Montreal, January 15, 2006 • No 162




Bradley Doucet is a writer living in Montreal. He has studied philosophy and economics, and is currently completing a novel on the pursuit of happiness.




« As members of a diverse society, we must be prepared to tolerate conduct of which we disapprove, short of conduct that can be objectively shown beyond a reasonable doubt to interfere with the proper functioning of society. »


- Chief Justice Beverley McLachlin (as quoted in the National Post's unsigned editorial "Freedom to swing" on December 22nd)



by Bradley Doucet


          On December 21st, 2005, the Supreme Court of Canada issued a ruling that effectively legalised swingers clubs in this country. Seven of the nine justices signed on to the majority ruling overturning the conviction of Montrealer Jean-Paul Lebaye, who had previously been found guilty of operating a bawdy house. The ruling makes a clear and explicit appeal to tolerance, as can be seen from the above quotation.


          Curiously, the reaction of Canada's two national newspapers the following day was the exact opposite of what one might have expected. On the one hand, in its lead editorial ("Freedom to swing") the supposedly conservative National Post applauded the ruling. The supposedly liberal Globe and Mail, on the other hand, said in its lead editorial ("Just like that, there go community standards") that the decision made no sense. Maybe the two broadsheets were just trying to rile up their respective readers. If so, they succeeded admirably, judging from subsequent letters they published. Whatever the motives behind these seemingly unlikely editorials, the reasons given by the Globe for attacking the Supreme Court ruling are precisely the same reasons libertarians must side with the Post in applauding the court's decision.

The Globe and Mail Gets It Wrong

          The editors of the Globe listed three reasons for thinking the Supreme Court's ruling makes no sense:

1) "it sets an impossible standard for dealing with sex clubs: proof of harm verging on social disorder";
2) "it describes as private places clubs that are licensed bars… [and] that advertise…"; and
3) "it undermines the very notion that the criminal law should be regulating morality."

          Let's examine each of these reasons in turn. 1) The court said it wanted to replace the subjective community-standards approach with the objective standard of actual societal harm. The Globe calls this an impossible standard for dealing with sex clubs, but it would be more transparent (and less sensational) to say that the court set a high standard for shutting down sex clubs. To which one might add, "And well it should." It seems like proof of actual harm to society is the very least we should require before prohibiting some activity or enterprise.

          2) The Globe editors are concerned about all the negative ramifications of treating a privately owned club or bar as, well, private, but this just does not sound all that scary. However, if the court were consistent in treating clubs as private places, one thing it would have to do is strike down all of those rapidly multiplying tobacco bans. This would allow some club owners to permit smoking, some to forbid it, some to sequester smokers in specific parts of their clubs, and some to offer improved ventilation – leaving employees in each case to decide for themselves whether they wanted to work in a more or less smoky environment – all in a competitive effort to court a diverse body of potential patrons. Oh, the horror!

"If people voluntarily participate in an activity and get hurt as a result, they have the opportunity to learn from their mistakes. The Globe and Mail's over-protective parent routine is taking an approach that is well-suited to the early years of childhood and attempting to apply it to full adulthood."

          3) Well, it's about time someone in a position of power and influence undermines the notion that the law should regulate morality! More specifically, the law should not prohibit activities or enterprises in which all of the participants are informed and consenting adults. As the National Post's editorial put it, "it is not the role of government to enforce life lessons." If people voluntarily participate in an activity and get hurt as a result, they have the opportunity to learn from their mistakes. The Globe's over-protective parent routine is taking an approach that is well-suited to the early years of childhood and attempting to apply it to full adulthood.

The Harm Principle

          To what do we owe the Supreme Court's expansive position on individual liberty? Maybe the Chief Justice had recently dusted off her copy of John Stuart Mill's On Liberty, in which the 19th century English philosopher spelled out his famous harm principle:

          [T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right… The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

          Mill's harm principle is not quite as comprehensive as the non-aggression principle favoured by libertarians. "Preventing harm to others" can be construed narrowly or widely, and if construed widely enough, can actually be used to justify all manner of intervention. If I shop at Wal-Mart, I am harming the Mom-and-Pop down the street by denying them my business, and so the government must step in. If a potentially brilliant surgeon decides to pursue a career as a concert pianist, she is harming those who could have benefited from her surgical skills, and so the government must assign jobs in order to minimise harm. These broadly defined "harms" are simply unavoidable, and any attempt to prevent them would quickly lead to totalitarianism.

          Mill clearly meant his harm principle to be interpreted much more narrowly, in an approximation of the more stringent non-aggression principle. His arguments for allowing people as much liberty as possible are both powerful and uplifting. In the realm of freedom of speech, he argued that even ideas which seemed clearly false should not be censored, for the truth would be that much stronger for having to defend itself. Also, of course, from time to time, the ideas that had seemed clearly false would prove themselves to be true, and the received wisdom would prove to have been mistaken.

Experiments in Living

          The same can be said not only of ideas, but of actions too. When people are free to live as they see fit, they make a variety of choices, and then a multitude of different lifestyles can be compared and contrasted. Because people are free to experiment, we can feel more confident in saying, as even the tolerant National Post editors do, that "swinging is an unpopular activity because the damage it does to relationships can generally be expected to outweigh the transient sexual thrills it provides." And again, from time to time, the received wisdom will prove to be mistaken.

          Here's another simple truth that bolsters the case for tolerance: people are different. While it seems painfully obvious that swinging must increase the stresses on a relationship, it is also obvious that some people are much better than others at handling stress. Even more telling, some people are good at handling one kind of stress and therefore make good police officers, for example, but would flounder trying to handle the kinds of stresses a grade three teacher navigates with grace. People are different, and it is certainly plausible that for some couples who are better able to deal with the particular stresses of swinging, the benefits might just outweigh the costs.

          The editors of The Globe and Mail wrote, "You don't need to be a fuddy-duddy to cringe at the Supreme Court's libertarianism." Well, you also don't need to be a libertarian to applaud the Supreme Court in this instance. You just need to be willing to tolerate the choices other people make even when you disagree with those choices; you need to be willing to let people fall down once in a while rather than treat them like little children unable to assume any measure of personal responsibility; and you need to be willing at least to entertain the possibility that maybe, just maybe, you don't know with one hundred percent certainty what's best for everyone else. A little tolerance, a helping of individual responsibility, and a touch of humility – sounds like something even a fuddy-duddy might be able to support.