Calgary – A potentially precedent-setting bathhouse trial has ended with the Crown’s concession that there was no reasonable likelihood of conviction, due to changing community standards of tolerance.
Though gay rights activists are relieved that the accused are no longer facing criminal convictions, they say it wasn’t the victory they were hoping for.
Calgary police raided Goliath’s Saunatel in December 2002 and charged owner Darrell Zakreski and employees Peter Jackson and Gerald Rider with being keepers of a common bawdyhouse. Manager Lonnie Nomeland was charged with having control of a premises used as a common bawdyhouse. The raid followed a two-month undercover police investigation spurred by two anonymous complaints about activity in the bathhouse.
In the first part of the trial, defence lawyer John Bascom tried to argue that the undercover investigation and raid were unconstitutional and therefore all evidence should be dismissed. But Alberta provincial court judge Terry Semenuk ruled that police conducted a legitimate investigation and admitted most of the evidence.
On Feb 2, Crown counsel David Torske was expected to start presenting evidence on community standards of tolerance surrounding the sexual activity police observed in the bathhouse. Police testified they saw men masturbating in the open and in one case they observed one man masturbating himself and another man.
Torske had planned to try to prove that the sexual activity observed constituted an act of indecency that violated community standards of tolerance. Instead, he stayed all charges.
None of the accused appeared in court when the charges were stayed. Zakreski has declined comment on the matter and Xtra West has been unable to reach the three other accused for comment. But Bascom says his clients are extremely relieved the trial is over.
“It was a great deal of stress on all of my clients. These are individuals who have never been involved with the law previously. They were arrested, brought before the courts. They’re quite relieved it’s all over,” he says.
Bascom is hopeful that the Crown won’t prosecute such a case again in Calgary. “Leave the matter of policing bathhouses to the city licencing and health board,” he advises. “Whatever happens between consenting adults is their business.”
Part of the evidence the Crown relied on to make its decision was a survey conducted by University of Calgary PhD candidate in anthropology Bruce Freeman. The survey looked at what businesses and activities inner-city Calgarians would tolerate, and what kind of police response they thought was appropriate for various types of citizen complaints.
The survey included questions on bathhouses and 55 percent of respondents said they would tolerate a bathhouse in their neighbourhood. This level of tolerance was higher than tolerance around strip bars, escort services and massage parlours.
When asked how police should respond to citizen complaints about gay sex occurring in bathhouses, most people supported a low-level response, says Freeman. Meanwhile, 20 percent supported no response and another 20 percent thought an extreme response was appropriate.
Overall, respondents supported a stronger police response for citizen complaints around sexual activity in massage parlours, street prostitution and escorts providing sexual services in a private residence or hotel room, than for complaints about gay sex in a bathhouse.
Torske says he also reviewed case law on bathhouse prosecutions but found it was outdated because there haven’t been any bathhouse prosecutions since the 1970s and early 1980s.
“Everyone would agree that Canada has changed considerably from that period,” he says. “That being said, the law has to change with the times and Parliament has specifically addressed that in this offence by saying current contemporary Canadian standards are what matter in determining whether or not community standards of tolerance have been exceeded or not,” Torske continues.
“We had an area of law that hadn’t been subject to recent consideration, certainly not by courts in Alberta, and somehow we had to determine what current Canadians had to think about those issues.”
In November 2004, the Alberta Crown also stayed its charge against Terry Haldane, who was charged in the same Goliath’s raid with being “found in” a bathhouse. Haldane says he’s still hoping to challenge the bawdyhouse section of the Criminal Code under which he and the accused keepers were charged.
Gilles Marchildon, executive director of Egale, says the fact that the Crown stayed its charges against Haldane and the four other men shows the case was “on shaky ground from the very beginning.” But, he says, he is disappointed that neither of the two trials proceeded.
“It’s disappointing from a legal perspective because it robs us of an opportunity to challenge the laws,” says Marchildon. “It’s important to challenge [the bawdyhouse legislation] because the laws are based on morality that dates from Edwardian times and they’re not a reflection of current society.”
Vancouver criminal lawyer Garth Barriere says the fact that the charges were stayed has no precedent-setting value because there was no judge’s decision on the matter.
“For the accused that was a very good result. They’re the ones whose liberty was in jeopardy,” says Barriere. “For the law, we’re not much further ahead, but we can take it as an indication it will be more difficult for the Crown to prove the community would not tolerate it.”
Barriere says it’s also a positive sign that the Crown sought to call evidence on what community standards of tolerance are surrounding bathhouses, rather than just asking the judge to come to his own conclusions. “It’s good to see the Crown is recognizing the need to not simply assume what the community would tolerate, but is actively trying to find out.”
But, he says, there will still be bathhouse charges as long as the bawdyhouse legislation remains in the Criminal Code. (The Code defines a bawdyhouse as any public place where prostitution or acts of indecency are occurring. It doesn’t specify what counts as an indecent act.)
“I don’t think the war is over,” Barriere continues. “I think until the legislation is changed there will always be this concern that someone will resurrect this offence and go after individuals.
“I think the real solution has to be to change the legislation in Parliament but I don’t think there’s any mood to change the sex laws. That’s why we’re forced to fight it out in courts.”
Torske says that just because these bathhouse charges were stayed doesn’t mean similar charges wouldn’t be prosecuted in the future. He also says police did nothing wrong in their investigation.
Such comments only reinforce Haldane’s resolve to challenge the bawdyhouse law. “This [stay] changes nothing for me,” he says.
Haldane and other members of Calgary’s gay community still feel anger and distrust towards the Calgary police since the raid.
“It’s very difficult to respect a police service that does this sort of thing,” he says. “We simply do not trust the police. That’s the way it is and they’ve created that and that’s unfortunate for the ordinary street cop who pops into one of your bars for just, ‘Hi. How are you guys doing? What’s up tonight?’ They’re not welcome anymore. People are fearful of them and they certainly don’t trust them anymore.”