Is Swinging Legal In Canada?

On December 22, 2005 the Supreme Court of Canada issued two landmark decisions affecting the rights of swingers in Canada. With these decisions, the Court ended years of uncertainty about the legality of clubs where sexual activity, sometimes of an explicit nature, may take place. Although the decisions were not unanimous, a strong majority (including all four women justices) said that sexual activity between consenting adults in private clubs is permissible so long as no harm can be shown.

The cases involved two “lifestyle” clubs in Montreal: L’Orage and Coeur à Corps. The police raided both clubs in the late 1990s and charged the owners with operating a common bawdy house. These raids were the source of wide-spread criticism in the Quebec media for the excessive use of force by the police.

In these clubs, only people who understood and accepted that they were entering premises where sexual activity could take place were allowed in. This was an important element in these cases as that “screening” effectively limited access to those club-goers who were in the lifestyle and prevented the public at large from entering.

In the case of L’Orage, persons wanting to engage in explicit sexual activity would leave the common area of the club and go through a code-operated door to a private apartment. In the case of Coeur à Corps, a translucent curtain would lower onto the dance floor from time to time during the evening and inside the curtain people could engage in sexual acts. People outside of the curtain could look through the plastic window and watch. When the curtain lifted the explicit sexual acts would end.

The Court, in deciding what standard against which the sexual behavior in the clubs should be measured, rejected the longstanding “community standards” test and formulated a new one: the “harm-based” test. When considering the sexual acts in the club, the Court assessed whether the activities caused harm or presented a significant risk of harm to individuals or society in a way that undermines Canadian values. To answer this question the Court considered whether the conduct was at odds with our values because it confronted members of the public with conduct that significantly interferes with their autonomy and liberty, or predisposed others to anti‑social behavior, or if it physically or psychologically harmed persons involved in the conduct.  If the evidence showed that harm had occurred, it would then go on to ask whether the harm was of a degree that was serious enough to be incompatible with the proper functioning of society? 

In analyzing the facts of these cases, the Court noted that only those already disposed to this sort of sexual activity were allowed to participate and watch.  That is, only those who were in the lifestyle went to such clubs. There is also no evidence of anti‑social acts or attitudes toward women, or for that matter men.  No one was pressured to have sex or paid for sex. The membership fee bought access to a club where members could meet and engage in consensual activities with other individuals who have similar sexual interests. 

The Court held that there was no evidence to show that anyone was harmed, although the police couple who “infiltrated” the club in order to gather evidence, claimed that a fight at one of the clubs between a couple was evidence of women being coerced into unwanted sexual activity. The Court dismissed that claim, saying that no one had any idea what led to the altercation between the couple. In the end, the Court could not find harm that could be said to interfere or be incompatible with the proper functioning of society. In brief but revealing conclusion, the Court said that “consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society.”

This decision is an important step towards accepting that consenting adults can participate in sexual conduct that is outside the “mainstream” so long as the proper safeguards are in place to prevent members of the public who do not want to see or participate in this type of activity from being involved.

Despite what some commentators have said, these decisions are not a recipe for unrestrained sexual behavior. The Court said that some sexual activity that does cause harm will not be tolerated. So, if it is shown that people are coerced into having sex, or that it explicit sexual activity is taking place in non-private venues, the Court may well find that conduct to be criminal. However, if lifestyle clubs are only open to those who consent to what they may see and participate in, and so long as the behavior in those clubs does not cause harm, they will be permitted to continue.

Some on-premises clubs have arranged for more private areas in the clubs for those who want to engage in sexual conduct. So, if people want to engage in sex acts, or want to watch it, they must consciously go to those areas of the club. For those who do not want to participate, or see this type of behavior in the common areas such as the dance floor, they are therefore not faced with unwanted explicit sexual activity.

This is not to say that sexual activity has to be restricted to private areas of the club. Given the nature of lifestyle clubs, a certain amount of that behavior is to be expected in the common areas. Generally this will take place on the dance floor or the areas adjacent to it. But, if full sexual contact is reserved for those less “public” areas of the club, there is likely to be no concern in the eyes of the law.