R. v. Mara, [1997] 2 S.C.R. 630

Patrick Mara and Allan East Appellants

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Mara

File No.: 25159.

Hearing and judgment on East appeal: March 12, 1997.

Reasons and judgment on Mara appeal: June 26, 1997.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Cory, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Appeal ‑‑ Question of law ‑‑ Indecency -- Theatrical performance ‑‑ Whether a given performance unlawful a question of law alone.

Criminal law ‑‑ Indecency -- Theatrical performance ‑‑ Lap dancing ‑‑ Sexual contact occurring between nude dancers and patrons in tavern ‑‑ Owner and manager of tavern charged with allowing indecent performances ‑‑ Whether performances indecent ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 167(1).

Criminal law ‑‑ Indecency -- Theatrical performance ‑‑ Mens rea ‑‑ Tavern owner hiring manager to oversee all aspects of entertainment ‑‑ Sexual contact occurring between nude dancers and patrons in tavern ‑‑ Owner and manager charged with allowing indecent performances ‑‑ Whether Court of Appeal erred in overturning trial judge’s finding of fact that owner did not have sufficient mens rea ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 167(1).

M, the owner of a tavern, and E, his manager in charge of entertainment, were charged with allowing indecent performances pursuant to s. 167(1) of the Criminal Code. The performances in question involved varying degrees of sexual contact between nude “dancers” and patrons at the tavern, including the fondling and kissing of a dancer’s breasts by patrons, mutual masturbation and apparent cunnilingus. At trial, both accused were acquitted. The trial judge held that M did not have the requisite criminal intent to support a conviction. He found that M made adequate and appropriate arrangements in hiring an entertainment director to oversee all aspects of entertainment and that there was no evidence that M knew that the table dancers were usually performing dances which might be classified as indecent. In any event, after reviewing the activities observed by the police in the tavern, he concluded that the performances did not exceed the Canadian community standard of tolerance and thus were not indecent. On appeal, the Court of Appeal set aside the acquittals and convicted both accused.

Held: E’s appeal should be dismissed. M’s appeal should be allowed.

The Court of Appeal had jurisdiction to hear the appeal from the acquittals. The Crown may only appeal an acquittal on a question of law alone. The question of whether a given set of facts gives rise to a finding of indecency is a question of law for the purposes of appeal.

Aside from the question of intent, conviction or acquittal in this case turns only on whether the performances were indecent. The appropriate test to determine indecency is the community standard of tolerance. A performance is indecent if the social harm engendered by the performance, having reference to the circumstances in which it took place, is such that the community would not tolerate it taking place. The relevant social harm to be considered under s. 167 of the Criminal Code is the attitudinal harm on those watching the performance as perceived by the community as a whole. Here, as found by the Court of Appeal, the conduct exceeded the standard of tolerance in contemporary Canadian society. The activities were indecent insofar as they involved sexual touching between dancer and patron. This type of activity ‑‑ the fondling and sucking of the dancer’s breasts by patrons, as well as contact between the dancer or patron and the other person’s genitals ‑‑ is harmful to society in many ways: it degrades and dehumanizes women; it desensitizes sexuality and is incompatible with the dignity and equality of each human being; and it predisposes persons to act in an antisocial manner. This analysis is sufficient to ground the finding that the performances were indecent. The potential harm to the performers themselves ‑‑ the risks of harm from sexually transmitted diseases and from the activities’ similarity to prostitution ‑‑ while obviously regrettable is not a central consideration under s. 167. The risk of harm to the performers is only relevant insofar as that risk exacerbates the social harm resulting from the degradation and objectification of women. Finally, the physical contact between patron and dancer and the public nature of the activity are the central points distinguishing this case from Tremblay and Hawkins.

Since there is no issue in this appeal concerning E’s intent, the finding of indecency is sufficient to uphold his conviction. The Court of Appeal erred, however, in interfering with the trial judge’s factual finding that M did not have the requisite mens rea to support a conviction. Section 167 is a full mens rea offence. The requirement that an accused “allow” an indecent performance implies, at the very least, a requirement of concerted acquiescence on the part of the accused or wilful blindness. The word “allow” in this context should be equated with “knowingly” in the context of s. 163(2) of the Criminal Code. Here, the trial judge noted that both E and M testified that E was entirely responsible for the activity of the dancers at the tavern and found, as a fact, that M did not have actual knowledge of the activities in question. In overturning this finding, the Court of Appeal improperly substituted its view of the facts for that of the trial judge. Further, the issue of wilful blindness did not arise. First, the trial judge stated that M did not have the “necessary criminal intent”, and this includes wilful blindness. Second, the trial judge’s finding that M had taken “reasonable steps” ‑‑ the delegation of responsibility to E ‑‑ to comply with the law precludes the possibility that he could have been found wilfully blind. It is possible in other circumstances that delegation in bad faith in order to protect oneself from the law rather than to ensure compliance with the law will amount to wilful blindness. Given the trial judge’s finding of fact on mens rea, M’s acquittal should be restored.

Cases Cited

Distinguished: R. v. Tremblay, [1993] 2 S.C.R. 932; R. v. Hawkins (1993), 15 O.R. (3d) 549; referred to: R. v. Jorgensen, [1995] 4 S.C.R. 55; R. v. Morin, [1992] 3 S.C.R. 286; R. v. B. (G.), [1990] 2 S.C.R. 57; Johnson v. The Queen, [1975] 2 S.C.R. 160; Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494; R. v. Butler, [1992] 1 S.C.R. 452; Roth v. United States, 354 U.S. 476 (1957); Miller v. California, 413 U.S. 15 (1973).

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C., 1985, c. C‑46, s. 167.

APPEALS from a judgment of the Ontario Court of Appeal (1996), 27 O.R. (3d) 643, 88 O.A.C. 358, 133 D.L.R. (4th) 201, 105 C.C.C. (3d) 147, 46 C.R. (4th) 167, 35 C.R.R. (2d) 152, setting aside the acquittals of the accused and entering convictions on charges of allowing indecent performance. East’s appeal dismissed. Mara’s appeal allowed.

Heather A. McArthur, for the appellants.

David Butt and Christine Bartlett‑Hughes, for the respondent.

//Sopinka J.//

The judgment of the Court was delivered by

[1] Sopinka J. -- This appeal concerns the criminal liability of the appellants for allowing an indecent performance. The performances in question involved varying degrees of sexual contact between “dancers” and patrons at Cheaters Tavern in Toronto. The trial judge acquitted both appellants, holding that the appellant Mara did not have the requisite criminal intent and that the performances were in any event not indecent: [1994] O.J. No. 264 (QL). The Court of Appeal unanimously overturned the acquittals and entered convictions: (1996), 27 O.R. (3d) 643, 88 O.A.C. 358, 133 D.L.R. (4th) 201, 105 C.C.C. (3d) 147, 46 C.R. (4th) 167, 35 C.R.R. (2d) 152. The appeal with respect to the appellant East was dismissed from the bench with reasons to follow, while the appeal with respect to the appellant Mara was reserved.

[2] In my view, as a matter of law, the performances in question went beyond community standards of tolerance and were therefore indecent. This conclusion suffices to dismiss the appeal with respect to the appellant East. With respect to the appellant Mara, however, in my view the trial judge made a clear finding of fact that he did not have the requisite mens rea to support a conviction. This finding is not open to appellate review and thus I would allow the appeal with respect to the appellant Mara.

I. Facts

[3] Cheaters Tavern in midtown Toronto was licensed to sell alcoholic beverages and food and presented “adult entertainment”. The appellant, Patrick Mara, was the owner and operator of the tavern and the appellant, Allan East, was the manager in charge of entertainment.

[4] Undercover police attended at the tavern on several days in March and April 1991. The officers testified about the adult entertainment being presented. Women performed exotic dances on stage, for which there was no charge. For a fee, the entertainer performed a “table dance” in which she would be nude, save for a long, unbuttoned blouse. The dancer would lower her chest to the patron’s face, allowing the patron to suck and lick her breasts. For a larger fee, the dancer performed a “special dance” called a “lap dance”. The dancer would sit on the patron’s lap with her back to the patron and her bare buttocks on the patron’s groin area. The trial judge summarized the sexual activity as follows:

The conduct of each dancer with the customer is clearly detailed in the evidence, and includes: (a) being nude except for wearing an open shirt or blouse; (b) fondling her own breasts, buttocks, thighs and genitals while close to the customer; (c) sitting on a customer’s lap and grinding her bare buttocks into his lap; (d) sitting on a customer’s lap, reaching into his crotch and apparently masturbating the customer; (e) permitting the customer to touch and fondle her breasts, buttocks, thighs and genitals; (f) permitting the customer to kiss, lick and suck their breasts; (g) permitting what appeared to be cunnilingus.

[5] The appellants were charged with, being the manager or agent or person in charge, allowing an indecent performance to be presented contrary to s. 167(1) of the Criminal Code, R.S.C., 1985, c. C-46. At trial, both appellants were acquitted. The Crown appealed and a unanimous five-judge panel of the Court of Appeal for Ontario allowed the appeal, set aside the acquittals and entered convictions against both appellants.

II. Relevant Statutory Provision

[6] Criminal Code, R.S.C., 1985, c. C-46

167. (1) Every one commits an offence who, being the lessee, manager, agent or person in charge of a theatre, presents or gives or allows to be presented or given therein an immoral, indecent or obscene performance, entertainment or representation.

III. Prior Judgments

A. Ontario Court of Justice (Provincial Division)

[7] Hachborn Prov. Div. J. held that there was no doubt that Cheaters Tavern is a “theatre” within the meaning of s. 167 of the Criminal Code and that the activity in question consisted of “performances” under the Code.

[8] The trial judge noted the evidence of Mara that he delegated all responsibility for the entertainment to East. For example, any complaint was referred to East. East’s evidence was similar. The trial judge observed that s. 167 does not establish absolute liability and held that Mara made adequate and appropriate arrangements to hire an entertainment director to oversee all aspects of entertainment. There was no evidence Mara knew that the table dancers were generally or usually performing dances which might be classified as indecent. Having found that Mara took reasonable steps to comply with the law, the trial judge acquitted Mara.

[9] The trial judge reviewed the activities observed by the police as set out in the facts. He stated that the standard to be applied in the present case is whether the conduct in question went beyond conduct which would be permissible when measured against the Canadian community standard of tolerance. Such an approach was affirmed by the Supreme Court of Canada in R. v. Tremblay, [1993] 2 S.C.R. 932. After reviewing Tremblay and R. v. Hawkins (1993), 15 O.R. (3d) 549 (C.A.), the trial judge stated:

The conduct complained of in this present case is innocuous by comparison to the conduct dealt with by the Supreme Court of Canada and the Court of Appeal of Ontario.

If it had not been for these cases there would have been little difficulty in finding the table dancers’ conduct to be indecent.

The conduct at Cheaters Tavern is not indecent, and the charge against Allan East is dismissed. There will be an acquittal entered.

B. Court of Appeal for Ontario (Dubin C.J.O.)

[10] The Court of Appeal first considered the submission that the Crown’s appeal only raised a question of fact, or mixed law and fact, and thus the Crown did not raise a legitimate ground to appeal the acquittal. The court concluded that Tremblay held that whether certain activities are indecent is a question of law.

[11] The court then analyzed whether s. 167 of the Criminal Code violated s. 7 of the Canadian Charter of Rights and Freedoms for vagueness. In this Court, the appellants do not raise this issue, or any other Charter issue, so I will simply note that in a thorough analysis of vagueness doctrine, the court concluded that the terms in s. 167, while not mathematically precise, were not impermissibly vague.

[12] Turning to what it characterized as the principal issue on the appeal, the indecency of the activities of the “dancers”, the court held that in determining indecency in a particular set of circumstances, the “community standard of tolerance” is the test that must be applied. It is not a matter of one’s taste, but it is whether the conduct exceeds the standard of tolerance in contemporary Canadian society. The court held that attitudinal harm, particularly the reinforcement of stereotypes, is one type of harm s. 167 is designed to prevent. The court held that the conduct in issue in the present case is harmful to society in many ways: it degrades and dehumanizes women; it desensitizes sexuality and is incompatible with the dignity and equality of each human being; and it predisposes persons to act in an antisocial manner. The court also held that there was a risk of real physical harm to the performers, a risk of unwanted touching and a risk of spreading infectious diseases. The court held that the conduct of the dancers constituted a form of prostitution. Although prostitution is not illegal in Canada, Parliament has made clear its intention to eradicate it by criminalizing prostitution-related activities.

[13] The conduct in the present case, the court concluded, exceeded what is acceptable for the proper functioning of our society, exceeded community standards of tolerance and was indecent. The court noted that when asked whether various activities observed by the police, such as masturbating the patrons through their clothing, were improper, East testified that they would be very improper.

[14] The Court of Appeal held that the trial judge erred in holding that the judgments in Tremblay and Hawkins precluded him from finding that the conduct in issue here was indecent ^__ both cases are distinguishable.

[15] The court then turned to the question of whether either or both of Mara and East “allowed” the performances in question pursuant to s. 167. The court reviewed the mens rea requirements set out in R. v. Jorgensen, [1995] 4 S.C.R. 55, observing that failing to inquire when one becomes aware of the need for inquiry suffices to establish “knowingly”. The court held that, having regard to the widespread nature of the activities in the present case, if the accused were unaware of what was going on, they must have “shut their eyes” and been wilfully blind. The trial judge thus erred in holding that Mara had acted reasonably by delegating the conduct of the performers to East without taking any steps in his own right to prevent the indecent performances.

[16] In any event, Parliament did not adopt the word “knowingly” in s. 167, which indicates a lower standard of mens rea. All the Crown has to prove is that Mara and East allowed an indecent performance to be presented.

[17] The court was satisfied that a new trial was not necessary and convicted both accused.

IV. Analysis

A. Indecency as a Question of Law Alone

[18] The Crown may only appeal an acquittal on a question of law alone. I will consider the jurisdictional issue with respect to the appellant Mara’s mental state below, but will consider here the appellants’ submission that reviewing the trial judge’s finding on indecency does not involve a question of law alone, and that therefore the Court of Appeal erred in conducting such a review. In my view, the question of whether a given set of facts gives rise to a finding of indecency is a question of law. This conclusion is consistent with the principles set out in case law on the general issue of when a question of law arises, and is consistent with this Court’s specific treatment of indecency and similar charges.

[19] R. v. Morin, [1992] 3 S.C.R. 286, elaborated on the reasoning in R. v. B. (G.), [1990] 2 S.C.R. 57, as to when questions of law arise in assessing findings of fact by a trial judge. I stated for the Court at p. 294:

If a trial judge finds all the facts necessary to reach a conclusion in law and in order to reach that conclusion the facts can simply be accepted as found, a Court of Appeal can disagree with the conclusion reached without trespassing on the fact-finding function of the trial judge. The disagreement is with respect to the law and not the facts or inferences to be drawn from the facts. The same reasoning applies if the facts are accepted or not in dispute. In this situation, the court can arrive at the correct conclusion in law without ordering a new trial because factual issues have been settled. [Emphasis added.]

[20] In the present context, Morin indicates that if the facts concerning a performance are undisputed, whether or not the performance is indecent is a question of law alone. This conclusion is confirmed by consideration of other case law specifically dealing with indecency and similar issues.

[21] Johnson v. The Queen, [1975] 2 S.C.R. 160, involved the question of whether a woman dancing nude before a paying audience constituted an immoral performance. Ritchie J., on behalf of the majority, held at p. 170:

With the greatest respect for those who may hold a different view, it appears to me that the question of whether or not certain conduct constitutes an offence under the Criminal Code is a question of law in the strict sense and that the Courts below accordingly had jurisdiction to entertain the appeal. The question raised by the stated case does not turn on the weighing of any evidence as it is based on a fact which is in no way disputed, namely, that the appellant was nude when dancing in a cabaret. [Emphasis added.]

Johnson thus clearly stands for the proposition that the question of whether a given performance is unlawful is a question of law alone.

[22] Tremblay, supra, involved the charge of keeping a bawdy house for the purpose of the practice of indecent acts. The appellants before this Court had been acquitted at trial, but the Court of Appeal held that the acts in question were indecent and convicted. This Court restored the acquittals. The majority reversed the decision of the Court of Appeal on the basis of a different application of the community standards test. This was the issue on which the Crown’s appeal to the Court of Appeal was based. As I have stated, an appeal by the Crown of an acquittal can only be based on a question of law alone. No question was raised in either court as to the jurisdiction of the Court of Appeal to entertain the appeal on this basis. Indeed, Cory J., for the majority, made this explicit in adopting at p. 958 the following passage from Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494, at p. 508:

[T]he decision whether [the acts in question are] tolerable according to Canadian community standards rests with the court. . . .

[23] There is also explicit support for this conclusion within the reasons in Tremblay. Gonthier J., in dissent, observed at p. 946:

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. 958, “the decision whether (the acts in question are) tolerable according to Canadian community standards rests with the court”.

Cory J.’s approval of the observation that the question of whether the community would tolerate the acts rests with the Court, along with his assumption of jurisdiction over the case, indicates that the majority in Tremblay concluded that the question of whether a given act is indecent is a question of law alone.

[24] Moreover, both the nature of the inquiry and policy support the conclusion that the application of the community standards test to a given set of facts is a question of law for the purposes of appeal. The nature of the inquiry was elaborated in R. v. Butler, [1992] 1 S.C.R. 452, at p. 484:

Some segments of society would consider that all three categories of pornography cause harm to society because they tend to undermine its moral fibre. Others would contend that none of the categories cause harm. Furthermore there is a range of opinion as to what is degrading or dehumanizing. . . . Because this is not a matter that is susceptible of proof in the traditional way and because we do not wish to leave it to the individual tastes of judges, we must have a norm that will serve as an arbiter in determining what amounts to an undue exploitation of sex. That arbiter is the community as a whole. [Emphasis added.]

[25] Furthermore, the application of this norm by the courts is not dependent on evidence although evidence is often called and considered. See Butler, supra, at p. 485, and Jorgensen, supra, at p. 115. This distinguishes the inquiry from a factual one, in which evidence is essential. What the Court must determine was described in the following passage in Butler at p. 485:

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.

This determination, then, can be made in the absence of evidence and is not susceptible of proof in the traditional way. It must perforce be a question of law, otherwise proof would be required based on evidence and according to the criminal standard.

[26] Finally, there is sound policy supporting the conclusion that, at least for the purpose of appellate review, whether a particular performance gives rise to a finding of indecency is a question of law. Towne Cinema confirmed that the “community standards” referred to in obscenity and indecency cases were to be the standards of the Canadian community generally, not the particular community in which the acts took place. That is, there is a national standard. In my view, appellate review is important in ensuring that there is consistency across Canada in the application of a national community standards test. If indecency or obscenity were considered to raise factual matters for the purpose of jurisdiction on appeal, appellate review would be significantly undermined.

[27] A similar policy rationale for permitting appellate review is found in the United States. In the United States, obscenity and indecency are not based on a nationwide standard, yet the importance of appellate review is recognized in characterizing the nature of the issue before the court. In order to permit a reviewing court to revisit a finding of obscenity, American courts have characterized whether something is obscene as a question of constitutional law. For example, Harlan J., in an influential opinion in Roth v. United States, 354 U.S. 476 (1957), stated at pp. 497-98:

The Court seems to assume that ‘obscenity’ is a peculiar genus of ‘speech and press,’ which is as distinct, recognizable, and classifiable as poison ivy is among other plants. On this basis the constitutional question before us simply becomes, as the Court says, whether ‘obscenity,’ as an abstraction, is protected by the First and Fourteenth Amendments, and the question whether a particular book may be suppressed becomes a mere matter of classification, of ‘fact,’ to be entrusted to a fact-finder and insulated from independent constitutional judgment. But surely the problem cannot be solved in such a generalized fashion. Every communication has an individuality and ‘value’ of its own. The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgments which appellate courts must make for themselves.

I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as ‘obscene,’ for, if ‘obscenity’ is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind. [Italics in original; underlining added.]

See also Miller v. California, 413 U.S. 15 (1973), at p. 25, which confirmed Harlan J.’s approach. In order to ensure consistency in the application of the Constitution, American courts have held that the factual elements of the issue should not deter appellate courts from reviewing findings of obscenity.

[28] The appellants placed much reliance on a statement in Jorgensen, supra, which characterized the inquiry in that case as a question of mixed fact and law. The issue in respect of which this statement was made was whether the appellants could rely on a determination of the Ontario Film Review Board to support a mistake of fact. After pointing out that the characterization of an issue for one purpose does not apply for the other purposes, the Court referred to the determination of community standards as a question of mixed fact and law in order to distinguish it from a pure question of fact. The Court went on to state that it was unnecessary for the Crown to prove or the tribunal to find that the appellants knew that the impugned material exceeded community standards in order to secure a conviction. This could only be so if the knowledge of the accused related to a question of law. There is, therefore, nothing that was said in Jorgensen that is inconsistent with characterizing this matter as a question of law for the purposes of appeal.

[29] Whether undisputed facts give rise to a finding of an indecent performance raises a question of law. Thus, the Court of Appeal had, and this Court has, jurisdiction to hear the appeal from the acquittals. The appellants submit, however, that the Court below, in finding indecency and in finding mens rea, interfered with the findings of fact, or drew additional inferences from the given facts, such that their reversal of the acquittals was not based on a question of law alone. I will consider these submissions in discussing indecency, to which I will turn presently, and mens rea, which I will consider thereafter.

B. Indecency

[30] The trial judge found that the tavern constituted a theatre for the purposes of s. 167, and that the “dances” in question constituted performances. Given these findings, aside from the question of intent, conviction or acquittal turns only on whether the performances were indecent.

[31] As set out in Tremblay, supra, at p. 958, the appropriate test to determine indecency is the community standard of tolerance. Dickson C.J. stated in Towne Cinema, supra, at p. 508:

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. [Italics in original; underlining added.]

As discussed above, Butler set out that harm is the principle underlying the notion of what Canadians would tolerate. The majority stated in that case at p. 485:

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.

[32] While Butler concerned the obscenity of particular pornographic materials, the present case concerns the indecency of live performances. The tolerance basis of the community standards test is the same in indecency cases as in obscenity cases (see Tremblay), but indecency, unlike obscenity, entails an assessment of the surrounding circumstances in applying the community standards test. As the majority stated in Tremblay at p. 960:

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.

[33] Putting the above observations together, a performance is indecent if the social harm engendered by the performance, having reference to the circumstances in which it took place, is such that the community would not tolerate it taking place. I agree with the Court of Appeal that the activities in the present case were such that the community would not tolerate them and thus were indecent.

[34] The relevant social harm to be considered pursuant to s. 167 is the attitudinal harm on those watching the performance as perceived by the community as a whole. In the present case, as outlined in the facts, the patrons of Cheaters could, for a fee, fondle and touch women and be fondled in an intimately sexual manner, including mutual masturbation and apparent cunnilingus, in a public tavern. In effect, men, along with drinks, could pay for a public, sexual experience for their own gratification and those of others. In my view, such activities gave rise to a social harm that indicates that the performances were indecent. I agree with the Court of Appeal, which stated (at p. 650 O.R.):

The conduct in issue in this case in the context in which it takes place is harmful to society in many ways. It degrades and dehumanizes women and publicly portrays them in a servile and humiliating manner, as sexual objects, with a loss of their dignity. It dehumanizes and desensitizes sexuality and is incompatible with the recognition of the dignity and equality of each human being. It predisposes persons to act in an antisocial manner, as if the treatment of women in this way is socially acceptable and is normal conduct, and as if we live in a society without any moral values.

[35] Any finding of indecency must depend on all the circumstances. I am satisfied that the activities in the present case were indecent insofar as they involved sexual touching between dancer and patron. Thus, the fondling and sucking of breasts, as well as contact between the dancer or patron and the other person’s genitals, in circumstances such as the present case gave rise to an indecent performance. It is unacceptably degrading to women to permit such uses of their bodies in the context of a public performance in a tavern. Insofar as the activities were consensual, as the appellants stressed, this does not alter their degrading character. Moreover, as I stated in Butler, at p. 479, “[s]ometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing”.

[36] This analysis, in my view, is sufficient to ground the finding that the performances were indecent. However, I agree with the Court of Appeal that it is also relevant that the Municipality of Metropolitan Toronto recently passed a by-law prohibiting contact between anyone who provides services designed to appeal to erotic or sexual appetites or inclinations at an adult entertainment parlour from touching or having physical contact with any other person in any manner whatsoever involving any part of that person’s body, and prohibits the owner from permitting such conduct. While the by-law has been challenged unsuccessfully as being ultra vires the municipality, I agree with the Court of Appeal that, aside from its validity, the by-law is instructive in the present case as evidence confirming that community standards of tolerance were exceeded by the activities in question.

[37] The Court of Appeal considered two other factors which I view as only marginally relevant to a determination of indecency. A finding of an indecent performance depends on a finding of harm to the spectators of the performance as perceived by the community as a whole. The potential harm to the performers themselves, while obviously regrettable, is not a central consideration under s. 167. The Court of Appeal, however, appeared to treat the risk of sexually transmitted diseases and the harms associated with prostitution as significant factors in finding indecency in the present case. In my view, the risk of harm to the performers is only relevant insofar as that risk exacerbates the social harm resulting from the degradation and objectification of women. Thus, if there is increased degradation of women, and therefore an increased likelihood of social harm, because the performances in question posed risk to the performers, then these factors are relevant. In the present case, these additional factors are not necessary to my conclusion that the performances in question were indecent. Aside from the risks of harm from sexually transmitted diseases and from the activities’ similarity to prostitution, the social harm resulting from the performances in the context in which they took place is sufficient to find them indecent. Women were degraded and objectified in a socially unacceptable manner, whether or not the additional harms associated with prostitution and sexually transmitted diseases were associated with the performances.

[38] The conclusion that the performances in question were indecent is to some extent supported by the reasons of the trial judge. The trial judge would have found the performances to be indecent, but for the precedent set by Tremblay, supra, and Hawkins, supra. He stated:

The conduct complained of in this present case is innocuous by comparison to the conduct dealt with by the Supreme Court of Canada and the Court of Appeal of Ontario.

If it had not been for these cases there would have been little difficulty in finding the table dancers’ conduct to be indecent.

The conduct at Cheaters Tavern is not indecent, and the charge against Allan East is dismissed. There will be an acquittal entered.

In my view, the trial judge erred in viewing himself bound by those cases, as I will explain presently, in which case his alternative finding applies: the performances were indecent.

[39] In distinguishing Tremblay and Hawkins from the present case, it is largely sufficient to summarize the analysis of the Court of Appeal on the matter. I note, however, that this Court in Tremblay and the Court of Appeal in the present case placed significance on the risk of sexual assault and transmission of disease which I do not, but it is important to recall that Tremblay involved an analysis of whether acts performed in a private room were indecent, whereas the present case involves an analysis of whether a performance was indecent. The charge in Tremblay was under s. 193(1) of the Criminal Code (now s. 210(1)). The gravamen of that offence is the keeping of a place for the purpose of the practice of acts of indecency. The presence of spectators and the effect on spectators is relatively unimportant. On the other hand, the gravamen of the offence under s. 167 is giving or allowing an indecent performance. The presence of spectators and of “performance” under s. 167(1), changes the emphasis in the present case largely to an analysis of the effect on the spectators, rather than the performers. While I do not share the view of the Court of Appeal with respect to the importance of the risk of infectious diseases to a finding of an indecent performance, I otherwise fully agree with the manner in which Dubin C.J.O. admirably set out the differences between the present case and Tremblay and Hawkins, and explained why the activities in the present case were indecent. While it is unnecessary to repeat verbatim what was said, the principal distinctions may be summarized as follows.

[40] The central points distinguishing the present case from Tremblay are the physical contact between patron and dancer that occurred here, but was prohibited in Tremblay, and the public nature of the activity in the present case; here the activity took place in an open tavern, while in Tremblay the acts took place in a private room. With respect to Hawkins, the images in question were electronic images viewed in a private living room, not live dancers performing sexual acts in a tavern. These distinguishing features have a profound effect on the finding of indecency in the present case. The public nature of the activity and the physical contact raise a factual context very different from the previous cases. Given that the trial judge erred in viewing himself bound by Tremblay and Hawkins, his alternative finding, that the performances were indecent, is operative. His reasons thus provide some support for my conclusion in the present appeal.

[41] The Court of Appeal, in assessing indecency, provided a further reason to conclude that the acts in question were indecent. Dubin C.J.O. observed (at pp. 651-52 O.R.) that:

Both [Mara and East] denied knowledge of the acts described. However, the following exchange took place during cross‑examination of the respondent East by Crown counsel:

Q. And for a woman to be masturbating herself in the presence and within view of the male patron, would you consider that to be improper?

A. Improper, whether she was in view or not. Highly improper.

Q. And would that warrant dismissal, as far as you would be concerned?

A. Yes, of course.

Q. And for the patrons to be fondling the breasts of the dancers at Cheaters?

A. If they were to do that also, I would eject the customer and the dancer.

Q. Why?

A. Why?

Q. Why? Yes.

A. Because it ‑‑ I would consider it improper.

Q. And for the dancers to be masturbating the [male] customers through their clothing?

A. Need you ask? Of course. It would be very improper. Instant, total dismissal for life.

Thus, the appellant East himself acknowledged that the acts described by the police were “improper”, which lends further support to the conclusion that the performances in question were indecent.

[42] In summary, on the undisputed facts as described by the trial judge in the facts set out above, the performances in the present case were indecent. By finding them to be otherwise, in my view the trial judge erred in law and the Court of Appeal was correct to overturn this finding.

[43] The appellants argued that by referring to factors such as social harm and the risk of sexually transmitted diseases not addressed at trial, the Court of Appeal drew additional inferences from facts, thus indicating that its disagreement with the trial judge was based on a question of mixed law and fact, rather than on law alone. The appellants further argued that by suggesting consideration of these factors, the Crown effectively advanced a new theory of liability for the first time on appeal.

[44] In my view, neither of these arguments is convincing. As noted above, social harm is not a fact susceptible of proof in the traditional way, but rather where the activities or material in question involve the degradation and objectification of women, or perhaps children or men, the law infers harm simply from that degradation and objectification. Considering the social harm resulting from the given facts in the present case, therefore, does not involve consideration of a “new” fact, or a “new” factual inference to be drawn from given facts, but rather is a consideration going to the legal effect of the facts.

[45] This also addresses the submission that the Crown advanced a new theory of liability on appeal. The Crown, obviously, argued that the performances were indecent at trial. Indecency depends on community standards, which in turn depend largely on an analysis of social harm. By suggesting on appeal consideration of the social harm resulting from the performances, the Crown was simply attempting to persuade the court that the legal effect of the facts as found was that the performances exceeded community standards of tolerance, contrary to the finding of the trial judge. The Crown was not advancing a new theory of liability, but rather was making a legal argument about community standards and the indecency of the performances in question.

[46] With respect to consideration of the risk of sexually transmitted diseases, given that I place little or no weight on this factor, I will decline to consider whether it was proper for the Court of Appeal to examine those risks in assessing indecency even though they were not a factor discussed by the trial judge. In my view, the undisputed facts outside of the risk of sexually transmitted diseases were sufficient to ground a finding of indecency.

C. The Appellant Mara and Mens Rea

[47] There is no issue in this appeal concerning the intent of the appellant East. The finding of indecency is sufficient to dismiss the appeal with respect to him. The appellant Mara, however, argued that the Court of Appeal erred in interfering with the factual finding of the trial judge that he did not have the requisite criminal intent to find him guilty.

[48] With respect to the mens rea of the appellant Mara, the trial judge noted that both he and the appellant East testified that the latter was entirely responsible for the activity of the dancers at the tavern and stated:

The offence under Section 167(1) of the Criminal Code is not an offence of absolute liability.

Patrick Mara made what appears to be adequate and appropriate arrangements for the presentation of exotic table dances to customers of the tavern by hiring an entertainment director to oversee all aspects of entertainment.

There is no evidence that Patrick Mara knew that the table dancers were generally or usually performing dances which might be classified as indecent.

The Court finds that Patrick Mara took reasonable steps to comply with the law, and that he did not have the necessary criminal intent for the offence charged against him. The charge against Patrick Mara is dismissed, and an acquittal will be entered.

[49] The Court of Appeal overturned this finding. Dubin C.J.O. first noted that even where the mental requirement is “knowingly”, Jorgensen held that wilful blindness will satisfy the requirement. The court held (at p. 657 O.R.):

Having regard to the widespread nature of the activities in this case, if [Mara and East] were unaware of what was going on, they must have “shut their eyes” and been wilfully blind. It is apparent that even after being warned by the police, no steps were taken to stop the indecent performances.

The trial judge erred, under these circumstances, in holding that the respondent Mara had acted reasonably by delegating the conduct of the performers to the respondent East, without taking any steps in his own right to prevent the indecent performances from being carried on.

The court went on to state that, in any event, “knowingly” was not found in s. 167 and that therefore the mens rea standard was lower. The court overturned the acquittal of Mara and entered a conviction.

[50] In my view, the court erred in overturning the finding of fact made by the trial judge with respect to mens rea. Section 167 requires that the accused “allow” the indecent performance. I agree with the appellant Mara and the respondent that s. 167 is a full mens rea offence. In my view, the requirement that the accused “allow” an indecent performance implies, at the very least, a requirement of concerted acquiescence or wilful blindness on the part of the accused. Indeed, I would equate “allow” in this context with “knowingly” in the context of Jorgensen. Thus, given that the Court of Appeal’s alternative finding is based on a lesser view of mens rea than “knowingly”, I do not accept their alternative conclusion.

[51] With respect to their central conclusion, in my view the Court of Appeal simply disagreed with the trial judge’s finding of fact and substituted its own view. The trial judge found as a fact that the accused did not have actual knowledge of the activities in question. Dubin C.J.O., however, appeared to conclude that while the trial judge did consider actual knowledge, he did not consider wilful blindness. In my view, there is no reason to conclude that the trial judge erred in his assessment of mens rea. First, he went farther than simply stating that the appellant Mara did not have actual knowledge and stated that Mara did not have the “necessary criminal intent”. Given that the requisite criminal intent includes wilful blindness, this finding sufficed to address this possibility. Second, in my view, the trial judge’s finding that the appellant Mara had taken “reasonable steps” to comply with the law precludes the possibility that he could have been found wilfully blind. If a person takes reasonable steps to comply with the law, he or she has not “[d]eliberately cho[sen] not to know something when given reason to believe further inquiry is necessary”, as was stated in Jorgensen at para. 102. Given that the trial judge found the delegation to the appellant East to have amounted to reasonable steps to comply with the law, if East was delinquent in his duties, the appellant Mara should not be held responsible.

[52] Given that the trial judge made no apparent error in law, the Court of Appeal did not have jurisdiction on the appeal of the appellant Mara’s acquittal to overturn the judge’s findings of fact. The Court of Appeal simply substituted its own view of the facts for that of the trial judge, which is impermissible.

[53] The respondent Crown in this Court argued that while there is a full mens rea requirement under s. 167, the requisite knowledge on the part of the accused who is an owner of the theatre is limited. The respondent submitted that so long as the owner-accused has knowledge of the nature of the business he or she is running, he or she has sufficient mens rea to ground a conviction. If the accused is aware that he or she is in a business in which there is a risk that indecent performances will take place, then if those performances in fact do take place, the accused will have sufficient mens rea under s. 167. The respondent supported this contention largely on the basis of the following policy argument. If owners are capable of insulating themselves from conviction simply by delegating responsibility, then the persons who benefit the most financially from the indecent performances will be offered a means of making money from indecent performances without risking trouble with the law.

[54] I cannot accept the respondent’s submission. The suggested approach would render meaningless the full mens rea requirement which the respondent conceded to be the standard under s. 167. Indeed, the approach would amount to absolute liability for all owners of adult establishments in which an indecent performance takes place. All owners of adult entertainment establishments are presumably aware of the nature of the business they are in. Thus, if ever an indecent performance took place, no matter how diligent the owner in seeking to prevent this, the very fact that the performance took place would be enough to convict the owner. In my view, this is akin to absolute liability for owners, which is conceded not to be the standard under s. 167.

[55] With respect to the policy concern that owners may simply shield themselves by delegating, I have two responses. First, if the policy is sufficiently compelling, perhaps Parliament could amend s. 167 to make it an offence with a lower standard of mens rea, at least for owners. Second, if the owner delegates responsibility in bad faith, that is, delegates in order to protect him- or herself from the law rather than to ensure compliance with the law, then, in my view, in certain circumstances this could amount to wilful blindness. Delegation with a nod and a wink will not protect the owner from conviction. In the present case, the trial judge found that the appellant Mara’s delegation of responsibility amounted to taking reasonable steps to comply with the law, hence the issue of wilful blindness, as stated above, does not arise.

[56] In summary, in my view, the Court of Appeal erred in overturning the trial judge’s finding of fact that the appellant Mara did not have sufficient mens rea to convict under s. 167. Consequently, I would allow the appeal with respect to him.

V. Conclusion and Disposition

[57] In my view, the trial judge erred in law in concluding that the activities in the present case did not amount to indecent performances. I agree with the Court of Appeal that the performances were indecent. Given that there was no issue about whether the appellant East had the requisite mental state to support a conviction, the Court dismissed the appeal with respect to the appellant East at the conclusion of the argument.

[58] With respect to the appellant Mara, on the other hand, in my view the trial judge committed no error of law in reaching his finding of fact that Mara did not have the requisite criminal intent to support a conviction. In overturning this finding, the Court of Appeal improperly substituted its view of the facts for that of the trial judge. Given the trial judge’s finding of fact on mens rea, I would allow the appeal with respect to the appellant Mara and restore his acquittal.

East’s appeal dismissed. Mara’s appeal allowed.

Solicitor for the appellants: Heather A. McArthur, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General, Toronto.