The Law Classes are paying off Already

Friends have asked me whether I intend to practice once I get the law degree.  It is still maybe, but Public Law has allowed me to say the below and sound like I might know what I am talking about:  :-) (Full disclosure: the second part of s174 description about "standard of legitimate political speech" is pure conjecture about how the case law would/did go.)

Question on the metronews website comments section: (http://metronews.ca/news/halifax/1101737/nude-bikers-bare-all-through-downtown-halifax/)
"No laws against public nudity / indecent exposure in Halifax?"

My answer:
You have pretty much hit the nail on the head there: there are both titles but neither apply: s 173(2) is being nude for a sexual purpose, and s174 is political nudity which does not meet the standard of legitimate political speech.

I am not sure if you alleging the former, ie that the purpose of this activity was sexual on the part of the participants. I would assert it was not. This is one line that distinguishes R v Jacob from R v Gowan.

On the second charge, this protest has two very clearly articulated political statements. The first of safety for cyclists is not just legitimate speech, but also in line with law. The second of acceptance of body does not touch on law, but is occasionally in line with some government policy. Both are rationally connected to the form of speech.

The body acceptance/shaming message is however counter to dominant culture which advocates body shaming in subtext, and so one would make an argument that it is a legitimate limit on speech in a free and democratic society, in that it undermines Society to counter its dominant messaging or that it creates attitudinal harms. Possibly to ban this speech one must ban the speech of both sides of the debate in the public interest. The result would be a ban on much commercial advertising. If steps were taken to suppress the protesters' message without suppressing the opposite position, it could be a reviewable error. In addressing attitudinal harms the protesters would allege that greater empirical harms are created by people believing they have ugly bodies, and so this social attitude should be classed more like the irrationality of women (preventing them from voting) than like the belief that people are not legitimate currency (preventing slavery), and hence that they are preventing rather than creating attitudinal harms. [I might not be quite on point on the attitudinal harms discussion I am still trying to get a handle on this particular doctrine.]

Moving back to the first message (bicycling safety from cars). One might make an argument that because it is law, there is no legitimate protest against the policy, so there is no legitimate political speech taking place. I will skip over revisiting the question of public opinion being contrary to government policy covered above. One would make an argument that this law as applied places reasonable limits as necessary in a free and democratic society, and/or that it does not make a legitimate political statement. Legitimate limits were placed on the protest that it was not to visit areas where bicycles are not menaced by cars. This policy was respected by the protesters, keeping them within the bounds of protected speech, and out of conflict with the executive.

In short, yes both laws exist in the abstract but do not apply to this particular fact scenario.

Question "So, if I was standing on a corner totally nude as the bikers/cyclist went by, would I be arrested, sure I would, so what gives?. Oh I got it, get myself a bike and then stand on the corner nude, let's see how long I would be there before you know what comes along."

For context on the reference to "as Charlotte says", Charlotte's Answer: "I think the dubious logic here is that if you join the *cough* protest, you can be naked if you're riding a bike, but if you're just watching the *cough* protestors and you expose yourself, you'd be arrested for violating public decency laws. Go figure."

My followup:

As Charlotte points out, you need to be riding the bike with the protest to be covered by the "cyclist safety message" freedom of speech argument.

You don't need the bike, but you need the group to be covered by a PETA protest (ie and example of a naked non-bicycle protest).

As for making the statement that bodies should be accepted, if you stripped down and stood on the corner that is part of the planned route in a similarly naked group for the duration of the protest, and then covered up again, you could be fine. You could bolster the case more if you painted a slogan on your body as these protesters did, or held a sign.

If you want to go outside these well-trod boundaries (ie operating outside the scope of a protest with no political messaging) I recommend you get a constitutional or criminal lawyer because the complexity of the Charter argument goes up significantly if you are challenging it on unequal burdens of the law because you can not afford clothes (which is not a protected ground and that is a whole different topic), fighting the attitudinal harm precedent, or on the criminal side if you are running a motivation argument.

Well Charlotte replied "The lunatics have taken over the asylum, and minutemax is their spokesperson and legal counsel."
At which point I am thinking "Uh oh.  I hope it does not sound like I am offering legal advice", so....

I was not intending to be a spokesperson, though I suppose in evaluating the connection of the arguments to a defence, I did reiterate the arguments, however, the article presented the arguments independently.
However, just to be clear I am not counselling anyone to take part in the protest. It is a protest, as it is violating taboos, and there are laws that could be interpreted to condemn the activity. One could receive a citation for it, and could be convicted with the right judge. However, I am just saying that my experience so far with the arguments would be that it would have a high likelihood of not being pursued by the Crown, being quashed if it got to court, or reversal on appeal. If I were in a position to be trying to defend such a charge, and I am
not, I would present the above argument, but somewhat better
researched. That being said, there is a non-zero chance that one could end up with a conviction, and have to spend a lot of money to fight it, and possibly ultimately fail. When undertaking a counter-cultural action, one needs to enter it with eyes wide open that there could be social, professional, and even legal repercussions, and balance these concerns against the strength of your convictions.
However, I am hoping that this event (or commenting on it) has at least made you more careful to watch for bicycles when driving or opening your car door.
I am passionate about this issue because I have been knocked into traffic by someone opening their car door into me when I was beside them. Fortunately, I escaped with only minor bumps and scrapes, but I was terrified that it could have been worse and it took me a few weeks to get back on my bike. Perhaps you think me a lunatic to have gotten back into the saddle, but I feel that anything that will bring attention to the issue and make people more careful is a good thing and to be supported.
Just to reiterate and be very clear: I am not giving legal advice that one should (or should not) participate in a naked protest whatever the cause. I am giving even less advice about whether you should walk down the street naked for fun.
 

 

Interestingly, later "itsjustme" rolled through commenting about everything and ended one post with "the law is the law" in response to another person's comment.  They did not touch either of threads where I was talking about the law.  :-) 

Question: Please, I am trying to understand the connection between exhibitionism and bicycle safety "awareness? " More skin exposed means more of a road rash of you took a spill.

The symbolism is that bicyclists are naked of protection on the road in comparison to occupants of cars. By bringing attention to this nakedness in a dramatic way it is hoped that the drivers who see it and those who read about it will watch more closely for them in the future when they are wearing more protective gear. An investment once a year for greater year-round safety.
More flippantly, (or maybe more pragmatically?) maybe the drivers will watch more closely for bicyclists because they might catch a glimpse of boobies or dongs. :-)
The slogans you see painted state this:
- Can you see me now? / Now can you see me?
- Stop killing bicyclists
- Drive safe
- Caution tape bikini
- Doing it For (name)
There are also enviro themes while they have your attention, with vines, leaves and flowers and
- Less gas, more a** / More sun less gas
- Burn fat, not oil
- More bikes
- Pump pedals, not gas
As for the exhibitionism, it is not supposed to be that, it is supposed to body de-shaming, personal freedoms, sexual equality of treatment ("top freedom"), and women's rights with
- The bare bodies themselves in all shapes and sizes
- Freedom
- Bike free
- Still not asking for it
- Stop regulating my body
- And probably a bunch more creative one that I missed because I cue in more on bicycle safety, and clever environmentalism.
That is to say that it is not supposed to be for personal gratification (as exhibitionism would be), but rather either a personal sacrifice of dignity to bring attention to an issue, or an assertion of personal rights balanced against societal rights.
(I am not trying to be a spokesperson, I am just passing on the received messaging that I am in agreement with in a clear way so that people understand the point of the protest and hopefully take it to heart.)
 

 

 

 

On Wearing Bras... or not

A member of a group I am in on Facebook posted asking how many in the group wear bras.  She cited a letter from Arunachalam Kumar, "Burn the bra! (and men’s tight underpants too): compromised ‘chaotic’ cooling by constrictive clothing in the causation of testicular and breast cancers", Medical Hypotheses, v 73, iss 6, Dec 2009, p. 1079–1080 which suggests that the lack of cooling caused by restrictive undergarments could be the cause of testicular and breast cancers, given that areas where these garments are less common have lower reported rates of cancer.

She took these concerns to heart, and motivated by how uncomfortable this garment is, announced that she is wearing her bra as little as possible.  She asked how alone she is in this new bra-less movement.  She mentioned the potential for negative social consequences, and recognized that it is not the most important social justice or feminist issue.  I think that is all the context needed to follow my reply. 

Facebook found my reply to be too long, so I guess I have to post it here and do a link....?

I don't know how appropriate it is for me to weigh in on this, since I have never worn a bra, but I figured I would chime in anyway, since this is the Internet and all:
1) It appears in a peer-reviewed publication, but the article itself is a letter putting the theory out there as something to be studied based on correlation between lower reported cancer rates in rural areas of low industrialized countries versus higher reports in more industrial areas, and a similar pattern of bra use. Personally, I would suggest some confounding factors: I would observe that the incidence of industrial contaminants might be a more proximate cause, as well as the potential for lesser reporting rates of any medical conditions, and (here I am really reaching) the potential for traumatic injury and pathogens to take someone before the cancer can get them.

However, the precautionary principle would suggest that all things being equal in your decision, if there is a possibility that it might cause health issues, then you should avoid this factor.

2) However, you have indicated all things are not equal in that you are uncomfortable. Further, whether we consider lack of cooling on hot days (the most direct relationship the author is drawing) as a comfort issue or a health hazard (more likely the former in this climate I would postulate) either way it would militate toward a lack of constricting clothing.

As for social norms, you will be damned for wearing it if you let it show, and you will be damned for not wearing it if you let it show. Given that, I would opt for the more comfortable choice. Not being a fashion historian I am not sure what led the change in social norms that allowed women to stop wearing corsets or being allowed to show their ankles, but I would assume there were some people in the vanguard who thought it ridiculous to be so uncomfortable for fashion and decided to push the envelope. I feel like back then these clothes were all about sculpture and engineering. With less layers it appears to me undergarments now have a very duellistic relationship: You should be wearing underwear, but you should not have a VPL, so you should appear not to be wearing them. Likewise, to be fashionable you should wear strappy or strapless clothes, but you should not appear to be wearing a bra (or at least not show the straps), but should not not be wearing a bra, so you need to redesign to have strapless bras too. So what is the origin of the more modern style of showing the bra strap? Is it a rejection of the arms race between having to assure everyone that you are wearing undergarments without appearing to be doing so, or is it a trend to hyper-sexualization in showing off one's undergarments? I have to admit that this arms race has me (and likely most non-bra wearers) confused and I think that the people most able to discern whether you have thrown off your shackles or meerly devised a more clever and more uncomfortable way of appearing to not be wearing it are those with intimate knowledge of the mechanics of the garment. That is to say that I think you should fear more negative social consequences resulting from your rebelious act from your sisters (raised eyebrows and assumptions about sexual practices) than from the male gaze (leering). I hesitate to question your lived experience, but it surprises me to learn that you fear assault on a Halifax street simply for not wearing a bra. Certainly there are places even as close as the southern USA where I would countenance this, but here I would be surprised. I am perhaps naive though.

The question of what an important feminist issue is depends on the feminist. Equal pay is vitally important to the 65 year old who has forgone hundreds of thousands of dollars in lost wages, and is facing an uncertain retirement because their pension is 60% of that of their male peers. However, to the six year old girl who wants to take off her shirt like the rest of the kids being told she can't because she is a girl, it might be the first step to accepting "you can't be an engineer because you are a girl". However, we don't really have to look to potential long term impacts. While it is all dramatic and noble to fight for the abstract child bride and the infibulated, the day to day indignities are the ones that are going to be noticeable to the most people and the small insidious gestures are the ones most likely to widespread uptake, and least likely to get push-back before they are entrenched, symbolic, and become a right that can't be taken away. I wasn't there in the 60's but I suspect that is the insight that prompted the first bra burnings: it looks like a small silly thing that the powers will look ridiculous for calling someone over, but it actually means a whole lot more.

Finally, with my recent growth in girth and resulting increase in pectoral mass subject to "up, down, [...], right or left, circular and elliptical motions" and the strange sensations of these motions when running, as well as chafing, I wonder whether there might not be a lot of men who would like permission to wear your discarded constricting garments. Clearly the grass is always greener in the other pasture.

Other thoughts I could not shoehorn into the flow:
- Riffing on the theme of widespread acceptance, this could be a point of commonality with your sisters from Real Women. "Even if a woman's place is in the home, why does she have to be uncomfortable while she is there?" "If the pinnacle of a woman's potential achievements is making babies, why make it so hard to feed them?" "I don't know nothing about that equal rights stuff, but lordy this thing is uncomfortable and you are saying it is OK to take it off? Sign me up." "Take off your corset, petticoats, bustle and bra. It's cheaper than air conditioning."

- Thinking back to my elementary school days, I wonder whether the flowering of training bras on the playground might have been the first of the things that set the girls apart. It was actually a girl that introduced me to the playground game of sneaking up behind a girl and snapping her bra strap against her back. Thinking back though, I have this overwhelming sense that it was the same girl who turned to the boy behind her at an assembly and said loudly "I'm not wearing one." after which he turned bright red (I did not see it, but I am guessing his hands might have been shall we say caressing her back). There are a lot of interesting themes one might explore in that anecdote.

- As for supposed sexual practices, I am curious as to what you think it might say about your sexual practices if you don't wear a bra. On a warm day, if you were wearing a loose comfortable top and no bra (or nothing on top), I would hear "So f-ing hot. I am more interested in comfort than anything else. Sex? Are you nuts? I am more interested in you slipping me a cold iced tea than anything else. Call the cops if you feel strongly about it, but the law is on my side and you are just going to piss everyone off." If it were a cold day and no top I would be looking around for the PETA signs, or the bicycles. However, if you were wearing no bra and something tight enough to make it obvious, to be honest I would be hearing: "I am not afraid to admit that I might like sex. I communicate clearly about it (*), and if I say 'No', I am deadly serious. If I am not having fun, I will be calling it quits so you had better be pleasing me. I am not a Rules Girl, so if this is going to happen you will know it." (* This is partly the political statement of straying from the norms, but also from the "Game" in Game Theory perspective in that you are not obscuring the signalling of your arousal by hiding your nipples, you don't feel have to hide when your body is betraying you because your head is firmly in control.) I leave it up to you whether that is the message you want to be sending, or whether you want to call me for making any assumptions at all about your sexual attitudes. However, as for your practices, I don't think a bra or lack thereof makes this any less ambiguous, but since I think it means you communicate clearly if I need to know, then I better ask lest I find myself in a very surprising situation, and if don't need to know I should probably mind my own business.

A discussion on my facebook news feed got me thinking about whether Canada could afford a larger space program.

Quote> Katie Toth the space travel thing is really something we gotta work on. do we want to be known as the dudes who made an ARM for the rest of canada's history?

As it turns out, the answer is Yes. The USA Space Shuttle program spent $198B over 30 years or $6B/year, with roughly $60B attributable directly to missions. The latest corporate tax cut costs $11.5B per year, bringing the total annual cost to $13.6B since the 2007 round of cuts began. Added to this is the F-35 jet program and ship procurement has climbed to $80B, or 2/3 of the cost of building a shuttle program.

We could have a shuttle program ($3b/year in amortized startup and ongoing launch costs), an annual manned mission to Mars ($4b), a national free daycare program ($2.2b), and tripling the budget to fix water systems on reserves to ($1B). I was going to suggest restoring health care funding, but at a current shortfall in the range of $64b/year, my leftover $3.4b/year will only make a small dent. However, I am sure someone on here has another wishlist item in the appropriate range to make a complete package.

In summary, Starships [really could] Start Here.