Judge declines to set nudity precedent

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BRACEBRIDGE — Everyone’s just going to have to keep their pants on.
An attempt to challenge the country’s nudity laws was undressed by Judge Jon-Jo Douglas in Bracebridge court last week in a lengthy and thorough ruling.
Local resort owner Brian Coldin, facing five charges of appearing nude in public or visible to the public, did not win in his bid to alter laws through defence lawyers Clayton Ruby and Nader Hasan. It was an extensive case, with original charges dating back to the spring of 2008, and a case that drew the attention of the nation.
A decision to appeal the ruling is in Coldin’s hands now, but following the ruling he said he was distraught “the case became about nudity,” even if his right to bare arms, and other bits, became the lead defence.
Coldin’s charges stemmed from five separate occurrences; one while he was walking along Highway 11 in April 2008, another when he approached a female at Park Bridge the same month and one on his property about a month later, on July 16, 2008. The other two charges stem from May 2009 when he drove, naked, through the Tim Hortons drive-thru and the A&W drive-thru with co-accused John Cropper of Orillia.
“The whole thing turned into a nudity case,” Coldin said angrily after the ruling. “I’m sick and tired to trying to stop the lies; this is the victimization of Brian Coldin, to get him out of town. It was a statement.”
The ruling touched on such precedents as the late 1990s case of a Hamilton woman, which eventually allowed women to go topless in the province, as well as events like the annual Gay Pride Parades in Toronto. But Coldin’s case is different, the judge said, and will have no impact on such precedents, the crux being that these are not necessarily sexual in nature, aren’t offensive, and stand up to the test of community tolerance.
In those circumstances, Douglas added, there were issues of discrimination in not allowing them. Different circumstances than, the judge cited as an example, a man naked and masturbating in a public park.
“There is, both biologically and otherwise, a difference between the exposure of a female’s breast and exposure of the male genitalia. The former has both maternal and sexual functions. The latter has urinary and sexual functions, but the sight of the former may not be as disturbing as the sight of the latter as no one has ever been raped by a breast,” Douglas ruled. “I conclude that the mere exposure of sex organs is insufficient to support a finding of indecency; more is required, such as masturbation or sexual posing or other such activity.”
Coldin’s defence had argued there were issues of discrimination, that he was expressing his religious beliefs as a naturist. Judge Douglas, however, said the motives were not just a religious display or to make a statement about a belief as a form of protest.
“I have not forgotten that for each and every reaction of these civilians to the defendant’s conduct, there is … an equal and opposite reaction with the defendants; where the public is interfered with by their nudity, they are interfered with by the public’s response to that,” Douglas said. “Naturism has a long history. (Naturists) would no doubt also assert that society’s rules were an interference with their fundamental rights to freedom of expression.
“The evidence is very clear that many people, call them naturists, find some fulfilment in the conduct of being nude and not simply in being nude in private … but in being nude in some form of quasi-public place. For them the conduct of public nudity is imbued with meaning, hence, expressive,” Douglas said, adding he had to weigh whether freedom of expression law protects Coldin.
“In my view, it does not,” he said. “While he (Coldin) may wish to advocate naturism, his conduct in these instances, unlike nudity at a rally or demonstration in favour of such, does little to demonstrate the pursuit of truth, participation in the community or individual self-fulfilment and human flourishing.”
The judge ruled that while he did not believe Coldin was always trying to disturb onlookers, his actions added meaning to the tenets of his beliefs and were “calculated to shock” and “lacking in respect of others.”
Douglas did sympathize when it came to Coldin’s charge for nudity on his own property, and said laws in relation to being nude on private property, but in view of the public, might be overly stern.
“I must admit to some significant concern with this aspect of the legislation. It very much does reach across the boundaries of private property (into) the bedrooms and bathrooms and backyards of all,” he said. “Not only must those who live in glass homes not throw stones, they must buy curtains. This strikes me as overreach.”
Coldin’s case, the judge said, had little to do with exposure to the public from private land, and more to do with nudity in public places, like a restaurant.
“Walking along Highway 11 expresses Mr. Coldin’s flamboyance, but it expresses little meaning about naturism. Walking audaciously through a public park … expressed little meaning. Attending at the pickup of Tim Hortons or A&W without one’s pants expresses little meaning about naturism to others and it is certainly not perceived as having important meaning,” Douglas said. “In each example, the expression, so-called, could be found as one lacking in respect for others … not some thoughtful consideration of a different point of view, but certainly shock and perhaps disdain.”
Following the decision, Coldin disagreed.
“The judge ruled I wasn’t making a statement, it was a statement,” Coldin said, adding he had flyers to distribute in the truck when going through the drive-thrus. “I feel in this case he (Douglas) took it in the manner that pleased the court. He’s saying I was there only to shock the public, but the protest was about the abuse of power by the Bracebridge police.”
Coldin said he constantly had to defend his nudity among police and hoped for better results from the courts. His lawyer Hasan said Coldin would have to “take some time to dissect” the decision.
Coldin was sentenced to two years’ probation and fined a total of $3,000 on four counts. He was found not guilty in relation to the July 16, 2008 incident at his home.
Cropper was ultimately found not guilty of his lone count of appearing naked in public as the judge questioned the evidence against him and found he may have, in fact, been wearing a thong or some covering on his genitals.

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