Friday, August 11, 2017

Let's all go topless in the Condo Pool

Sure ...  you're alone. No problem

What if there are other people around.   What if there are kids; its a family pool and It is your condo.

The Criminal Code continues to forbid nudity without a lawful excuse on public property or on private property that is exposed to public view. Historically, municipalities have relied on this clause to prohibit female toplessness. Over the past few decades however Ontarians have successfully contested such rules on the basis of discrimination, since such prohibition only applies to females.
Perhaps the most famous case is the 1996 Jacob’s case, which once and for all, ruled that women in Ontario have the right to bear their breast in public. In this case, a Guelph woman was charged with committing an indecent act. The Court of Appeal applied the community standard of tolerance test and concluded that the act was not done for sexual gratification and did not harm the community. From this point forward, female public toplessness was understood to be authorized in Ontario.
Since the Jacob’s case, a number of Ontario municipal policies have been successfully challenged or modified on the basis of this precedent. In 1997, the city of Cambridge eliminated its toplessness policy after two women were charged with trespassing for swimming topless in protest of the city’s ban. In 2015, the city of Guelph changed its policy after an eight-year-old girl was told by city staff to cover up while she was in a wading pool wearing only a swim bottom. In 2015, there was a similar challenge out of Kitchener, after three sisters were asked to put their shirt back on while riding bikes.

Condominium corporations cannot, in my view, adopt a policy or a rule which is discriminatory.  Any dress code would need to be reasonable, grounded in a bona fide requirement and equally applied to all.
For instance, a rule prohibiting fully-dressed swimming may be found to be reasonable on the basis that fully-clothed swimming may not be hygienic and may actually present a safety risk.  But such dress code restriction would have to be applied to all, without discrimination of age or gender. You could also demand that pool users wear a swim cap.
On the other end of the spectrum, while swimmers cannot commit an indecent act or swim in the nude, both male and female are likely allowed to swim topless at the condo pool. While some may find this conclusion to go against their values or the social norm in Canada, courts have already rejected the argument that female breasts are somehow the object of sexual attraction and desire more than the male chest.  In the Brantford case, her Honour concluded that  “the manner in which the human torso, whether male or female, is perceived from a sexual standpoint is not gender specific. It is entirely dependant on the individuals involved at the relevant time”. … indeed, beauty is in the eyes of the beholder.
What do you think is fair?

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