Report No. 64

3.8. Views expressed on the subject of morality and law.-

While we are dealing with this aspect, we thay refer to the opinion expressed by the Street Offences Committee-1

"As a general proposition it will be universally accepted that the law is not concerned with private morals or with ethical sanctions. On the other hand, the law is plainly concerned with the outward conduct of citizens in so far as that conduct injuriously affects the rights of other citizens. Certain forms of conduct it has always been thought right to bring within the scope of the criminal law on account of the injury which they occasion to the public in general. It is within this category of offences, if anywhere, that public solicitation for immoral purposes finds an appropriate place."

Secondly, as has been observed,2 "the immorality of an act should never be the decisive factor in making it illegal, since the appropriateness of a moral sanction does not entail the appropriateness of a legal sanction. What is grist to the fine mill of morality, may well escape the clumsy engine of the law or be mangled by it. But any attempt to exclude the immorality of an act as a relevant factor in deciding whether to make it illegal, is both dangerous and futile. It is dangerous, because it leads to the illusion that a legal system can function without the foundation and the frame of reference of a moral system, and it is futile because moral values have a way of infiltrating into even the most antiseptic legal system."

1. Report of the Street Offences Committee (1928), Cmd. 3231, quoted in the Report of the Committee on Homo-sexual Offences and Prostitution (1937), Cmd. 247, p. 80, para. 227.

2. R.A. Samek Enforcement of Morals, (May, 1971) 49 Canadian BE 188 (221).