by Kirk Makin
Justice Reporter

Lap dancing ruled illegal in Ontario

In decision like to affect rest of Canada,
court finds activity indecent, affront to society

A five-judge panel of the Ontario Court of Appeal said fondling and being fondled in a bar is not only indecent but also an affront to society, especially women.

"It degrades and dehumanizes women and publicly portrays them in servile and humiliating manner as sexual objects, with a loss of dignity," Ontario Chief Justice Charles Dubin wrote on behalf of the court.

"It dehumanizes and desensitizes sexuality and is incompatible with the recognition of the dignity and equality of each human being."

The oddly named practice, in which a nude stripper typically grinds against the crotch of a patron for about $20 a song, also brings a real risk of sexual assault or other physical harm to dancers, the court said.

"By reason of the nature of the activities, there is a risk of spreading infectious diseases by oral and genital contact. The conduct of the dancers also constitutes a form of prostitution."

Moreover, lap dancing corrodes the social fibre, the court said. It induces patrons of strip bars to act in an anti social 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."

It pointed out that while prostitution is legal in Canada, Parliament has gone to great lengths to eradicate it because it is a harmful form of violence against women based in the historical dominance of men over women. Lap dancing is no less so, the court said.

Katharine Goldberg, a former stripper who led the campaign against lap dancing and was permitted to mount a legal intervention in the appeal, was elated by yesterday's ruling.

"O my God, I'm really excited," she said in an interview. "The Court of Appeal showed club owners for what they are -- pimps. The judges should have done this a long time ago. This has caused so much pain and suffering."

The appeal court was emphatic that strip-club owners cannot shield themselves behind their staff, finding Patrick Mara, owner of Cheaters Tavern, and his manager, Allan East, guilty of allowing an indecent performance. In order for the two men to have been genuinely unaware of the activities going on in the shadowy grottoes of their club, Chief Justice Dubin said, they would have to have been willfully blind.

Lawyers for the two men, who will be sentenced soon, did not return telephone calls yesterday.

However, Ontario Crown counsel David Butt said that in theory, the men will have no problem appealing the case to the Supreme Court of Canada. He said defendants whose acquittals are overturned have an automatic right to be heard.

Mr. Butt said that while the decision is not binding on judges in other provinces, it will be considered very persuasive. "Historically, Ontario Court of Appeal decisions are seen as having considerable authority," he said.

According to yesterday's decision, context is everything when it comes to determining community standards for indecent behaviour: "Conduct not indecent in some circumstances -- such as in private -- may become indecent by reason of the surrounding circumstances and the context in which it takes place."

However, the court said its decision was based not in moral disapproval, but in seeking to avoid the harm to society from an activity that has been taking place in the wrong forum.

The ruling ended the era of lap dancing in Ontario as abruptly as it began three years ago, when Mr. Justice Gordon Hachborn of the Ontario Court's General Division concluded that the practice constituted "innocuous" behaviour.

THE Cheaters case began in mid 1991, when undercover officers staked out the club for several consecutive nights. In pursuit of cast-iron evidence, the officers observed dancers on stage, scrutinized acts of cunnilingus and masturbation in the darkened corners of the club, and even permitted dancers to thrust and grind in their own laps.

"The dancer would proceed to rub her buttocks back and forth, slowly gyrating or grinding into the patron's groin area," the Chief Justice wrote. "The officers themselves experienced the dancers attempting to masturbate them."

In 1993, Judge Hachborn acquitted Mr. East and Mr. Mara, throwing the province and its strip clubs into a wild and woolly legal limbo.

Strip clubs went off in their own directions. Some adhered closely to no-touching bylaws that sprang up in the many communities. Others created closely-guarded VIP rooms where men could have their laps danced upon with relative impunity.

In its decision yesterday, the Court of Appeal cut straight through the morass of regulation and criminal law that has restricted the public display of immoral acts.

Chief Justice Dubin strongly hinted that it may no longer even matter whether the host of no-touching by laws can withstand court challenges. The very fact that bylaws have been passed proves that the community is not prepared to tolerate lap dancing, he said.

He also waved aside any argument that lap dancing is a consensual activity.

"The consent of the parties cannot render decent what is indecent," he; said. "It is not a matter of one's taste, but it is whether the conduct exceeds the standard of tolerance in contemporary Canadian society."

However, the court cautioned that standards can change quickly. "The standard must be contemporary because attitudes relating to sexual behaviour are constantly changing, and it is the standard of the community as a whole that must be considered," it said.

Chief Justice Dubin said Judge Hachborn was wrong in thinking his hands were tied by a handful of recent Supreme Court of Canada decisions, including one acquitting a Montreal club where patrons could masturbate while watching a woman do likewise.

Quite unlike the Cheaters case, the Chief Justice said, there was no touching in the Montreal club. Moreover, the acts of masturbation were also conducted in private and involved no health risk.