How to Read a News Article about Criminal Law
On October 29, 2017 the Toronto Star reported that charges against about a dozen men caught up in “Project Marie” have been withdrawn.[i] Toronto Police regularly conduct big headline-grabbing “Projects.” Project Kronic targeted the Driftwood Crips, charging 90 people with offences ranging from drug trafficking to firearms possession and attempted murder. Project High Class was an investigation into a string of residential Break and Enters in South Etobicoke. Project Marie was of a different sort – it targeted men having sex with other men in a park. It was a six-week operation involving an unknown number of undercover officers attending the park to look for homosexual activity. The saga provides a good lesson in how a little knowledge about history and the criminal law lets readers see through misleading “news” articles and police statements.
The Misleading Article
On November 23, 2016 the Toronto Star published an article that reads no differently than a dramatized police press release.[ii] It begins with four attention grabbing statements:
A registered sex offender, apprehended after exposing himself within the vicinity of children.
Two men charged for engaging in sexual activity, in a car at a busy parking lot over the lunch hour.
A male patron observed naked near a popular splash pad in broad daylight.
Numerous men caught with their pants down in the bushes off a well-used cycling trail.
The article goes on to say that these are examples of the lewd behaviour going on at Marie Curtis Park that police are cracking down on in Project Marie, and that there had already been 84 charges against dozens of people. Kevin Ward, the police officer leading the effort, stated that plainclothes officers had attended the park and “male patrons have been approaching our officers and soliciting them for sex.” He added that “some male officers… have even had male patrons expose themselves to them… Others have actually attempted to (engage) our officers without being given permission, and that’s where it’s alarming.”
The article also included an interview with a local resident who expressed concern for his children, and who organized, along with the police, a full day to “take back the park,” culminating in a candlelight march through the park at dusk.
The article was misleading and alarmist. It turns out that all but one of the charges were non-criminal. Not a single one of the charges related to a criminal sexual offence. This is key to understanding why the article was so misleading. If criminal behaviour had been observed, criminal charges would have been laid. Police would not carry out a six week project including undercover officers but let people they believe to be sex offenders off with a warning. By looking at the wording of sex related criminal charges, an informed reader can deduce what actually happened during this investigation.
Sexual assault is an assault in which the victim’s sexual integrity was violated. No one in Project Marie was charged with sexual assault or attempted sexual assault. When Kevin Ward, the police officer who led this initiative, described his “alarm” that men had attempted to “engage” undercover officers without permission, he is obviously meaning to bring to the reader’s mind an attempted sexual assault. There are few things as stereotypically terrifying as being sexually assaulted in a park. A news article, as opposed to a police press release laundered through a newspaper, would have followed up on this alarmist statement.
It is also a criminal offence to do an indecent act in a public place in the presence of one or more persons. A more serious form of that offence is to expose one’s genitals to a child under the age of 16. No one was charged with these offences during Project Marie. That is what makes the opening paragraphs of the article so misleading. The first sentence refers to a registered sex offender exposing himself “within the vicinity” of children. If he had exposed himself to children, he would have been charged with indecently exposing himself to a child. The point of this sentence in the article could only be that children in the park are under threat from sexual predators. Yet the actual police operation had nothing whatsoever to do with investigating or preventing sex crimes against children. The only link between Project Marie and protecting children is a longstanding homophobic belief that gay men are pedophiles.
The opening sentences also refer to two men in a car in a busy parking lot engaging in a sexual act over the lunch hour. Again, if that had happened, they would have been charged with Indecent Act, since they would have been committing an indecent act in a public place.
“A male patron observed naked near a popular splash pad in broad daylight.” Again, if this had happened the person would have been charged with Indecent Act. And yet again, this is an example of linking sex crimes against children to gay men.
The police officer stated, negatively I presume, that plainclothes officers had attended the park and “male patrons have been approaching our officers and soliciting them for sex.” It is not illegal for one adult to express sexual interest in another adult, and yet this is what a police officer expresses concern about and what a journalist dutifully transcribes.
Kevin Ward is also quoted as saying that some men exposed themselves to undercover officers. This is where it gets interesting. If a man in the park had exposed his genitals to a police officer without any type of instigation, that man would have been charged with Indecent Act. But if the undercover officers pretended to be cruising and expressing sexual interest, it’s not a criminal offence. There’s clear case law on this point.[iii] It may be a surprise to members of the general public, but there is a long history of undercover officers entrapping gay men in public places by feigning sexual interest. That is what occurred in the Mailhot case, referred to below, and is also described in a news article from March 1983.[iv] This history also provides context to an open letter sent by Cheri DiNovo, then MPP, to the Attorney-General in which she wrote, “[w]e have learned that Toronto Police had been performing undercover sting operations in Marie Curtis Park trying to lure gay men and trans people to proposition them for sex.”
So what really happened? It seems that for six weeks undercover officers went through the park pretending to be sexually interested in men, or looking off trail and out of plain view for men having sex. That is why police had to rely on municipal by-law infractions[v] and provincial trespassing laws.
After the arrests became public, a group of lawyers offered to represent the accused men pro bono. Everyone who they represented, about a dozen people, saw their charges withdrawn.[vi] This is yet another example of how hiring a lawyer rather than pleading guilty right off the bat is the most effective way to protect yourself, and to oppose state misconduct.
For connoisseurs of irony, this story has a glorious euphemism-filled addendum. Kevin Ward, the officer who led Project Marie, is charged with police misconduct for having an “inappropriate relationship” with a member of a college student group that he led, and for having “made inappropriate comments, gestures, or suggestions to several ‘subordinate’ group members on a group outing.”[vii]
[iii] R v Clark, 2003 BCCA 408 commenting on R. v. Mailhot (1996), 1996 CanLII 6499 (QC CA), 108 C.C.C. (3d) 376. “There, an accused had approached a plain clothes police officer and apparently concluded, mistakenly, that the officer wished to engage in sexual conduct. The incident occurred in a park setting where the only persons present were the accused and the officer. The accused, believing the officer was assenting, undressed and performed an act of masturbation in the presence of the officer. The court concluded that the accused did not have the necessary mens rea to be found guilty of the offence of indecent behaviour in public. I venture to suggest that a very different result would have obtained if, for instance, the accused had performed the act in the presence of a person passing by in the area.”
[v] Toronto Municipal Code § 608-3. A. While in a park, no person shall:
(5) Engage in any form of sexual behaviour; or,
(6) Be nude.