Date: Mon, 2 May 1994 09:11:58 -0400 From: "David B. O'Donnell" ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ eye WEEKLY April 28 1994 Toronto's arts newspaper ...free every Thursday ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ IF THIS VAN'S ROCKIN', DON'T BOTHER KNOCKIN': SEX IN CARS OK BY COURT - IF YOU'RE IN A SECLUDED SPOT by K.K. Campbell Landsakes alive. The Ontario Court of Appeal says Ontarians can screw in cars all they want -- so long as they take a little care not to be seen. The Great White North is getting pretty liberal in its old age. First, courts decide strippers and customers can touch should they so wish. Then Toronto the Clean's anti-postering law is struck down as unconstitutional. Now this. The Ontario Appeal Court voted 2-1 that it is OK for citizens to engage in sexual activity in cars as long as they make a serious attempt to park away from prying eyes. Car fucking outside of your closed garage was previously considered an automatic "indecent act." Most people didn't know this, however, because the law enforcement gang generally only used that Criminal Code section in its endless war against sex workers. But now, banging in bucket seats is OK, if you try to keep out of sight. DIRTY OLD COPS One May midnight in 1991, two Hamilton cops saw Dorothy Sloan hanging about a street corner. Her body language bespoke "hooker." The millicents watched a car pull up. Sloan leaned in the window to talk with the male driver. She got in. The car drove away. Hamilton's finest followed in hot pursuit of this heinous crime. Sloan and driver left downtown Hamilton, driving two miles to an almost-empty bowling alley parking lot at the base of the Niagara escarpment. They parked at the base of the tree-covered embankment, 150 feet from the nearest vehicle, 100 feet from the entrance to the lot. The cop cruiser, meanwhile, stopped atop the embankment. The officers could make out the car below. One officer began crawling down the steep hill, hiding behind bushes. He sneaked up to the driver's side and saw the two engaged in oral sex -- SURPRISE! You're busted for "public" indecency. Sloan was charged under section 173(1)(a) of the Criminal Code and fined $200. That section reads: "Every one who wilfully does an indecent act in a public place in the presence of one or more persons... is guilty of an offence punishable on summary conviction." There is no doubt they were wilfully engaged in sex; but were they wilfully trying to engage in sex in "the presence of one or more persons"? "There is no question that, had the police officer not sneaked up on the car to see what was going on inside it, no one would have seen or been aware of the sexual activity taking place," Mr. Justice Patrick Galligan wrote in his decision. This is the crucial point upon which the whole appeal rested: no one would ever have been affected by their actions -- except the Voyeur Squad slithering around to sneak a peek. Mr. Justice Allan Goodman wrote that the law was "absolutely not intended to cover police officers who surreptitiously sneak up on people in the middle of the night, shinnying down 20 feet through the Niagara escarpment, through the bushes, then getting up to about a foot-and-a-half behind you then jumping up and yelling GOTCHA!" The law wasn't meant to slap criminal records on citizens stumbled upon while engaged in sexual activity, but that was exactly how it was being interpreted by the lower courts. Irwin Koziebrocki, Sloan's appeal lawyer, argued that this traditional interpretation of the Code section means the police should be using it to round up couples in lover's lanes. "Surely young couples conducting their courtships in automobiles in dark secluded (although public) places are not committing criminal offences simply because curious onlookers seek to approach and look into such vehicles to satisfy their curiosity," Goodman wrote. Of course, had Sloan and customer parked at, say, Queen and John at midday to conduct business, Sloan would have lost her appeal, because then no care would be taken to avoid public display. Noontime fucking outside CITY-TV suggests the participants are wilfully trying to be public spectacles. A PUBLIC PLACE Prostitution is not illegal in Canada. What is illegal is trying to drum up business in public. This is called "communicating" (it used to be called "soliciting"). And this is why the courts take so much trouble defining just what a "public place" is. If cars are not public places, hookers can get in them and freely communicate for the purpose of prostitution. On top of this, many street prostitutes deliver the goods in autos. Goodman said the mere fact the car was in a parking lot isn't sufficient to turn a private place (the car) into a public place. Galligan said "surreptitious surveillance" does not turn an act done in private to a public one. So Goodman and Galligan voted to throw the Sloan case out. Mr. Justice Coulter Osborne disagreed. He called street prostitution an "evil" and praised the law for fighting it. Prostitutes are pleased the court defined the case in terms of "people," not "hookers," says Gwendolyn, a long-time Toronto sex worker and prostitutes rights advocate. "They didn't make a big hullabaloo about the fact this woman was working," she says. "The issue was framed as recognizing the fact that in our society, people sometimes have sex in cars. It wasn't a ruling on a whore and her client, it was a ruling on people." Koziebrocki told eye he took Sloan's case because he thought it an important community issue. "People need to have the law defined enough that they know if they will be charged with criminal acts for engaging in sexual activity outside of their home -- regardless if they are being paid or not. This was not specifically a prostitutes rights case. "The tenor of the judicial decision," Koziebrocki says, "is that as long as you are not hurting anyone, and you are doing it for your own personal satisfaction, then who are we to be telling you how or how not to do it?" ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~