R. v. Kouri
Encyclopedia
R. v. Kouri 2005 SCC 81 (CanLII), was a decision of the Supreme Court of Canada
that, along with its sister case R. v. Labaye
, established that harm is the sole defining element of indecency in Canadian
criminal law
. The case involved a club in which couples engaged in group sex
; the club was alleged to be a "common bawdy-house" (a house in which indecency or prostitution
occurs). The acquittal was upheld by the Supreme Court.
club Coeur à Corps, was accused of operating a common bawdy-house and fined $7,500 under section 210(1) of the Criminal Code of Canada
. The fine came after undercover
investigations of the club by police that started in 1996, although the club had been established in 1985. The group sex club was for couples who, upon entering, would be asked if they were a "liberated couple." Only those who replied in the affirmative could enter, and the couples would have to pay an entrance fee.
On appeal to the Quebec Court of Appeal
, Mr. Kouri was acquitted.
As the Court argued, the Crown had no evidence of anyone being forced to watch the sexual activities in the club, nor of anyone in the club being surprised to see group sex. Whether a couple was a "liberated couple" was viewed as a "sufficiently clear and comprehensive" means to ensure only knowing and willing couples would enter, given the context of the outside of the club, which had sexually-themed images present. It thus did not matter that there was no explicit cautionary message at the entrance that sexual conduct might be seen inside.
The Crown had also pushed its case against Mr. Kouri by saying that it was not known whether every couple was asked if they were "liberated" before they were admitted, and indeed some of the police had not been asked that question when they had entered the bar. The police corraborated the evidence that not every couple was asked this with the anecdote that a woman once left the club "upset with her partner".
The Court responded to these concerns by noting that the fact that this woman became upset does not mean she was surprised to see sexual conduct in the club; there are other possible reasons for her unhappiness. Even if she was unhappy to see group sex when the activity actually occurred, that does not prove she had not agreed to see this activity in the first place. Moreover, while some police were not asked the "liberated couple" question, that did not prove that all other couples were not asked the question the first time they came to the club.
Mr. Kouri might also have been guilty of indecency had the club encouraged degrading views of certain people. The Court, however, found no evidence that Mr. Kouri was guilty of this, noting that the activity was consensual and no money was exchanged between the persons having sex. While there was an entrance fee, this was not paid to anyone for a sexual service, but rather to enter the club to use the bar and engage in sexual activity with others.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
that, along with its sister case R. v. Labaye
R. v. Labaye
R. v. Labaye, [2005] 3 S.C.R. 728, 2005 SCC 80, was a decision by the Supreme Court of Canada on criminal indecency. The decision upheld consensual group sex and swinging activities in a club and alleged bawdy-house as being consistent with personal autonomy and liberty. Labaye was accompanied by...
, established that harm is the sole defining element of indecency in Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
. The case involved a club in which couples engaged in group sex
Group sex
Group sex is sexual behavior involving more than two participants. Group sex can occur amongst people of all sexual orientations and genders...
; the club was alleged to be a "common bawdy-house" (a house in which indecency or prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
occurs). The acquittal was upheld by the Supreme Court.
Background
In 1997, James Kouri, the owner of the MontrealMontreal
Montreal is a city in Canada. It is the largest city in the province of Quebec, the second-largest city in Canada and the seventh largest in North America...
club Coeur à Corps, was accused of operating a common bawdy-house and fined $7,500 under section 210(1) of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
. The fine came after undercover
Undercover
Being undercover is disguising one's own identity or using an assumed identity for the purposes of gaining the trust of an individual or organization to learn secret information or to gain the trust of targeted individuals in order to gain information or evidence...
investigations of the club by police that started in 1996, although the club had been established in 1985. The group sex club was for couples who, upon entering, would be asked if they were a "liberated couple." Only those who replied in the affirmative could enter, and the couples would have to pay an entrance fee.
On appeal to the Quebec Court of Appeal
Quebec Court of Appeal
The Court of Appeal for Quebec is the highest judicial court in Quebec, Canada....
, Mr. Kouri was acquitted.
Decision
The majority of the Supreme Court upheld the acquittal. As the test for defining indecency, necessary in order to answer whether Mr. Kouri was guilty of operating a bawdy-house, was set out in R. v. Labaye, the Court in R. v. Kouri concentrated on whether sufficient measures were taken by Mr. Kouri so that the public was not exposed to something they would not want to see. Had Mr. Kouri not done so, he might have been guilty of indecency. The Court took the view that the Crown did not effectively prove its case against Mr. Kouri.As the Court argued, the Crown had no evidence of anyone being forced to watch the sexual activities in the club, nor of anyone in the club being surprised to see group sex. Whether a couple was a "liberated couple" was viewed as a "sufficiently clear and comprehensive" means to ensure only knowing and willing couples would enter, given the context of the outside of the club, which had sexually-themed images present. It thus did not matter that there was no explicit cautionary message at the entrance that sexual conduct might be seen inside.
The Crown had also pushed its case against Mr. Kouri by saying that it was not known whether every couple was asked if they were "liberated" before they were admitted, and indeed some of the police had not been asked that question when they had entered the bar. The police corraborated the evidence that not every couple was asked this with the anecdote that a woman once left the club "upset with her partner".
The Court responded to these concerns by noting that the fact that this woman became upset does not mean she was surprised to see sexual conduct in the club; there are other possible reasons for her unhappiness. Even if she was unhappy to see group sex when the activity actually occurred, that does not prove she had not agreed to see this activity in the first place. Moreover, while some police were not asked the "liberated couple" question, that did not prove that all other couples were not asked the question the first time they came to the club.
Mr. Kouri might also have been guilty of indecency had the club encouraged degrading views of certain people. The Court, however, found no evidence that Mr. Kouri was guilty of this, noting that the activity was consensual and no money was exchanged between the persons having sex. While there was an entrance fee, this was not paid to anyone for a sexual service, but rather to enter the club to use the bar and engage in sexual activity with others.