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TORONTO, June 26 -- Nudist events are perfectly legal in Ontario bars, a Toronto judge ruled today.
Provincial Court Judge Robert Bigelow determined that allowing patrons to be naked does not violate Ontario's liquor-licence regulations.
TNT!MEN -- Totally Naked Toronto Men Enjoying Nudity -- is a non-profit nudist group, best known for their appearances in the annual Gay Pride parades, and their work in making Hanlan's Point beach officially clothing-optional. On April 29, 2000, TNT!MEN hosted a nude party at The Barn, a dance club in downtown Toronto. This was the 55th such event held there. From March 1995 through April 2000, Toronto bars host 830 publicly-advertised nude or clothing-optional events.
Three police officers conducted a "routine" liquor-licence inspection. One of the officers, Det. David Wilson, was chastised on January 31, 2002, by Provincial Court Judge Peter Hryn for "a serious, flagrant and outrageous violation of constitutional rights" during the September 2000 Pussy Palace raid, which resulted in a charge of "permitting disorderly conduct."
Despite meticulously following instructions from Supt. Aidan Maher of 52 Division regarding running naked bar events, The Barn's owner was charged with permitting "disorderly conduct."
This charge had a chilling effect on the gay community. All nude and clothing-optional bar events immediately ceased.
Regulation 45(1) under the Ontario Liquor Licence Act prohibits bar owners from permitting "riotous, quarrelsome, violent or disorderly conduct." The officers ignored a 1980 precedent by the Liquor Licence Appeals Tribunal, which clearly stated that mere nudity is not disorderly where it is expected.
At The Barn, Det. Wilson and police officers Greenaway and Jones conducted a lengthy inspection. Judge Bigelow found that they observed "naked males ordering drinks from the bar, standing around talking, playing pool, and many of them dancing on the dance floor, with some physical contact. They did not observe any sex acts taking place. No nudity was visible from the street. The only persons dressed were employees and the inspecting officers."
Judge Bigelow concluded, "Nothing in the evidence before me suggests that there was any public inconvenience, annoyance or alarm. I don't see how in any way this constitutes disorderly conduct. The charge is dismissed."
Janko Naglic, The Barn's owner, was ecstatic. "I'm thrilled to have the naked dances back," he said. When asked if the coming TNT!MEN dance would be nude, he replied "Oh absolutely! We've waited long enough."
After a brief statement from the Crown, The Barn's lawyer, Andrew Czernik, presented a well-planned argument, based on extensive research by co-counsel Peter Simm. Judge Bigelow agreed that mere nudity could in no way be considered disorderly in that context.
After two years of dancing in their undies, TNT!MEN is delighted to host a nude victory celebration this Saturday, June 29th, at The Barn, 418 Church St., from 2-9 p.m. All men are welcome.
During the proceedings, Det. Wilson sat quietly in the courtroom, and vanished moments after the decision was announced.
This is another in a series of skirmishes between gay nudists and some Toronto police officers. A few weeks after City Council approved the nude beach at Hanlan's Point in May 1999, a few officers ordered skinny-dippers out of the water, citing an expired Harbour Commission bylaw. Their superiors were quick to disapprove of the actions of those officers.
A few weeks later, the downtown gay bars began to complain about an increase in liquor-licence inspections and citations. There were rumours of threats that the police would arrest nudists at the Pride parade. A few months later, the licenced Pussy Palace event was raided.
On June 7, 2002, Supt. Aidan Maher of 52 Division told TNT!MEN that officers are planning to arrest nudists in the Gay Pride Parade on Sunday, June 30th. The Crown and Attorney General have always denied the police permission to act in the past, since in that particular context, nudists wearing footwear are not breaking the law. It appears that this year, the police may be planning to act without the approval of the Crown or the Attorney General's office.
At the meeting on June 7th between Supt. Maher, Pride Toronto Co-chair Kyle Knoeck, and representatives of TNT!MEN, Maher stated that a senior regional Crown Attorney told him that he would recommend that the Attorney General consent to prosecution if the following three conditions are met:
Peter Simm of TNT!MEN, a published legal scholar, explained why marching nude at the Pride Parade is not illegal.
Simm says, "Total nudity is against the law. However, even if all you wear are socks, the Supreme Court of Canada says that you are not automatically considered 'nude' for purposes of the Criminal Code. You're breaking the law only if 'so clad as to offend against public decency.'"
"Since all of the marchers in the Pride Parade are at least wearing shoes, the courts' interpretation of 'public decency' comes into play. The legal test isn't whether the average Canadian would want to attend the Pride Parade and see nude men. The test is whether the Crown can demonstrate a substantial risk of harm beyond mere annoyance of some onlookers. It is worth remembering that under Ontario Film Review Board guidelines, even a Family-rated film can contain 'casual, non-sexual nudity.'"
Since even the Toronto Sun has referred to TNT!MEN as "one of the most photographed, and loved, groups of the day" (29 June 1998), and since the reaction of the crowd at each year's Parade has been extremely positive since 1997, any purported risk of harm is highly speculative.
There is no reasonable prospect of conviction, and the police will be hard-pressed to demonstrate that prosecution would be in the public interest. As a result, it is doubtful that the police will receive the permission they need to actually follow through on their threat.
The meeting had been rescheduled at Supt. Maher's request so that he could bring his legal counsel. Despite this, he came alone. Saying he was not qualified to judge the merits of the legal arguments, Maher said he would consult counsel and inform TNT!MEN of their interpretation of the law. A week later Maher told Simm that his legal counsel would never contact TNT!MEN.
Will Pride Day be an opportunity for retribution by police? Will nudists march naked? Will they be arrested?
We'll have to wait and see.
For more info, please contact:
Peter Simm
TNT!MEN Secretary and Legal Counsel
416-368-7316