| A provincial court judge has ruled that a 2002 Calgary police undercover investigation and subsequent raid on a gay bathhouse, which sparked nationwide outrage in the gay community, was completely constitutional.
Judge Terence Semenuk has also ruled that gay men masturbating in the open within a gay premise "may constitute indecent acts."
After the 2002 raid on Goliath’s sauna, four men were charged with being keepers of a common bawdyhouse. A bawdyhouse is any public place where "acts of indecency" that are contrary to community standards are occurring.
At the beginning of the accused’s trial, their lawyer John Bascom argued that the police investigation and raid was unconstitutional. He said police had no reasonable suspicion that criminal activity was occurring in the bathhouse and therefore his clients’ rights to privacy were violated.
He asked the judge to declare all evidence obtained in the undercover investigation and raid inadmissable.
Bascom argued that police never should have conducted an undercover investigation in the first place because it was based on information from two anonymous sources and he said they couldn’t be considered reliable sources.
Court heard that the first anonymous caller told police he had visited Goliath’s and thought it was dirty and a health hazard. He also said he saw gay men lying naked on beds with their room doors open "inviting promiscuous sex."
The man also told police that he wasn’t gay and was interested in starting up a bathhouse of his own and he wanted to know if what was happening at Goliath’s was legal or not. The second caller said he was a male prostitute who had been paid for sex at Goliath’s. He also said that group sex was occurring there in public.
However Semenuk said in a written decision that police did have reasonable suspicion to launch the investigation based on information from two anonymous callers and a police source.
"The police had ‘reasonable suspicion’ of criminal activity occurring at Goliath’s and were lawfully entitled to pursue their investigation. It was, in my view, a bona fide investigation," wrote Semenuk.
Semenuk’s decision means all the evidence obtained during the undercover investigation and raid will be admitted into evidence
Semenuk also ruled that police did have reason to conclude that what they observed in the bathhouse during the undercover investigations was illegal under the criminal code.
"Although no prostitution was observed, the police witnessed males masturbating in front of other males, and one male masturbating himself and another male in front of other males, while watching gay pornography on TV. These observations, in my view, were sufficient, in themselves, for the police not only to have ‘reasonable suspicion,’ but ‘reasonable and probable grounds’ to believe that indecent acts were ongoing at Goliath’s," Semenuk ruled.
"In law, males masturbating in front of other males at a ‘gay premise’ may constitute indecent actions within the… Criminal Code."
A date hasn’t been set yet for the continuation of the trial, which will focus on whether the activity police observed at Goliath’s violated community standards of tolerance.
Facing charges are Darrell Zakreski, Gerald Rider, Lonnie Nomeland and Peter Jackson. |
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