Q: Can someone who identifies as female go topfree in Canada?
A: Yes. It is legal, in Canada, for women to be topfree in any situation where it is normally acceptable for men to be topfree. In our experience, the probability of anyone having a problem with it is between 0 and 2%. (If you are ever hassled over this, get in touch with TERA. They’re very pleasant, and they don’t take bull from anyone.)
(Disclaimer: We’re not lawyers. This is the best consensus understanding of the law that we’ve been able to piece together from available sources. If you’re in a situation where you need a real legal opinion, ask a lawyer.)
The court case (R vs. Jacob) that set the Ontario precedent for topfreedom was won on appeal, on the grounds that the officer and trial judge had erred in assessing the definition of “indecent” – there was, in fact, no indecency in simply being topfree. The case that set the BC precedent (Maple Ridge vs. Meyer) was won on the grounds that nobody could prove any evidence of harm, and that the by-law regulating women’s attire was beyond the powers of the local government that had attempted to enact it.
No cases involving topfreedom have ever made it to a Canadian federal court. If it did, the Charter of Rights and Freedoms sec. 15(1) and sec. 28, which explicitly guarantee male-female equality in all legal matters, would undoubtedly be invoked. Indeed, Charter rights were invoked by both Jacob annd Meyer, although the judges in both cases declined to rule on those grounds.
A Criminal Code s.174 case (“nude and exposed to public view”) can only be brought with the Attorney-General’s support. “Topfree” and “nude” are not synonymous, and any such prosecution would have virtually no chance of success.
Crim. Code s.173 (“indecent act”) can still be invoked if there is real, undeniable indecency involved.
After the Ontario crown lost R. v. Jacob in the Ont. Court of Appeal, the province declined to appeal further – not stating their exact reasons, naturally. But it’s widely understood that it’s because Jacob had invoked the Charter in her arguments, the Court of Appeal had declined to rule on those grounds, and everyone knew that higher courts would have to rule based on the strict and unambiguous guarantee of legal equality in the Constitution.
It’s often easier to illustrate by example, so here’s how we would understand the law (and, on a more practical level, the cultural norms) to apply in a few common situations.
- Topfree on a remote beach: Legal and acceptable.
- Breastfeeding: Legal and acceptable.
- Topfree in a private yard, apartment hallway, etc.: Legal and acceptable.
- Topfree on a busy urban beach or park: Legal and usually acceptable, but often safer as part of a group than alone.
- Topfree at a charity car wash: Legal; may or may not be acceptable depending on local culture.
- Topfree at a public pool or on a beach with a lot of children: Legal, but there’s a small chance of another patron picking a fight with you over it.
- Protesting topfree outside City Hall: Legal and (depending on city’s culture) probably acceptable, as long as the protest is peaceful.
- Protesting topfree outside a conservative church: Probably illegal, definitely not acceptable – “intent to offend”, may be charged under Crim. Code s.173.
- Flashing cars to advertise prostitution: Definitely illegal and not acceptable – clearly indecent, commercial purpose, will be charged under s.173.
Our experience has been that a woman on her own may, on occasion, be hassled for being topfree. However, an all-female or mixed-gender group of two or more is almost always left alone. People who might want to cause trouble tend to think better of it if they’ll be outnumbered.
While you should always assess the particular situation at hand, simply being topfree and female, in situations where being topfree and male is acceptable, is pretty clearly A-OK in Canada.