Dear Madam and/or Sir,
Do you consider it to be “indecent” if a woman is topless in public? How about if a man is topless? Do you agree that women should have the same right as men to bare their chests? Perhaps you feel that only breastfeeding mothers should publicly milk the #FreeTheNipple campaign. Or perhaps you disagree with that too. If you run a Google search for “breastfeeding in public is”, the first four suggestions are “wrong”, “inappropriate”, “offensive”, and “nasty”.
Certainly, some nursing women choose to cover up or find a more private place. But is seeing a breast in public really offensive? Or inappropriate? What if you’re on an airplane and you want to nurse? Cover up? Seclude yourself in a tiny toilet room with your immuno-compromised baby? Now that’s nasty. Nobody makes you eat your lunch in an airplane washroom.
Some people believe that women should have the right to walk around or enjoy life topless, just as men do. After all, they argue, without our common social construct that sexualizes breasts, they’re just two bags of skin filled with fat and glands. Indeed, some men have larger breasts than some women! And tit’s not just the outward appearance, it’s the internal breast tissue. The more tissue in the breast, the larger they grow. The Canadian Cancer Society notes male patients account for 1% of breast cancer cases. So what’s the big deal about women’s breasts? Are we mam-merely maintaining modest traditional values?
Under the heading Disorderly Conduct, section 174 of the Criminal Code of Canada prohibits the act of “Nudity” in public without a lawful excuse. Being “Nude” is then defined for the purpose of Nudity as being “so clad as to offend against public decency or order.” This wording is quite vague, which allows for judicial interpretation, and some would argue, misinterpretation. Moreover, the word “clad” is misleading… it is the past participle of the word “clothed”, so technically, nudity should be unclad or partly clad. But further, what offends public decency or order? A breast? Part of it? What about “tasteful sideboob”? What if we go the opposite way and people “clad” themselves in offensive garb? Here’s a fun collage to demonstrate the point:
But back to the tissue—we mean issue—abreast. Judicial interpretation occurs when courts interpret laws within the four corners of the written law. For example, s. 174 needs judicial interpretation of the words “offend”, “public decency”, and “order”. In 1996, Ontarian Gwen Jacob took her criminal charge for an indecent act to the Court of Appeal for Ontario. Apparently the police charged her with indecency in an attempt to nip it in the bud. Jacob was acquitted because the community standard of tolerance at that time indicated to the Court that her actions were not indecent. Further, the Court stated that there was nothing harmful, degrading, or dehumanizing about her conduct, and no one was forced to look at her.
We guess you could say... the Crown’s case went tits up.
So, twenty years later, how do we feel about topless women walking around town because it’s simply too hot for a shirt? CBC News reports that we don’t feel so hot about it. Perhaps it’s because women fear censure, judgment, or ridicule. Perhaps women fear assault or harassment because we live in a society where women’s bodies are objectified and harassment is trivialized. Ultimately, courts interpret laws in accordance with societal values and the Constitution is no exception. What do you think about women being topless in public? Comment below!
Thanks for the mammaries, Ms. Jacob,
 “Breast Cancer in Men”, Canadian Cancer Society, online: <www.cancer.ca/en/cancer-information/cancer-type/breast/breast-cancer/breast-cancer-in-men/?region=on>.
 RS 1985, c C-46 [Criminal Code].
 Ibid, s 174(2).
 Cards Against Humanity, Creative Commons BY-NC-SA 2.0.
 Criminal Code, supra note 2, s 173(1).
 R v Jacob (1996), 142 DLR 4th 411 (ONCA), 31 OR (3d) 350.
 Prithi Yelaja, “Women’s topless court victory 20 years later, CBC/Radio-Canada (28 Jul 2016) online: <www.cbc.ca/news/canada/women-s-topless-court-victory-20-years-later-1.1026403>.