Policing morality

Liquor laws have always been used to govern public morals.

After the raid on the Barn in April, 52 Division Commander Aidan Maher was asked why police were using the “permitting disorderly conduct” section of the Ontario Liquor Licence Act against the bar rather than a criminal charge.

Maher – at a public meeting of the Church-Wellesley Neighbourhood Police Advisory Committee – responded that the criminal courts would no longer agree that what goes on in the backrooms of bars is indecent.

Maher essentially said that there is little possibility of criminal conviction in the case of the clothes-free guys of Totally Naked Toronto Men Enjoying Nudity having a beer.

Perhaps that’s why the charge was laid under the liquor act. But even then, the police laid the charge – not liquor board inspectors. Police visits to bars rarely result in actual charges under the liquor act that must be dealt with in court – usually, a liquor infraction form is filled out and police leave the matter in the hands of the board.

But the Pussy Palace women are going to court. It’s not a criminal court, it’s a low-level court that deals with provincial offences – traffic tickets or “aggressive panhandling” (under the Safe Streets Act) and the like – but it’s still not a simple tribunal.

Liquor laws provide a tool to carry out a form of moral regulation that neither actual criminal courts nor the liquor board itself think is appropriate in this day and age.

There’s a long history here.

The most significant use of the liquor laws to pursue moral and social objectives, historically, concerns aboriginal people.

While whites could only be charged if drunk in public, or in more recent years if drunk in public and also “disorderly,” until 1969 any native who was drunk anywhere was automatically guilty of an offence under Ottawa’s Indian Act.

Indians were in a worse situation than minors: they were not only prevented from drinking, but even from being in the presence of alcohol. It was an offence under the pre-1985 federal Indian Act for “any person or Indian” to bring alcohol into “the house, tent, wigwam, or abode of an Indian” – a section that one judge thought was quite irrational because it prevented whites like him from having an Indian live-in servant.

In 1969 the Supreme Court Of Canada struck down the drunk-while-Indian provision as against the Bill Of Rights, in a ruling known as the Drybones case. But since being drunk on a reserve was still an offence, law enforcers could still use liquor laws to control aboriginal leisure time without having to show evidence of harm – or even of noise.

It’s as if a court had decided that it’s okay to drink while gay, but prosecuting homosexuals for drinking in a gay bar is fine.

The files of the Ontario liquor board show that even when Indians were finally granted the privilege of going to the local for a beer, bar managers who refused to serve Indians for no reason were praised by liquor inspectors.

A 1955 letter from an inspector doing his rounds in Brantford congratulated a bartender who “was very diligent in turning away drunks and Indians.” And a proprietor of a northern hotel, in this same time period, found a sympathetic ear when telling the visiting liquor inspector that she couldn’t let Indians in her bar, as they “drive away the white trade” because of their “offensive odour.”

Although the liquor laws were usually interpreted only by provincial bureaucrats, occasionally courts were called upon to rule on the legality of the bureaucrats’ actions.

Sometimes this restrained the moral zeal of liquor inspectors, but at other times courts generated their own theories about the relation between sex, race, drink, and morals. A 1966 case from the Northwest Territories discussed the situation of an adult male “Indian” allegedly supplying liquor to under-age girls. The judge opined that a white man supplying alcohol could only be using drink to get sex, while an Indian man, “knowing these girls, would not have had to resort to supplying” liquor.

The judge then elaborated: “There is ordinarily a great difference in the intent when a white man or an Indian gives liquor to young Indian girls…. I have been a judge in the North long enough to know…. This is notorious. There are other whites in the same category. Included are young researchers or budding anthropologists or sociologists working on their master’s or doctorate theses, who apparently have been told that the best way, and the most enjoyable way, to study Indians or Eskimos is under a maiden’s blanket.”

Liquor laws were used to police more than race. Music was highly regulated, with bar managers having to get written permissions specifying the instruments approved. Saxophones and jazz itself were frowned upon in the 1940s and ’50s, for reasons that are never specified but are no doubt racial and moral at the same time.

A 1975 case in which a court finally noticed that the Ontario liquor board had declared itself an authority on music described an inspector going into a night club in London, and deciding that two musician brothers were infringing the board’s unwritten rules.

The inspector told the manager he’d better cancel the contract, which was promptly done. The brothers were fully clothed: the problem was that they used rude words.

When questioned about the inspector’s action, the chair of the Ontario tribunal admitted that the board regularly cancelled licences because the inspectors thought the entertainment was obscene. The judge was simply appalled: “The effect of such wielding of the licensing powers suggests an arbitrary, willful and discretionary power to impose on the public and others the moral standards of a civil servant whose qualifications for so doing have never been tested….

“The powers wielded by the board through its members and servants are of such omnipotence that the mere suggestion of disciplinary action… are sufficient to influence and even intimidate licencees in the conduct of their business. This is an unhealthy and undesirable situation.”

“Indianness” and music were only two of the things subject to the moral scrutiny of liquor officials and police officers enforcing liquor laws. Another important one was heterosexual sex – particularly commercial sex. Readers of a certain age will recall that in Ontario, as in other provinces, taverns (as opposed to dining lounges) used to have, into the 1970s, separate rooms for “ladies and escorts” and “gentlemen.” Men who went to the tavern on their own or with male friends could not go into the “ladies and escorts,” and by the same token, women going for a beer could not go into the men’s room.

One might think that this separation was in place to prevent women from being sexually harassed. One would be very wrong.

In fact, the ladies and escorts system was instituted during World War II as a measure to prevent the spread of sexually transmitted infections by keeping women of questionable repute out of male drinking spaces.

A Vancouver public health authority who went on to be the army’s chief sex authority, a Dr Williams, stated that despite the bars’ self-regulation, there were “still a considerable number of known prostitutes and known infected patients using the beer parlours in Vancouver.”

Authorities claimed that most contacts leading to infection took place in beer parlours: and so the partitions were put up and zealously policed for decades on end, long after the moral panic had disappeared.

In the 1940s, no court would have thought it was a problem for police to blatantly use a provincial law – such as a liquor act – to police morals beyond what is set out in the federal Criminal Code. The situation now is somewhat different.

As 52 Division’s Supt Maher noted, “indecency” is rather more narrowly defined than it used to be.

And yet, there are ambiguities; we can’t confidently predict that a judge will throw out the charges against the women’s bathhouse Pussy Palace, for example.

Two Pussy Palace Women’s bathhouse organizers are facing six charges under the liquor act, including the infamous “disorderly conduct” charge repeatedly used against gay establishments and events. One of the charged women, JP Hornick, is in C Court at Old City Hall at Queen and Bay streets at 9am on Mon, Dec 11. Her lawyer will ask that the appearance be moved to Wed, Dec 20, same time, same place, which is the date already set for her colleague, Rachael Aitcheson. Neither of these appearances is an actual hearing date.

The Barn faces a disorderly conduct charge at its hearing, on Fri, Dec 15.

Although police and the owners refuse to confirm it, Riverdale’s Toolbox leather bar is also thought to have been charged with disorderly conduct under the liquor act earlier this year, in conjunction with its nude night.

The old concept of being “disorderly” has a very fuzzy connection to the legal definition of indecency.

The inherently vague entity that is indecency is made up of several sections of the Criminal Code targeted at completely different sorts of behaviours: men in raincoats exposing themselves to school kids, men grabbing women’s breasts in crowded subways, consensual sex in a semi-private location, and commercial activity in strip bars.

The Canadian Centre For Justice Statistics was thus able to tell me that in 1998, there were 552 “incidents” of indecency in Toronto, leading to 140 men and 71 women being charged.

But it is impossible to sort out how many of these are gay men having fun behind a bush in a park and how many involved heterosexual men harassing little girls.

The 71 women are likely to all be sex-trade workers. And interestingly, Montreal and Vancouver had only one and two women charged with indecency in the same year, showing that Toronto’s police target female sex trade workers.

But the male figures are highly uninformative.

The only interesting thing about the figures is that the majority of “incidents” did not lead either to criminal charges or to what’s called a clearance – that is, they remain in limbo. Sgt Rob Knapper, from Toronto police corporate communications, suggests that this is because a lot of men who harass women are never found; but it could just as well be that the police keep gay men – customers of bars in which there’s been a raid, for example – literally in limbo, questioning them but never going on to either clear them or lay charges.

Be that as it may, Supt Maher was correct in surmising that a court would not find the sort of thing that goes on in baths or in the backrooms of gay bars indecent, since the trend has been for courts to increasingly allow acts that may be offensive to the hypothetical community, but don’t bother those who are present.

Unless soliciting for prostitution or exhibiting oneself to unwilling strangers, adults now have a fair degree of latitude to be raunchy with one another behind closed doors, at least in municipalities with an adult entertainment licence system.

The Remington’s raid of February 1996 – which can be seen, in retrospect, as the last big Toronto effort to use criminal laws (rather than liquor laws) to police gay adult entertainment – did result in one of the two managers charged being convicted, but it was on the whole not only a huge waste of taxpayers’ money, but a fiasco for the morality squad.

The indecent acts charges laid against dancers and patrons were dropped during the trial, charges against one of the managers were dismissed by the judge, and Remington’s lawyer Eddie Greenspan’s famous cross-examining skills succeeded in revealing the homophobia underlying the police investigation.

One could see the Remington’s raid as a milestone which may very well have prompted the move toward the use of the liquor laws instead of the criminal laws against homosexuals. The final blow was The Bijou, a licenced porn theatre where police laid indecency charges against patrons. The crown dropped all those charges, giving police a very clear message: don’t involve criminal indecency charges in these matters.

Whether motivated by the knowledge that courts wouldn’t convict, or by the more primal fear of encountering Greenspan in the courtroom, recent police decisions to do an end-run around the criminal courts by using liquor laws are especially troubling now that the Ontario liquor board has basically given up regulating morality.

Bars that have lap dancing, for example, require a municipal “adult entertainment parlour” licence, and as far as the liquor board is concerned, that’s who should be doing the regulating.

Take the notorious heterosexual Toronto strip bar Cheaters, subject of the 1997 anti-lap dancing decision of the Supreme Court Of Canada, known as Mara.

That same bar was later brought to the liquor board as a result of neighbours’ complaints. But the licensing tribunal decided that “there was no evidence before the board of any illegal sexual conduct at these premises in the past several years… Much of the evidence was specific to the illegal events of the early 1990s… and to some degree a suspicion or assumption that such conduct is still occurring.”

In other words: lap dancing is legal and regulated by the city, and the liquor board isn’t going to be swayed by local moral entrepreneurs. In another straight strip joint, complaints about advertising suggesting that the bar flaunted the indecency law were taken seriously by the board only because the ad promised that a free beer would be given away on presentation of the coupon, thus contravening the “no free booze” rule.

In respect to downtown gay establishments, the available liquor board files reveal that even in places renowned for their sexual daring, liquor inspectors’ worst complaint was that in raising funds for legal defence purposes, liquor was being raffled, contrary to the liquor law’s insistence that no free booze be provided in bars.

Don’t bother them with morality complaints.

Interviews with eight retired Ontario liquor inspectors show that as late as the early 1980s, liquor laws were used to ban the “lewd behaviour” of strippers. One inspector said that “vaginal penetration with inanimate objects” was where he drew the line; another agreed, adding that bars catering to “Newfies” and “welfarites” caused problems, because “they’re all drunk.”

Most of the inspectors interviewed were very willing to share their theories about the relation between ethnicity and intoxication. One of them said that “Irishmen can get drunk but they become wild and friendly, not in a bad way like the Indians.” He added that “Indians and halfbreeds can’t handle their liquor. They go wild. I used to dread dealing with them.”

By contrast, he said, the English and Italians are used to alcohol, “they’re born to it.” With them, the problem is not violence, but rather that “you can never tell if an Italian is drunk.”

Asked about his interpretation of the “disorderly” provisions of liquor regulations (the ones used recently by Toronto police against various queer establishments), this inspector said, “There’s nothing wrong with a woman taking off her clothes,” as long as “you don’t cross the lines.” He said that he never had any problems telling the difference between “a woman who is being an entertainer” and “a woman who is being a slut.

“Most men know what that line is,” he added.

Since about 1986, however, the agency and its inspectors have had less and less interest in using liquor laws to regulate morality. Files at the Alcohol And Gaming Commission Of Ontario, which used to be full of the sort of colourful opinions like the ones above, are now devoid of moralistic remarks. And the inspectors are currently being told that stripping is regulated by municipalities through “adult entertainment parlour” licences. The liquor licensing board has thus largely given up the historic role it has played in regulating leisure time. Over-serving (which pushes customers to drink faster) or giving away booze for free are the only offences regularly mentioned in current files.

While the liquor people are not so interested in our morals and our cultural habits, Toronto’s queer communities are well aware of the legal fact that if the inspectors are taking it easy, police can go around enforcing liquor laws as they see fit, taking advantage of the fact that, like other administrative laws, liquor laws give the enforcers much more discretionary power than criminal laws.

The police tactics of using liquor laws to police consensual sexual or quasi-sexual activities may or may not be allowed by courts.

There’s almost no precedent for police charges against establishments for

“disorderly conduct,” and when such charges have been made before the liquor board rather than the courts, precedent suggests that unless there’s fighting is going on, there is no “disorderliness.”

But even if courts throw out some of the charges, this won’t be the end of the battle.

Judges may agree that a certain amount of sexual activity among people of the same sex – a situation in which the “degradation of women” does not arise as it does in heterosexual venues – is harmless.

But nevertheless, to have courts decide where gay and lesbian establishments ought to draw the line is itself a problem.

Courts have been happy to decide for everyone what everyone’s community standards in fact are – usually disregarding evidence from the relevant, local community.

So even though it is mainly police that are now exercising the moralizing power that liquor inspectors used to wield, handing that power over to the courts instead is not the ideal solution.

In the long run, the real question is how to ensure that the legal work of drawing the line is done with us rather than for us.