Sunday, February 21, 2016

The Role of the Catholic Lawyer in a Free and Democratic Society: Acting in the Public Interest to Bring About Social Change

     Close to twenty-three years ago a gentleman sought my counsel who found himself clutched by the strong arms of the law and "outed" as a homosexual only for the state actor who not only initiated the criminal charge but claimed to be the victim of a sexual assault at his hands failed to attend court to testify in support of the prosecution which he clearly initiated.  The gentleman, the former Rev. Daniel Edward Webb, told me that he had seen several lawyers who told him he did not have a case.  I said Mr. Webb you have one of the best cases of the abuse of police power that I have ever seen. I will take your case to the Supreme Court of Canada if that is necessary in order to stop this arbitrary and destructive method of policing.  My theory of police liability in Webb  v. Waterloo Region Police Service et al was simple.  Police violated Mr. Webb's rights under section 7 of the Charter because sexual assault is an offence founded on a lack of consent to the interaction and a state actor can not initiate sexual touching and then when it occurs assert that they did not consent.  In addition, the decision by this police service to employ a sting operation using a police officer to entice men to touch him as a means of "cleaning a park of homosexual activity" was a clear violation of section 15 of the Charter since those methods are not employed to deal with heterosexual public sex and less intrusive and offensive methods were available..

     To my surprise I lost at trial.  I lost on appeal at the Court of Appeal of Ontario with Mr. Morris Manning, Q.C. as my co-counsel.  I was denied leave to appeal by the Supreme Court of Canada.

     At the time of the trial the case received nation-wide coverage and beyond.  Several media outlets including the traditionally conservative National Post embraced and supported the position I advanced.  I understand that these sting-type operations have been stopped by Waterloo Region Police.  It is surprising that the same arguments which were not well received by the administration of justice were fully understood and embraced by the media.  I have reproduced below the editorial which was published by the National Post on February 19, 2000 below:

Police Indecency - The National Post - February 19, 2000

We have it on unimpeachable authority that the spirit is willing but the flesh is weak.
So goes the story of Daniel Webb, a former Anglican minister, who was privately gay until police arrested him in an undercover sting operation and released his name to the media.

Seven years ago, Mr. Webb went to Kitchener's Homer Watson Park, a known hangout for gay men, where he encountered Constable George Gillingham - bare-chested, wearing shorts and carrying a wicker basket containing fruit juice.  Mr. Webb invited Const. Gillingham into to the bushes.  The officer agreed to follow him to a secluded spot, assuring the rector he as not a cop.  Mr. Webb touched his groin and was arrested for sexual assault.

When Mr. Webb's trial day arrived the arresting officer failed to appear in court to testify and the charge was dropped.  By then, however, Mr. Webb had been outed and his career with the Anglican Church ruined.  He is now suing the Waterloo Region Police Service for $4-million for distress caused by the arrest.

The police may say a criminal assault did occur.  They may argue Const. Gillingham's apparent sexual availability was no different from women officers posing as prostitutes to catch men seeking sex for money.  They may justify the sting as an attempt to "clean up homosexual behaviour" in the park.

How valid are these claims ?  Not very.  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.  If there is a comparison between this case and policewomen posing as prostitutes, it may be that both are instances of entrapment.  And if the authorities wish to prevent public indecency, they should place uniformed police officers in "cruising" areas to deter it - rather than inviting crimes in order to punish them.

Exactly what cause is served when cops dress up like the Village People, set a trap, make an arrest, release the information to the media and ultimately withdraw the charges ?  Not, we trust, a competitive arrest record.

The police need to rethink such methods.  If infringing on personal freedoms and privacy is not reason enough to do this, maybe $4-million - will be !


     History clearly shows us that law and the administration of justice have played a greater role in denying rather than upholding and bringing to fruition the equality rights of our brothers and sisters. If we shy away from this historical reality we have no chance for progressive and necessary change.  Self righteousness and political correctness are among the greatest impediments to our advancements on the equality front.  The practice of "turning the tables" on those who aim to bring to fruition the rights and freedoms of their fellow brothers and sisters has historically been the modus operandi and order of the day. The Catholic lawyer is well aware of this history and this struggle.  It is the struggle of good and evil that permeates all of our lives.  As the Webb case shows social change and the uplifting of our fellow human being can and will take place even when the administration of justice itself is not yet ready to embrace it. In the final analysis men and women are social beings.  The regulation of their interactions - especially on a sexual level by the state - can never disregard the fundamental role that an absence of consent plays in these interactions.  Sexual assault and sexual harassment are only offensive to the human spirit and the law in the face of an absence of consent.

     That our law is founded on the fundamental principles of fairness and the objective of uplifting rather than denigrating the human spirit is firmly reflected in the common law doctrine of abuse of process.  This flexible and powerful doctrine is the sword against unfairness and arbitrariness in our legal process.  A person ought not to be deprived of life, liberty and the security of their person in a manner that is repugnant to the community's sense of fair play and justice is what this doctrine is all about.  A person ought not to be deprived of their livlihood and their good name in a manner that is repugnant to the community's sense of justice and fair play.  A lawyer ought not to be subject to adverse legal consequences for asserting this fundamental right.    

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