Following through on their threat of legal action, seven Toronto police officers have quietly launched a defamation suit against city councillor Kyle Rae, seeking a total of $3.5 million in damages.The lawsuit is the latest fallout from the controversial police "inspection" of the Pussy Palace on September 15, which ultimately resulted in a half-dozen minor charges under the Liquor Licence Act against co-organizers Rachael Aitcheson and Jill Hornick.
The shocking defamation case once again raises concerns of police intimidation of democratically elected officials. As well, observers say the whole affair highlights the scary police use of municipal and provincial statutes in place of vagrancy laws as a backdoor way to carry on criminal investigations without having to go through the inconvenience of going before a judge to get search warrants.
NOW readers will recall that a few months back, then 52 Division detective Dave Wilson and other unnamed officers involved in the intrusion on the lesbian social threatened to sue Rae if he didn't apologize for labelling them "goons" and "rogue cops" in media interviews.
The officers are claiming a shopping list of damages, including physical, mental and emotional harm, plus economic loss -- specifically "a reduction in pay duties, overtime opportunities... and lost promotional opportunities."
Ironically, the officers also claim to have been "subjected to harassment and ill treatment by members of the Toronto gay community."
The statement of claim also reveals that the police operation at the Club Toronto bathhouse early that morning involved two undercover women officers -- 52 Division detective constable Chris LaFrance and special investigations services (SIS) constable Janet Hall -- as well as the five male plainclothes officers who, according to the claim, showed up at the door 46 minutes later to begin their liquor licence "inspection." The claim also states that the male police officers stayed for a total of 49 minutes, challenging the previously reported accounts of a two-hour "panty raid."
One police observer is already calling the lawsuit a threat to local democracy.
"(Councillors) have got to be free to criticize the police and not feel that they're going to be sued every time they do," says civil rights lawyer Clayton Ruby. "The police could succeed in hiding their wrongdoing from the public, because those who become knowledgeable and who'd inform the press would become afraid to speak. And that's dangerous for democracy."
As chilling as it may be, however, the Rae suit and perhaps even Aitcheson and Hornick's case, could be the forums that finally expose police use of the Liquor Licence Act as a tool to harass the gay and lesbian communities. There are certainly some troubling questions about the case that suggest the inspection was anything but routine.
University of Toronto criminology professor Mariana Valverde, who has studied the charges laid under the Liquor Licence Act by Toronto police, notes that the provincial statute is more commonly used to curb drinking on the streets and rarely for regulating establishments.
A breakdown of the charges laid under the act in 52 Division in 1999, for example, reveals only three cases of special permit violations and 42 cases where an establishment was charged with serving liquor to a minor. There were no charges of a minor being on a licensed premises.
However, there were 373 drunk charges in 52 Division, and the number of charges for consuming liquor not on a licensed premise was 875.
"The liquor laws are being used to police the homeless," argues Valverde. "And it's really very rare that they're being used against establishments, which certainly bears out Kyle Rae's contention that these were rogue cops."
As well, according to the claim against Rae, the Pussy Palace operation was initiated after police got a complaint from a female caller who had "observed drug use, physical violence and inappropriate sexual activity at a similar previous event."
Those are alleged Criminal Code violations, which would have required the police to obtain a search warrant before they entered the bathhouse. But based solely on the tip they had, lawyers and police agree that convincing a justice of the peace to give them one would have been a long shot.
So was this just an over-the-top liquor inspection? Or did the police use the Liquor Licence Act, a provincial statute that entitles them to carry out inspections without a search warrant, to go fishing for criminal acts? The fact that there were two undercover officers on site well before the five plainclothes arrived suggests that something more than a routine liquor licence inspection was being conducted.
Superintendent Aidan Maher, commander of 52 Division, maintains that Wilson (who has since been transferred out of 52 Division) and his colleagues were simply upholding the act.
"The authority is still under the provincial statute for (the police to enforce non-liquor offences)."
But others argue that the Pussy Palace sting was unconstitutional for just that reason.
"I think there's a very good argument to be made that what the police did here was unconstitutional by using an existing provincial power as a pretext to conduct a full-blown criminal investigation," says Osgoode Hall criminal law professor Alan Young.
In reviewing recent bylaws that have been passed in Oshawa and Bowmanville regulating adult entertainment shops and massage parlours, Young says that what's become increasingly apparent is that innocuous laws like these are giving police greater powers of intrusion. He notes that the Supreme Court of Canada reeled police in a few years back after they found that officers were using a provincial law allowing random car stops (aimed at combatting impaired driving) to initiate drug searches.
Says Young, "This has been going on across the country for the past 10 years or so, where police have been relying more and more on provincial and municipal powers as a pretext for investigating crime. The highest court in the land is going to have to resolve whether they can do that."
Along with Wilson, LaFrance and Hall, the other four plaintiffs are SIS detective constable Peter Christie, SIS detective Myron Demkiw, 52 Division constable Rich Petrie and 52 Division detective constable Adrian Greenaway.
The officers' lawyer, Michael Freeman, declined to comment except to say that he is currently working on an amendment to the claim requested by Rae's lawyer.
Rae also has not commented and has yet to file a statement of defence. He is being represented by outside lawyers, but his legal costs are being picked up by the city.