Topfreedom
Topfreedom is a cultural and political movement seeking changes in laws to allow women to be topless in public places where men are permitted to be barechested, as a form of gender equality. Specifically, the movement seeks the repeal or overtur ...
in Canada has largely been an attempt to combat the interpretation of
indecency laws that considered a woman's
breasts
The breast is one of two prominences located on the upper ventral region of a primate's torso. Both females and males develop breasts from the same embryological tissues.
In females, it serves as the mammary gland, which produces and secret ...
to be indecent, and therefore their exhibition in public an offence. In
British Columbia
British Columbia (commonly abbreviated as BC) is the westernmost province of Canada, situated between the Pacific Ocean and the Rocky Mountains. It has a diverse geography, with rugged landscapes that include rocky coastlines, sandy beaches, ...
, it is a historical issue dating back to the 1930s and the public protests against materialistic lifestyle held by the radical religious sect of the
Freedomites
The Freedomite movement consists of a split-off of the Doukhobors, a community of Spiritual Christians began a mass migration from Russia to Canada in 1898. The Freedomite movement first appeared in 1902 in Saskatchewan, and later in the Kootenay ...
, whose pacifist beliefs led to their exodus from Russia to Canada at the end of the 19th century. The ''Svobodniki'' became famous for their
public nudity
Nudity is the state of being in which a human is without clothing.
The loss of body hair was one of the physical characteristics that marked the biological evolution of modern humans from their hominin ancestors. Adaptations related to h ...
: mostly for their nude marches in public and the acts of arson committed also in the nude.
Law
In Canada, the law on
public decency
The intersections of morality and religion involve the relationship between religious views and morals. It is common for religions to have value frameworks regarding personal behavior meant to guide adherents in determining between right and ...
is found in sections 173 and 174 of the
Criminal Code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...
. However, what constitutes an indecent act is not defined, and is open to interpretation by the courts.
In 1991,
toplessness
Toplessness refers to the state in which a woman's breasts, including her areolas and nipples, are exposed, especially in a public place or in a visual medium. The male equivalent is barechestedness, also commonly called shirtlessness.
Expose ...
as an indecent act was challenged in Guelph, Ontario, by
Gwen Jacob
Topfreedom in Canada has largely been an attempt to combat the interpretation of indecency laws that considered a woman's breasts to be indecent, and therefore their exhibition in public an offence. In British Columbia, it is a historical issue d ...
, who removed her shirt and was charged with indecency. Part of her defense was the
double standard
A double standard is the application of different sets of principles for situations that are, in principle, the same. It is often used to describe treatment whereby one group is given more latitude than another. A double standard arises when two ...
s between men and women. Although she was convicted, this was overturned by the Court of Appeal. This case determined that being topless is not indecent within the meaning of the Criminal Code. However, it did not establish any constitutional right of equality. This case subsequently led to the acquittal of women in British Columbia and Saskatchewan who faced similar charges. Although each province and territory reserves its right to interpret the law as it pleases, the Ontario case has proved influential. Since the matter has not been determined by the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
, it is still possible that a woman could be convicted elsewhere in Canada, but interpretation of moral law in Canada has become increasingly liberalised.
[Valverde, Mariana (1999)]
"The Harms of Sex and the Risks of Breasts: Obscenity and Indecency in Canadian Law"
. ''Social Legal Studies'' 1999; (8): 181. There do not appear to have been any further women charged in Canada since these cases were decided.
Ontario
Topfreedom is allowed in Ontario, set by the precedent in the case of Gwen Jacob. The acting executive director of Municipal Licensing and Standards said that while "there's no bylaw that governs toplessness", "it is legal for women to go topless on the streets of Toronto" according to a ''
National Post
The ''National Post'' is a Canadian English-language broadsheet newspaper available in several cities in central and western Canada. The paper is the flagship publication of Postmedia Network and is published Mondays through Saturdays, with ...
'' article. He added that parks require clothing, except, for example, the clothing optional
Hanlan's Point Beach
Hanlan's Point Beach is a public beach situated on Hanlan's Point in the Toronto Islands near Toronto, Ontario on the shore of Lake Ontario. A 1 kilometre-long part of the beach was officially recognized by the city in 2002 as being clothing opt ...
.
Gwen Jacob
![GwenJacobimg811](https://upload.wikimedia.org/wikipedia/commons/d/d1/GwenJacobimg811.jpg)
On July 19, 1991, a very hot and humid day, Gwen Jacob, a
University of Guelph
, mottoeng = "to learn the reasons of realities"
, established = May 8, 1964 ()As constituents: OAC: (1874) Macdonald Institute: (1903) OVC: (1922)
, type = Public university
, chancellor ...
student, was arrested, after walking down a street in
Guelph, Ontario
Guelph ( ; 2021 Canadian Census population 143,740) is a city in Southwestern Ontario, Canada. Known as "The Royal City", Guelph is roughly east of Kitchener and west of Downtown Toronto, at the intersection of Highway 6, Highway 7 and Welli ...
, while topless after removing her shirt when the temperature was and was charged with
indecency
Inappropriateness refers to standards or ethics that are typically viewed as being negative in a society. It differs from things that are illicit in that inappropriate behavior does not necessarily have any accompanying legal ramifications.
Co ...
under Section 173(1)(a) of the Criminal Code. Police stated that they acted following a complaint from a woman who was upset that one of her children had seen Jacob topless.
Jacob stated she did it because men were doing it and she wanted to draw attention to the double standard. She was found guilty and fined $75. In her defence she argued that breasts were merely fatty tissue. In finding her guilty, the judge stated that breasts were "''part of the female body that is sexually stimulating to men both by sight and touch''," and therefore should not be exposed. She appealed, but her appeal was dismissed by the Ontario Court (General Division), and she further appealed to the Ontario Court of Appeal.
In the meantime, protests against Jacob's arrest and conviction led to further charges against others, in particular ''R. v. Arnold'' but in this case McGowan P.C.J. applied the test of community standard of tolerance, following ''
Butler
A butler is a person who works in a house serving and is a domestic worker in a large household. In great houses, the household is sometimes divided into departments with the butler in charge of the dining room, wine cellar, and pantry. Some a ...
'', stating that the action of being topless caused no harm and thus did not exceed community standards of tolerance. She commented, "Undoubtedly, most women would not engage in this conduct for there are many who believe that deportment of this nature is tasteless and does not enhance the cause of women. Equally undoubtedly, there are men today who cannot perceive of woman's breasts in any context other than sexual. It is important to reaffirm that the Canadian standards of tolerance test does not rely upon these attitudes for its formulation. I have no doubt that, aside from their personal opinions of this behaviour, the majority of Canadians would conclude that it is not beyond their level of tolerance."
Jacob was acquitted on December 9, 1996, by the
Ontario Court of Appeal
The Court of Appeal for Ontario (frequently referred to as the Ontario Court of Appeal or ONCA) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Hall in downtown Toronto, also the seat of the Law Societ ...
on the basis that the act of being topless is not in itself a sexual act or indecent. The court held that "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" and that furthermore "the community standard of tolerance when all of the relevant circumstances are taken into account" was not exceeded. Although Jacob claimed she had a constitutional right, the court did not address this.
The
Ontario Government
The government of Ontario (french: Gouvernement de l'Ontario) is the body responsible for the administration of the Canadian province of Ontario. A constitutional monarchy, the Crown—represented in the province by the lieutenant governor— ...
decided not to appeal the case to the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
, and thus it has remained the prevailing interpretation of the Criminal Code in Ontario. Since then, the court ruling has been tested and upheld several times. ''R. v. Jacob'' has been cited in similar decisions in other provinces and by the Supreme Court of Canada in ''
R. v. Labaye'', and is taught in Criminal Law courses.
The decision by the Ontario Government not to appeal to the Supreme Court was based on the likelihood that the court would not grant leave. This caused considerable public concern as well as attempts by municipalities to preempt the law by passing more restrictive bylaws. (Uniform Law Conference of Canada 1999). The Ontario Government did contact the Federal Government regarding amending the law to make such actions clearly illegal. This was not pursued.
While the community standards test is not an immutable part of indecency jurisdiction, community tolerance is likely to be partly determined by the degree to which the public is exposed to top freedom on a regular basis. Jacob's victory is now celebrated annually in Guelph.
2011 marked the 20th anniversary of Gwen Jacob's walk, and to celebrate some students re-enacted it.
Other cases
Another important distinction is that of whether the nature of the act is commercial or not. In Jacob, the court stressed that it was not. In contrast in ''
R. v. Gowan'' Gowan, a sex worker, under the impression that exposing the breasts was now legal,
solicited clients at an intersection, motioned to her breasts and called out "Do you want to fuck?". She was consequently charged with and convicted of engaging in an indecent act, under the same section as in ''Jacob'', 173 (1) (a).
In 2015,
Alysha Brilla and her sisters Tameera, Nadia and Alysha Mohamed, were stopped by the police in Kitchener for cycling topless. The musician and activist filed a complaint with
Waterloo Regional Police. They subsequently held a rally at
Waterloo Town Square
Waterloo most commonly refers to:
* Battle of Waterloo, a battle on 18 June 1815 in which Napoleon met his final defeat
* Waterloo, Belgium, where the battle took place.
Waterloo may also refer to:
Other places
Antarctica
*King George Island (S ...
, called "Bare With Us", to educate the public about the right to go topfree.
Public parks and facilities
Despite this, women still faced discrimination in public facilities. In 1997, Fatima Pereira Henson was charged with trespassing for swimming topless in
Cambridge
Cambridge ( ) is a university city and the county town in Cambridgeshire, England. It is located on the River Cam approximately north of London. As of the 2021 United Kingdom census, the population of Cambridge was 145,700. Cambridge bec ...
, but the charges were dropped. She was then charged again, and also this was dropped by the crown, so the City initiated its own prosecution. Although this too was dropped, a bylaw specifically prohibiting top-free swimming was passed. Eventually her efforts led to a new bylaw allowing top-free swimming.
In
Toronto
Toronto ( ; or ) is the capital city of the Canadian province of Ontario. With a recorded population of 2,794,356 in 2021, it is the most populous city in Canada and the fourth most populous city in North America. The city is the ancho ...
in 2011, a ''Go Topless Day'' rally was refused a permit to meet in a park, so they marched down the streets, with a police escort.
British Columbia
In 2000 a similar case to Jacob's resulted in acquittal. Linda Meyer, a top-free activist inspired by the Gwen Jacob case, appeared in a number of public venues topless. A bylaw in the municipality of
Maple Ridge stated "females over the age of 8 years shall fully cover all portions of their nipples and aureole with opaque apparel". On July 1, 1997, Linda Meyer went to the swimming pool in the bottom half of her bikini. Some parents complained and she was charged, but the judge in this case (Justice Holmes) voided the bylaw stating, ''inter alia'':
5''In R. v. Jacob, supra, a woman who walked bare-breasted on a city street and then reclined top-free on the front step to her home was acquitted on appeal of committing an indecent act. The Court found the baring of her breasts was not harmful to anyone. There was nothing degrading or dehumanizing in her conduct. The Court noted anyone who was offended was not forced to look.''
7''I do not find in the evidence support for the view that the parks could not operate in orderly fashion if a female were to bare her breasts in a circumstance that did not offend criminal laws of nudity. The evidence suggests the Section 3A amendment to the Park By-Law was more a reaction to a frustration that the criminal law was not supporting the moral standards in regard to females who chose to bare their breasts in public that some Maple Ridge citizens desired.''
4''The defendant's 18A application is allowed.''
In 2008
Vancouver
Vancouver ( ) is a major city in western Canada, located in the Lower Mainland region of British Columbia. As the List of cities in British Columbia, most populous city in the province, the 2021 Canadian census recorded 662,248 people in the ...
,
British Columbia
British Columbia (commonly abbreviated as BC) is the westernmost province of Canada, situated between the Pacific Ocean and the Rocky Mountains. It has a diverse geography, with rugged landscapes that include rocky coastlines, sandy beaches, ...
, was a location of the
World Naked Bike Ride
The World Naked Bike Ride (WNBR) is an international clothing-optional bike ride in which participants plan, meet and ride together ''en masse'' on human-powered transport (the vast majority on bicycles, but some on skateboards and inline skates) ...
Saskatchewan
In 1997, a 64-year-old woman, Evangeline Godron together with Kathleen Rice sunbathed topless in a
Regina park and were charged for doing so. On July 22, a judge in the Provincial Court ruled that their behaviour did not violate community standards. However she and other women then swam in a pool without a top. Again parents complained. Godron was arrested for assault, because she refused to leave the pool when requested. Although she appealed this, she was unsuccessful. The case was appealed to the Supreme Court of Canada, which declined to hear it. However this was a question of assault, not of indecency.
Public opinion
A 1992 poll showed that 62% of Canadians were opposed to women having topfreedom, with women being more likely to be opposed. A more detailed survey was undertaken in 1998, and a detailed analysis was published by Fischtein and colleagues in 2005 (Fischtein et al. 2005). This showed context to be important, for instance 72% were opposed to toplessness being allowed on a city street, 62% in parks, but only 48% on beaches. In all cases women were more opposed to toplessness.
Organizations
Federation of Canadian Naturists
The
Federation of Canadian Naturists
The Federation of Canadian Naturists (FCN) is the official International Naturist Federation (INF) representative for English-speaking Canada. It was founded in 1986, and has been reported to have 1,000 members.
It publishes a quarterly magazine ...
(FCN) is a member-supported, not for profit organization dedicated to fostering a greater understanding, acceptance and appreciation of naturism as a way of life throughout Canada. It has affiliations with Canadian naturist/nudist clubs and organizations. The FCN has a legal fund designated to help defend people who are charged with Nudity.
The FCN and the Fédération québécoise de naturisme (FQN) share the Canadian membership in the International Naturist Federation (INF), which has its world headquarters in Horsching, Austria.
Topfree Equal Rights Association
The Canadian Topfree Equal Rights Association (TERA) assists women in both Canada and the United States who are prosecuted for being topless in situations whereas men are not. It does not advocate toplessness, but promotes the concept of freedom of choice of the individual woman, and the de-sexualisation of breasts.
See also
*
List of social nudity organizations
The following is a list of social nudity organizations associated with naturism and nude recreation within a family-friendly, non-sexualized context.
Major naturist organizations
Worldwide
* International Naturist Federation (INF) with regional ...
*
Topfreedom in the United States
*
Toplessness
Toplessness refers to the state in which a woman's breasts, including her areolas and nipples, are exposed, especially in a public place or in a visual medium. The male equivalent is barechestedness, also commonly called shirtlessness.
Expose ...
*
Public nudity
Nudity is the state of being in which a human is without clothing.
The loss of body hair was one of the physical characteristics that marked the biological evolution of modern humans from their hominin ancestors. Adaptations related to h ...
References
Sources and external links
Organisations
Topfree Equal Rights Association
Media
*
ttps://web.archive.org/web/20110120103139/http://www.cbc.ca/news/viewpoint/vp_binks/20051212.html CBC Dec. 12, 2005 Taking it all offbr>
Protesters inspire activist to new cause. Toronto Star November 12 2011
Legal
Guelph's Hot Days of Summer. LexView Sept 29 1997Uniform Law Conference of Canada Review of the Law of Indecency and Nudity March 1999Mariana Valverde The Harms of Sex and the Risks of Breasts: Obscenity and Indecency in Canadian Law.Social Legal Studies 1999; 8; 181* Arneil B. The Politics of the Breast. 12 Can. J. Women & L. 345 (2000)
Research
*
{{Nudity
Breast
Civil disobedience
Nudity and protest
Sexism
Women's rights in Canada
Social movements in Canada
Protest tactics
Feminism in Canada