Female toplessness in Canada

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In Canada, topfreedom has primarily been an attempt to combat the interpretation of indecency laws that considered a woman's breasts to be indecent, and therefore their exhibition in public an offence. In British Columbia, it is a historical issue dating back to the 1930s and the public protests against the materialistic lifestyle held by the radical religious sect of the Freedomites, whose pacifist beliefs led to their exodus from Russia to Canada at the end of the 19th century. The Svobodniki became famous for their public nudity: primarily for their nude marches in public and the acts of arson committed also in the nude. [1]

Contents

Law

In Canada, the law on public decency is found in sections 173 and 174 of the Criminal Code. [2] However, what constitutes an indecent act is not defined and is open to interpretation by the courts.[ citation needed ]

In 1991, toplessness as an indecent act was challenged in Guelph, Ontario, by Gwen Jacob, who removed her shirt and was charged with indecency. Part of her defence was the double standards between men and women. Although she was convicted, this was overturned by the Court of Appeal. This case determined that being topless is not indecent within the meaning of the Criminal Code. However, it did not establish any constitutional right of equality. This case subsequently led to the acquittal of British Columbia and Saskatchewan women who faced similar charges. Although each province and territory reserves its right to interpret the law as it pleases, the Ontario case has proved influential. Since the matter has not been determined by the Supreme Court of Canada, it is still possible that a woman could be convicted elsewhere in Canada. Still, the interpretation of moral law in Canada has become increasingly liberalized. [1] There do not appear to have been any further women charged in Canada since these cases were decided.[ citation needed ]

Ontario

Topfreedom is allowed in Ontario, set by the precedent in the case of Gwen Jacob. The acting executive director of Municipal Licensing and Standards said that while "there's no bylaw that governs toplessness," "it is legal for women to go topless on the streets of Toronto," according to a National Post article. He added that parks require clothing, except, for example, the clothing optional Hanlan's Point Beach. [3]

Gwen Jacob

Gwen Jacob - topfree rights activist - outside court in Guelph, 1991 GwenJacobimg811.jpg
Gwen Jacob – topfree rights activist – outside court in Guelph, 1991

On July 19, 1991, a sweltering and humid day, Gwen Jacob, a University of Guelph student, was arrested after walking down a street in Guelph, Ontario while topless after removing her shirt when the temperature was 33 °C (91 °F) and was charged with indecency under Section 173(1)(a) of the Criminal Code. Police stated that they acted following a complaint from a woman upset that one of her children had seen Jacob topless.[ citation needed ]

Jacob stated she did it because men were doing it, and she wanted to draw attention to the double standard. She was found guilty and fined $75. In her defence, she argued that breasts were merely fatty tissue. In finding her guilty, the judge stated that breasts were "part of the female body that is sexually stimulating to men both by sight and touch", and therefore should not be exposed. [4] She appealed, but her appeal was dismissed by the Ontario Court (General Division), and she further appealed to the Ontario Court of Appeal. [5]

In the meantime, protests against Jacob's arrest and conviction led to further charges against others, in particular R. v. Arnold [6] but in this case McGowan P.C.J. applied the test of community standard of tolerance, following Butler , stating that the action of being topless caused no harm and thus did not exceed community standards of tolerance. She commented, "Undoubtedly, most women would not engage in this conduct for there are many who believe that deportment of this nature is tasteless and does not enhance the cause of women. Equally undoubtedly, there are men today who cannot perceive of woman's breasts in any context other than sexual. It is important to reaffirm that the Canadian standards of tolerance test does not rely upon these attitudes for its formulation. I have no doubt that, aside from their personal opinions of this behaviour, the majority of Canadians would conclude that it is not beyond their level of tolerance."[ citation needed ]

Jacob was acquitted on December 9, 1996, by the Ontario Court of Appeal on the basis that the act of being topless is not in itself a sexual act or indecent. The court held that "there was nothing degrading or dehumanizing in what the appellant did. The scope of her activity was limited and was entirely non-commercial. No one who was offended was forced to continue looking at her", and "the community standard of tolerance when all of the relevant circumstances are taken into account" was not exceeded. Although Jacob claimed she had a constitutional right, the court did not address this. [7]

The Ontario Government decided not to appeal the case to the Supreme Court of Canada, and thus it has remained the prevailing interpretation of the Criminal Code in Ontario. Since then, the court ruling has been tested and upheld several times. R. v. Jacob has been cited in similar decisions in other provinces and by the Supreme Court of Canada in R. v. Labaye , and is taught in criminal law courses. [8]

The decision by the Ontario Government not to appeal to the Supreme Court was based on the likelihood that the court would not grant leave. This caused considerable public concern and municipalities' attempts to preempt the law by passing more restrictive bylaws (Uniform Law Conference of Canada 1999). The Ontario Government did contact the Federal Government regarding amending the law to make such actions clearly illegal. [9] [ non-primary source needed ] This was not pursued.

While the community standards test is not an immutable part of indecency jurisdiction, community tolerance is likely to be partly determined by the degree to which the public is exposed to top freedom on a regular basis. Jacob's victory is now celebrated annually in Guelph. [10]

2011 marked the 20th anniversary of Gwen Jacob's walk, and to celebrate, some students re-enacted it. [11]

Other cases

Another important distinction is whether the act's nature is commercial or not. In Jacob, the court stressed that it was not. In contrast, in R. v. Gowan Gowan, a sex worker, under the impression that exposing the breasts was now legal, solicited clients at an intersection, motioned to her breasts and called out, "Do you want to fuck?". She was consequently charged with and convicted of engaging in an indecent act, under the same section as in Jacob, 173 (1) (a). [12]

In 2015, Alysha Brilla and her sisters Tameera, Nadia and Alysha Mohamed, [13] were stopped by the police in Kitchener for cycling topless. The musician and activist filed a complaint with Waterloo Regional Police. [14] They subsequently held a rally at Waterloo Town Square, called "Bare With Us," to educate the public about the right to go topfree with Gwen Jacobs making an appearance. [15]

Public parks and facilities

Despite this, women still faced discrimination in public facilities. In 1997, Fatima Pereira Henson was charged with trespassing for swimming topless in Cambridge, but the charges were dropped. She was then charged again, which was dropped by the crown, so the City initiated its own prosecution. Although this was also dropped, a bylaw prohibiting topfree swimming was passed. Eventually, her efforts led to a new bylaw allowing topfree swimming. [16]

In Toronto in 2011, a Go Topless Day rally was refused a permit to meet in a park, so they marched down the streets with a police escort. [17]

British Columbia

In 2000 a similar case to Jacob's resulted in acquittal. Linda Meyer, a topfree activist inspired by the Gwen Jacob case, appeared in a number of public venues topless. A bylaw in the municipality of Maple Ridge stated, "Females over the age of 8 years shall fully cover all portions of their nipples and aureole with opaque apparel". On July 1, 1997, Linda Meyer went to the swimming pool in the bottom half of her bikini. Some parents complained, and she was charged, [18] but the judge in this case (Justice Holmes) voided the bylaw stating, inter alia: [19]

[55] In R. v. Jacob, supra, a woman who walked bare-breasted on a city street and then reclined topfree on the front step to her home was acquitted on appeal of committing an indecent act. The court found the baring of her breasts was not harmful to anyone. There was nothing degrading or dehumanizing in her conduct. The court noted anyone who was offended was not forced to look.

[57] I do not find in the evidence support for the view that the parks could not operate in an orderly fashion if a female were to bare her breasts in a circumstance that did not offend criminal laws of nudity. The evidence suggests the Section 3A amendment to the Park Bylaw was more a reaction to a frustration that the criminal law was not supporting the moral standards in regard to females who chose to bare their breasts in public that some Maple Ridge citizens desired.

[64] The defendant's 18A application is allowed.

In 2008 Vancouver, British Columbia, was a location of the World Naked Bike Ride. [20]

Alberta

In June 2022, the City of Edmonton's recreation website updated its swim apparel guidelines to say: "All patrons are permitted to go topless in city-operated pools if they so wish"; the change was not publicly advertised. The change finally caught media attention in February 2023, [21] and the website has since changed its guidelines again to say: "All patrons are required to wear bathing suit bottoms, tops are a patron's choice. This swim attire guideline ensures that the City of Edmonton pools are aligned with the Alberta Human Rights Act which does not allow for discrimination based on gender, gender identity or gender expression." [22]

Also, in February 2023, the City of Calgary issued a prepared statement stating, "In alignment with Human Rights legislation and our commitment to inclusivity, The City of Calgary wouldn't limit an individual's choice to swim topless in City-operated pools." [23]

Saskatchewan

In 1997, a 64-year-old woman, Evangeline Godron, and Kathleen Rice sunbathed topless in a Regina park and were charged for doing so. On July 22, a judge in the Provincial Court ruled that their behaviour did not violate community standards. However, she and other women then swam in a pool without a top. Again parents complained. Godron was arrested for assault because she refused to leave the pool when requested. Although she appealed this, she was unsuccessful. The case was appealed to the Supreme Court of Canada, which declined to hear it. However, this was a question of assault, not of indecency. [24]

Public opinion

A 1992 poll showed that 62% of Canadians opposed women having topfreedom, with women being more likely to be opposed. [25] A more detailed survey was undertaken in 1998, [26] and a detailed analysis were published by Fischtein and colleagues in 2005 (Fischtein et al. 2005). This showed context to be important; for instance, 72% opposed to toplessness being allowed on a city street, 62% in parks, and 48% on beaches. In all cases, women were more opposed to toplessness. [27]

Organizations

Federation of Canadian Naturists

The Federation of Canadian Naturists (FCN) is a member-supported, not-for-profit organization dedicated to fostering a greater understanding, acceptance and appreciation of naturism as a way of life throughout Canada. It has affiliations with Canadian naturist/nudist clubs and organizations. [28] The FCN has a legal fund designated to help defend people who are charged with Nudity.[ citation needed ]

The FCN and the Fédération québécoise de naturisme (FQN) share Canadian membership in the International Naturist Federation (INF), which has its world headquarters in Horsching, Austria. [ citation needed ]

Topfree Equal Rights Association

The Canadian Topfree Equal Rights Association (TERA) assists women in both Canada and the United States who are prosecuted for being topless in situations whereas men are not. [29] It does not advocate toplessness, but promotes the concept of freedom of choice of the individual woman, and the de-sexualisation of breasts. [30] TERA is defunct as of May 29, 2023.[ citation needed ]

See also

Related Research Articles

<span class="mw-page-title-main">Naturism</span> Practice and advocacy of social nudity

Naturism is a lifestyle of practicing non-sexual social nudity in private and in public; the word also refers to the cultural movement which advocates and defends that lifestyle. Both may alternatively be called nudism. Though the two terms are broadly interchangeable, nudism emphasizes the practice of nudity, whilst naturism highlights an attitude favoring harmony with nature and respect for the environment, into which that practice is integrated. That said, naturists come from a range of philosophical and cultural backgrounds; there is no single naturist ideology.

<span class="mw-page-title-main">Indecent exposure</span> Public indecency involving nudity

Indecent exposure is the deliberate public exposure by a person of a portion of their body in a manner contrary to local standards of appropriate behavior. Laws and social attitudes regarding indecent exposure vary significantly in different countries. It ranges from outright prohibition of the exposure of any body parts other than the hands or face to prohibition of exposure of certain body parts, such as the genital area, buttocks or breasts.

An intimate part, personal part or private part is a place on the human body which is customarily kept covered by clothing in public venues and conventional settings, as a matter of fashion and cultural norms. In several cultures, revealing these parts is seen as a religious offense.

<span class="mw-page-title-main">Topfreedom</span> Social movement to allow female toplessness

Topfreedom is a cultural and political movement seeking changes in laws to allow women to be topless in public places where men are permitted to be barechested, as a form of gender equality. Specifically, the movement seeks the repeal or overturning of laws which restrict a woman's right not to have her chest covered at all times in public.

<span class="mw-page-title-main">Toplessness</span> Having a womans torso exposed above the waist

Toplessness refers to the state in which a woman's breasts, including her areolas and nipples, are exposed, especially in a public place or in a visual medium. The male equivalent is known as barechestedness.

Clothing laws vary considerably around the world. In most countries, there are no laws which prescribe what clothing is required to be worn. However, the community standards of clothing are set indirectly by way of prosecution of those who wear something that is not socially approved. Those people who wear insufficient clothing can be prosecuted in many countries under various offences termed indecent exposure, public indecency, nudity or other descriptions. Generally, these offences do not themselves define what is and what is not acceptable clothing to constitute the offence, and leave it to a judge to determine in each case.

<span class="mw-page-title-main">Nudity and protest</span> Use of the nude human form to further political or social change

Nudity is sometimes used as a tactic during a protest to attract media and public attention to a cause, and sometimes promotion of public nudity is itself the objective of a nude protest. The practice was first documented in the 1650s with Quakers "naked as a sign" practice. Later the tactic was used by svobodniki in Canada in 1903, and photographs of their nude protests have been published. The tactic has been used by other groups later in the century, especially after the 1960s. Like public nudity in general, the cultural and legal acceptance of nudity as a tactic in protest also varies around the world. Some opponents of any public nudity claim that it is indecent, especially when it can be viewed by children; while others argue that it is a legitimate form of expression covered by the right to free speech.

<span class="mw-page-title-main">Nude beach</span> A beach where public nudity is practiced

A nude beach, sometimes called a clothing-optional or free beach, is a beach where users are at liberty to be nude. Nude beaches usually have mixed bathing. Such beaches are usually on public lands, and any member of the public is allowed to use the facilities without membership in any movement or subscription to any personal belief. The use of the beach facilities is normally anonymous. Unlike a naturist resort or facility, there is normally no membership or vetting requirement for the use of a nude beach. The use of nude beach facilities is usually casual, not requiring pre-booking. Nude beaches may be official, unofficial, or illegal.

<span class="mw-page-title-main">Timeline of social nudity</span> A chronology of the acceptance of nudity in public life

This timeline of social nudity shows the varying degrees of acceptance given to the naked human body by diverse cultures throughout history. The events listed here demonstrate how various societies have shifted between strict and lax clothing standards, how nudity has played a part in social movements and protest, and how the nude human body is accepted in the public sphere.

Nikki Craft is an American feminist activist and writer.

<span class="mw-page-title-main">Go Topless Day</span> Gender equality protest

Go Topless Day is an annual event held in the United States and Canada to support the right of women to go topless in public on gender-equality grounds. In states where women have that right, topfreedom laws are celebrated, and protests are held in states where topless women are prohibited.

<span class="mw-page-title-main">Outdoor Co-ed Topless Pulp Fiction Appreciation Society</span> Former Topfreedom organization in New York, United States

The Outdoor Co-ed Topless Pulp Fiction Appreciation Society was a group of several dozen women and a few men that had, since August 17, 2011, organized regular gatherings around New York City, meeting to read and discuss books in public while topless. The primary objective of the group, besides enjoying the sun and book reading, was to create awareness that New York law allows toplessness in public and to change social attitudes to the exposure of women's breasts. The group's blog had reported that there had been no harassment of the participants by the police and very rarely by the public.

The Association pour la promotion du naturisme en liberté (APNEL) is a French organization that seeks decriminalization of nudity, with particular emphasis on the section of French penal code relating to sexual exhibitionism.

<span class="mw-page-title-main">Free the nipple</span> Topfreedom campaign since 2012

Free the Nipple is a topfreedom campaign created in 2012 during pre-production of a 2014 film of the same name. The campaign highlights the general convention of allowing men to appear topless in public while considering it sexual or indecent for women to do the same and asserts that this difference is discriminatory, contravening women's rights. The campaign argues that it should be legally and culturally acceptable for women to bare their nipples in public.

Naturism in the United States is the practice of social nudity as a lifestyle that seeks an alternative to the majority view of American society that considers nakedness and sexuality to be taboo based upon the legacy of Puritan and Victorian attitudes. Enthusiasm for naturism began in the late 1920s with the establishment of members-only communities where naturists could gather to socialize and enjoy recreation without clothing in an environment that was no more sexual than that experienced while clothed. In later decades some groups began advocating for more general acceptance, and the opening up of public land to clothing-optional recreation.

R. v Gowan is a March 1998 case tried by the Ontario Court of Justice which ruled that, while a woman being topless as form of protest and free speech is legal, her being topless while she engages in a commercial purpose such as prostitution is illegal.

<span class="mw-page-title-main">Naturism in New Zealand</span> Lifestyle of living without clothing in New Zealand

Naturism refers to a lifestyle of practising non-sexual social nudity in private and in public, and to the cultural movement which advocates and defends that lifestyle. Both are also known as "nudism". Naturist organisations have existed in New Zealand since the 1930s. Although not a daily feature of public life, social nudity is practised in a variety of other contexts in New Zealand culture.

<span class="mw-page-title-main">Female toplessness in the United States</span>

In the United States, individual states have primary jurisdiction in matters of public morality. The topfreedom movement has claimed success in a few instances in persuading some state and federal courts to overturn some state laws on the basis of sex discrimination or equal protection, arguing that a woman should be free to expose her chest in any context in which a man can expose his. Other successful cases have been on the basis of freedom of expression in protest, or simply that exposure of breasts is not indecent.

References

  1. 1 2 Valverde, Mariana (1999). "The Harms of Sex and the Risks of Breasts: Obscenity and Indecency in Canadian Law" Archived 2014-02-19 at the Wayback Machine . Social Legal Studies 1999; (8): 181.
  2. ↑ "Criminal Code, RSC 1985, c C-46". CanLII. Retrieved 7 September 2017. Section 173(1)(a) of the Criminal Code provides, in part – Indecent acts – 173. (1) Everyone who wilfully does an indecent act (a) in a public place in the presence of one or more persons...is guilty of an offence punishable on summary conviction.
  3. ↑ Hume, Jessica (27 August 2011). "Where and when you can go topless in Ontario, and what it has to do with UFOs". National Post.
  4. ↑ R. v. Jacob, Ontario Court (Prov. Div.), January 17, 1992.
  5. ↑ DeLonghi, G. "Court hears Jacob's indecency appeal", The Guelph Tribune, June 24, 1992, p.3
  6. ↑ R. v. Arnold, Ontario Court (Prov. Div.), February 25, 1993 [1993] o.j. 471
  7. ↑ "Judgment C12668, R. vs. Jacob". Province of Ontario Court of Appeal. 1996-12-09. Retrieved 2009-02-16.
  8. ↑ "R. v. Jacob, 1996 CanLII 1119 (ON CA)". Canadian Legal Information Institute. Retrieved March 9, 2012.
  9. ↑ Letter from Charles Harnick to Allan Rock, dated February 10, 1997.
  10. ↑ "Guelph will see return of Top Freedom Day". Guelph Mercury. July 6, 2011. Retrieved December 6, 2019.
  11. ↑ "Topless students recreate Jacob's famous walk through Guelph". The Record. August 21, 2011. Retrieved December 6, 2019.
  12. ↑ R v. Gowan [March 3, 1998] Doc. Ottawa 97-20544 (Ontario Court of Justice, Provincial Division).
  13. ↑ Boesveld, Sarah (29 July 2015). "Ontario sisters to protest after being stopped by police during topless bike ride". National Post.
  14. ↑ "Three Ontario sisters say they were stopped by police for biking topless". Globe and Mail. July 28, 2015. Retrieved March 30, 2018.
  15. ↑ "Women's topless rights rally draws big crowd in Waterloo, Ont". CBC News. August 1, 2015. Retrieved March 30, 2018.
  16. ↑ "Swimmer Wins Topless Battle as Equal Rights Triumph in Cambridge". TERA. 20 October 1997.
  17. ↑ Yuen, Jenny (28 August 2011). "Topless protest in T.O." Toronto Sun.
  18. ↑ Stubbs, Robyn (23 March 2007). "Baring for rights' reason". canoe.com. Archived from the original on 2017-09-07.
  19. ↑ "The Corporation of the District of Maple Ridge v. Linda Anne Meyer". Vancouver: The Supreme Court Of British Columbia. 21–22 February 2000.
  20. ↑ "Is nudity the new normal?". The Georgia Straight. 18 June 2008. Retrieved 2023-11-03.
  21. ↑ "All adults can swim topless in City of Edmonton public pools". Edmonton Journal. Retrieved 2023-02-20.
  22. ↑ "Recreation Facility Safety Guidelines | City of Edmonton". City of Edmonton. Retrieved 2023-02-20.
  23. ↑ Krause, Darren (2023-02-17). "Calgary won't deny topless swimmers at city pools; swimwear guidelines under review". LiveWire Calgary. Retrieved 2023-02-20.
  24. ↑ Martin O'Hanlon (22 July 1998). "Bare breasts OK in Saskatchewan, judge rules". ReoCities. Archived from the original on February 1, 2013.
  25. ↑ Gallup Canada 1992. More men than women back topless, right. Toronto Star
  26. ↑ Compas polling 1998. Modern life survey of the Canadian adult population
  27. ↑ Dayna S. Fischtein, Edward S. Herold and Serge Desmarais (Fall–Winter 2005). "Canadian attitudes toward female topless behaviour: a national survey". Gale Academic OneFile.
  28. ↑ "About the FCN". Federation of Canadian Naturists . Retrieved March 11, 2020.[ permanent dead link ]
  29. ↑ "Statement of Purpose and Principles". Narkive . 2006-08-05. Retrieved 2023-08-04.
  30. ↑ "Episode 2: Breastfeeding and the Right to Go Topless". Lex Appeal. 2010-07-31.

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