Nude Recreation and the Law

10 Jun 2019 11:00 AM | Anonymous


Nude Recreation in Canada – What’s the Deal?

The following provides an overview of the current legal status of nude recreation in Canada.  It is intended to enable our members (and others) to understand the law and any risks they may be assuming by participating in nude or nearly-nude recreation.

The Legal Review

The CNR Legal Fund was used earlier this year to retain the services of a constitutional law firm to develop an opinion on whether naturism is lawful.  We were pleasantly surprised to find out that the law is mostly on our side already, at least in the context of hypothetical activities taking place in secluded parts of national and provincial parks.

We have developed the following beliefs by building on the opinion developed by the law firm, reviewing the case law cited, analyzing newer decisions concerning nudity, and evaluating media coverage on recent cases involving nudity in Canada.  Please note that the following should not be interpreted as legal advice.

The Criminal Code Statute on Nudity

Section 174 of the Criminal Code of Canada addresses the offence of nudity.  It is reproduced here in its entirety:

Nudity

·         174 (1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

·         Nude

(2) For the purposes of this section, a person is nude who is so clad as to offend against public decency or order.

·         Consent of Attorney General

(3) No proceedings shall be commenced under this section without the consent of the Attorney General.

 

Let’s chop up the statute and walk through each component of the law.  

   (a) is nude in a public place,

This is fairly black and white.  Nude means to be wearing no clothes.  A public place is defined in s. 150 of the Criminal Code to “include any place to which the public have access as of right or by invitation, express or implied”.  It’s a very broad definition, but it doesn’t matter much because the next section also extends to private property.

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

This is also fairly black and white.  It should spark some thought, as it makes it illegal to walk through your house naked unless all windows are fully and completely covered.

(2) For the purposes of this section, a person is nude who is so clad as to offend against public decency or order.

This is a deeming provision that brings additional conduct under the purview of section 174.  Specifically, you do not need to be “wearing no clothes” to be charged under s.174 anymore.  Wearing a jockstrap, thong, hat, or shoes could now be illegal – if wearing it offends against public decency or public order.

against public decency

There is a well-understood legal test that is applied to determine whether conduct offends public decency.  We don’t need to get into details, because the good news is that multiple cases have confirmed that nudity without a sexual component cannot be immoral or indecent behavior.

against public order

This creates a second path to guilt for “partial nudity” cases and addresses the social norm of “peaceableness” and concepts like the “Queen’s Peace”.  The test for this falls more specifically on the exact details of a situation and whether an actual disturbance of the peace occurred. 

·         174 (1) Every one who, without lawful excuse,

This is where the law gets even more complicated, because there’s a giant “get out of jail free” card in the first sentence. 

Lawful excuse is not comprehensively defined, but rather evolves over time based on case law and the circumstances of the moment.  The introduction of the “lawful excuse” provision introduces the opportunity for a defendant to provide evidence that could meet “an air of reality threshold test” and therefore allow an acquittal.

Specific examples of valid lawful excuses cited in two s.174 decisions have included not being disorderly along with an absence of indecency or immorality; legitimate theatrical performance; escaping from a house on fire; or modelling in a lecture hall for art students.  It has also been implied that a genuine form of self-expression while nude could engage s. 2(b) of the Charter, providing another path to lawful excuse.

It is also worth noting that the actions of local government authorities to permit/authorize clothing-optional recreation (for example at Wreck Beach in Vancouver or Halan’s Point in Toronto) appear to be accepted lawful excuses via the absence of examples of participants being charged under s.174.  Nude participation in events like the World Naked Bike Ride (WNBR) or Toronto Pride Parade also appear to be accepted lawful excuses.

is guilty of an offence punishable on summary conviction.

A “summary conviction” is a less serious offense than an indictable offence.  Finger prints do not need to be provided when charged under summary conviction, and there is a 6 month limitation period to being charged.  The maximum penalty is a sentence of 6 months of imprisonment, a fine of $5000, or both.  There is no minimum penalty, and there are limitations on whether you can be arrested without a warrant for offenses punishable on summary conviction. 

(3) No proceedings shall be commenced under this section without the consent of the Attorney General.

Finally, this last line helps bring everything into context.  No one may be charged without the consent of the Attorney General.  (In Alberta, that’s now Doug Schweitzer).  There are only a few laws that also contain this provision, and they tend to concern statutes which may infringe in unique ways on personal liberties, or could allow the law to be used in a situation it was not originally intended. 

The Attorney General has previously told us they cannot speculate on whether they would or would not grant consent – it would depend on the specific scenario under investigation.

So is it Legal?

It is the position of CNR that nude (or nearly-nude) activities, which take place in a calm and deliberate manner, in a contextually appropriate location, are unlikely to initiate an aggressive response by law enforcement.

Contextually Appropriate

CNR considers two factors when broadly defining contextually appropriate:

  1. The activity has a strong connection to the values and practice of naturism.  This would almost always involve the activity taking place in nature.
  2. The impact to other members of the public have been considered, and reasonable attempts have been taken (or are willing to be taken) to minimize negative impacts or outcomes.

    A previous case has definitively established that “flaunting” nudity in an effort to shock is contrary to the naturist philosophy and can sustain a conviction under the breach to public order section s.174(2). 

    Cultural versus Legal

    Despite the specific scenarios that have been carved out as very likely being “lawful”, it is important to acknowledge the cultural component of nudity.  Even though women have been allowed to be topless in Canada since 1996, this is still a very rare practice.  In fact, a recent Facebook poll asking “Is it against the law for a woman to be topless in public, in Calgary?” garnered 3.3K responses, with 47% incorrectly answering it is against the law. 

    News media has not been particularly helpful to the practice of naturism.  As a topic that tends to generate a disproportionate number of clicks, the media pumps public nudity with edgy puns and cheeky references.  This tends to skew the public perception for what is acceptable, both legally and socially.

    We believe that cultural issues (i.e. a perceived lack of legality) are far more likely to cause issues than actual legal proceedings for contextually appropriate nudity. 

    Law Enforcement

    It is the belief of CNR that police have a mandate to keep the peace.  The police do not want to deal with problems.  We believe that contextually appropriate naturist activities would not constitute a problem.

    To paraphrase a Calgary Police officer when asked about this topic, “If I’m not dealing with a situation where someone is dying and have time to respond to people skinny dipping in the river, then I’m having a pretty good day”.  It is notable that he also commented that trying such a thing on a crowded beach would garner a vastly different response than a quiet section of river.

    Don’t Ask, Do Tell

    After nearly 18 months of progress, CNR has settled on an approach with law enforcement we call “Don’t Ask, Do Tell”.  This approach:

    1. Relies on the Legal Opinion and further analysis as correctly classifying naturism as a lawful activity, and implicitly believes internal reviews by government/law enforcement legal council is concluding the same.
    2. Understands that a permit would almost certainly grant the “lawful excuse” to be solidly within the law.  
    3. Accepts that culturally, it is not realistic in 2019 to ask a government official to put their job/reputation on the line by granting us a permit.
    4. Accepts that those who wish to participate in social nudity have a level of responsibility to prove CONTEXTUALLY APPROPRIATE naturism can peacefully co-exist in public areas without issue.
    5. Builds personal relationships with local law enforcement/government authorities and demonstrates proactive accountability for our conduct with those authorities.

    Don’t Ask, Do Tell involves notifying the relevant authorities as to the time and location of our activities well ahead of time.  This notification includes multiple methods of contacting us.  We will continue to notify the relevant authorities as to our activities until our activities are so mundane that they do not wish to hear from us any longer.

    This approach was used successfully on June 9, 2019 in the Rocky Mountains with no intervention required by local law enforcement, park conservation officers, or other government employees. (Yes, its a bit early in the season still)

    Law Enforcement Interactions with Respect to Nudity

    We believe that all requests by law enforcement should be complied with.  If we are asked to get dressed, we will get dressed.  It’s pertinent to remember naturism is new to a lot of people, and it is reasonable that people err on the cautious side with unfamiliar topics. 

    When people are charged criminally for being nude in public, the arrest and criminal charges seem to come after other solutions fail to garner the desired results (usually the desired result is the person getting and staying dressed).  We believe that legal repercussions are unlikely if all requests by law enforcement are immediately complied with.

    Utilizing the relationships developed under the Don’t Ask, Do Tell model, we will follow up with the relevant administration to ensure future issues are minimized. 

    Conclusion

    The law on nudity in Canada is inherently complicated, providing several distinct avenues for conviction along with a largely undefined clause which negates the offence entirely.  Consent of the Attorney General is required to commence proceedings.

    Case law provides a handful of examples of the factors considered in previous judgments regarding charges under s.174.  While there are several encouraging conclusions, every situation is different and case law cannot guarantee a particular future outcome. 

    With proper etiquette, and general courtesy to those concerned by our form of recreation, we do not believe legitimate and contextually appropriate naturism should cause any legal problems.  The law will likely fail to be on our side if we are disrespectful or confrontational with our nudity.  Failure to comply with law enforcement requests can also result in undesirable outcomes.

    Calgary Nude Recreation looks forward to practicing naturism in ways we believe are already allowed by law, which can help advance the cultural issues surrounding social nudity and help promote the values of body-positivity and self-expression.  We appreciate all those who join us in our advocacy efforts.  We are changing Canadian culture for the better, and having fun doing it.  Thank you for being a part of it!

    Appendix: Select cases & articles reviewed in developing this opinion

    R. v. Coldin, [2012] O.J. No. 1009

    R. v. Benolkin, [1977] S.J. No. 211

    R. v. Shaver, 2019 ONCJ 269

    R. v. Verrette, [1978] 2 SCR 838

    Recent nudity cases where charges have not been laid under s.174: 

    https://www.tbnewswatch.com/around-ontario/ontario-man-arrested-for-meditating-nude-in-guelph-park-says-he-was-just-trying-to-express-himself-1018132

    https://calgaryherald.com/pmn/news-pmn/canada-news-pmn/trial-set-for-man-accused-of-swimming-naked-in-toronto-shark-tank



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