Johnson v. R., [1975] 2 SCR 160

Supreme Court of Canada

Johnson v. R., [1975] 2 S.C.R. 160

Date: 1973-10-02

Kelly Johnson Appellant;

and

Her Majesty The Queen Respondent.

1973: June 11; 1973: October 2.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal law—Dance performed in the nude in a cabaret before a paying audience—Whether immoral performance within Criminal Code, R.S.C. 1970, c. C-34, s. 163(2).

An appeal was brought to this Court from a judgment of the Appellate Division of the Supreme Court of Alberta, which allowed an appeal from the judgment of a judge of the Trial Division, who, on a stated case, had reversed the decision at trial to convict the appellant of an offence under what is now s. 163(2) of the Criminal Code, R.S.C. 1970, c. C-34. The gravamen of the offence charged was that the appellant “… did unlawfully appear as a performer in an immoral performance to wit: did dance in the nude in a theatre before a paying audience”. The appellant was given leave to appeal to this Court on the following question of law: Did the Appellate Division of the Supreme Court of Alberta err in law in deciding that in considering what constitutes an immoral performance under s. 163(2) of the Criminal Code, it should be held that Parliament, by enacting s. 170 of the Criminal Code has declared that nudity in a public place without lawful excuse, is a breach of moral standards in Canada?

Held (Fauteux C.J. and Martland and Pigeon JJ. dissenting): The appeal should be allowed and the conviction quashed.

Per Abbott, Judson, Ritchie, Laskin and Dickson JJ.: An act does not become immoral simply because it has been made an offence by the Parliament of Canada. The provisions of s. 170 do not stigmatize the display of the human form in its natural state as “immoral” and as the offence here charged must rest solely on the ground that the appellant’s body was completely unclothed and there was no suggestion. that the “performance” was otherwise “immoral”, the

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trial judge was incorrect in holding “the said dance to be an immoral performance contrary to the provisions of the Criminal Code”, and the Appellate Division was wrong in holding that the language employed by Parliament in enacting s. 170 is to be construed as meaning that being unclothed in a public place is a breach of moral standards in Canada and therefore constitutes an “immoral performance” within the meaning of s. 163(2).

Per Spence and Laskin JJ.: The word “immoral” is not defined in the Criminal Code and therefore the provincial judge would have had to have some evidence of what was and what was not immoral in order to found his judgment. Lacking such evidence there was nothing upon which the provincial judge could come to the opinion that he should register a conviction.

One must have regard for the arrangement of the Criminal Code in testing whether Parliament has, in fact, declared that dancing in the nude is an immoral performance. Section 163 appears under the subheading of “Offences Tending to Corrupt Morals”. Section 170, on the other hand, appears under the subheading “Disorderly Conduct”. It was the effect on the public peace of such conduct as was exhibited not infrequently by members of a certain radical religious sect which Parliament aimed to control and prevent by the provisions of what is now s. 170 of the Criminal Code and Parliament there was not dealing with immorality at all. Therefore the Appellate Division was in error when it turned to s. 170 to ascertain the standard of morals.

Per Fauteux C.J. and Martland and Pigeon JJ., dissenting: The magistrate, in deciding whether there was evidence to support the charge against the appellant, was entitled to take into consideration the fact that the appellant’s appearance, nude in a public place, without lawful excuse, could have constituted, in itself, a breach of s. 170 and that it offended against public decency. She was not charged with an offence under s. 170, or with appearing in an indecent performance, but this was a factor which, coupled with the other evidence, could be considered in deciding whether or not her performance was immoral.

The other evidence was as follows: The appellant’s performance was before an entirely male audience and was staged for the purpose of gain. There was no suggestion in the evidence that the performance was one which had artistic merit. It was a strip-tease act, the only purpose of which was to provide a prurient

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titillation of the sensibilities of the audience. Taking all these factors into account, the magistrate had evidence before him on which he could find that the appellant had appeared as a performer in an immoral performance.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], allowing an appeal by the Crown from a judgment of Riley J., allowing an appeal by way of stated case from the appellant’s conviction of an offence under s. 163(2) of the Criminal Code. Appeal allowed, Fauteux C.J. and Martland and Pigeon JJ. dissenting.

A.W. MacDonald and A.E. Golden, for the appellant.

B.A. Crane, for the respondent.

The judgment of Fauteux C.J. and Martland and Pigeon JJ. was delivered by

MARTLAND J. (dissenting)—This appeal is brought, with leave, from a judgment of the Appellate Division of the Supreme Court of Alberta, which allowed an appeal from the judgment of a judge of the Trial Division, who, on a stated case, had reversed the decision at trial to convict the appellant of an offence under what is now s. 163(2) of the Criminal Code, R.S.C. 1970, c. C-34, and imposing a fine of $50 and costs or 30 days.

The relevant subsection provides:

(2) Every one commits an offence who takes part or appears as an actor, performer, or assistant in any capacity, in an immoral, indecent or obscene performance, entertainment or representation in a theatre.

“Theatre” is defined, in s. 138, as including “any place that is open to the public where entertainments are given, whether or not any charge is made for admission”.

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The charge against the appellant was that on or about September 29, 1971, at Calgary, Alberta, she “did unlawfully appear as a performer in an immoral performance, to wit: did dance in the nude in a theatre before a paying audience”.

The evidence for the Crown was given by a detective in the Morality Division of the City of Calgary Police Department. He stated that on the day in question he went to a cabaret, in the City of Calgary, known as “Dino’s Hideaway”, at about noon. Patrons of the cabaret were charged a $3 cover charge, which included a meal and entertainment. There were approximately 16 male persons in attendance at the time. He described the appellant’s performance as follows:

At approximately twenty after twelve a performer, Miss Kelly Johnson, was introduced to the audience whereby she got on the stage in front of approximately twenty tables and—to dance a topless dance. She danced three dances; one with the top on and two with her top off and then there was a short intermission. In approximately five minutes she returned to the stage and did another dance with her top off and then another dance with her—removing her bikini panties. She danced for approximately two minutes, shortly over two minutes, whereby she left the stage.

Q. When she removed her bikini panties, how was she dressed?

A. Completely in the nude.

He further stated that the stage was about six feet by four feet and was about two feet above the floor level. It was well lighted with flashing and different coloured lights. There was a spot light on the stage and the body of the appellant was completely visible to the people who were there.

No evidence was called for the defence.

Application was made to the magistrate who had convicted the appellant to state a case. Paragraphs (e) and (f) of the stated case are as follows:

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(e) The grounds on which the same is questioned are:

That I (the said Provincial Magistrate) erred in point of law in holding that the Appellant’s appearance as a performer was unlawful and that to dance in the nude before a paying audience constituted an immoral performance.

(f) The grounds upon which I support the preceding questioned are:

On the point under Appeal herein, the evidence led before me proved:

1. The accused (Applicant) danced in the nude in a cabaret known as “Dino’s Hideaway Cabaret” on the 29th day of September, A.D. 1971.

My reasons for judgment in finding the said dance to be an immoral performance, HELD:

“…dancing in the nude in a public performance is contrary to the provisions of the Criminal Code of Canada.”

The question propounded in the stated case was:

Was I correct in holding the said dance to be an immoral performance, contrary to the provisions of the Criminal Code of Canada?

Under s. 762 of the Criminal Code, an appeal by way of stated case must be on the ground that the conviction is:

(a) Erroneous in point of law, or

(b) In excess of jurisdiction.

There was no question as to jurisdiction and so the appeal had to be based upon an error in law. In the circumstances of this case, it was, therefore, necessary for the appellant, in order to succeed on her appeal, to establish that there was no evidence upon which the magistrate could have held that she had appeared as a performer in an immoral performance.

The reasons for judgment in the Trial Division are concerned mainly with the application of s. 159(8) of the Criminal Code, which provides that:

(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploi-

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tation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

The appeal was allowed, because, it was said:

There was nothing to suggest that the performance

(a) was in any way lustful,

(b) no tendency to deprave or corrupt,

(c) there was no distorted, impoverished masturbatory concentration on pornography.

Section 159(8) is concerned with the definition of “Obscenity” in publications. In my opinion, it did not provide the test for determining whether or not the performance in the present case was or was not an immoral performance.

The following passage from the reasons for judgment of the Appellate Division states the grounds upon which the Appellate Division allowed the appeal of the present respondent:

Upon the appeal counsel for the Crown argued that there was no question of law involved. We are extremely doubtful if there was any question of law involved. However, assuming there was a question of law, we are of the opinion there was evidence to support the Provincial Judge’s decision. Section 170 of the Criminal Code provides:

“170. Every one who, without lawful excuse,

(a) is nude in a public place,

…

is guilty of an offence punishable on summary conviction.”

We think the Provincial Judge was referring to this section when he said, “Dancing in the nude in a public performance is contrary to the provisions of the Criminal Code of Canada”. The respondent was not charged under this section and therefore could not be convicted thereunder. However, the offence has always been treated as one relating to morals, and the Parliament of Canada by making it an offence has declared that it is a breach of a moral standard in Canada. We know of no better way of establishing a moral standard than a declaration by the Parliament of Canada, and so the Provincial Judge was justified in accepting this as his standard in finding that the

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dance by the respondent in the nude was an immoral performance.

In the above passage s. 170 is not quoted in full. Paragraph (b) of s. 170(1) reads:

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

Subsections (2) and (3) provide:

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

(3) No proceedings shall be commenced under this section without the consent of the Attorney General.

“Public place” is defined in s. 138 as including “any place to which the public have access as of right or by invitation, express or implied”.

The appellant was given leave to appeal to this Court on the following question of law:

Did the Appellate Division of the Supreme Court of Alberta err in law in deciding that in considering what constitutes an immoral performance under Section 163(2) of the Criminal Code, it should be held that Parliament, by enacting Section 170 of the Criminal Code has declared that nudity in a public place without lawful excuse, is a breach of moral standards in Canada?

Counsel for the appellant points out that s. 170 appears, in a group of sections, under the heading of “Disorderly Conduct”, while s. 163 appears, in a group of sections, under the heading “Offences Tending to Corrupt Morals.” It was also pointed out that, when the forerunner of s. 170 was enacted, its ostensible purpose was to try to curb the activities of a Doukhobor sect which demonstrated in the form of nude parades. On the other hand, subs. (2) of s. 163, in defining what is included in the word “nude”, makes it clear that the section is concerned with conduct which offends against decency or order. Furthermore, as to the initial reason for the enactment of the provision, it should be

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noted that the section, as contained in 1931 (Can.), c. 28, then made it an offence where a person, while nude,

(a) is found in any public place whether alone or in company with one or more other persons who are parading or have assembled with intent to parade or have paraded in such public place while nude, or

(b) is found in any public place whether alone or in company with one or more other persons.

Section 170(1)(a) makes it an offence, without lawful excuse, to be nude in a public place. The essential feature of the present provision is solely nudity in a public place.

In my opinion, the magistrate, in deciding whether there was evidence to support the charge against the appellant, was entitled to take into consideration the fact that the appellant’s appearance, nude in a public place, without lawful excuse, could have constituted, in itself, a breach of s. 170 and that it offended against public decency. She was not charged with an offence under s. 170, or with appearing in an indecent performance, but this was a factor which, coupled with the other evidence, could be considered in deciding whether or not her performance was immoral.

The other evidence was as follows: The appellant’s performance was before an entirely male audience and was staged for the purpose of gain. There is no suggestion in the evidence that the performance was one which had artistic merit. It was a strip-tease act, the only purpose of which was to provide a prurient titillation of the sensibilities of the audience. Taking all these factors into account, in my opinion the magistrate had evidence before him on which he could find that the appellant had appeared as a performer in an immoral performance.

It was for the magistrate to decide, on that evidence, whether or not the performance was immoral. I do not agree with the contention that the Crown’s case could only be proved by leading evidence to establish what were the prevailing moral standards of the community. I agree

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with the view expressed by Dickson J.A., as he then was, in the Manitoba Court of Appeal, in R. v. Great West News Ltd.[2], at p. 361, that:

… the courts have not found it necessary to call upon expert testimony to describe the standards of the community. Such evidence is, of course, admissible but that is not the same thing as saying it is essential.

In Shaw v. Director of Public Prosecutions[3], Lord Hodson concluded his reasons with the following passage, at p. 294:

Since a criminal indictment is followed by the verdict of a jury it is true that the function of custos morum is in criminal cases ultimately performed by the jury, by whom, on a proper direction, each case will be decided. This I think is consonant with the course of the development of our law. One may take, as an example, the case of negligence where the standard of care of the reasonable man is regarded as fit to be determined by the jury. In the field of public morals it will thus be the morality of the man in the jury-box that will determine the fate of the accused, but this should hardly disturb the equanimity of anyone brought up in the traditions of our common law.

The present case was not a jury case, but it was the duty of the magistrate to perform the function of the jury in assessing the evidence before him.

In my opinion the appellant has failed to establish that the magistrate erred in law in convicting the appellant, and the appeal should be dismissed.

Abbott, Judson, Laskin and Dickson JJ. concurred with the judgment delivered by

RITCHIE J.—I have had the benefit of reading the reasons for judgment of my brother Spence in which he has outlined the circumstances giving rise to this appeal and I agree with him

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that the appeal should be allowed; but as I reach the same conclusion for somewhat different reasons, I think it desirable that I should express my views separately.

The gravamen of the offence here charged is that the appellant

… did unlawfully appear as a performer in an immoral performance, to wit: did dance in the nude in a theatre before a paying audience, contrary to the Criminal Code.

The italics are my own.

The appellant having been convicted at trial before a provincial magistrate, application was made for a stated case pursuant to s. 762 of the Criminal Code and a case was duly stated which read, in part, as follows:

(1) (e) The grounds on which the same (i.e. the conviction) is questioned are:

That I (the said Provincial Magistrate) erred in point of law in holding that the Appellant’s appearance as a performer was unlawful and that to dance in the nude before a paying audience constituted an immoral performance.

(f) The grounds upon which I support the preceding question are:

On the point under Appeal herein, the evidence led before me proved:

1. The accused (Applicant) danced in the nude in a cabaret known as “Dino’s Hideaway Cabaret” on the 29th day of September, A.D. 1971.

My reasons for Judgment in finding the said dance to be an immoral performance, HELD:

“… dancing in the nude in a public performance is contrary to the provisions of the Criminal Code of Canada.”

The Accused (Applicant) desires to question the validity of the said conviction on the ground that it is erroneous in Law and respectfully seeks the opinion, ruling and Judgment of This Honourable Court accordingly.

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IT IS DESIRED THEREFORE RESPECTFULLY TO QUESTION:

Was I correct in holding the said dance to be an immoral performance, contrary to the provisions of the Criminal Code of Canada?

The evidence which forms the basis of the case stated by the learned provincial magistrate is confined to the fact that the appellant “danced in the nude in a cabaret …” and the sole question posed by the learned magistrate is whether such a dance constitutes “an immoral performance contrary to the provisions of the Criminal Code”.

The Courts below, however, took into consideration the evidence of a police detective who was the only witness called at the trial, and upon which McDermid J.A., in the Court of Appeal, made the following comment:

The detective testified that the respondent did nothing offensive in any way, shape or form by word, gesture or any other way while the dance was being executed and the detective was not upset by the performance.

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. It was for the magistrate to decide whether or not this constituted an immoral performance and proof of community standards of morality did not, in my opinion, constitute an essential ingredient of the Crown’s case.

I agree with Mr. Justice McDermid that the charge against the appellant was obviously laid under the provisions of s. 163(2) of the Criminal Code which provide as follows:

163. (2) Every one commits an offence who takes part or appears as an actor, performer, or assistant in any capacity, in an immoral, indecent or obscene

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performance, entertainment or representation in a theatre.

It will be observed that this section is concerned exclusively with the nature of the “performance” in which the accused participated and that Parliament clearly contemplated three separate prohibited categories, none of which necessarily involved nudity and all of which might well apply to a performance presented by persons who were fully clothed although the word “indecent” is capable of being construed so as to apply to any undue exposure of the naked body. The appellant, however, is not charged with appearing in an “indecent performance” and the issue in this case is confined to the question of whether the performance of a dance in a theatre before a public audience, which would have been unexceptional if performed when fully or partly clad, becomes “immoral” on the sole ground that it is performed “in the nude”.

I agree with the Appellate Division that the learned provincial magistrate was not referring to the provisions of s. 163 of the Criminal Code, but rather to those of s. 170, when he made the finding that “dancing in the nude in a public place is immoral”, and on the appeal to this Court the question initially posed in the stated case therefore becomes that which is stated in the order granting leave to appeal, namely:

Did the Appellate Division of the Supreme Court of Alberta err in law in deciding that in considering what constituted an immoral performance under section 163(2) of the Criminal Code it should be held that Parliament by enacting section 170 of the Criminal Code has declared that nudity in a public place without lawful excuse, is a breach of moral standards in Canada.

Although the Appellate Division expressed some doubts as to whether this constituted a question of law, I take the view that the true meaning to be attributed to the interrelation of two sections of the Code raises such a question.

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In delivering the reasons for judgment adopted by the Appellate Division, McDermid J.A., limited his consideration of s. 170 to the provisions of subs. (1)(a) thereof, but in my view it is necessary to consider the section as a whole in order to determine the intention of Parliament in enacting it.

170. (1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

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

(3) No proceedings shall be commenced under this section without the consent of the Attorney General.

The italics are my own.

It has been pointed out by my brother Spence that the provisions of s. 170 were originally included in s. 205(A) of the Criminal Code as enacted by 1931, c. 28, s. 2, and were aimed at the maintenance of public order and the prohibition of disorderly conduct. In seeking to determine the intention of Parliament in enacting s. 170, I share the view of my brother Spence that some significance is to be attached to the fact that this section appears in the Code under the general heading of “Disorderly Conduct”.

Sections 163(2) and 170 of the Criminal Code in my view create two entirely different offences; the former applies to every one who takes part in an “immoral, indecent or obscene performance, entertainment or representation in a theatre”, whereas the latter does not relate to a performance of any kind and is confined to the case of a person “who is so clad as to offend against public decency or order”. Some indication of the meaning which Parliament intended to be assigned to the word “immoral” in relation to nudity may be derived from the

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fact that it did not find it necessary to include that word in the definition of “nudity” in s. 170 from which it seems to me to follow that a person found to be “nude in a public place” could not be convicted of a charge of having performed an immoral act under that section or an immoral performance under section 163.

Mr. Justice McDermid, however, in speaking for the Appellate Division, expressed his view of the effect of s. 170 in relation to the offence here charged in the following language:

The respondent was not charged under this section and therefore could not be convicted thereunder. However, the offence has always been treated as one relating to morals, and the Parliament of Canada by making it an offence has declared that it is a breach of a moral standard in Canada. We know of no better way of establishing moral standard than a declaration by the Parliament of Canada, and so the Provincial Judge was justified in accepting this as his standard in finding that the dance by the respondent in the nude was an immoral performance.

With the greatest respect, I have difficulty in accepting the proposition that being “so clad as to offend against public decency or order” has always been treated as an offence relating to morals and this difficulty is increased by the fact that s. 163(2), under which this appellant is charged, makes a distinction between that which is “immoral” and that which is “indecent”.

The suggestion that an act becomes “immoral” because it has been made an offence by the Parliament of Canada is to me a completely novel one. It would mean, for example, that it is a “breach of moral standards in Canada” to “loiter in a public place and in any way obstruct persons who are there” contrary to s. 171(b), a section which, like s. 170, appears under the general heading of “Disorderly Conduct”. For my part this reasoning does not assist me in determining what Parliament intended by the use of the word “immoral” under s. 163(2).

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The provisions of s. 170 do not stigmatize the display of the human form in its natural state as “immoral” and as the offence here charged must rest solely on the ground that the appellant’s body was completely unclothed and there is no suggestion that the “performance” was otherwise “immoral”, I conclude that the learned trial judge was incorrect in holding “the said dance to be an immoral performance contrary to the provisions of the Criminal Code” as presently enacted, and I cannot agree with the Appellate Division that the language employed by Parliament in enacting s. 170 is to be construed as meaning that being unclothed in a public place is a breach of moral standards in Canada and therefore constitutes an “immoral performance” within the meaning of s. 163(2).

Having regard to the fact that the appellant was here charged with appearing “as a performer in an immoral performance”, I find it unnecessary to express any opinion as to what the result would have been if she had been charged with participating in an “indecent performance”.

For these reasons I would allow this appeal and restore the judgment of Mr. Justice Riley quashing the conviction entered by the learned provincial magistrate at the trial.

Laskin J. concurred with the judgment delivered by

SPENCE J.—This is an appeal from the judgment of the Appellate Division of the Supreme Court of Alberta pronounced on June 9, 1972. By that judgment, the Appellate Division allowed an appeal from the decision of Riley J. pronounced on February 8, 1972. Riley J. had allowed an appeal by way of stated case from a conviction by Provincial Court Judge F.A. Thurgood which had been pronounced on December 30, 1971.

The accused was charged that she

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On or about the 29th day of September, A.D. 1971 at Calgary in the said Province, did unlawfully appear as a performer in an immoral performance, to wit: did dance in the nude in a theatre before a paying audience, contrary to the Criminal Code.

On September 29, 1971, the date of the alleged offence, s. 152(2) of the Criminal Code provided:

152. (2) Every one commits an offence who takes part or appears as an actor, performer, or assistant in any capacity, in an immoral, indecent or obscene performance, entertainment or representation in a theatre.

The same exact section appears in the Criminal Code of Canada, 1970 R.S.C., c. C-34, as s. 163(2).

The learned Provincial Court Judge gave judgment in the trial before him very briefly as follows:

Well, I have listened to the argument of both counsel and I appreciate the amount of work that they have put into this matter, and I appreciate the fact that probably it is a case without precedent before the Courts in Calgary at least. However, on review of all the authorities, I cannot come to the conclusion that this case can be decided upon the basis of most of the cases cited to me. As I said before, I’m inclined, I can find no case involving the live exhibition of dancing in this country, where the dancer was completely in the nude. I find the accused guilty of this offence.

And in the case which His Honour stated for the Supreme Court of Alberta, His Honour said:

My reasons for judgment in finding the said dance to be an immoral performance, HELD:

“… dancing in the nude in a public performance is contrary to the provisions of the Criminal Code of Canada”

McDermid J.A., in giving reasons in the Appellate Division whereby that Court allowed an appeal from Riley J. and restoring the conviction of the Provincial Court Judge, summarized the facts in this paragraph:

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The only evidence given against the respondent was that of one detective of the City of Calgary Police Force, who testified that on the day in question he entered the cabaret in question and paid a $3 cover charge which included a meal and entertainment. There were about sixteen other paying guests present. There was a stage in the cabaret in front of which there were approximately twenty tables. The stage was well lighted. The respondent danced three dances followed by a short intermission when she returned to the stage and did a dance in the nude. She was entirely alone on the stage at the time. The detective testified that the respondent did nothing offensive in any way, shape or form by word, gesture or any other way while the dance was being executed and the detective was not upset by the performance.

Detective Scott was the only witness called for the prosecution and his evidence was so brief that I quote in full the relevant parts thereof;

A. Approximately sixteen male persons in attendance. At approximately twenty after twelve a performer, Miss Kelly Johnson, was introduced to the audience whereby she got on the stage in front of approximately twenty tables and—to dance a topless dance. She danced three dances; one with the top on and two with her top off and then there was a short intermission. In approximately five minutes she returned to the stage and did another dance with her top off and then another dance with her—removing her bikini panties. She danced for approximately two minutes, shortly over two minutes, whereby she left the stage.

Q. When she removed her bikini panties, how was she dressed?

A. Completely in the nude.

Q. All right, was there any other individual appearing on the stage besides Kelly Johnson at the time?

A. No, she was the only one.

Q. And what were the individuals doing in this premises that you described?

A. They were seated at tables eating their lunch and watching the performance.

And in cross-examination:

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Q. And according to your evidence she performed a series of dances with various items of clothing?

A. Yes. I believe there were five dances in all.

Q. She wore progressively less clothing as the dances proceeded?

A. Yes.

Q. And this last dance, which she was dancing without any clothes at all, occupied about two minutes perhaps?

A. I would say a little over two minutes. The length of a record. I would say a little over two minutes.

Q. Was the accused dancing on an elevated stage?

A. Yes.

…

Q. I repeat the question, she never left the stage while she was dancing?

A. No.

Q. And I suggest to you, Detective Scott, that it was rather a beautiful performance?

A. I beg your pardon?

Q. I suggest to you, Detective Scott, that it was rather a beautiful performance. It didn’t upset you in any way?

A. No.

Q. I suggest further, sir, that the accused did nothing offensive in any way, shape or form while this dance was being executed. By offensive I mean by word or gesture or any other way.

A. No.

…

I note that the charge was particular that the accused

did unlawfully appear as a performer in an immoral performance, to wit: did dance in the nude in a theatre before a paying audience, contrary to the Criminal Code.

Section 152(2), now s. 163(2), made it an offence to be a performer in an immoral, indecent or obscene performance thereby creating three possible offences and the Crown chose to charge only one of those offences, that is, performing an immoral performance. It was the Crown’s duty to prove that offence and either evidence or argument dealing with indecent or

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obscene performance was quite irrelevant. It will be seen from my recital that the only evidence adduced and therefore the only evidence upon which the learned Provincial Court Judge could base his decision was that of Detective Scott and Detective Scott had, as McDermid J.A. pointed out, testified that the respondent did nothing offensive in any way, shape or form by word, gesture or any other way while the dance was being executed and that he was not upset by the performance. Under these circumstances, it is my opinion that the learned Provincial Court Judge had no evidence upon which he could come to his conclusion which as I have said, he outlined in the stated case, that dancing in the nude in a public performance was contrary to the provisions of the Criminal Code of Canada.

The word “immoral” is not defined in the Criminal Code and therefore the learned Provincial Court Judge would have had to have some evidence of what was and what was not immoral in order to found his judgment.

The learned Provincial Court Judge himself asked the Crown counsel:

What evidence is there that dancing in the nude constitutes or what authority is there for the proposition of dancing in the nude constitutes an immoral performance?

Crown counsel replied:

It is a submission that the Crown in the terms of the prevailing moral standards …

The Crown failed to adduce any evidence of such prevailing moral standards and in fact if Detective Scott’s opinion represented those prevailing moral standards then the performance was certainly not immoral.

Further in his argument, I think the Crown counsel put the thing rather well:

I think what is of more material and what is of the real essence here is whether or not dancing in the nude in Calgary, Alberta, Canada, today constitutes a contravention of contemporary community standards

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is real if I can use the expression “guilt issue” in the case. I respectfully submit that although there is no question about the fact that there have been changes in the contemporary community standards over the years that those standards have not changed so much that it is possible for an individual to stage a performance in public in the nude. That this offence be prevailing the standards which exist within not only Calgary, Alberta, but in Canada today.

I am therefore of the view that lacking such evidence there was nothing upon which the learned Provincial Court Judge could come to the opinion that he should register a conviction.

Riley J. quashed the conviction expressing his conclusion in these words:

There was nothing to suggest that the performance

(a) was in any way lustful,

(b) no tendency to deprave or corrupt,

(c) there was no distorted, impoverished masturbatory concentration on pornography.

In the result the appeal is allowed and the conviction quashed.

On the appeal by the Crown to the Appellate Division, McDermid J.A. gave as his opinion for the registration of the conviction by the Provincial Court Judge that the Provincial Court Judge was referring to what is now s. 170 of the Criminal Code and which at the time of the offence was s. 159(1) of the Criminal Code.

Section 170 reads:

170. Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

McDermid J.A. stated:

However, the offence has always been treated as one relating to morals, and the Parliament of Canada by making it an offence has declared that it is a breach of a moral standard in Canada. We know of no better

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way of establishing a moral standard than a declaration by the Parliament of Canada, and so the Provincial Judge was justified in accepting this as his standard in finding that the dance by the respondent in the nude was an immoral performance.

I am of the opinion that one must have regard for the arrangement of the Criminal Code in testing whether Parliament has, in fact, declared that dancing in the nude is an immoral performance. Both s. 163 and s. 170 of the Code as they now appear are in Part IV and the general heading in that Part is SEXUAL OFFENCES, PUBLIC MORALS AND DISORDERLY CONDUCT. There are after that general heading a series of subheadings which are not marginal notes but are indented and form part of the printing of the Code. These subheadings are as follows:

Interpretation

Special Provisions

Sexual Offences

Offences Tending to Corrupt Morals

Disorderly Conduct

Nuisances

Section 163 appears under the subheading of “Offences Tending to Corrupt Morals”. Section 170, on the other hand, appears under the subheading “Disorderly Conduct”.

The predecessor of s. 170 was added (as s. 205A) to the Criminal Code by the provisions of 1931, c. 28, s. 2, and reads as follows:

205A. (1) Every one is guilty of an offence and liable upon summary conviction to three years’ imprisonment who, while nude,

(a) is found in any public place whether alone or in company with one or more other persons who are parading or have assembled with intent to parade or have paraded in such public place while nude, or

(b) is found in any public place whether alone or in company with one or more other persons, or

(c) is found without lawful excuse for being nude upon any private property not his own, so as to be exposed to the public view, whether alone or in company with other persons, or

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(d) appears upon his own property so as to be exposed to the public view, whether alone or in company with other persons.

For the purposes of this subsection any one shall be deemed to be nude who is so scantily clad as to offend against public decency or order.

(2) No action or prosecution for a violation of this section shall be commenced without the leave of the Attorney General for the province in which the offence is alleged to have been committed.

Section 205 of R.S.C. 1927, c. 36, dealt with the offence now described in s. 169 of the Criminal Code. A reading of the original subsection indicates that it is properly placed under the subheading dealing with disorderly conduct and supports the contention made by counsel for the appellant that the section was originally aimed at such conduct as was exhibited not infrequently by members of a certain radical religious sect. It was the effect on the public peace of such exhibitions which Parliament aimed to control and prevent by the provisions of what is now s. 170 of the Criminal Code and Parliament there was not dealing with immorality at all.

With respect, therefore, I am of the opinion that McDermid J.A. was in error when he turned to s. 170 of the Criminal Code to ascertain the standard of morals and that the position upon the prosecution is exactly what it was at the end of the trial before the Provincial Court Judge, i.e., that the Crown had charged that the accused had performed an immoral performance and it had utterly failed to prove that the performance was immoral.

I, therefore, would allow the appeal and restore the order of Riley J. quashing the conviction.

Appeal allowed, FAUTEUX C.J. and MARTLAND and PIGEON JJ. dissenting.

Solicitors for the appellant: Macdonald & Macdonald, Calgary.

Solicitor for the respondent, S.G. Fowler, Calgary.