Strip-Club Contact Dances

[Guest W***ledi*Time]

Giuseppe Valiante reports for QMI, 4 March 2011:

 

http://cnews.canoe.ca/CNEWS/Canada/2011/03/04/17500131.html

 

MONTREAL - Montreal's infamous strip clubs might have to get a little less hot and heavy.

 

Peter Sergakis, president of an association representing 700 Quebec bar owners, said a recent Supreme Court ruling has created a "gray zone" in the law.

 

In 2007, a Laval court found a local strip club was a "common bawdy-house" because it allowed its clients to pay for contact dances. The Supreme Court of Canada upheld that ruling in January.

In some strip clubs in Quebec, particularly in the Greater Montreal Area, clients are able to pay for lap dances where they can touch the body of a dancer, including her breasts and thighs. According to the Criminal Code, it is illegal in Canada to be found "without lawful excuse, in a common bawdy-house."

 

The judge in the 2007 case noted prostitution can occur even if the individuals don't "complete" a sexual act. This means a public place that allows people to pay just to touch a woman can be considered a bawdy-house.

 

Sergakis said for more than a decade, police tolerated so-called contact dances at Montreal's strip clubs, but now bar owners fear police will use this decision to pick on clubs they don't like.

 

Sergakis owns several bars and clubs in Montreal, including Cabaret Les Amazones, a strip club that allows contact dances "where the customer has the right to touch certain parts of a dancer and not others," Sergakis said.

 

"That was the trend (towards contact dancing)," he said. "We didn't do it by choice, but everybody else was allowing it so we did it because the demand was there."

 

He said he's never had problems with the police, but fears that could change.

 

"I want to be clear, I am not saying I want prostitution in my club," Sergakis said. "I'm saying we have to decide here in this country what we want so everyone knows what is accepted. I think the government should establish clear rules and enforce them. Right now there is total confusion."

 

According to court documents, plain-clothed Laval police officers entered the strip club and were told they could pay $10 dollars for a private booth and "touch the breasts, the buttocks and the thighs" of a dancer.

 

Court records reveal police claimed every time a dancer exited a booth, she would proceed towards the doorman and give him money.

 

On one occasion, a "young female" named Melanie, sat at the police officers' table and told them that for $10 dollars, "they could touch her anywhere, but she won't go any further."

 

The judge in the case ruled that what went on at the Laval club was "frequent and continued acts of prostitution" and the dancers "were clear and transparent in their offers of sexual favours for money for the sexual gratification of clients in a public place."

 

The owners of the Laval bar were not available to speak to QMI Agency.

 

Montreal police are not commenting on the case.

 

I haven't been able to find a link to the Supreme Court decision. Here is a link to the Quebec Superior Court decision of last year: http://www.canlii.org/en/qc/qcca/doc/2010/2010qcca1155/2010qcca1155.html

[Guest W***ledi*Time]

At the present moment, this issue of contact-dancing seems to fall into a legal grey-zone, similar to the grey-zone that surrounds the issue of rub-and-tug. (Some cities and law-enforcement agencies in Canada allow rub-and-tug, some do not). This uncertainty and inconsistency originates in the thorny question of definitions.

 

The Contact-Dancing case that has just been denied leave to appeal by the Supreme Court of Canada is Marceau v. Canada (2010 QCCA 1155). In this case, the Quebec Court of Appeal upheld, on 15 Jun 2010, the 6 Jan 2009 ruling of the Quebec Superior Court (District of Laval). The legal issue hinged on whether Lavalois Bar Salon, a club in which Contact Dances were conducted, was therefore a Bawdy House:

 

[7] For $10, the female appellants offered to perform private nude dances in cubicles to customers ... The dancers' offers would mention that the customer could touch the dancer anywhere on her body, but that the dancer would go no further.

 

[8] The police officers could see the activities that took place in the cubicles from tables in the premises where they sat. In all circumstances the customers remained clothed, and the dancers were completely unclothed, except for a g-string. The police officers observed customers who had accepted the dancers' offers touching or caressing their breasts and buttocks. They also saw dancers rubbing their breasts in the face of customers, as well as sitting on them and engaging in a back and forth movement on their genital area to simulate an act of vaginal penetration ...

 

(

http://www.canlii.org/en/qc/qcca/doc/2010/2010qcca1155/2010qcca1155.html

)

 

 

So much for the facts at Lavalois Bar Salon. Is this a Bawdy House? On to the chain of legal definitions:

 

A Common Bawdy House is defined in the Criminal Code of Canada (Section 197(1)) as:

 

.... a place that is

(a) kept or occupied, or

(b) resorted to by one or more persons

for the purpose of

prostitution

or the practice of

acts of indecency

;

 

(

http://laws-lois.justice.gc.ca/eng/acts/C-46/page-138.html#h-65

)

 

In the present Contact-Dance case, all parties agreed that Contact Dances were not "acts of indecency" (i.e. they did not violate the "community standard of tolerance"). The prosecution and original Bawdy House convictions in the Laval Municipal Court were instead based on the premise that Contact Dances were acts of prostitution. So the next question is: "What is Prostitution?"

 

Neither the lawmakers in Parliament, nor the laws they have enacted in the Criminal Code, define exactly what "prostitution" is. Therefore, the legal definition of what constitutes "Prostitution" has in practice been left to the Courts.

 

The Courts have essentially agreed on a working definition of "Prostitution". As Justice Lamer observed in Reference re ss. 193 and 195.1(1)© of the Criminal Code (Man. 1990) with respect to the definition of prostitution:

 

It seems to me that there is little dispute as to the basic definition of prostitution, that being the

exchange of sexual services of one person in return for payment by another

....

 

http://www.canlii.org/en/ca/scc/doc/...canlii105.html

 

So far so good. But jurisprudential opinion has not been thoroughly unanimous with regards to the next step of the chain of legal definitions. If "prostitution" can be understood to be the exchange of "sexual services" of one person in return for payment by another ... the next question inevitably is:

 

 

What activities can be defined as constituting "sexual services"?

 

This question as to what can be considered to be "sexual services" should have been the crux of the Contact- Dance- as- Prostitution question as examined in the Marceau v. Canada appeal (this is just my own personal opinion). Unfortunately, the appellants chose to appeal based on different grounds, their appeal was dismissed, and the central question of the definition of "sexual services" was left fundamentally unanswered. Even though the majority of the Court expressed the opinion that Contact Dancing is a Sexual Service (with the minority disagreeing), this was not the legal point placed specifically at issue in the grounds claimed for appeal - and, I would assume, would therefore not have entered into the Supreme Court of Canada's decision to deny leave for higher appeal. Furthermore, neither the majorty or the minority cited any substantive direct legal precedent for what legally consitutes "sexual services". This leaves the current legal grey area, with the convictions left standing ... but the truly central question not having been appealed.

 

The argument of the appellants is summarized in the majority ruling of the QCCA , authored by Justice Hilton:

 

[12] ... the appellants argued for an acquittal on the basis that whether or not such activities amounted to prostitution had to be considered

with the notion of indecency in mind

...

 

[19] In essence, the appellants argue in this Court that ... one of the elements necessary to constitute prostitution should consist of an appreciation of the criteria related to indecency, as that concept has been recently interpreted. Since the Crown concedes that the conduct ... is not indecent, such conduct should not be considered as constituting prostitution, with the result that the convictions should be set aside and a new trial ordered.

 

But the court's majority rejected this argument:

 

[20] The appellants' argument ... ignores the context in which the words "prostitution" and "indecency" are found in subsection 197(1) Cr. C. It is apparent that the two concepts address different situations of fact ....

 

Citing legal precedent, the QCCA majority ruling further emphasized:

 

[21] Prostitution does not require as a component factor the performance of acts that are indecent or harmful ....

 

[31] In light of ... the distinction between prostitution and indecency recognized by the Supreme Court in

Tremblay

, I am not persuaded that the criteria to establish indecency, as enunciated by the Supreme Court in

Labaye

and

Kouri

are of any relevance in determining what constitutes prostitution for the purpose of a prosecution under paragraph 210(2)(b) Cr. C.

Whether or not prostitution exists is an objective inquiry, not a subjective one dependent on evolving community standards

. The evidence in this case leaves no doubt that the female appellants were engaged in prostitution, as that concept as been interpreted by the courts [although I see no legal precedents cited], by the very nature of the activities in which they engaged ....

 

This ruling of the QCCA was not unanimous. Justice Dalphond dissented. He argued that :

 

[80] .... various prohibitions related to prostitution, including "having been found in a common bawdy-house", can be given either a large or a narrow scope depending on the definition of what is the provision of sexual favours for money.... [there is a] need to refer to objective criteria to avoid unacceptable vagueness.

 

[81] In my view, these criteria must only encompass places where clients go to obtain for payment what truly amounts to the provision of services designed at achieving or attempting to achieve their sexual gratification.

 

[82] In the case at bar, I cannot reasonably conclude that the fact that the dancer sits on the lap of a fully dressed paying client in a public place and performs a movement simulating intercourse while the client may touch the dancer's body and even kiss her breast amounts to acts of prostitution ..... In reality, weren't the acts performed by the dancers considered by the paying clients ... a form of entertainment rather than the exchange of sexual services?

 

[83] ... evidence was not sufficient to conclude that the dancers were performing services aimed at the sexual gratification of the clients rather than a live performance in a public place simulating some form of sexual activities. Though this type of dancing is designed to appeal to the sexual interests and appetite of the clients of the bar, it clearly remained for the dancers and the paying clients as well as for the other clients, a form of public amusement not leading to sexual intercourse or any other form of sexual gratification of paying clients or dancers, nor aiming to do so. Thus these acts were not acts of prostitution ....

 

[85] Therefore, in my opinion, there was not enough evidence adduced to conclude that the appellants were found in a common bawdy-house.

Responding to Dalphond's dissent, Justice Hilton stated that the appellants' appeal was not based around an argument regarding the definition of "sexual services":

 

[35] I do not believe it would be appropriate for the Court to dispose of the appeal on the basis of arguments that .... have not been addressed in the parties' factums or at the hearing of the appeal.

 

But Hilton, for the majority, nevertheless concluded:

 

[36] ... the nature of the conduct in which the female appellants and their customers engaged were clearly intended to achieve the sexual stimulation of the customers, despite the fact that the customers remained clothed, and irrespective of whether they reached ultimate gratification .... To characterize those activities as a form of entertainment, even if one were to accept that characterization, makes them no less acts of prostitution ....

 

[37]

Obviously, it would be helpful if Parliament were to define the terms that are the object of this appeal in the general area of prostitution in order to promote certainty in the application of the law ....

[Guest s******ecan****]

Hmmmmm could get confusing, I know a lot of the bars charge cover for guys but not ladies, I know a lot of sexual type contact goes on within. Since the ladies are not technically employess but were offered inducements (free cover, or reduced drink prices) to show up could they now be bawdy houses? Perhaps our betters in government need to keep a closer eye on all of us heathens?

[Mister T 45020]

Thanks for the post on the thread i started, WIT. For those who hadn't read it, Quebec city is looking at this as well. I am cross linking WIT's original thread to mine ...

 

http://www.cerb.ca/vbulletin/showthread.php?t=49890

[Phaedrus 209521]

Thanks for the wirite-up, WIT.

 

So - IANAL, and I'm now rather confused. Does this mean that "normal" SC activities in QC are still a legal grey area, pending some decision on what constitutes "sexual services" and what doesn't?

 

Is there any chance we could get a lady to give a guy an ever-escalating lapdance in court (preferably the Supreme Court), and have the judges press a button when they thought it had reached the illegal stage - and then have each one write a formal justification of why they hit the button when they did (including an analysis of why they didn't hit it any earlier)?

 

Ya, I know, there's no chance at all, but I think it's a nice idea :)

[Blue Hornet 2080]

Thanks for the wirite-up, WIT.

 

Is there any chance we could get a lady to give a guy an ever-escalating lapdance in court (preferably the Supreme Court), and have the judges press a button when they thought it had reached the illegal stage - and then have each one write a formal justification of why they hit the button when they did (including an analysis of why they didn't hit it any earlier)?

 

Ya, I know, there's no chance at all, but I think it's a nice idea :)

 

HAHAHA, that IS a great idea!! The only thing I would add to it is that there are four women on the SC so we'd need to get volunteers from the male audience to give a lapdance to them - or, maybe in the interest of political correctness, give each SC member a choice if they want to get a lapdance from a man or a woman. Their choices might surprise us

 

I love the idea!!

[Kubrickfan 12836]

HAHAHA, that IS a great idea!! The only thing I would add to it is that there are four women on the SC so we'd need to get volunteers from the male audience to give a lapdance to them - or, maybe in the interest of political correctness, give each SC member a choice if they want to get a lapdance from a man or a woman. Their choices might surprise us

 

I love the idea!!

and if there are women judges? Smile ... Not sure if that would be a good or bad thing.

[Guest C*****tte]

I have been casually following this issue but I did read this weekend how club owners, dancers and police are all unsure about this ruling and do not know what to do. It is a ruling that was based on a club in Laval but applies to all clubs across the province.

[Mister T 45020]

I have been casually following this issue but I did read this weekend how club owners, dancers and police are all unsure about this ruling and do not know what to do. It is a ruling that was based on a club in Laval but applies to all clubs across the province.

 

I have been following it myself through the french papers.... I'll be curious to see where this goes ....