Do You Want Fries With That? Ontario Man’s Nude Fast-Food Order Gives Rise to Constitutional Challenge
A Bracebridge-area man wants to be able to order his fast food while naked. So much so, that after making several attempts in the past few years to do precisely that, he is in an Ontario criminal court this week facing charges of public nudity. The charges against him have given the court the opportunity to address the constitutionality of Canada’s public nudity laws.
In 2008 and 2009, Brian Coldin was involved in incidents at A&W and Tim Horton’s in which he drove through the drive-thru lane wearing no clothing. He was charged under section 174 of the Criminal Code, which makes public nudity an offence. However Coldin – who identifies himself as a “Christian naturist” and runs a clothing-optional resort in Muskoka – argues that public nudity should not be a criminal offence, and that the nudity laws are unconstitutional.
Specifically, he argues that section 174 of the Code is overly broad: the provision makes it illegal to be nude in a public place, or while exposed to the public while in a private place. Coldin claims that this wording would render it illegal for someone to be naked in their own home if their nudity was observed by another person.
As such, Coldin claims, the laws violate freedom of expression and serve to punish all kinds of conduct that should not be designated “criminal”. Moreover, there are other, separate indecency provisions in the Criminal Code which are aimed at specific conduct such as public masturbation and flashing, so these would not be affected if the public nudity offences in section 174 are struck down as unconstitutional, as Coldin argues they should be.
The Ontario court is entertaining Coldin’s novel argument this past week. Incidentally, these criminal charges are not the only outcome of Coldin’s nude drive-thru runs: The criminal trial has been delayed for months because Coldin has also lodged complaints before the Human Rights Tribunal of Ontario (HRTO), claiming he is being discriminated against because of his creed as “Christian naturist”. Those complaints before the HRTO have been levelled against the Ontario Provincial Police; Coldin has also sued the same OPP officers in civil court for wrongful prosecution. The HRTO has therefore had to grapple with the question of whether – as Coldin asserts – the HRTO lacks jurisdiction to hear the human rights complaint because the civil matter dealing with the same subject-matter is also ongoing. In June, Coldin succeeded in having the hearing of the HRTO matter temporarily suspended, which has left the criminal court with the task of addressing the legality of the nudity charges Coldin is currently facing.
Whatever the outcome of all these legal processes, it will be interesting to see of the Court will let Coldin have gravy with his fries.
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