Bare facts about Sask. topless laws

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July 29, 2015 - 6:28pm Updated: July 30, 2015 - 7:47am
Alysha Brilla, and Tameera Mohamed - along with a third sister, Nadia - rode their bikes topless in Kitchener-Waterloo. Photo submitted.
Alysha Brilla, and Tameera Mohamed - along with a third sister, Nadia - rode their bikes topless in Kitchener-Waterloo. Photo submitted.

Three Ontario sisters are preparing to bare it all this weekend in a topless rally as they fight to bring awareness to the right of women to go shirtless in the province.

But would they have the same right to go topless in Saskatchewan? Maybe.

Acts of indecency are illegal according to the Canadian Criminal Code, but aside from exposing genitalia for “a sexual purpose” to a person younger than 16 years, the code does not define what indecent means. In the past, judges have ruled nude sunbathing, swimming and streaking are not indecent, hence why residents can go to Paradise (Bare Ass) Beach, 20 kilometers south of Saskatoon, without legal worry.
 
University of Saskatchewan law professor Ken Norman said no woman would be found guilty under the criminal code if they were just minding their own business.

“The issue of whether something can said to be improper by the law, is determined by the question of 'so where is the harm?” Norman said.

Alysha, Tameera, and Nadia Mohamed were on a topless evening bike ride in Kitchener-Waterloo on Friday when they were pulled over by a police officer. The officer said the law required them to wear a shirt. The girls argued that fact, saying women's toplessness had been legal in Ontario for 24 years.

The girls are right. In 1991, Gwen Jacobs was arrested for walking around topless in Guelph, Ont. She was charged with committing an indecent act, but fought the charge and won, arguing being topless is not in itself a sexual or indecent act.
 
Norman said the girls were also likely not causing traffic, or society, to grind to a halt because they took off their tops, and therefore weren't causing any real harm to someone else.

Elsewhere, Linda Myer went top free in 2000 in Maple Ridge, B.C., where a city bylaw said women must cover nipples with opaque material. A judge cited the Jacob's case and threw out the bylaw. Myers tested the law in other cities including Vancouver, where police said they would not charge women for going topless.

However, it was a slightly different story for a Saskatchewan woman in 1998. Evangeline Godron and her friend Kathleen Rice were charged after they went topless sunbathing at a Regina park. The charges were dropped because the judge said sunbathing was not sexual. But when Godron went topless swimming at a public pool, she was charged with mischief. The charge was upheld and the supreme court denied an appeal.
 
“There was a local rule in the pool that said a woman has to have her top covered. Evangeline Godron broke that rule and then put up a fuss when they were told they had to cover up ... to the point of creating public mischief,” Norman said. “They had in my opinion ... the right to take their tops off if they wanted to, but where they crossed the line was creating a disturbance that rose to the level of being public mischief.

However, some topless activists feel the charges only happened because Godron was told she couldn't swim without a top cover.

"It is almost impossible for (women) to know whether what they're doing in this area is legal or not across North America,” Topfree Equal Rights Association coordinator Paul Rapoport said. “You really need to know the up-to-date case law in the area you're involved with.”

Rapoport said he thinks Saskatchewan remains in topless legal limbo because there are so few past provincial cases. The province, along with Saskatoon and Regina have no laws or bylaws about public nudity and toplessness.
 
Both Regina and Saskatoon police said they cannot remember the last time a woman was charged for going topless since the Godron case. Saskatoon police spokeswoman Kelsie Fraser said they try to mitigate any complaints before looking at charges, and cases would be at the discretion of the responding officer.
 
In the case of the Mohamed sisters, Rapoport said the whole issue could most likely be traced back to the discretion of the one police officer who had an opinion and ignorance of the laws he enforces. Last week, a RCMP officer told Kelowna resident Susan Rowbottom, erroneously, it was against the law for her to sunbathe topless.
 
“What is this one perhaps errant police officer actually doing?” Rapoport said. “In a sense, I think that person is representing a very strongly patriarchal society which has an enormous tradition in the western world of telling women what to do for the benefit of that patriarchy.”

University of Saskatchewan gender and women's studies coordinator Marie Lovrod said society must also change its perspective on nudity in general but women's nudity in specific.

“If you're going to treat women as sex objects, then you're going to be shocked if you see their breasts in public.” she said. “If you think about women's bodies as perfectly natural ... then you might not be as shocked.
 
Rapoport also fears women's topless rights may be slowed because he believes some women have internalized old traditions and worry about negative social consequences if they support toplessness. He said women also worry they will be harassed if they walk around without a shirt.

Lovrod was pleased when the U of S opened a space for women to breastfeed because she thinks it is a positive step towards female body acceptance.
 
Rapoport said more women, including public figures, need to become vocal supporters of the movement.
 
“As knowledge of these things increases, it's much more likely in Saskatchewan, Alberta or Manitoba, if something happens, that there would be some legal dependence on the decisions in both B.C. and Ontario,” he said. “If women can't reasonably control their own bodies and the very simple matter of breast exposure then what do some of the other equality measures mean?” he said.
 
lkretzel@rawlco.com

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