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Canadians retain the right to skinny-dip

The Globe And Mail
Shannon Rupp

The B.C. Supreme Court confirmed the right of Canadians to skinny dip at private parties -- even if they’re held in municipal pools governed by prudish politicians.

 In his decision yesterday, Mr. Justice Paul Williamson quashed Surrey City Council’s decision to stop renting the Newton Wave Pool to the Surrey Skinnydippers Club.

He called council’s reasons for preventing the private late night swims “patently unreasonable.”

Judge Williamson noted that their views were reminiscent of a judge’s comments in a 1925 case Mitchell v. Martin and Rose, in which complainants “were annoyed and angered by what they saw and heard, and shocked by what they had neither seen nor heard, but suspected.”

 Judge Williamson determined that council had overstepped its jurisdiction when it attempted to “strengthen” the Criminal Code s.174 (prohibiting public nudity) by treating a private swimming party, not visible to public view, as if it were a public place.

 “It is not open to a municipal council to extend a definition of something criminal to include circumstances excluded by Parliament,” he wrote.

The case began in January 2003 when a community paper did a feature on the Surrey Skinnydippers Club that prompted “outrage” from some citizens who objected to a public facility being rented for private parties of this nature.

 “For those who came of age in the 1960s, skinnydipping would hardly seem to be a threat to the moral fibre of western civilization. Not so, however, for some of the good burghers of Surrey… they balked,” Judge Williamson wrote.

 Staff at Newton Wave Pool cancelled the rental agreement that had been in effect for about a year, and the nudists took up their grievance with council, which supported the facility’s actions after considering them in a closed meeting. That, Judge Williamson noted, was “rather odd in a democracy.”

The reasons for denying the unclad swimmers access to the pool included the city’s preference for saving the monthly late night spot for youth activities; concern for the lifeguards who had been hired on the understanding that they wouldn’t have to keep an eye on the unattired; and the health hazards inherent in bare-bottom bathing. The latter included concerns that the maintenance program wasn’t up to the challenges of wiping down benches, chairs, slides, and possibly even the weight rooms, should the naturists leave the pool.

 The provincial health act requires that only persons “in clean bathing attire” be admitted to pools and Surrey council took this to mean that bathing attire must be present.

Judge Williamson corrected their misreading of the regulation, which is intended to put the emphasis on cleanliness.

He noted the city had supplied no evidence that there was a health risk in going suitless and they had offered no evidence that lifeguards would object to working the private rentals – several had volunteered for the overtime shifts.

 Jay Spiro, who acted for the petitioner Skinnydipper Services Inc., said that his client would be applying for a rental permit immediately. While he wasn’t surprised at the decision, Mr. Spiro noted that it was unusual for a court to call a council’s decision “patently unreasonable.”

“I think it was pretty clear that the municipality just didn’t approve of the morality [of the skinny dippers],” Mr. Spiro said. “ In recent years the courts have been showing a lot of deference to municipalities on things the public doesn’t really notice, such as business licenses and building permits. But this decision shows that they have to come up with real reasons for their decisions -- they can’t exaggerate. They have to be reasonable.”

 Surrey Mayor Dianne Watts thinks it’s unlikely the city will appeal the case, given that the dispute stemmed from the actions of a previous administration.

“It’s time to move on. We have more serious things to deal with,” she said.

 

9 Nov 2007
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