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.)