Jacob et al. v. The Community Standard of Tolerance: Substantive Equality, Indecency, and Topless Rights for Women 63 Saskatchewan Law Review 2000

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63 Sask. L. Rev. 215 (2000)
Jacob et al. v. The Community Standard of Tolerance: Substantive Equality, Indecency, and Topless Rights for Women

handle is hein.journals/sasklr63 and id is 221 raw text is: Saskatchewan
Law Review
Jacob et al. v. The Community Standard
of Tolerance: Substantive Equality,
Indecency, and Topless Rights for
Women
Ryan Konotopsky*
I. INTRODUCTION
On an extremely hot summer day in July 1991, Gwen Jacob took a topless
stroll through the city of Guelph, Ontario. On its simplest terms, her rationale
for doing so cannot be challenged: [I]f the nudity line is drawn at the waist
for men, then it must, of constitutional necessity, be drawn at the same place
for women.' Section 15(1) of the Canadian Charter of Rights and Freedoms2
implicitly provides this guarantee by protecting women from sex-based
discrimination.3 Why, then, do women face potential barriers in enforcing
their constitutional right to carry on bare breasted in situations where men
may do the same without rebuke? The unsettled nature of the Supreme Court
of Canada's interpretation of equality under s. 15(1) provides one answer.
The meaning of indecency vis-il-vis the community standard of tolerance
test supplies another. Both must be addressed before women can expect to
successfully argue for topless rights.
Andrews v. The Law Society of British Columbia,4 the Supreme Court's first
decision on s. 15(1), promised Canadians a substantive interpretation of
College of Law, University of Saskatchewan. The author wishes to thank all those who
contributed insight to the betterment of this paper, especially Professors Ken Norman and
Donna Greschner. The author is, however, solely responsible for any errors.
1 I borrow this formulation of the argument from an article describing a case that raises similar
issues as the Jacob case: H.P. Fahringer, Equal in All Things: Drawing the Line on Nudity
(1993) 29 Crim. L. Bull. 137 at 137.
2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
3 Section 15(1) reads:
Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
4 [19891 1 S.C.R. 143.