This day in history: Gwen Jacob was acquitted of committing an indecent act on this day in 1996, giving women the right to be topless in Ontario, Canada.
On July 19, 1991, a sweltering and humid day, Gwen Jacob, a University of Guelph student, was arrested after walking down a street in Guelph, Ontario while topless after removing her shirt when the temperature was 33 °C (91 °F) and was charged with indecency under Section 173 of the Criminal Code. Police stated that they acted following a complaint from a woman upset that one of her children had seen Jacob topless.
Jacob stated she did it because men were doing it, and she wanted to draw attention to the double standard. She was found guilty and fined $75. In her defence, she argued that breasts were merely fatty tissue. In finding her guilty, the judge stated that breasts were "part of the female body that is sexually stimulating to men both by sight and touch", and therefore should not be exposed. She appealed, but her appeal was dismissed by the Ontario Court, and she further appealed to the Ontario Court of Appeal.
In the meantime, protests against Jacob's arrest and conviction led to further charges against others, in particular R. v. Arnold but in this case McGowan P.C.J. applied the test of community standard of tolerance, following Butler, stating that the action of being topless caused no harm and thus did not exceed community standards of tolerance. She commented, "Undoubtedly, most women would not engage in this conduct for there are many who believe that deportment of this nature is tasteless and does not enhance the cause of women. Equally undoubtedly, there are men today who cannot perceive of woman's breasts in any context other than sexual. It is important to reaffirm that the Canadian standards of tolerance test does not rely upon these attitudes for its formulation. I have no doubt that, aside from their personal opinions of this behaviour, the majority of Canadians would conclude that it is not beyond their level of tolerance."
Jacob was acquitted on December 9, 1996, by the Ontario Court of Appeal on the basis that the act of being topless is not in itself a sexual act or indecent. The court held that "there was nothing degrading or dehumanizing in what the appellant did. The scope of her activity was limited and was entirely non-commercial. No one who was offended was forced to continue looking at her", and "the community standard of tolerance when all of the relevant circumstances are taken into account" was not exceeded. Although Jacob claimed she had a constitutional right, the court did not address this.
The Ontario Government decided not to appeal the case to the Supreme Court of Canada, and thus it has remained the prevailing interpretation of the Criminal Code in Ontario. Since then, the court ruling has been tested and upheld several times. R. v. Jacob has been cited in similar decisions in other provinces and by the Supreme Court of Canada in R. v. Labaye, and is taught in criminal law courses.
The decision by the Ontario Government not to appeal to the Supreme Court was based on the likelihood that the court would not grant leave. This caused considerable public concern and municipalities' attempts to preempt the law by passing more restrictive bylaws (Uniform Law Conference of Canada 1999). The Ontario Government did contact the Federal Government regarding amending the law to make such actions clearly illegal. This was not pursued.
While the community standards test is not an immutable part of indecency jurisdiction, community tolerance is likely to be partly determined by the degree to which the public is exposed to top freedom on a regular basis. Jacob's victory is now celebrated annually in Guelph.
2011 marked the 20th anniversary of Gwen Jacob's walk, and to celebrate, some students re-enacted it.
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