She appealed, but her appeal was dismissed by the Ontario Court (General Division), and she further appealed to the Ontario Court of Appeal. In finding her guilty, the judge stated that breasts were " part of the female body that is sexually stimulating to men both by sight and touch," and therefore should not be exposed. In her defence she argued that breasts were merely fatty tissue. Jacob stated she did it because men were doing it and she wanted to draw attention to the double standard.
Police stated that they acted following a complaint from a woman who was upset that one of her children had seen Jacob topless. 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 ☌ (91 ☏) and was charged with indecency under Section 173(1)(a) of the Criminal Code. Gwen Jacob – topfree rights activist – outside court in Guelph, 1991 He added that parks require clothing, except, for example, the clothing optional Hanlan's Point Beach. The acting executive director of Municipal Licensing and Standards said that while "there's no bylaw that governs toplessness", "it is legal for women to go topless on the streets of Toronto" according to a National Post article. Topfreedom is allowed in Ontario, set by the precedent in the case of Gwen Jacob. There do not appear to have been any further women charged in Canada since these cases were decided. Since the matter has not been determined by the Supreme Court of Canada, it is still possible that a woman could be convicted elsewhere in Canada, but interpretation of moral law in Canada has become increasingly liberalised. Although each province and territory reserves its right to interpret the law as it pleases, the Ontario case has proved influential. This case subsequently led to the acquittal of women in British Columbia and Saskatchewan who faced similar charges. However, it did not establish any constitutional right of equality. This case determined that being topless is not indecent within the meaning of the Criminal Code.
Although she was convicted, this was overturned by the Court of Appeal. Part of her defense was the double standards between men and women. In 1991, toplessness as an indecent act was challenged in Guelph, Ontario, by Gwen Jacob, who removed her shirt and was charged with indecency. However, what constitutes an indecent act is not defined, and is open to interpretation by the courts. In Canada, the law on public decency is found in sections 173 and 174 of the Criminal Code.
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