Fishing in a bathhouse

CALGARY-police raided a Calgary bathhouse based on two anonymous tips and an unrecorded conversation with a young prostitute who subsequently died in a car accident.

They didn’t find the prostitution they were looking for. Nor the group sex. Nor a “dirty” bathhouse.

But that didn’t stop them from charging owners, managers and staff with being keepers of a common bawdyhouse following the Dec 12, 2002 raid of Goliath’s Saunatel.

Those facts emerged last week in the trial of Darrell Zakreski, Lonnie Nomeland, Gerald Rider and Peter Jackson for keeping a common bawdyhouse.

A bawdyhouse is defined in the Criminal Code as any public place where prostitution or “acts of indecency” are occurring.

During the trial, police officers testified that they began an undercover investigation after receiving a couple of anonymous phone calls in which the callers told them group sex and prostitution were occurring at Goliath’s. However, even after several undercover sting operations in which police officers posed as gay customers, no evidence of either was discovered. The only sexual activity undercover police officers observed were men masturbating naked and, in one incidence, a man was masturbating himself and another man at the same time.

Court heard that police decided to lay charges against the staff after consulting with the Crown on whether the masturbation they observed was a criminal act.

Calgary gay rights activist Stephen Lock is outraged that Calgary police consider jerking off in a gay bathhouse to be an act of indecency under the Criminal Code.

“There’s never been any refuting of the fact that Goliath’s is a sexual environment,” says Lock, who spent the week in court observing the trial. “The fact that men may have been sitting watching porn and fondling themselves or fondling themselves with the door [to their room] open, I don’t see that as obscene.”

Lock says such behaviour is standard in gay bathhouses around North America and he wonders why police didn’t just drop their investigation after they failed to find evidence of prostitution or group sex.

“Prior to December 12, I would’ve said that Calgary Police Service is not a homophobic organization,” said Lock outside the courthouse. “Post December 12, I don’t have that view anymore.”

Lock says he believes the bathhouse was targeted because “it was a gay sexual environment.”

Defence lawyer John Bascom asked the court to throw out everything stemming from the undercover investigations. Undercover officers invaded the gay patrons’ privacy to obtain undercover evidence, and that’s a violation of their privacy rights under Section 7 of the Charter of Rights and Freedoms, he argued. As well, the raid violated his clients’ Section 8 right not to have to endure “unreasonable search and seizure,” Bascom told the court.

Based on our Charter of Rights, people should be left alone by the State unless there is a reasonable suspicion of criminal activity, Bascom argued. Otherwise, police officers can start intrusive investigations based on unsubstantiated statements by anonymous individuals. “This particular investigation in this location was a breach of fundamental justice.”

Meanwhile, Crown prosecutor David Torske said that if the evidence is deemed admissible by the judge, he will argue “the nature of sexual activity that occurred on the premises would run afoul of community standards of tolerance.”

Torske told the court that “the homosexual nature of the actions” was “immaterial” and he added the same charges would have been laid if police observed members of the heterosexual community committing the same sexual acts.

Court heard during the trial that police first started investigating Goliath’s in April, 2002 after vice unit detective Cameron Brooks received a phone call from an anonymous caller. The caller said he wasn’t gay but had gone to Goliath’s to check it out because he was interested in starting up a bathhouse himself. He told Brooks he wanted to find out about the “legalities” of starting up a bathhouse. Brooks said the unidentified man told him that Goliath’s was “quite dirty” and a “health hazard” and said “men were lying naked in rooms with the door open inviting promiscuous sex.” Brooks testified he and three other officers went to the Texas Lounge, a bar connected to Goliath’s, dressed in plainclothes to try and find evidence of criminal activity. They didn’t find any and the investigation into Goliath’s was abandoned.

However, Brooks said the investigation started up again after detective Nina Vaughan received an anonymous phone call from a man who claimed to be a male prostitute. The man told Vaughan that he had been paid for sex at Goliath’s and had observed group sex occurring there as well.

Detective Vaughan testified that she also told Detective Brooks about a conversation she’d had with a 16-year-old male who was involved in the sex trade. Vaughan said the teenager told her he’d been paid for sex there and had observed group sex occurring there. Vaughan took no notes of their conversation and the teenager was unable to testify because he died in a car accident last year.

Brooks said the vice unit started sending in undercover cops to investigate the allegations of prostitution and group sex in October. During the first couple of undercover operations, police testified, they didn’t observe any evidence of “indecent acts.” However, during subsequent undercover operations, police officers testified they saw naked men masturbating.

Bascom argued that neither of the anonymous callers could be considered reliable because the police didn’t know anything about them. He argued the first caller had a “motive” for making a complaint against Goliath’s because he wanted to start up his own bathhouse and would therefore be competing for business.

As for the second caller, police had no idea if the person just had “an axe to grind,” argued Bascom.

Bascom also questioned whether Vaughan’s testimony was reliable. She couldn’t remember when she’d told Brooks, the lead investigator, about the information she’d received from the 16-year-old in the sex trade and Vaughan never wrote any notes about what he’d told her. The information from the 16-year-old wasn’t included in the investigative chronology compiled by Brooks which was handed over to another investigator, Detective Robert Rutledge, after he took over the investigation. Therefore, argued Bascom, it couldn’t have been part of the grounds for launching the undercover investigation.

Bascom questioned why, prior to launching the investigation or raid, the Calgary Police Service didn’t consult the police force’s gay liaison officer or other police forces in Canada about how they deal with gay bathhouses. He described Calgary police as “ignorant” of gay culture. They made no effort to try and educate themselves, he said, and they treated the investigation the same way they would an investigation into an escort agency or massage parlour.

Bascom said it also wasn’t clear what police were looking for when they launched the investigation. He argued that if police believed prostitution was occurring at Goliath’s they would have had undercover police officers pose as male prostitutes. Police were on “a fishing expedition” during the undercover investigations, he charged.

One police officer testified he was told to try and find evidence of drugs at the bathhouse. Others were told to get evidence on what kind of pornography was playing to prove Goliath’s was operating an unlicensed adult mini-theatre.

“It appears they’re fishing for a lot of different areas,” said Bascom.

Police brought along various outside agencies in the raid. A health inspector, fire inspector and a liquor and gaming inspector participated in the police raid. Police officers testified that they didn’t generally call in outside agencies when investigating escort agencies or massage parlours.

“They don’t know what they’re doing. They don’t have any protocol and they’re just shooting in the dark,” Bascom said. “They were looking for anything they could charge these individuals with and contacting these outside agencies shows that.”

He pointed out that Goliath’s had been around since 1986, police were aware of its existence, and there were no complaints prior to 2002. Bascom argued that Goliath’s is a private club for gay men. He pointed out that customers have to go through security doors to get into the bathhouse and they have to pay a fee.

“Rubbing or fondling one’s penis is not unacceptable to this particular clientele,” he said.

Bascom noted that police themselves had “doubt about what crime has actually occurred” and so they consulted the Crown’s office.

Crown Prosecutor David Torske argued that there is no current standard of what constitutes “reasonable suspicion” to launch an undercover investigation. He argued that police bawdyhouse investigations are regularly launched based on information from anonymous sources.

“There was a reasonable suspicion of criminal activity and they weren’t engaging in random virtue testing,” said Torske. “Limits on [police] powers to investigate should not be put on easily.”

Torske said that Goliath’s “must be considered a public place” because the general public can access it. He argued the expectation of privacy in a public place should be lower than in private residences.

Torske said that an investigation of a gay bathhouse should not differ from the investigation of an escort agency or massage parlour.

“It’s clear that equal treatment is what is to be strived for,” he said. “Police were correct in proceeding as they did. They didn’t treat this case differently than any other common bawdyhouse investigation.”

Torkse argued that the community standards used to determine what an indecent act is are “not the standards of patrons of Goliath’s” but those of the larger Canadian community.

Judge Terence Semenuk will give a written ruling on whether the evidence should be admissible on Jun 2 at 2 pm at the Calgary provincial courthouse.