R. V. Labaye - Dissent

Dissent

A lengthy dissent was written by Justices Michel Bastarache and Louis LeBel. The dissenting justices criticized the majority's definition of indecency as "neither desirable nor workable," since it did not follow certain precedent and discarded the "contextual analysis of the Canadian community standard of tolerance". While harm is an important consideration, that does not mean Canadians would be able to accept certain sexual conduct. Standards can be drawn upon "principles of social morality drawn from legislation." Moreover, the importance given to harm in R. v. Butler was "adopted to fill a vacuum," to connect past case law regarding community standards to views that some material encourages sexist attitudes, and "it does not follow from Butler, Tremblay and Mara that the courts must determine what the community tolerates by reference to the degree of harm alone." In this particular case, the dissenting justices believed that the screening out of people who did not want to see the sexual conduct was not rigorous enough, and that "The community does not tolerate the performance of acts of this nature in a place of business to which the public has easy access."