Hot Group Sex Action

Comes the news from Canada that the Supreme Court has issued two interesting opinions dealing with the criminal offense of indecency.  The Court set aside the conviction of a defendant for "keeping a common bawdy-house for the practice of acts of indecency" -- to wit, operating a private club in which members were free to participate in acts of group sex.  The Court, acknowledging the difficulties in doing so, attempts to craft a test for crimes of indecency that is based on "objective" concepts of "harm" rather than one of morality or community standards.  From the headnotes in the principal case, R. v. Labaye:

In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met.  The first is that by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti‑social behaviour, or (c) physically or psychologically harming persons involved in the conduct.  The categories of harm capable of satisfying the first branch of the inquiry are not closed.  The second requirement is that the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.  This two‑branch test must be applied objectively and on the basis of evidence.

I've just peeked through the opinions and think they should be interesting to criminal law scholars interested in harm-based theories of criminal law, con law scholars interested in obscenity/pornography law, and legal philosophers.  I find it hard to imagine a genuinely objective description of harm that is truly disaggregated from public morality and that reaches as far as the Court's test would; and I find it hard to reconcile the Court's test here with the outcome in the Court's famous opinion in Butler; but these are just initial impressions.  In any event, you may find these cases interesting. 

(Was my interest in these cases at all based on the knowledge that a post titled "Hot Group Sex Action" is sure to increase our readership numbers?  Nope.  Just good disinterested scholarship here, folks.)