What's in a name? A legal loophole

It was in the interests of public service that I retrieved an historic copy of the November 1967 issue of Playboy from my hoarder's heaven of a basement Monday afternoon.

The magazine was loaned to me by the esteemed and now late -- almost as late as I returning it -- provincial judge Ian Dubienski. He offered it to me after a dinner party at his house because of what appeared on page 74.

It was a letter to the Playboy Forum from a Winnipeg reader named Timothy Shea, which referenced Dubienski. It was headed, "Gross Indecency."

The letter began with this sentence:

"In line with Playboy's crusade to have sexual behaviour by consenting adults legalized, you will be interested to hear that we had a precedent-making case here in Manitoba."

Shea went on to describe a court case, presided over by then-magistrate Dubienski. Two pairs of Winnipeg police officers had arrived at a couple's home to execute a liquor violation warrant, only to come upon a peep show.

"Peering through the small front-door window," the letter continued, "the four stalwart defenders of law and order were horrified to observe a crime against the state occurring in the kitchen -- the wife was performing fellatio upon the husband."

Which is how the husband and wife came to appear before Dubienski on a charge of gross indecency. The liberal-minded, common-sense Dubienski tossed the charge.

Whereupon a month after that letter appeared, on Dec. 21, 1967, then-justice minister Pierre Trudeau uttered the now-famous Canadian treasure of an epigram:

"The state has no business in the bedrooms of the nation."

Or the kitchens, for that matter.

Dubienski believed that case helped with Trudeau's quest to liberalize laws on sexual behaviour that became part of a general overhaul of the Criminal Code on matters involving individual rights.

Of course, we've come a long way in the nearly half-century since.

Or have we?

What prompted me to dredge that quaint 45-year-old case out of my basement is something that happened at city hall earlier in the day, when a representative of the Massage Therapy Association of Manitoba appeared before a council committee to complain about the use of the words "massage parlour" by businesses that don't employ registered massage therapists who have passed exams to qualify.

George Fraser, the group's executive director, said it was time to get candid. What he meant was get real. He was referring to some of the city's "massage parlours" -- which the city officially defines as "any premises, or any part of any premises, where members of the general public attend or are invited to attend to receive a massage from a massagist for a fee."

A massagist is defined by the city primarily by who they are not. They are not the real-deal trained kind.

And perhaps, also, by what the city demands from massagists: a photo and immigration background check, along with the standard police background check.

The City of Toronto is more candid, to borrow Fraser's word, about what some also call "body rub" parlours. Toronto officially licenses them as "adult entertainment parlours."

The Criminal Code of Canada has another name for a place -- as is implied by the Toronto term -- where people go to pay for sexual favours. They're called "bawdy houses," which makes them illegal, even if the law goes largely unenforced across the country. Unless, of course, police happen to catch someone operating without a licence, and gather enough evidence to charge the operator, as was the infamous case with one Winnipeg woman who was caught working out of her home in Wolseley.

Mind you, she was operating in a residential area where she couldn't have had it rezoned to conduct a massage-parlour business, even if she had wanted to pay the $4,260 business-licence fee that goes with it.

In Toronto, the annual body-rub-parlour cost of licensing is about $11,500, which, together with the fees charged for the people who work in them and the money the city collects operating what are now known as "holistic" massage businesses, brings in nearly $1 million for Toronto.

That's why it's worth more to cities to license these places than to shut them down. Yes, we have come a long way in liberalizing laws around sexual behaviour since Trudeau's famous statement, but when cities essentially look the other way to make bawdy houses legal by resorting to using euphemisms, we haven't come far enough.

It's all so grossly hypocritical, if not indecent.

And that's the real rub.

gordon.sinclair@freepress.mb.ca

Republished from the Winnipeg Free Press print edition September 11, 2012 B1