Throughout the history of law, morality has created conflicts between the lawmakers and enforcers of the law, with those whom the laws apply to. Morals, although often shared within a society, differ between people. Lord Patrick Devlin and John Stuart Mill were both men who were interested in how morality affects legal systems, though they both had contrasting opinions on how to approach this. Mill writes of the “harm principle”, in which a person should be free to act however he choses so long as it does not harm those around him, and should only be punished if it does harm. (Tasson, Dickson, Kazmierski, Kuzmarov, Malette, 106) Whereas Devlin writes of the protection of society as means for the law to intervene in the actions of man. This
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v. Labaye, the test of whether harm is inflicted in the act of sex can determine whether or not a case can or cannot pass the community standards test. If a case involves material degrading or dehumanizing to women in particular, the case will most likely not pass the community standards test and therefore be considered obscene. In the case of R. v. Labaye, a ‘swingers club’ is charged with indecency under s.210(1) of the Criminal Code. (Tasson, Dickson, Kazmierski, Kuzmarov, Malette, 116) The club has 3 stories, the bar, a salon and an upstairs apartment in which paying members can access with a code in order to take part in or watch consensual sex. The importance of this case was the use of harm as the basic test for indecency, and in finding that all parties were consenting and that there was no aspect of dehumanization or degradation to the women involved, Labaye was found not guilty. Members of this club were paying customers, who were interviewed prior to becoming members in order to ensure they knew what the club was meant for. Members were not forced into having sex, and were acting out of their own free will, as is their right to do so. (R. v. Labaye, 729) Because this club did not harm its members or the people around it, it was not punished, just as Mill’s harm principle suggests. This case was important in determining the harm principle in practice in Canadian law, and forms the basis for cases tried after it. Although the Butler case outlined this use, the two differ in the distinction of
v. Labaye, the test of whether harm is inflicted in the act of sex can determine whether or not a case can or cannot pass the community standards test. If a case involves material degrading or dehumanizing to women in particular, the case will most likely not pass the community standards test and therefore be considered obscene. In the case of R. v. Labaye, a ‘swingers club’ is charged with indecency under s.210(1) of the Criminal Code. (Tasson, Dickson, Kazmierski, Kuzmarov, Malette, 116) The club has 3 stories, the bar, a salon and an upstairs apartment in which paying members can access with a code in order to take part in or watch consensual sex. The importance of this case was the use of harm as the basic test for indecency, and in finding that all parties were consenting and that there was no aspect of dehumanization or degradation to the women involved, Labaye was found not guilty. Members of this club were paying customers, who were interviewed prior to becoming members in order to ensure they knew what the club was meant for. Members were not forced into having sex, and were acting out of their own free will, as is their right to do so. (R. v. Labaye, 729) Because this club did not harm its members or the people around it, it was not punished, just as Mill’s harm principle suggests. This case was important in determining the harm principle in practice in Canadian law, and forms the basis for cases tried after it. Although the Butler case outlined this use, the two differ in the distinction of