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Canada has taken a sudden and dramatic leap forward in the struggle for liberation of the country's sexually adventurous minorities.

The Supreme Court of Canada delivered a startling decision revolutionizing Canada's archaic sex laws on December 21st, 2005-- exactly 38 years to day after Pierre Trudeau introduced legislation to decriminalize homosexuality on December 21st, 1967. On that day he also famously declared that the "state had no place in the bedrooms of the nation" and took the first major step towards permanently giving the sex police the boot.

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Now, nearly four decades later, the Supreme Court has taken the next step and essentially legalized most forms of adult consensual sex, such as heterosexual swinging, group sex, and gay bathhouses: anything that does not cause harm to other members of the public.

"Harm" is now the standard by which adult sexuality will be judged. Specifically, the court said that anything that does not harm another's autonomy or liberty, physically or psychologically harm others, or predispose them to "anti-social behavior" will be deemed legal.

Previously, the law had used what was called a "community standards" test to determine what should be deemed illegal. The courts asked what members of the general Canadian community would or would not tolerate in their own community, and on that basis decided what should be considered prohibited.

The community-standards test had led to widely varying opinions, from different levels of the courts and from region to region, as to what judges believed the community would or would not tolerate in their own backyards. This, in turn, led to uneven enforcement by police according to what they believed they could successfully prosecute from town to town.

There was also uneven prosecution in the numbers of gays-to-straights being arrested-- with straight people turning out to be the ones more likely to be charged (for a change). Gay bathhouses have largely been left alone in Canada-- save a few exceptions-- since the infamous Toronto bathhouse raids of 1981.

In those dramatic raids-- the largest peacetime police operation since the Quebec October Crisis-- cops swooped down on several bathhouses at once and carted nearly 300 men off to jail in handcuffs. The stunt so enraged the community that they organized and fought like they had never before, and the resulting political fallout had the effect of mostly keeping the cops out of the baths ever since.

The same has not been true for heterosexuals in their equivalent to the gay bathhouse-- the swingers' club. Until now, they had never organized and fought back, and were seen as easy pickings by moralizing crusaders. The result was that swinger clubs hardly got up-- so to speak-- and running before they were arrested and shut down by police.

Inspired by queer activism?

But this time, a couple of straight clubs in Montreal decided to fight back and take their cause all the way to the Supreme Court of Canada. Their case was considered a long-shot by most legal observers, and that is why their victory is as surprising as it is sweet.

The next battle will be over age-of-consent (see box), and over the last remaining restrictions on acts of consensual prostitution. Most forms of prostitution are, in fact, already legal in Canada, but permissiveness is tied down in sometimes draconian restrictions on how the act is negotiated and where the sex happens.

Now, with the Supreme Court setting a standard of "harm" to judge sexuality, it would be fair to ask what harm is done to society by the simple act of two (or more) people exchanging money for sex. Viewed in the light of the new ruling, some sex-work advocates say they are hopeful that these restrictions will be eliminated by the courts.

Also interesting was how politicians reacted with deafening silence to the ruling, which was handed down in the middle of a fierce federal election campaign, won narrowly by the right-wing Conservatives, who have promised to rescind the country's recently-enacted gay marriage laws-- and may try also to chip away at the Canadian Supreme Court's December surprise.

Author Profile:  Joseph Couture

Joseph Couture is a journalist based on London, Ontario.