliament. The Court may therefore take this study into consideration as one factor by which it can measure the standards of the Canadian community with respect to "indecent acts" which may be tolerated in so‑called "bawdy‑houses". [Emphasis in original.]

(iii)Testimony regarding Police Tolerance of the Performance of Dances at Bars Which were Similar to Those performed at the Pussy Cat

The respondent contended that the trial judge erred in taking into consideration the apparent police tolerance of nude dancing in strip clubs across Canada where the acts performed were very similar to those performed in the Pussy Cat. The respondent argued that the trial judge did not base his conclusions regarding police tolerance on any evidence that was presented at trial and that indeed, there was evidence to the contrary. Reference was made to the testimony of Constable Claude Cormier who stated that when he saw nude dancing of the kind undertaken at the Pussy Cat, he did [translation] "what was necessary".

However, the transcripts reveal that there was, in fact, testimony given by Johanne Totunov and Constable Gilles Rochon, both of whom were witnesses for the Crown, which indicated that there was a wide degree of police tolerance for "dancing" which simulated sexual activity and which was similar to that performed at the Pussy Cat. The evidence quite clearly suggests that strip tease or nude dances in which the dancer caressed her own genitals and simulated orgasms were tolerated by the police. Although evidence of police acceptance of the impugned conduct is not determinative of the community standard of tolerance, it is, nonetheless, a useful indication of what that standard might be.

Constable Gilles Rochon, one of the police officers who attended at the Pussy Cat, first denied that he had witnessed dancing of a similar nature to that performed in the Pussy Cat. However, when cross-examined by defence counsel, he admitted that he had seen dancers in strip clubs lying on the stage, spreading their legs, caressing their genitals, breasts and simulating orgasms. It would appear that the performance at the Pussy Cat was no more graphic or sexually specific, that is to say, no worse than the dancing the police tolerated at the strip bars.

As well, Johanne Totunov, a former employee of the Pussy Cat and a former nude dancer in Montreal, testified that it was her experience that the practice of touching the breasts, buttocks and even, at times, the genitals, was something which had become tolerated by the Montreal police.

Finally, I would note that Constable Gilles Rochon testified that on various occasions he had viewed video films depicting graphic sexual scenes involving anal and vaginal penetration, masturbation, cunnilingus and fellatio in several strip bars without concluding that charges should be brought.

Thus, there was ample evidence upon which the trial judge could properly base his conclusion that activities similar to those engaged in at the Pussy Cat were tolerated by the police. This too could be considered an appropriate factor in assessing the community standard of tolerance for the acts which took place in the Pussy Cat.

The Surrounding Circumstances that were Unique to this Case

Let us consider the circumstances that surrounded the acts in this case. As we have seen in this case the acts, in themselves, of both the clients and the dancers came within the range of community tolerance. This conclusion with regard to the acts of masturbation was properly drawn on the basis of the evidence given by Dr. Campbell on human sexual behaviour and attitudes and on the report of the Fraser Committee on Pornography and Prostitution. With regard to the performance of the dances, the conclusion could be properly based upon the evidence of those who had, in the past, performed in strip bars and the evidence of police tolerance of activities in strip bars which were similar to those performed at the Pussy Cat. The inquiry must then focus on the circumstances which surrounded the activities at the Pussy Cat. It is those circumstances which will determine whether the activities would be tolerated by the community.

The Rule Against Physical Contact

It is significant that clients were warned when they first arrived at the Pussy Cat and again later by the dancer which they had selected that there was to be no physical contact of any kind. That was the rule of the establishment and there is no evidence that it was ever breached. It is true that there was masturbation, or in the case of the dancer, simulated masturbation. Whether the act of masturbation itself is indecent must depend on all the surrounding circumstances or the context in which it takes place. If masturbation can be one of the principal themes of the well accepted novel, Portnoy's Complaint (1969), by the outstanding author Philip Roth, it surely cannot have the same connotation of indecency it possessed in the past.

Although the lack of physical contact is not determinative of the issue, it is nonetheless highly significant. The rule ensured that there would be little likelihood that physical harm or hurt would be done to either individual. Of equal importance was that it ensured that the transmission of infectious sexual diseases was prevented. This factor should increase the level of the tolerance of the community for the acts performed at the Pussy Cat.

I note also that in those reported cases where masturbation was held to have been indecent it was clearly established that there was physical contact between the client and the woman performing the services. See R. v. Laliberté (1973), 1973 1400 (QC CA), 12 C.C.C. (2d) 109 (Que. C.A.), and R. v. Lantay, supra.

The Place Where the Acts Took Place

It cannot be forgotten that the sexual activities were conducted behind closed doors out of the view of the general public. It is true that the public did have access to the Pussy Cat premises. Thus it came within the definition of a public place provided by s. 150 of the Criminal Code, R.S.C. 1985, c. C-46, which "includes any place to which the public have access as of right or by invitation, express or implied". Nonetheless, common sense indicates that there are great differences between locations which can come within the definition of public places. Obviously, the performance of an activity in a closed room in a house, where only two consenting adults are present is far different from carrying out the same activity in a school yard or a public park.

On this aspect of the case, the Court of Appeal was concerned with the presence of the small peep hole in the wall of each room. A former employee of the Pussy Cat testified that before she accepted a job she looked through the peep holes to satisfy herself that there was no physical contact between the clients and the dancer. Based on this evidence the Court of Appeal concluded that the peep holes could well be used more often than the court was being told. That, I think, is speculation. There is no evidence that they were used for any purely voyeuristic purpose. At the most their presence would mean that one other consenting adult observed the proceedings. This is hardly enough to render the act any more public, in any significant sense, than it was when performed between the two persons apparently alone in the room. The presence of the peep holes would, if anything, indicate that the acts were not viewed as indecent by any of the persons in the room or by the management enforcing their rule against physical contact.

Thus although the acts took place in a public place, as those words are defined in the Criminal Code, they were not a blatantly public display. Rather the closed room was relatively private with only consenting adults present.

The Absence of Harm

There was no harm caused by the activities. The peep holes, if anything, provided a means of ensuring that no harm came to the dancers or the clients. As Dr. Campbell observed, the activities took place between consenting adults who chose to be in a place which they, at least, would consider relatively private. In these times when so many sexual activities can have a truly fatal attraction, these acts provided an opportunity for safe sex with no risk of any infection. The absence of any risk of harm could properly be taken into account in assessing community tolerance for the act.

The Informed and Consensual Nature of the Acts

It is clear that everyone attending the premises knew exactly what they could expect. If they had any misgivings about being in a room with a naked female they could leave the premises. Both the clients and dancers knew what the activities entailed. Both parties in the room consented to the activities. This was a factor that could be considered in determining if there was community tolerance for the acts.

Absence of Complaints

There were no complaints about the Pussy Cat either from its clients or residents. The clients who testified stated that they were neither shocked nor insulted by what took place within the establishment. This too can be considered in deciding whether there was community tolerance for the acts.

Similarity to Accepted Nude Dancing

It is clear from the evidence that the actions of the dancers at the Pussy Cat were very similar to those of dancers in strip bars. The performances of the dancers in strip bars were clearly accepted by the public and by the police. This indicates that there was indeed a community tolerance for sexually suggestive acts performed by naked dancers. These actions are not violent and in the milieu of the strip bar they are accepted or at least tolerated by the community. It follows that the actions of the dancers in the Pussy Cat would be tolerated by the community.

Thus, neither the actions of the dancers nor, in the factual circumstances presented by this case, the acts of masturbation constituted indecent acts. Here, the surrounding circumstances were such that the acts would be tolerated by the community and they were therefore not indecent. This result may seem offensive to some. Yet, it must be remembered that we are not concerned with standards of good taste. Rather the question is whether the acts will be tolerated by the community.

Disposition

In the result I would allow the appeal, set aside the order of the Court of Appeal registering convictions against the appellants and restore the acquittal of the appellants.

Appeal allowed, La Forest and Gonthier JJ. dissenting.

Solicitors for the appellants: La Haye, Chartrand, Moisan, Boucher, Gaudreau, Doray, Montréal.

Solicitor for the respondent: Germain Tremblay, Montréal.