What’s an indecent act?

It’s been almost a year since police burst into Calgary’s only gay bathhouse and arrested all the staff and patrons inside-and a trial is about to begin.

The Goliath’s raid-the final act in a two-month undercover police investigation-sent a shockwave through Canada’s gay community.

“This is a step back to Stonewall,” said Keith Purdy at the time, referring to an era in which police regularly raided gay spaces and harassed and arrested whomever they found inside.

It’s outrageous, agreed John Fisher, then-director of Canada’s national gay lobby group, Egale. “Whatever progress is being made in other areas, when it comes to policing our sexuality, police are still stuck 20 years in the past.”

In the weeks following the raid, police charged four more men with keeping a common bawdyhouse, bringing the total number of keeper charges up to six. (The Crown later stayed its charge against one of the accused co-owners, Ed Southern, when he demonstrated that he had sold his share in the business long before the raid.)

Meanwhile, the 13 patrons-most of whom were married and terrified of exposure-began their own harrowing journey through the court system. Their alleged crime: being found in a common bawdyhouse without a lawful excuse.

Not surprisingly, all but one of the 13 found-ins promptly opted for the relative anonymity of the alternative measures program. In exchange for signing a form “accepting responsibility” for their crime, and agreeing to complete whatever requirements their probation officers set forth, the Crown promised to withdraw its charges against these men and let them go on with their lives.

All but one. Accused found-in Terry Haldane refused to accept responsibility for something he says shouldn’t be a crime in the first place. And he decided to fight.

“Somebody has to fight back,” he says. The cops cannot be allowed to keep invading gay spaces. “I don’t ever want to see men have to go through that again.”

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Now, after almost a year of delays and pre-trial appearances, the first Goliath’s trial is finally about to begin. The accused keepers’ week in court opens Nov 17.

Though Haldane most likely won’t be a defendant in that trial, he will be keeping a very close eye on the proceedings.

And the rest of the gay community should, too, says his partner Stephen Lock.

That’s because the accused keepers’ defence will likely centre on the question of whether or not gay sex between consenting adults in the common areas of a private bathhouse is indecent.

That’s a crucial question in this case because Canada’s Criminal Code defines a bawdyhouse as a place in which prostitution and/or indecent acts occur. Since no one is alleging that any prostitution occurred at Goliath’s, its alleged status as a bawdyhouse hinges on the cops’ assertion that indecent acts were taking place.

In other words, the Crown’s whole case against Goliath’s and its “keepers” stems from the assumption that gay bathhouse sex is indecent. Otherwise, Goliath’s wouldn’t meet the definition of a bawdyhouse at all. (And if Goliath’s isn’t a bawdyhouse, then its owner and employees can’t be charged with “keeping” a bawdyhouse and the charges against them should be dropped.)

This case could produce an important decision for the gay community, says Egale’s new advocacy director, Laurie Arron, who brought together some of Canada’s top constitutional lawyers to prepare for it.

The judge could rule that there’s nothing indecent about gay sex in a bathhouse, he explains. And that “would be a nice victory.”

It all depends on how the judge decides to interpret the term “indecent acts,” Joe Arvay says. Arvay, famous for his work in such high-profile gay cases as Little Sister’s vs Canada Customs, recently joined Haldane’s legal defence team.

The judge could decide that Parliament, when it originally added the bawdyhouse section to the Criminal Code decades ago, meant to make the definition of “indecent” fluid and thus able to evolve with changing community standards. If the judge takes that approach, he could rule that gay bathhouse sex is not indecent by today’s standards-and acquit everyone.

On the other hand, the judge could find that Parliament always meant to include gay bathhouse sex in its definition of indecent acts-and conclude that Goliath’s is, indeed, a bawdyhouse. (Leaving the accused keepers to resort to Plan B to fight their charges, which would likely target some of the police procedures surrounding the raid.)

Haldane won’t predict which route the judge will take, but says he won’t let an anti-gay decision discourage him.

If anything, he says, it would just set the stage for his own trial.

If the judge tells the accused keepers that Parliament meant to criminalize gay bathhouse sex, Haldane vows he’ll challenge Parliament and the law it drafted. He’ll launch a constitutional challenge to the bawdyhouse section of the Criminal Code-on the basis that it violates the Charter’s guarantees of liberty and equality.

Haldane’s trial date has not yet been set. He had originally asked to join the accused keepers’ case so they could all be tried together. But he and his lawyers ran out of time to prepare the constitutional challenge part of their case. So now one of his lawyers, Calgary-based Simon Lord, will request permission to re-split the two cases, when the keepers’ trial begins Nov 17. If his request is granted, which it most likely will be, he will then ask to adjourn Haldane’s case until a later date.

So Haldane’s trial will most likely begin sometime next summer-unless the judge accepts the keepers’ argument that nothing indecent happened at Goliath’s and dismisses everyone’s charges altogether.

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As Haldane contemplates the battles ahead, he can’t help but acknowledge the toll this whole affair has already taken on his life and his health.

“[I’ve paid] an enormous price,” he says, noting the months of sleepless nights and the anxiety that has dogged him ever since his arrest.

Two months ago, that anxiety drove him to hospital.

“My chest got all tight and I was sure I was having a heart attack,” he says. In the end, doctors said it was just anxiety, but Haldane is still shaken.

“I worked myself into a state,” he sighs. “I have a tendency to internalize stuff.”

And yet, he decided to fight his found-in charge-even though he, too, could have just taken the alternative measures route or pleaded guilty and paid a fine. (Unlike the accused keepers who could get jail time if found guilty, Haldane is only facing a summary offence charge as a found-in. If found guilty, he would most likely just have to pay a $2,000 fine.)

But Haldane says he would feel disappointed in himself if he didn’t at least try to fight the charge-and the law itself.

These raids do “irreparable harm,” he explains, vividly recalling images of married men throwing up at Goliath’s as police rounded up all the patrons.

“It was horrible,” he says. And it has to stop.

And nothing short of totally striking “indecent acts” out of the bawdyhouse definition will really protect the gay community, he continues.

It’s not enough to get a ruling saying that this particular incident didn’t involve indecent acts, he explains. The gay community won’t be safe as long as the occurrence of “indecent acts” can still turn a gay space into an illegal bawdyhouse.

Police will keep raiding gay spaces and then trying to prove that, this time, indecent acts were taking place, Haldane believes.

That’s why he decided to sign up for the long haul and fight the law-all the way to the Supreme Court of Canada if necessary.

Challenging the bawdyhouse law will hopefully benefit everybody, he says. And if that’s the case, “it’s a small price to pay.”

Arron says Haldane is a hero.

“Terry Haldane is really going above and beyond the call of duty,” Arron says. “He decided this was an unfair law that needs to be challenged so he’s prepared to go through with the ordeal of a constitutional challenge. I think our community should be applauding him.”