December 1996
On
December 9th, the
The
appeal court overturned her conviction because "There was nothing
degrading or dehumanizing in what the appellant did. The scope of her activity
was limited and was entirely non-commercial. No one who was offended was forced
to continue looking at her. I cannot conclude that what the appellant did
exceeded the community standard of tolerance when all of the relevant
circumstances are taken into account."
The
three judges did not completely agree on the scope of the law. They all agreed
that Jacob had not committed an indecent act. However, Judge Osborne and Mr.
Justice Allan Austin suggested that acts could be indecent without having a
sexual purpose. Judge Weiler on the other hand,
believes that the question is whether an act would be considered sexual by a
reasonable bystander. She said that the exposure of breasts in our society does
not automatically mean that the act is being done for sexual gratification.
Jacob's
lawyer, Margaret Buist, had argued that she had a
constitutional right to go topless since men could. However, the court did not
deal with the constitutionality issue in its ruling.
BACKGROUND
Gwen
Jacob said she decided to challenge society's perceptions after she saw a group
of men playing sports without their shirts on a blistering hot day. The more
she thought about the inequality of the situation, the more determined she
became. She said in an interview that "these were social constraints I'd
challenged mentally, but had never done so publicly."
She
was charged with indecency on
After
a very public trial, Jacob was found guilty of this criminal offense and fined
$75. The judge didn't take seriously her claim that women's breasts are simply
fat tissue and no different than men's. The judge explained that a women's
breast is "a part of the female body that is sexually stimulating to men
both by sight and touch". He therefore deduced that it was appropriate to
restrict their public exposure.
The
Ontario Court's General Division upheld the ruling. This
second ruling in 1992 inspired protests across the country including one on
Parliament Hill in
This
is actually the second ruling acquitting women of indecency when bearing their
breasts. At one of the 1992 protests in
IMPLICATIONS
With
two acquittals as precedent, one from the
Jacob's
lawyer, Margaret Buist said "women now have the
right in this province to do the same thing that men do: Walk down a street
top-free on a hot summer's day." She further said that women can now go
topless on beaches, in public parks, or while walking to the store without fear
of being arrested.
The
Sgt.
Barry Brenham who patrols
Acting
Inspector Mike Sale suggested to the
Southam news went on to say
that while the ruling was technically only binding in
It
is interesting to note that this course of events is very similar to those
which many European countries took decades ago. Their challenges led to
widespread acceptance of top-free rights. Hopefully,
REACTIONS
Many
reactions were predictable although most seem to be surprisingly supportive.
Gwen
Jacob was one of the happiest. After five years, her conviction and fine have
finally been overturned. She said in a statement that it is now up to
individual women to decide when and where to "express the freedom to
remove our shirts".
"Changing
a prejudicial law is the first step in changing society's perceptions. If we do
not wish to be perceived as sex objects, we need to control the context in
which we present our bodies as sexual."
"If
we continue to allow society to define our physical bodies as strictly sexual,
we will never get beyond that limited means of expression. We will never be
more than slaves to our gender."
She
said that "The original victory for me was that I took my shirt off, the
rest was red tape."
Jacob,
who wrote her statement while nursing her 16-month-old child, said that she
hopes that her one day her daughter will ask "What was all the fuss
about?" when she learns of this case.
The
government's reaction was, as could have been predicted, cautious and
non-committal.
Ontario
Premier Mike Harris (Conservative) said that he personally doesn't like the
idea of women going around topless. "...it's just been my own personal
view" said Harris.
"I
personally have never felt that it is (appropriate), but I'm not a lawyer and
I'm not a judge."
When
asked about designating topless beaches, Harris said "In my own view that
would be better than what this ruling appears to mean."
Dianne
Cunningham,
She
went on to say that there while there may be some women who will go topless, she believes that most people would be offended by
it.
The
New Democratic Party's women's issues critic, Marilyn Churley ,was supportive of
the decision from an equal rights point of view but didn't think that the
majority of women are going to go around topless. She went on to add that maybe
neither men nor women should be allowed to go around the street stripped to the
waist.
Liberal
MPP Sandra Pupatello didn't agree with the scope of
the ruling but seemed to support nude beaches. "There are a lot of places
to be able to express yourself in public. Nude beaches are certainly one of
them and down
The
Mayor of Toronto, Barbara Hall said that the city had not intention to try to
restrict women walking topless through local by-laws.
One
of the most supportive stances was from the Toronto Star. "
But a chest is just a chest, hairy or not. Nobody has to stare, Mr.
Harris" reported the Star in their December 12th editorial.
The
The
most negative quote came from Dolina Smith of
Canadians For Decency. She said, "What
community's standard of tolerance were they using? A nudist
colony?" Her group believes that this ruling will lead to an
erosion of community values.
THE FUTURE?
A
week after the ruling it seems that public opinion is generally supportive. I
think that in most people's minds, this just isn't a big issue. We are hardly
the first country to accept top-free rights. In fact, we are about 20 years
behind
Let's
show our support for top-free rights by letting