The Police Records of a Bath Raid Found-In: Excluded from Bill C-66

Tom Hooper

For more than 25 years, Ron Rosenes* has been an activist on issues related to HIV/AIDS. In 2007, he was given the Canadian AIDS Society Leadership Award. In 2012, Carleton University awarded him an honorary doctorate. He is a member of the Order of Canada.

Despite this impressive resume of advocacy, the Toronto Police Service has a file on him. In the late evening of February 5th, 1981, he was sitting alone in his room at the Romans II Health and Recreation Spa, one of the city’s gay bathhouses. 200 police raided the Romans and three other similar establishments, arresting 306 men, Rosenes included. He fought the charges in court, but was guilty of being found in a common bawdy house.

This is a historical injustice. In 2016, Toronto’s Chief of Police issued a statement of regret for the raids. In November 2017, Prime Minister Justin Trudeau made a formal apology to the LGBTQ2+ community in the House of Commons. He stated that discrimination “was quickly codified in criminal offenses like ‘buggery,’ ‘gross indecency’, and bawdy house provisions. Bathhouses were raided, people were entrapped by police.” On the same day as Trudeau’s apology, the government introduced Bill C-66, which would create a legislative process to expunge the records of certain Criminal Code convictions that have been defined as “historically unjust.”

The Prime Minister specifically referenced the bawdy house law and bathhouse raids during his apology to LGBTQ2 Canadians on November 28, 2017. Click here for a transcript.

The problem is that Rosenes cannot apply under the system proposed in Bill C-66. The bawdy house law has been excluded from the list of offenses covered. Only those charged with gross indecency, or buggery/anal intercourse, may apply for an expungement. Those charged under other offenses historically used to target LGBTQ2+ individuals, including indecent acts, obscenity, or vagrancy, are also unable to apply. The government’s definition of “historical injustice” is inconsistent and vague. When asked about the bawdy house law by NDP MP Randall Garrison and Green Party Leader Elizabeth May in the House of Commons, Liberal MP Randy Boissonnault suggested that it was not included because the law, as it applied to acts of indecency, was never declared unconstitutional by the courts. He referenced the 2005 Supreme Court case of R. v. Labaye:

“…there is no jurisprudence that indicates that the current state of the [bawdy house] law post-2005 Labaye would violate charter provisions.” House of Commons, December 13, 2017.

 

MPs Randall Garrison (NDP) and Elizabeth May (GRN) question why the bawdy house law was excluded from C-66, Randy Boissonnault (LIB) provides a response. Click here for a transcript.

In that case, a Montreal swingers’ club was acquitted of being an indecent bawdy house. The decision altered the definition of indecency to one that is based on harm, but it did not declare the law unconstitutional. This justification is found in the preamble of C-66, and establishes the first (1) test under the government’s definition of a “historical injustice”: the charge, if laid today, would be considered contrary to the Charter of Rights and Freedoms.

The test for “historical injustice” is further complicated by section 23 of the bill. NDP MP Randall Garrison justified his support of C-66 despite the missing bawdy house law:

“Section 23 of the bill allows cabinet to add offenses to the schedule by order in council. I trust the Liberal government will consider these issues that have been raised and discussed here today and will fully implement the apology after the bill passes by adding bawdy house offenses to the schedule.” House of Commons, December 13, 2017.

While Garrison is correct that this section allows the cabinet to add other charges in the future, it also indicates a second (2) test of “historical injustice”: the offense must first be removed from law. The section states that these may be added only “if the activity no longer constitutes an offense under an Act of Parliament”. The bawdy house law is currently both constitutional, and intact (section 210 of the Criminal Code), therefore it does not meet the tests of historical injustice established by C-66. Further, there is no indication the government is planning to repeal it from the Code. Perhaps Garrison’s trust has been misplaced.

 

NDP MP Randall Garrison expresses his “trust” that the government will use section 23 to add bawdy houses after Bill C-66 becomes law. The problem is that section 23 suggests that it cannot be added until it has first been repealed, and there are no indications the government is planning to do this. Click here for transcript.

C-66 passed third reading fifteen days after it was first introduced. The parliamentary committee who studied the bill spent only 45 minutes discussing it. They heard from four witnesses, all of whom were bureaucrats. They did not include any member of the LGBTQ2+ community with expertise in this topic. This was despite our best efforts. I joined with a few historians to prepare a statement that was refused by the committee, so we released it publicly.

In the days after the bill was first introduced, I accompanied Rosenes to the Toronto Police Service headquarters where we submitted a Freedom of Information request for records related to his charges in the bath raids. By early January, these results came back, and included two documents: a record of arrest, and a supplementary record which included a police statement in preparation for court. Even if Rosenes could apply under Bill C-66, the federal government cannot force the Toronto Police Service to expunge the files, as it is out of their jurisdiction. However, section 18 of the bill at the very least begins this process, and the RCMP must notify “any provincial or municipal police force” of the expungement.

Most concerning for historians is that the process in sections 17 and 19 of C-66 specifies that the documents related to an expungement are to be destroyed. There is a necessity to protect privacy and confidentiality, but this can be accomplished while also balancing historical preservation. No such process exists in the bill, which means police records and other documents created by the state will be gone forever. The Canadian Historical Association has raised this problem in a letter, stating that “the preservation and archiving of government records is a hallmark of democratic and open governments.”

Researchers and historians believe we have a lot to learn from these documents. One of the leaders of the bath raids resistance, George Smith, was also a sociologist who argued that the only way we could truly understand this historic event was to trace the state documents that enabled it to happen.[1] These documents are revealing of broader themes for study. For example, on Rosenes’ record of arrest, the standardized preprinted form has a space to identify his “colour.” There are five checkboxes available: white, black, yellow, red, and brown. This was the racial lens used by police to describe those arrested, and this was further codified into documents and institutional forms.

On this record of arrest from the 1981 bathhouse raids, Ron Rosenes’ race is determined by the Toronto police system through a lens of five colours: white, black, yellow, red, and brown. Such documents should not be destroyed by Bill C-66. Ron Rosenes has agreed to release this portion of his Record of Arrest to ActiveHistory.ca.

Researchers believe that the documentary evidence of systemic racist police practices alongside a campaign against gay bathhouses should be explored, not destroyed. I was aware that LGBTQ2+ activists, including George Hislop, were working with the Black community to raise the issue of police identification procedures in 1979. But now, having access to the actual police documents, more about this process is revealed, and these historical community concerns and linkages have been confirmed. Studying these types of materials allows researchers to draw connections to broader struggles, including the history of racism and the marginalization of other groups.

This includes sex workers, the intended target behind the 1892 bawdy house law. Rosenes’ supplementary record of arrest contains a police statement regarding their evidence against him. Among finding “acts of indecency, oral sex, buggery and group sex,” the police also stated they were “sollixted [sic] by male prostitutes.” Rosenes vehemently denies this, he was not aware of any sex workers in the Romans. Despite this claim in the police record, there were never any charges laid relating to sex work in the Toronto bathhouse raids.

A police statement was included in Rosenes’ file as a supplementary record of arrest. Despite the claims in this record, there were no charges related to sex work in the 1981 bathhouse raids. Rosenes and his lawyer contested the charges at trial, but was found guilty. Ron Rosenes has agreed to release his supplementary arrest record to ActiveHistory.ca.

Interestingly, the bawdy house law, as it pertains to sex work, meets both of the government’s tests for a historical injustice as suggested in Bill C-66. First (1), in the 2013 Supreme Court Case of Canada v. Bedford, the bawdy house law was declared unconstitutional. The harm caused to sex workers was deemed “grossly disproportionate” to the objectives of the law, contrary to section 7 of the Charter. Second (2), the Conservative government removed the reference to sex workers in the bawdy house law as part of the Protection of Communities and Exploited Persons Act (PCEPA), meaning it is no longer an offense. PCEPA has reconstituted the harms caused to sex workers and must be repealed. Given that bawdy house charges for sex work meet both tests for a historical injustice, these individuals should also qualify for an expungement of records under Bill C-66.

While they rushed this bill through the House of Commons, we now take our fight to the Senate. I will once again join with historians Patrizia Gentile, Gary Kinsman, and Steven Maynard in attempting to make our voices heard before this flawed bill becomes law. And we are not alone, as there are many other individuals and groups who also intend to provide their input. It remains puzzling why the government rushed this through without any consultation. As for Ron Rosenes and the others charged in the bath raids, I would argue that until they are included in Bill C-66, the apology from the Prime Minister is reduced to merely being eloquent words.

Tom Hooper is a historian of queer history in Canada. His doctoral research was on the 1981 Toronto bathhouse raids. He is contract faculty in the History Department at York University, where he teaches a course on vice and bad behaviours. He can be contacted at: tom@rtpc.ca


Notes

* I want to thank Ron Rosenes for his years of advocacy and for allowing me to tell his story. I also want to thank Peter Maloney, who acted as defence counsel for some of the men charged in the bath raids. I appreciate his advice in helping me seek the relevant records

[1] George Smith, “Policing the Gay Community: An Inquiry into the Textually-Mediated Social Relations,” International Journal of the Sociology of Law, 16 (1988): 163-183.

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