Do Police in Canada Really Know the Law?

What might appear to be a minor and rather humorous story to some actually spells out some rather chilling circumstances that we as a country have to face.

While at a beach in Kelowna, BC, a local resident decided to enjoy sunbathing without a shirt—something that wouldn't have raised an eyebrow if the sunbather happened to be male. Because she was female, however, she was approached by an officer of the RCMP and told to cover up. Though Susan Rowbottom was certain that British Columbia had made it explicitly legal for women to go topless, she complied with the officer's request and decided to confirm her knowledge of the law.

She was, in fact, correct; in a case that came before the Supreme Court of British Columbia in 2000, a judge determined that simply going topless could not be considered an "indecent act" in and of itself, following similar logic to that of the Ontario Court of Appeal in 1996 when it overturned an indecency conviction for activist Gwen Jacobs. (for the curious, no similar ruling exists in Alberta or Calgary, however no woman has been convicted of indecency for going topless in public for over a decade).

For the majority of Canadian women who don't express a desire to walk about topless, and for the majority of Canadian men who have the right to go topless without fear of police interaction, this incident might seem too minor to take serious note of. It can also be seen, however, as yet another demonstration of Canada's slide towards civil liberties yielding to law enforcement desires. Even though the law was on her side, and the order (note that she was told, not asked, to cover up) given by the RCMP was completely unlawful, Rowbottom felt that she needed to comply with the request.

She also said, in a later interview, that she would not have bared her chest if there were children or a family nearby, and that if another citizen had asked her to cover up she would have done so out of respect, and one can consider that the mark of living in a polite society. When Kelowna RCMP Cpl. Joe Duncan, says that he "expects" women to comply with a request to cover up if anyone nearby feels uncomfortable, though, we have a problem.

Police officers don't get to make the law, whether or not any particular action is making anyone else "uncomfortable." When a member of the police—whether it's the RCMP or the Calgary Police service or any other law enforcement—feels that they can "expect" ordinary citizens to obey unlawful commands and do what they are told regardless of whether or not they have broken any laws, we have a serious misconception about where the balance of power should lie.

The laws, and law enforcement officers, exist to protect citizens from encroachments on their freedoms. When those laws and officers begin encroaching on our freedoms themselves, we have a duty to push back. I practice defence law in Calgary to do exactly that.