Toplessness and public nudity in Canada — is it legal?

As Canadians prepare for beach season, here's a look at the laws, the history and some of the controversy surrounding nudity. Getty Images

It’s been decades since courts in B.C. and Ontario supported the idea of women going bare-chested if they choose.

However, plenty of questions about the legalities of public nudity, in general, remain.

READ MORE: Vacationing couple defend Okanagan park behaviour, say there was no sex on the beach

As Canadians prepare for beach season, here’s a look at the laws, the history and some of the controversy.

What are the laws?

The Criminal Code of Canada deals with indecency and nudity under Disorderly Conduct in sections 173 and 174.

Indecency is defined in the Code as wilfully performing “an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person.”

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Indecency can be a summary offence — meaning a maximum penalty of six months in jail, a $5,000 fine or both — or an indictable offence, which carries a sentence of no more than two years.

For nudity, the Code says that everyone who “without lawful excuse” is nude in public or is even exposed to the public while on private property is guilty of a summary offence.

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Crucially, the Code doesn’t spell out what nudity is — whether it means exposing certain body parts or rocking your birthday suit.

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“Nude” is simply defined as “so clad as to offend against public decency or order.”

In addition to the Criminal Code, some municipalities have bylaws that pertain to nudity, Toronto lawyer Jordan Donich explained.

But Canada’s nudity law is “basically never” enforced, in his experience. If someone is charged, it would likely be in conjunction with other offences, he said.

Why? Well, he said, the acceptability of nudity is all about context.

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“So, for example, at certain festivals … Pride parade’s a perfect example, you can see how on that event on that day, it’s acceptable, but if it were, for example, not in that context, it could be problematic, right?” he said.

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Unlike most charges, laying a nudity charge requires the consent of the attorney general. Donich speculated that it comes down to oversight over police behaviour — and the potential for the law to be applied without safeguards against discrimination.

“The legislation is saying that we want an added layer of oversight before using this section, probably because we also want people to be free and to be allowed to be naked as long as they’re compliant with local bylaws or not committing other criminal acts,” he said.

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In 1996, an Ontario Court of Appeal ruling paved the way for women to bare their chests in public.

Gwen Jacob walked down a Guelph, Ont., street on a sweltering day in 1991 without wearing a shirt. She was charged and convicted of committing an indecent act, which was ultimately overturned.

In 2000, the B.C. Supreme Court sided with Linda Meyer, who challenged a bylaw against toplessness at a public pool in Maple Ridge.

A recent incident has brought the issue back into focus. A Vancouver couple, Elsi Dawson and Clementine Smithereens, took off their shirts in defiance after being confronted by fellow beachgoers last weekend.

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Jamie Wlesanko accused the couple of lewd behaviour.

“I said: ‘Can I ask you to please not show your privates in front of my children,’” Wlesanko said.

Dawson said the couple was being affectionate but not having sex. “We weren’t full snogging, we were pecking at each other,” she told Global News.

Eventually, the RCMP were called. Wlesanko said she was told they would not attend because being topless in Kelowna is not a crime.

Dawson said the case speaks to the stark contrast in how the public perceives affectionate displays between two women instead of a man and woman.

The history of nudism in Canada

Questions of the legality are one thing, but public nudity occupies a much larger cultural space.

Mary-Ann Shantz, a history instructor at MacEwan University who wrote a PhD thesis on nudism in postwar Canada, says nudist clubs cropped up in this country largely after the Second World War. They were fuelled by Europeans who emigrated to Canada and brought an interest in nude gatherings and activities with them.

Shantz explained that these clubs operated within the law — and the members largely did not use nudity as a means to disrupt or challenge the social order.

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They were “very much wanting to be seen as respectable members of society and so, you know, they say if we form our private clubs and we have fences or natural barriers like trees that shield us from public roads or waterways, then we’re fine to do what we’re doing,” she said.

In fact, they distanced themselves from the activism of the Doukhobors, a radical sect of Russian-Canadian conscientious objectors who held nude marches in the ’30s and ’50s, she said.

An Alberta court decision points out that anti-nudity laws arose out of Parliament’s displeasure with such protests in Western Canada.

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A different flavour of nudism, what Shantz called the “free beach” movement, arose in the ’60s and ’70s in California and Australia.

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“It is kind of more generally about the idea of body freedom, having the freedom to go nude and to wear however much you want to or don’t want to,” she said.

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Part of that movement is Vancouver’s Wreck Beach, one of a couple of officially clothing-optional beaches in Canada, she said. But it wasn’t always the case.

In 1969, as the beach was becoming more popular for nude beachgoers, a group of bathers were charged for indecency.

The case was thrown out for a few reasons, Shantz explained, one being that they should have been charged with nudity instead of indecency, since the judge said that merely being nude wasn’t an indecent act.

After that case, she said, beachgoers didn’t face charges.

— With files from Doris Maria Bregolisse, Global News

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