Etching Out the Naked Truth

By: Barry Dennison

TNT!MEN may soon be allowed again to freely roam The Barn as naked as jay birds!

Indeed, we've probed through layers of a misunderstanding between Toronto Police Services and the Alcohol and Gaming Commission (A&GC), a situation compelling police Superintendent Aidan Maher to withdraw from a recent deal to allow nude parties held as a private function at the popular dance bar.

On April 18 at the Town Hall meeting hosted by police Chief Julian Fantino, Superintendent Maher told the crowd of 200 that naked 'private' parties in licensed bars are acceptable, notwithstanding one charge of "disorderly conduct" related to the nudity in a March inspection.

But this agreement ended on May 11th when Kyle Rae hosted a meeting between Maher, The Barn's owner Janko Naglic and his lawyer, Andrew Czernick who received a "warning" not to allow nudity or face more charges.

Maher says police changed positions based on a letter received from the A&GC's senior lawyer, Richard Kulis. Maher said the commission, "was not as indifferent as they once were" to the nudity in a licensed premise.

In response to this news, Kulis spoke to this reporter only to answer one question as to why he now objects to nudity in a private function, saying, "I didn't say that in the letter (to Superintendent Maher). Please speak to the Commission's media relations officer, Ab Campion. I can't say anything else."

At the A&GC, it is normal practice for the media relations officer to speak to the press, in an effort to keep commission lawyers "independent" when cases come through their process.

Campion explained that it had come to Kulis' attention that a memo was circulating in 52 Division saying he had approved nakedness at the private parties. In response, Kulis wrote a new memo Maher to explain that "he made no comment approving or disapproving of the event."

"The other point in the response from our senior counsel," Campion said, "related to Mr. Kulis observing that he hadn't received the [police] memo and therefore couldn't comment on any specific points."

This lead Superintendent Maher to believe the A&GC was backing off from its' position allowing nudity on a "private party" status. It appears the superintendent did not want the police to be seen giving permission without the expressed support of the commission.

Campion added, "All Mr. Kulis wanted to convey was that he had not approved or disapproved any event. He did write, 'the Licensed premises may hold events under the Liquor License which is not open to the public, for invited guests only and arrangements could be made with the License holder.'"

"He points out all requirements, whether it's a private party with a special event permit, or to a license holder, that all requirements of the Liquor License Act would continue to apply."

The A&GC's responses appeared foreign to the police superintendent who questioned the ambiguity when Kulis didn't 'explicitly' approve the nudity in his letter. Consequently, Maher subsequently issued the warning to The Barn to stop all such functions or face charges.

In interviews with the media, Superintendent Maher also believed a second charge was levied against the licensee for an event in late April, but has confirmed there is no second charge in existence, only one charge of "disorderly conduct" outstanding from March 25th.

This is consistent with an interview with an undercover detective inspecting The Barn who responded to questions two days after the police went in, saying, " Everything was perfect, no problem at all. We saw no infractions and saw no circumstance that would give us cause to lay any charges."

He also confirmed that the nudity did not involve any sexual activity in any of his inspections over the last two months.

Meanwhile, A&GC's Campion said police haven't sent them the basis of the charge for them to determine if the Liquor License Act was breached, saying, "If the police sends a matter to provincial court we don't get involved with court cases. Where we get involved is if down the line - there's a conviction."

Campion also said the commission was set up to hear cases in a manner similar to hearings in front of a Justice of the Peace. In this case, the Board members would not issue a finding of "guilty", but rather would review whether or not the Act was breached, and either set a penalty or dismiss the charges.

"In the meantime, it's only an allegation, despite which the Licensee could continue to operate. However, under the Act, we do have the power to impose an interim suspension if considered in the public interest. We could not close down a bar right away." he said.

Campion indicated no plans for the commission to independently initiate such action to coincide with police charges, adding, "We do not license morality; perhaps that's up to the municipality and police."

Maher says he'll accept the blame for the confusion from Kulis' letter, observing, "There were no liquor inspectors when we entered The Barn. The shortage [of inspectors] has been acknowledged by Kyle Rae, while the Commission issues licenses left, right and centre - the police are left to carry out inspections.

"Where have all the inspectors gone?"

In the end, Superintendent Maher said, "My position is if they're in compliance with the regulations as set up by the Alcohol and Gaming Commission, then they're in compliance and there would be no charges."

Police have not yet disclosed details to the Provincial Prosecutor, lawyers working for the Crown Attorney who prosecute provincial offences, such as parking tickets, traffic offenses, and liquor licence charges.

To date, the Provincial Prosecutor's Registrar does not have Janko Naglic's case in their computer system. At the first hearing on May 31st, lawyer Andrew Czernik said they only received a 'summary' of events from police, rather than the constitutionally-mandated full disclosure of the Crown's file. The purpose of the disclosure is to give the accused a chance to know exactly what evidence the Crown has gathered.

Now the trial date will not be set until June 23rd. Czernik expects to be able to schedule a two-day trial to be held in September.

Another confusing aspect is Superintendent Maher publicly stating his belief that his officers checked with the Crown's office before laying the charge, yet detectives say something different.

In a phone interview to 52 Division on June 1, police Detective Greg Brigham said, "No, I don't think we went to the Crown. We went to Mr. Kulis and he said, 'I have nothing to do with the people who lay the charges.'"

"We don't need permission to lay charges. We may seek others' advice but it's ultimately our decision if we see probable cause," said the detective.

While the police position remains tenuous at best, Maher said he'd call Mr. Czernik to let him know that police will now allow The Barn to host a naked party by TNT!MEN on the eve of Pride. Maher noted that the Commission has no objection, and that follow-up investigations by undercover officers have confirmed that, in the opinion of police, no other statutory or regulatory provisions were breached.

While leaving legal matters up to lawyers and police, TNT!MEN missed one event in May but plans for June 24th Pride celebrations are in full gear!

Whether it'll be "undraped" or "partially draped" remains to be seen.

Good Cop Bad Cop: Police Harrass Toronto Nudists

Feb 26, 2000: Two plainly-clothed police officers showed up at The Barn at 11:30 pm, looking for naked people. They claimed they were responding to our street posters, but if they saw them, they didn't read them very carefully, because it was clearly marked that the dances run from 4 to 8:30 pm! They mentioned something about nude bar events being a violation of the liquor license act. Our esteemed legal scholar Peter Simm already knew that was erroneous.

Mar 25, 2000: The two cops came back during our next naked dance at The Barn. This time our event was in full swing, with over 200 naked men dancing and chatting and having a very nice time. After a 20 minute lecture from Peter Simm as to why their interpretation of section 45(1) of Ontario Regulation Number 719 was incorrect, the cops agreed that what Peter said made sense, but said they would have to consider the matter further. Later that week they placed a charge against The Barn's owner, Janko Naglic, for violating that liquor license regulation.

Early April, 2000: Peter Simm to leap into action, and after 50 hours of extensive and very clever research into court rulings and the law, he drafted a 10,000 word report lovingly and powerfully detailing four extremely compelling reasons why the police are wrong to distort the meaning of the liquor license act in that way. A copy of this report was passed on to Andrew Czernik (The Barn's lawyer) and to city councillor Kyle Rae. Rae then personally hand-delivered a copy to Supt. Maher and to the head of the Alcohol & Gaming Commission. Maher, in turn, gave a copy to the Crown Attorney's office, but we have no idea whether any lawyer there has actually read it yet.

April 7, 2000: At Rae's suggestion, Czernik called Maher. In that discussion, Supt. Maher proposed the following solution that according to his understanding of the law would enable us to continue hosting nude dances unmolested: Maher promised that no police action would be brought against The Barn for holding licensed nude events if those events are conducted as private parties. By this he meant that tickets to the party must not be available at the door, but must be purchased in advance, or elsewhere. The Barn agreed, and TNT!MEN carefully implemented the requirements of that deal for our next dance, on Saturday April 29th.

April 29, 2000: Despite this agreement, a detective and two constables showed up at the TNT!MEN nude dance on April 29th, and claimed to know nothing about Supt. Maher's "private party" plan. After an over-zealous inspection searching for regulatory pecadillos, the THREE cops left without finding anything to complain about. Exactly how much did this little visit by the cops to our event cost the City of Toronto? Probably several thousand dollars.

Liquor License Regulation 719 [Section 45(1)]