Calgary’s queer community breathed a collective sigh of relief on Feb 2, when Crown prosecutor David Torske requested a stay of proceedings for the four remaining bawdyhouse charges against the owner and staff of Goliath’s Saunatel.
In order to obtain a conviction, it would have been necessary for Torske to establish beyond a reasonable doubt that “acts of indecency” had occurred at the bathhouse.
To be determined “indecent”, activities must be shown to (a) exceed the community’s standard of tolerance and (b) expose that community to an elevated degree of harm. Expert witnesses are often used to assist a judge in quantifying these parameters. Had R vs Goliath’s Saunatel & Texas Lounge proceeded, I would have offered the following testimony:
At the time of the Goliath’s raid, I had recently passed my doctoral candidacy examination in social/cultural anthropology and was about to commence a study of male, female, and transgendered street prostitutes for my PhD thesis. However, recognizing the significance of this event, I sought and obtained approval to conduct research on this new topic.
I live only a few blocks from the bathhouse and quite enjoy the diversity of this inner-city neighbourhood. Given that most of Calgary’s gay and lesbian bars, restaurants, and other queer businesses are located in this area, I hypothesized that members of this community would be reasonably supportive of these establishments and even tolerate sex-orientated businesses like bathhouses.
I also assumed it likely that residents of this area would be less tolerant of other common activities in the area. For example, this neighbourhood is well known for its crackhouses and prostitution strolls.
To test these hypotheses, I developed a “Community Concerns” survey.
There were two parts to the questionnaire. First, I asked respondents to indicate their degree of support or opposition to approximately 50 businesses and activities, ranging from supermarkets to panhandling.
Secondly, respondents were asked to prioritize how the Calgary police should respond to specific citizen complaints like littering, drug sales, and homicide. The intensity of the police response could vary from “no response” to “extreme”.
As this was a very broad social survey probing many potential concerns, few had anything to do with “queer” issues. However, I did ask respondents to indicate their degree of tolerance for (1) “lesbian bar and/or nightclub”; (2) “gay bar and/or nightclub”; and (3) “gay bathhouse”. I also asked them to prioritize the police response to citizen complaints involving “men having gay sex in bathhouses”.
To ensure that survey participants were representative of Calgary’s inner-city residents in proximity to the bathhouse, it was essential to randomly distribute the questionnaires. I used a mail-out survey, having Canada Post deliver packages to 500 computer-generated addresses out of a total of 9,000 households in the area. The material was printed on University of Calgary stationary and included my letter of introduction, the questionnaire, and a stamped return envelope.
The greatest difficulty in conducting the survey was selecting a time to distribute it when the issues addressed were not prominent. During the breaks between the Goliath’s court dates (the trial captured considerable local media attention), there were a number of incidents in the area involving drugs, prostitution, and violent panhandlers. Also, Calgary Flames fans asserted ownership of much of the neighbourhood during the 2003-4 season Stanley Cup playoffs.
I was finally able to distribute my survey last November.
The returned surveys provided support for my hypotheses. When I ran my analysis in early January, I found that gay and lesbian businesses, including gay bathhouses, are tolerated by inner-city Calgarians.
On the other hand, this community does not tolerate crackhouses, prostitution, and panhandling.
I summarized my research findings and submitted a report to the lawyers for both the Crown and defence.
As my research showed that members of this community are willing to tolerate bathhouses, the Crown would have had great difficulty making a case that the activities that took place in Goliath’s were indecent.
While the four Goliath’s defendants were pleased with the outcome, we must not lose sight of the costs.
Prosecuting a common bawdyhouse charge involves the use of scarce provincial resources and it is even more expensive to mount a defence against the charge.
These allegations also have significant psychological impact on the accused. Our justice system works slowly and the outcome can never be fully assumed. If convicted, the accused all faced possible prison sentences. The last two years has been a stressful time for these individuals.
On the other hand, it is a very simple matter for a police officer to charge someone with a common bawdyhouse offence. Given the prevalence of homophobia in Canadian police forces, I suspect that many police officers would characterize bathhouse behaviours as “indecent”.
I have no doubt that the members of the Calgary Police Service who conducted the Goliath’s undercover investigation and subsequent raid held this view. Likely the same factors led to the charges laid last year in Hamilton.
The bottom line is that our collective sigh of relief was premature.
The lesson learned in Calgary is that Section 197(1) of Canada’s Criminal Code provides our police with far too much power when dealing with sexual minorities. Lacking are appropriate constraints on what the police may deem “indecent”.
If you find yourself in this kind of mess, defence lawyers, social researchers, and ultimately judges will help sort these matters out-provided, of course, that your neighbours are more tolerant than your police.
But don’t expect the process to be quick and certainly don’t count on it to be cheap.
Our resources would be better spent demanding that our Members of Parliament scrap the “acts of indecency” section of the common bawdyhouse law.