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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.
On July 19, 1991, a very hot 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(1)(a) of the Criminal Code.
It is important to note that although Jacob claimed she had a constitutional right, the court did not address this. Gowan, a known sex worker, under the impression that exposing the breasts was now legal, solicited clients at an intersection, motioned to her breasts and called out "Do you want to fuck? She was consequently charged with and convicted of engaging in an indecent act, under the same section as in Jacob, 173 (1) (a).
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 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. Jacob has been cited in similar decisions in other provinces and by the Supreme Court of Canada in R. 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.
Since then, the court ruling has been tested and upheld several times. This caused considerable public concern as well as attempts by municipalities to preempt the law by passing more restrictive bylaws. The Ontario Government did contact the Federal Government regarding amending the law to make such actions clearly illegal. 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.
However, it did not establish any constitutional right of equality.