Friday, January 23, 2009

What does "naked" mean?

It is a rule that you generally assume that the judges, lawyers, and your professors are competent, if not absolute geniuses (or genii). And then you encounter a judgment that makes you wonder what the deuce they're arguing about.

I had "Interpr├ętation des lois" (legal interpretation) this morning, and the prof was talking about the first rule of interpretation, which is that you read the text, and use the normal meaning of the words, and/or the definitions provided by the law.

Well, it so happens that in a particular case, namely R. v. Verrette, which is remarkable not only because it contains the following sentences:
The uncontradicted evidence shows that the Appellant was a “gogo boy”, that is to say a male dancer, who performed on a stage in the hotel. At one point he was dressed in small “panties”, but as the performance progressed he took these off and continued to dance while totally exposed. It was dark in the hall, but a spotlight illuminated the stage. The music, described as typically “gogo”, was rather fast, and the Appellant’s testicles and penis “swung back and forth”.

but also because the lawyers had to interpret §170 of the Criminal code (at that time), which said
170. (1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

(2) For the purpose of this section a person is nude who is so clad as to offend against public decency or order.

Now, the controversy stems from paragraph (b), which said that a "nude" person is "clad...". The question: does the definition include a person who is stark naked, ie not "clad"?

Believe it or not, they went to the Supreme Court for that.

Now this is the part that annoys me. The judge went into lengthy discussions about the normal meaning of the words, and how it would be contrary to logic to determine that a stark naked person is not "nude" in the sense of the law because the definition says "clad", etc,
In the case at bar, the Court of Appeal said that s. 170(2) is “more than just a definition” and indicated that the situation would be different should the subsection provide that nude persons “include” persons clad offensively. In definition provisions, the word “includes” is generally used extensively in contradistinction to the restrictive word “means”. To underline that the word “includes” has not been used is to suggest, a contrario, that the word “means” might have come closer to expressing the real intent. The Court of Appeal stopped short at that point; if that suggestion were accepted, the subsection would be construed as if it read:

For the purposes of this section, “nude” means to be so clad as to offend against public decency or order.

An anomalous consequence would follow: to be clad in a certain way would be an offence under s. 170; to be completely naked would not.

Neither “includes” nor “means” were used and I think little is to be gained by the consideration of words which are not in the section.

The key word of s. 170(2) is the verb “is” in the proposition “a person is nude”. In my opinion “is” here means “shall be deemed to be”, the very expression used in the predecessor of s. 170 which was added to the Criminal Code as s. 205A by the Statutes of Canada, 1931, c. 28, s. 2:
The last paragraph of s. 205A(1), a deeming provision, accordingly assimilated scantiness of dress to complete nudity provided that scantiness of dress was such as to offend against public decency or order.
Thus, a scantily dressed person is not really nude; but if under certain conditions that person be deemed to be nude in a provision prohibiting nudity, the word “nude” keeps its ordinary meaning which at the same time is extended to something which is not nudity.

A very fancy interpretation indeed.

I like mine better.

The mistake in this reasoning is that the judge seems to think that §170 (1) (b) is a definition of the word "nude", which it isn't. Rather, it is a qualification of being "so clad as to offend ..."

Indeed, consider this:
A bicycle is an automobile. - VS - An automobile is a bicycle.
Similar, yet not.

In the first case, I'm putting bicycle in the "automobile" category, without prejudice (<<- !! I'm actually using this expression!!) to the normal meaning of "automobile". Whenever I talk about automobiles, I'm including the bicycles. (Which is "non-exhaustive" and broadens the meaning of "automobile" by creating a legal fiction.)

In the second case, I'm defining "automobile" as being a bicycle, and (likely), nothing else, thus, whenever I talk about automobiles, I'm only referring to bicycles. (Which would be called an "exhaustive" definition.)

Now consider the problematic sentence:
"For the purpose of this section a person is nude who is so clad as to offend against public decency or order."

Let's just work with the italicized part.
"a person is nude who is so clad as to offend" can be re-written as
"is nude a person who is so clad as to offend" or
"a person who is so clad as to offend is nude".

All 3 sentences have the same meaning. (Darn, I could've gone into Linguistics.)

Now, consider:
"a person who is so clad as to offend is nude" - VS - "Nude is a person who is so clad as to offend"
Assuming I'm not Yoda, the first and 2nd sentences have different meanings. In the first sentence, you define the "person who is so clad as to offend" as being "nude", and in the second, you define "nude" as a scantily clad person.

The rest is just logic and common sense.

Definitely no need to go into 3 pages of precedents and legal history.

but what do I know. I'm just a law student.

1 comment:

Laurent Leduc said...

I am impressed by your analysis of 'nude'.

I am wondering if you have struggled similarly with the word 'order' as in the phrase 'public decency and order" in the same line.

In the recent Coldin trial, it appears that Judge Douglas made some errors in interpretation.