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Justice delayed?

Calgary bathhouse trial languishes

FRUSTRATED AS HELL. The latest delay in the Goliath's trial means Terry Haldane and the accused keepers will spend a third Christmas with criminal charges hanging over their heads. "The only way [police] will stay out of gay private space is to have the law changed," Haldane says. Credit: Shelagh Anderson

CALGARY- The Goliath’s bathhouse trial is taking longer to wind its way through the provincial court of Alberta than many other criminal cases, including a recent first degree murder trial.



Police charged Darrell Zakreski and three of his employees, Gerald Rider, Peter Jackson and Lonnie Nomeland, with keeping a common bawdyhouse after they raided Calgary’s gay bathhouse in December 2002. Nomeland’s charge was later reduced from keeping a bawdyhouse to knowingly permitting the premises to be used as a common bawdyhouse.



Their trial originally began in November 2003 but it has now been adjourned three times and isn’t scheduled to resume again until February 2005. Meanwhile it took only 10 months for the trial of three teenage boys accused of murdering Calgary resident Eric Wong to conclude.



Terry Haldane, who was charged as a found-in in the Goliath’s raid and who is mounting a constitutional challenge of the bawdyhouse legislation under which he was charged, says he’s extremely frustrated with the delay in the accused keepers’ trial. Haldane’s trial was supposed to start in January but now, he says, it will likely be rescheduled again because it can’t proceed until the first bathhouse trial is over.



He says he can’t believe this will be his third Christmas with a criminal charge hanging over his head. He still hasn’t gone back to the bathhouse for fear he’ll be charged again just for being in the establishment. “I don’t trust that the cops wouldn’t turn around and do this again,” he says. “I should be able to feel free like I did before.”



Haldane says some other members of the gay community have also been afraid to return to the bathhouse since the raid. He says this is precisely why he’s proceeding with his constitutional challenge to the bawdyhouse section of the Criminal Code (which allows cops to charge men in a gay bathhouse for “acts of indeceny” that allegedly violate community standards of tolerance). In the beginning of the keepers’ trial, undercover police officers testified that they saw men masturbating in the open within the confines of the bathhouse, and in one case they say they saw a man masturbating himself and another man. The crown prosecutor told the court he will argue in the next stage of the trial that what the police observed constituted acts of indecency that would violate community standards of tolerance.



“They were able to do this because of that stupid law. The cops have way too much authority and latitude,” says Haldane.



He says he is even more fired up about fighting his case after hearing about the police raid on Hamilton’s Warehouse Spa and Bath, Aug 3.



“The only way [police] will stay out of gay private space is to have the law changed,” he asserts.



Meanwhile the four men charged as keepers in the case aren’t commenting to the media until after their trial is over. Haldane suspects the lengthy trial is taking a psychological toll on them, as well.



The accused keepers’ trial began in November 2003 but was quickly adjourned because prosecutor David Torske said he was still waiting for full disclosure of evidence from the police. When the trial officially began in April, defence lawyer John Bascom argued that the undercover police investigation and subsequent raid violated his clients’ constitutional right to be left alone because police didn’t have reasonable suspicion that criminal activity was occurring in the bathhouse. He asked Judge Terence Semenuk to throw out the evidence police obtained in the undercover investigation and raid. But the judge found that the investigation and raid didn’t violate the men’s constitutional rights and ordered the trial to proceed.



The trial was then adjourned until October, when the Crown and the defence lawyer were supposed to present evidence on whether or not what police observed in the bathhouse violates community standards of tolerance. However, Torske says it was adjourned again because lawyers on both sides needed more time to prepare their cases.



“Neither the Crown or defence evidence as far as community standards of tolerance was complete yet,” he says. (Bascom wouldn’t return calls.)



Torske admits the trial has taken much longer than usual but says that’s because it’s a complicated case involving issues that haven’t been tested for decades.



“This is an unusual case. There hasn’t been a case like this in 20 years and it’ll set a precedent. We want to make sure it’s a fair precedent.”



University of Alberta associate law professor Sanjeev Anand says there are established guidelines for the length of time it’s supposed to take for a case to work its way through the courts. He says the standard is eight to 10 months for trials in provincial courts.



“Certainly two years would be considered a lengthy time in most cases,” he says. “After a certain period of time there’s almost a presumption of prejudice to the accused.”



However, Anand says the amount of time it takes for a case to go through the court system depends on how complicated the issues involved are.



Laurie Arron, director of advocacy for Egale, says “this case seems to be languishing.



“It’s hanging over their headsÂ…and they need closure,” he says.



Arron says the bawdyhouse section of the Criminal Code needs to be changed so that consensual sex between gay men in a bathhouse isn’t considered a crime.



The trial for the men charged as keepers will resume Feb 2.