07/04/2011 11:23 EDT | Updated 09/03/2011 05:12 EDT

Lawyers To Argue Public Nudity Shouldn't Be A Criminal Offence

Flickr: QuidoX

THE CANADIAN PRESS -- BRACEBRIDGE, Ont. - Lawyers for a man charged after not wearing clothes at a drive-thru in central Ontario will try to convince an Ontario court judge Tuesday that it should no longer be a criminal offence to be nude in public.

Brian Coldin is on trial after being nude at an A&W and a Tim Hortons in Bracebridge, where he pretended to reach into his non-existent back pocket for his wallet.

His lawyers will argue the nudity laws under which he was charged are too broad and therefore unconstitutional.

"The purpose of the criminal law is to protect us from harm, not to protect the sensibilities of the most prudish among us," Nader Hasan, one of Coldin's lawyers, said in an interview.

"These laws violate freedom of expression and they are overbroad such as to punish all kinds of conduct that is completely harmless and shouldn't be criminal."

Hasan will argue it should not automatically be a criminal offence to be without clothes in public and that discretion of prosecuting people for being nude should be left up to police.

Hasan pointed out that, as the laws currently stand, you can be charged if someone sees you naked in your own home.

Section 174 of the criminal code says it is illegal to be nude in a public place or while exposed to the public while in a private place.

If the laws are overturned, Hasan said, it would no longer be a crime to be nude while sunbathing or changing at the beach.

However, there would still be public indecency laws on the books, meaning that if someone was acting inappropriately they could still be charged.

The arguments about the constitutionality of Canada's nudity laws come at the end of Coldin's trial for incidents that took place in May 2009.

Jessica Swift, an employee at an A&W close to the resort where Coldin lives, said she felt "uncomfortable" serving the man when he pulled up at the drive-thru. She wept on the stand as she testified she could see his genitals.

The judge will rule on whether Coldin is guilty and on the constitutionality of the nudity laws at the same time.

Witnesses were called during the trial who spoke to the legality of Canada's nudity laws, meaning there will only be statements by lawyers on Tuesday. The arguments will take about a day, Hasan expects.