Friday, April 2, 2010

Gay sex, Police Indecency: Thoughts on Equality

Law and policy makers have placed considerable emphasis on the goal or concept of equality before and under the law. In Canada this objective is articulated in section 15 of the Canadian Charter of Rights and Freedoms. In a nutshell this statutory enactment provides that all individuals are entitled to the equal protection and benefit of the law without discrimination based on a number of enumerated grounds including sexual orientation.

While most of us strongly support any goal or objective which aims to bring about a greater degree of fairness among the diverse groups and interests in our society, it is not enough that we have this principle reduced to writing in the Canadian Charter of Rights and Freedoms. The act of reducing this goal to writing and giving it constitutional status is clearly a move in the right direction but that alone will not bring the goal of equality to fruition. There exists some impediments which fruatrate this goal. The purpose of this brief commentary is to attempt to delineate some of the impediments which hinder the goal of equality and to propose some thoughts on what can be done to steer us in the right direction.

Education and custom:

In the specific context of this commentary - education and custom take on a broader meaning. Here - education and custom relate to our subjective knowledge and experience - what we were taught - whether formally or informally. For example, the vast majority of us are taught either formally or informally that homosexuality is unatural and immoral. As a direct result society constructs a social divide bewtween "straight" and "gay" people. We have "gay bars" and "straight bars". We have "gay ghettos" or "gay villages". This social divide is well chronicled by Proffessor Elkridge in his book entitled Gaylaw: The Apartheid of the Closet and Proffessor Gary Kinsman's The Regulation of Desire: Homo and Hetero Sexualities.

Our education and custom as I use these terms here are amongst the biggest impediment to the goal of attaining equality. Here is a splendid example. I sought leave to appeal from the Supreme Court on Canada in a case flowing from the misguided police practice of seting up a sting operation in a park in Kitchener, Ontario which saw not one but two men charged for allegedly sexually assaulting a police officer.(Webb v. Wateerloo Region Police Service (WRPS)- SCC Court File No.29397) The police maintained at the time that it was not their intent to scare the homosexual men out of the park by "outing them" but only to charge people who they saw indecently exposing themselves on account of public complaints they had received. The fact is one councillor received a complaint and brought it to one Sgt Cassidy. Sgt. Cassidy in turn issued a memo to - "attack the problem" of homosexuals loitering in Crsssman's Bush. Not a single person was charged with indecent exposure but two men were charged with sexual assault on the same officer in two separate incidents on the same day.

In Webb v. Waterloo Region Police et al Mr. Webb met a man whom he believed to be a regular park cruiser in Homer Watson Park, which is a well known cruising place for men interested in meeting other men. After a pleasant conversation he invited the man into the woods with him. The man accepted the invitation and followed him freely and voluntarily. While walking into the woods he asked the man whether he was a cop the man said, "no man. I can't even find a job." The two men walked into a heavily wooded area and as fate would have it the man posing as a park cruiser turned out to be Police Constable George Gillingham. Constable George Gillingham alleged that he was sexually assaulted when his crotch was grabbed. Waterloo Region Police then released information to the media which received wide spread publicity and resulted in the gentleman being "outed"(i.e.his sexual orientation being made public without his consent) However, when the case came to trial the sole Crown witness and Officer in Charge of the investigation was a no-show. His explanation was that he did not receive a subpoena. It is the job of an OIC to subpoena witnesses and otherwise secure evidence in support of the prosecution.

The case agaisnt Waterloo Region
Police in a nutshell:

The Statement of Claim asserted a breach of Mr. Webb's section 7 and 15 rights under the Canadian Charter of Righs and Freedoms. Section 7 provides that no one should be deprived of life, liberty and the security of the person except in accordance with fundamental justice. The section 7 violation on the facts of this case occurred because Mr. Webb was charged with a criminal offence when in fact he had committed no offence at all. It is not a criminal offence to touch another man's crouch with his consent or where one's belief in consent is reasonably held in all of the circumstances. The Criminal Code offence of assault calls for a lack of consent for the offence to be established. Consent has both a subjective and an objecive component to it. In the circumstances of this case while P.C. Gillingham may say that he did not consent to the touching the objective portion of the test overwhelmingly points to consent. Indeed, one of the issues put to the Supreme Court of Canada as an issue of national importance was the question of whether or not the offence of sexual assault or assauult was amendable to a police sting operation. The section 15 violation in this case stemmed from the manner in which WRPS "attacked the problem." Rather than warning park-users they mounted a sting operation. The violation stems from the fact that when public sex involves heterosexuals sting operations are not employed. An offier stumbling upon a heterosexual couple will never lead to a sting operation to entice either party to engage in sex with the police. It is just not done.

P.C. Gillingham's
stunning admissions
supporting consent:

The following admissions are from my cross-examinaiton of P.C. Gillingham at trial:

Q. O.K. But the gun and the handcuff not being visible, can you see where in that third party's mind, you are simply another park user. Can you appreciate that ?

A. Yes that's right.

Q. And isn't that what youe were trying to come across as ?

A. Yes sir.

Q. And I am going to suggest to you that when Mr. Webb made that invitation the only reason you went was becauuse you were carrying out an undercover operation and that was part of it, isn't that true ?

A. Yes sir.

Q. Had you not been carrying out the undercover operation you would have told him where to go, right ?

A. I would have just kept walking.

Q. So when he said, are you a cop and if you would have said, yes I am and I'm conducting sureveillance in this park and I would recommend that if you have any intention of engaging in sexual activity that you not do it here. So you agree with me that had you said that, there would have been no assault committed on your person ?

A. Yes sir.

P.C. Gillingham's identity
and consent:

Determining the question of whether P.C. Gillingham consented to Mr. Webb's touching involves more than an acceptance of P.C. Gillingham's denial of consent. A proper adjudication of this question involves an evaluation of both the subjective and objectiive evidence. From an objecive point of view P.C. Gillingham's identity is crucial to the question of consent. Mr. Webb was clealry not interested in P.C. Gillingham the police officer. He was interested in the man that P.C. Gillingham was pretending to be. Mr. Webb's trial testimony was that P.C. Gillingham was shirtless and carrying a wicker basket. The above excerpt of my cross-examination of P.C. Gillingham speaks volumes to the connection between his identity and the issue of consent. He deliberately hid his handcuffs and gun in order to play the role of a park cruiser. P.C. Gillingham's own testimony leads to the inescapable conclusion that he invited the touching of his person as part of the sting operation that he was spearheading. When asked why he lied to Mr. Webb about his identity he stated, "maybe the criminal offence that he was going to commit he wouldn't commit if he knew that I was a police officer."

Examples of impediments to equality at trial:

Before Mr. Webb's civil trial against WRPS started the trial judge stated, "Mr. Guiste I have reviewed the materials and I do not see any evidence that the police have done anything wrong. They were merely responding to public complaints and doing their job." My move for a mistrial was never acknowledged but it did not go unnoticed by the press. The Kitchener-Waterloo Record noted the comment and exchange in their coverage.

After giving reply evidence where he testified that the only thing which made the park encounter with P.C. Gillingham different from his other experiences was that the fact that George Gillingham was a police officer the trial judge posed a question of his own. This is what he said:

THE COURT: Before you sit down I have one question for you. In the tennants of the Anglican faith is sexual activity between persons who are not in the bonds of matrimony considered to be sinful ?

MR. GUISTE: Your Honour if I may... I want it indicated in the record that it is the position of counsel for the plaintiff that that is an irrelevant question. What the bounds and practices of the Anglican church are, are not a relevant consideration to the adjudication of this case. But you are the judge and I respect your authority and right to ask it but is's on the record that I don't see that as a relevant question.

Two expert witnesses were proffered on behalf of the plaintiff's case. The first witness - Professor Gary Kinsman was to assist the court in understanding the cruising culture and the objective indicias of consent. Dr. Kinsman was also to illustrate and chronicle the history of police regulation of homosexual sexuality. The second witnees Dr. James Hodgson, a former Toronto Police Service officer turned professor - was to provide expert evidence on the police standard of practice in negligence and constitutionally. Both men had been qualified as experts in the past. Dr. Hodgson was the expert used by Jane Doe in her case against the Toronto Police Service. The trial judge ruled that Dr. Hodgson had no evidence to offer other than his own opinion and drawn from his experience from the Toroto Police Service. The trial judge said the following in denying Professor Kinsman's proposed expert testimony:

"This is not a case of discrimination. If it was Mr.Guiste
if you are putting to me that this is a case of discrimination
I have no jurisdiction to deal with it. That jurisdiction has
been given to the Ontario Human Rights tribunal. The courts have
repeatedly said that matters of social policy are not the basis upon
which legal concepts of the admissibility of evidence and what is
relevant are to be considered. I do not believe that what this man
has testified to as social practices and social codes do not assist
the Court in coming to a conclusion on a matter of law with respect
to the evidence given by the plaintiff in this action so far.
The plaintiff has testified. I take it that Sgt. Gillingham
will testify. And I have to decide whether, on the basis of
their testimony, there was consent or a lack of consent. There
is nothing that social practices or social contexts, et ceter,
can assist me as to whether there was any consent."

Court of Appeal
on s.15 claim:

"Accordingly, in my view, while it may have been preferable
for the trial judge to further elaborate in his reasons upon
his consideration of the appellants claim under s.15(1) of
the Charter, it cannot be concluded that he failed to
consider the claim. To the contrary, the reasons of the trial
judge addressed the central alloegations of deliberate and
discriminatory entrapment and humiliating conduct by the
respondents, as pleaded by the appellant. The trial judge
findings in that regard are amply supported by the evidence.

Mr. Webbès s.15 pleading:

23 The plaintif plead that the Defendants have violated his
constitutional rights under the Canadian Charter of Rights
and Freedoms, particulars of which include the following:

(1) the defendant, P.C. Gillingham, by his words,actions, and
given the purpose for which he was in the park consentted
to and invited the Plaintiffs advance:

(4) the defendants violated the Plaintiff's rights under section
15(1) of the the Charter to equal protection and equal benefit
of the law without discrimination by deliberately setting out
to entrap and publicly humiliate an identifiable group of
which te Plaintiff is a part, namely, homosexual men in their
undercover operation.

Trial judge's reasons
provide no consideration
or analysis on key issue
of consent:

The trial judge's reasons for judgment is silent on Mr. Webb's main contention that he committed no criminal act because the officer invited and consented to the touhing and for this reason the method employed in the undercover operation was a violation of his s.15 rights to equality. Effectively the trial judge merely made conclusionary findings of fact favoring the police and somehow suggested in his reasons that "all parties submit that the credibility of the plaintiff's testimony lies at the heart of this case." The trial judge concluded that Mr. Webb's credibility was called into question because he had engaged in sexual acts in the park without incident previously. He disregarded the evidence which contradicted the police version of their objective in the operation, namely, that two men were charged with assaults on P.C. Gillingham and no one was charged with indecent acts. He also disregarded the evidence of both P.C. Gillingham and reporter from the Kitchner which clearly suggested that the objective of the police operation was to scare the gay park users from the park. Some of the proposed expert testimony which the trial judge ruled inadmissible was evidence which would demonstrate that the manner in which the defendant police service responded to this alleged complaint had a strong historical context.

It is clear that the trial judge did not see the case as one dealing with discrimination. He told me so before even hearing evidence and never ruled on my motion for a mistrial. He said so again when he denied the expert testimony of Dr. Gary Kinsman. "This is not a case of discrimination. If it was Mr. Guiste, if you are putting to me that this is a case of discrimination, I have no jurisdiction to deal with it. That jurisdiction has been given to the Ontario Human Rights Tribunal."

Supreme Court of Canada
Issues of national importance:

After the Court of Appeal for Ontario unanimously dismissed the appeal, I sought leave to appeal from the Supreme Court of Canada. Two of the issues put to this court as matters of national importance were framed in the following manner:

- Does a police officer who participates in an
undercover operation in response to alleged
complaints from the community about gay public
sex in a heavily wooded park violate sections
7, 9 and 15(1) of the Charter where he accepts an
invitation to go inot the bushes with an unknown
man, follows that individual into the bushes freely
and voluntarily, lies about his identity as a police
officer so as to have the individual commit the offence
of sexual assault on him and subsequently participates
in a media interview about the incident ?

- As a mattter of law and public policy is a sting
type undercover police operation involving the
offence of sexual assault consistent with the
principles of fundamental justice ?

The Supreme Court of Canada dismissed Mr. Webb's leave to appeal application with costs. The court is not required to provide reasons and accordingly did not provide any. It strikes me to ve a very dangerous policy to allow the police to employ sting-type operations with an offence which is dependent, in part, on their subjective belief in consent. The National Post recognized this when they wrote the following in their editorial entitled Police Indecency on February 18, 2000:

"It is one thing to arrest people who buy drugs
or solicit prostitution, since both are illegal.
But it is surely unacceptable for the state to invite
consensual sex and then portray the response as a
criminal act."

What law makers
need to do:

If law makers are serious about equality they must do the following:

1. It is said that if you raise the floor you must
also raise the ceiling. Requiring judges to adjudicate
issues involing equality rights requires that they be
equipped to do the job. Sensitizing judges to the
multitude of issues involved in this task is a must.

2. History is a powerful teacher. We must look to it for
guidance. Our recent legal history has an abundance
of examples of cases where individuals were denied
legal rights on account of irrelevant considerations
such as race, religion, sex, or sexual orientation.
Many of these cases show the dangers of credibility
findings and conclusionary findings without analysis
and cogent reasons. A training program where judges
are exposed to these historical realities ought to be
a must for any judge involved in adjudicating these
serious issues.

NOTE: This commentary is written for the sole purpose of encouraging public discourse on an issue of public importance. Readers may be interested to read the following editorials on this case: Police Indecency, The National Post, February 18, 2000; The Clergyman and the Park, The Cambridge Reporter, Februry 19, 2000) In addition, Dr. Gary Kinsman's book entitled The Regulation of Desire: Homo and Hetero Sexualities and Prof. William N. Eskridge Jr's Gaylaw: Challenging the Apartheid of the Closet are recommended readings.

Ernest J. Guiste, Trial & Appeal Lawyer