When risks are politically contentious, it is often interpretation all the way down.
David Garland (2003:56)
In 2005, the Supreme Court of Canada ruled on the question of whether J the Montreal sex club, Le loft de l'Orage: lounge echangiste ("l'Orage") violated the Canadian bawdy house provision of section 210(1) of the Criminal Code for indecency. (2) L'Orage was a sex club that charged admission fees for swingers sex parties and other variously themed sex events which over the years have included "Voyeur--Exhibitionist" and "BDSM/Fetish" sex play. L'Orage advertises itself as world renowned for legalizing swingers sex clubs in Canada because the Supreme Court of Canada overturned the club owner's conviction. In that case, the Court dealt with the question of criminal liability for "indecency" and in doing so reconfigured the harm test for both obscenity and indecency in Canada (Jochelson 2009a, 2009b). (3) The case is interesting for its appropriation of a security inspired logic of pre-emption (or precautionary governance) into the heart of obscenity and indecency law. The Courts use the harm principle in a manner that allows for greater latitude for findings of guilt in these sorts of cases. They do so without the need for evidence of harm, without the need for broader consultation with the community and in a manner that stresses harm to constitutional values rather than people. It is now an obscenity/indecency crime to harm, or risk harming, constitutional values. Feminists have embraced this approach because equality is a key constitutional value.
In this paper, we provide readers with a brief history of the present governmental rationalities of obscenity and indecency by examining the jurisprudence from Hicklin (1868) through Labaye (2005). (4) We undertake this analysis to illustrate how the liberal harm principle provides the Courts with various justifications for criminalizing sexual expression and conduct, and the use of precaution as a governing strategy in the context of security processes that concern feminism (Neocleous 2007:133).
The first section of the paper sets out the tools used to analyse the reconfigured test for obscenity and indecency. We provide a brief overview of the literature on precaution to examine shifts in governing rationalities (Dean 1999/2010). Our goal is to contribute to these diverse research fields to indicate the development of precautionary mode of security governance operationalized through both the obscenity and indecency tests for (risk of) harm reconfigured in R. v. Labaye . (5)
In the second section of the paper, we briefly outline the history of the development of the (risk of) harm test for obscenity and indecency and identify four distinct phases: (1) the Hicklin era (1868-1962); (2) the community standards era (1962-1992); (3) the community standards of tolerance for harm era (1992-2005); and (4) the "political harm" era (2005-present). (6) This section of the paper examines each decision for its rearticulation of the concept of harm showing how it is used to express juridical power and promote its vision of the "proper functioning of society." The Court's longstanding emphasis on guarding "the proper functioning of society" presumes a consensual moral order and in this regard they embrace law as a means of setting limits on actions using the harm principle. Using this model, the Court has historically identified obscenity and indecency as threats to the social order. We intend this exegesis as a consolidated history of the Canadian Courts' own rationales for exercising power, as well as the juridical knowledge these Courts produce about sexual harm. In this regard our aim is to highlight the importance of examining juridical power from a sociological Foucauldian perspective to bring into focus "differences between the modes of operation of law" (Tadros 1998:76, emphasis in original). (7) In the field of obscenity and indecency, the law continues to operate in a juridical form to the extent that it controls by denying or setting a threshold justified in relation to the power of the sovereign (state) (Tadros 1998:88). …