The Crown has decided not to prosecute the seven men who were arrested for marching in the buff in June’s Pride parade.
A letter sent to Peter Simm, a lawyer and member of the Totally Naked Toronto Men Enjoying Nudity group, stated that the Crown concludes there is “no reasonable prospect for conviction.” Penalties could have ranged up to six months in jail plus a $2,000 fine.
“The police screwed up badly. They did not do their homework,” says Simm.
That doesn’t mean exposed penises are automatically okay at future Prides. The letter to Simm indicated that the case shouldn’t be taken as a precedent. Insp Dave Campbell of 52 Division says he’s expecting a letter from the crown detailing why they won’t give their approval to June’s charges.
“When I read it, then we’ll understand it and take action next year,” says Campbell. “All we want to do is work within the confines of the law.” Since 1996, public nudity charges in Ontario, unlike other Criminal Code charges, require the written approval of the attorney general before they can proceed.
Richard Westgate, one of the men arrested, says he’s glad the issue is no longer hanging over their heads, but he is confident that if the case had gone to trial, they would have won.
“I was thinking it would be best if it went to court and we were acquitted, because that would give a clear legal decision,” says Westgate.
Before the parade, Simm sent Supt Aidan Maher of 52 Division piles of legal information to show that genital nudity at Pride wasn’t illegal. They didn’t heed his advice, which suggested that, for example, it made a difference that the men were wearing footwear.
“I gave him copies of the key cases in this area, with the relevant passages highlighted,” says Simm.
Police say they did their homework.
“We cautioned them [TNT MEN],” says Campbell. “We videotaped it. We videotaped the crowd. We saw numerous children there.”
Though Simm says the public expects nudity at Pride, Campbell says the public should receive additional warnings.
“We should be letting people know that TNT will be down there, wearing shoes and that’s it. If you feel you may be offended, then don’t come down,” says Campbell. “It was a great parade, a good family day. I thought [the nudity] took away from the dignity of the parade. If you don’t want any kids or family there, advertise that.”
Simm admits the legislation might confuse some people.
“If there is no harm caused, it’s not a criminal offence as long as the person has some item of apparel somewhere on the body.” In a 1996 ruling in favour of a Guelph woman going topless in public, the Ontario Court Of Appeal said it’s not enough for the crown to merely speculate about harm – they have to prove it.
“The fact that some individuals complain they are offended does not legally constitute harm,” says Simm.
Out of an estimated 800,000 people at the 2001 Pride parade, police received two complaints about nudity, one of which was dismissed.
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