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HER MAJMSTY "HE QUEEN 


“-vs- 


GLAD DAY BOOK SHOP ET AL, 


619/90 
a ONTARIO COURT OF JUSTICE (GENERAL DIVISION) 


SUMMARY CONVICTIONS APPEAL 


BETWEEN: 


5 
HER MAJESTY THE QUEEN 
- and - 
GLAD DAY BOOK SHOP and jJ#HARLN MOLDENHAUER 
7 10 
--- Before THE HONOURABLE JUSTICE F. HAYES at the Court 
House Hearing Room # 3, 21st Floor, 180 Dundas Street 
15 West, Toronto, Ontario on May 12, 13, 14 and 15, 1992. 
TR IE AL PROCEEDING S 
20 
APPEARANCE 8S: 
7 25 MS. BEVERLY WILTON Counsel for the Department 


MR. VERN BREWER of National Revenue for 
Customs and Excise 


MR. CHARLES CAMPBELL and Counsel for the Appellants 
MS. CLARE BARCLAY 


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RAYE, Kyle 


INDEX OF WITNESSES 


Examination-in-chief by Mr. Campbell 


Cross-examination by Ms. Wilton 


Examination-in-chief by Mr. Campbell 


Cross-examination by Mr. Brewer 








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MAY 12,. 1992 ° 


THE COURT: Are you ready to proceed on this 
Glad Day Bookshop? 

MR. CAMPBELL: Yes, Your Honour. IT am Charles 
Campbell and I am the lawyer for Glad Day. With me is 
Clare Barclay and my friends are here for the Ministry 
and they are --- 

MS. WILTON: Yes, Your Honour, it is Beverly 
Wilton and Mr. Vern Brewer appearing for the Deputy Minister 
of Customs anc Excise. 

THE COURT: Yes. 

MR. CAMPBELL: Your Honour, perhaps I could 
speak to the various procedural issues before we get started. 

THE COURT: Yes, I would be pleased to hear 


you. 


Preliminary opening of hearing in discussion re the nature 


of the case to be presented (Not transcribed) 


RULING 
THE COURT: In this matter with the 
assistance of counsel I believe there is almost a common 
ground as to how this matter should proceed. 
This is an appeal by the appellant from the 
decision of Deputy Minister of National Revenue for Customs 
and Excise. With respect to his notification of determina- 


tion given on July 19, 1990 in respect of materials referenced 


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a Ruling - Hayes, J. 


by control numbers set out in the Notice of Appeal. The 
5 court does not find it necessary for the purpose of this 
ruling to delineate the internal administrative and statutory 
procedures for the classification of material which is coming 
into the country, save and except to say that tne last 
a step is the decision of the Deputy Minister and it is that 
decision from wnich this appeal lies under the provisions 
of the Act. 
In this case, the appeal is to the general 
division of the Ontario Court of Justice whereas in other 
° neads of remedy under the Act the appeal would lie to the 
Canadian International Trade Commission. It 1S important 
to note in this matter that there is not set out in the 
Act any procedural guideline whatsoever with respect to 

i the handling of theappellate process. Therefore, I have 
had the assistance of counsel and with tneir assistance, 
I make tne following comments and then I snall give the 
ruling on how the matter will proceed. We must observe 

25 in this matter tnat we are dealing with a thing, an object. 
It is is akin to an in rem proceeding. It is common ground 
that there was no evidence by the appellant before the 
Deputy Minister, there were no submissions heard by tne 


39; Deputy Minister, from the appellant, and as I understand 


it, there was a ruling by the Deputy Minister, but there 


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are no reasons for the ruling which have been filed with 
this court. I gather it is common ground that the decision 
of the Deputy Minister was communicated to the appellant. 
Now, in the ordinary hearing of an appeal there is a trial 
record of evidence, submissions and reasons for judgment. 
In some cases, appeals are heard as a result of a review 

of various documents and what interpretation may have been 
placed on them by the trier of fact. In this case, by reason 
of the nature of the proceeding, we are dealing only with 
an object and in any procedure adopted, in view of the fact 
that heretofore in the proceedings, there has not been an 
Opportunity for submissions and an opportunity for argument 
and that is not contrary to the statute and I pass no 
judgment upon the provisions of the statute in that regard. 
But it 1s a fact as we approach the procedural aspects of 
this appeal, the court considers it important that it has 

a determination of this matter with respect to this thing, 
although not a trial, and although I am invited to call 

1t a trial de novo, I believe is the format, it must be 

a fair hearing. I decline to call it a trial de novo. 

The procedure which I am about to follow is a procedure 
which I hope will result in a fair hearing to the parties 
and provide the court with the necessary assistance. To 


render wnat I hope will be an informed judgment applying 


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the law as it exists to the subject matter of the appeal, 
namely, the items. Therefore, on this matter there has 
been considerable argument as to who is to go first. In 
view of what has been said by the crown, I do not find it 
in this case necessary to make that decision. 

The ruling will be as follows: the crown 
will tender and will file with the court an item which has 
been classified as being prohibited, a copy of the ruling 


of the Deputy Minister which is appealed from. If there 


is more than one item, then of course they will all be filed. 


The crown has indicated that it does not intend to call 

any evidence on issues 1, 2 and 3 in the Notice of Appeal. 
The appellant will have the right to call evidence and those 
witnesses will be subject to cross-examination. I might 

say that I have had the assistance of counsel for the crown 
pointing out the procedure before the Trade Commission as 
provided in the regulations or sections in that regard. 

I believe that the procedure that I have indicated above 


1s somewhat analogous to that in that that body has the 


item placed before it and there is the right to call witnesses. 


so that the Trade Commission then has the benefit of that 
evidence in reaching its conclusion with respect to whether 
the items is as being considered in the appeal from the 


Deputy Minister. Therefore, after hearing that evidence, 


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Ruling - Hayes, J. 


I will then hear submissions and those submissions will 
include counsel's opinion as to the standard of proof to 
be used by the court and I must say, that I am not in any 
way disregarding thejudgment of Madam Justice Chapnik in 
this matter where there was a preliminary motion for a 
direction, and I of course, will give every consideration 
with what she said. I might say that she does on page 14 
say, 
"T would suggest that the legislature, 
that the intention of the legislature ic 
in the developing and implementing 
within the administrative scheme, 
including an appeal to this court, was for 
the standard of proof to be on a balance 
of probabilities. Upon a simple review 
of the legislation, I am satisfied that it 
was not intended that the crown should bear 
the burden of proving the grounds for prohi- 
biting the importation of goods beyond a 
reasonable doubt." = 
So that is her suggestion and this court considers it 
appropriate that the standard be tried and be fully argued 
at this hearing and I hope that that will, without putting -_ 
any trade names to the procedure, result ina fair hearing 
of this appeal. 
In respect to item number 4 in the Notice 
of Appeal, it states, 


"the intention of the subject materials 
is an unreasonable violation of the appellant's 





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"freedom of expression contrary to 

Section 2 of the Canadian Charter of Rights 

and Freedoms." 

Mr. Campbell has agreed that the hearing of 
that matter, if it is to be heard, will be deferred, and 
I think counsel are in agreement on that, until the result 
is determined with respect to items 1, 2 and 3. I hope 
those guidelines are acceptable. 

Madam Crown, are you ready to proceed? 

MS. WILTON: Yes, Your Honour. 

THE COURT: Would you please delineate for 
the record very clearly, what it is you are filing. 


---— Discussion between the court and counsel for the crown 
(not transcribed). 


--- EXHIBITS NUMBERS 1, 2, & 3 Produced and marked 


--- Opening statement by counsel for the appellant re 


the nature of the case to be presented (not transcribed). 


--- Whereupon the court adjourned. 


--- Upon resuming at 2:15 p.m. 


MR. CAMPBELL: The first witness I would call 
is Robert William Payne. 


ROBERT WILLIAM PAYNE, Sworn 


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EXAMINATION-IN-CHIEF BY MR. CAMPBELL: 


MR. CAMPBELL: Q. Mr. Payne, would you tell 
the court, please, what position do you hold? 

A. I am chairman of the Ontario Film Review 
Board. 

Q. What does the Ontario Film Review Board 
do? 

A. The Ontario Film Review Board is mandated 
by a provincial piece of ligislation called the Theatres 
Act of Ontario to screen and to classify all film and video 
that is released commercially in the Province of Ontario. 

Q. Sometimes the word "censor" is used, is 
this a Board that censors films or how would you use that 
word, not use the word? 

A. The legislation does contain a provision 
that gives the Board the power to censor, if you will and 
we, in fact, do on occasion. 

Q. And would you tell us how long you've 
had this position? | 

A. I have been chairman for almost three 
years. 

Q. And prior to being chairman, did you have 
any association with the Board Review? 

A. I was on the board as a regular member, 

a screening panel member for a couple of years prior to 
my being appointed chairman. 

Q. And prior to -- is the job of chairman 
part-time or a fulltime position? 

A. Technically it's a part-time position, 
although in my particular case, I am therefore, at least, 


parts of all five days of the week. I am to be there two 


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R.W. Payne - in chf. (Campbell) 


full and two half days. So officially I am working four 
days a week. 

Q. Now, when you were a member of screening 
videos, was that a part-time or a fulltime position? 

A. It's also a part-time position, sir. 

Q. Currently how many people are there who 
would screen videos as members of the Board who are obviously 
not chairs of that Board? 

A. Today there are 22, although the number 
has varied; in the past we've had as many as 32 I guess 
over the past two or three years. 

QO. And in your tenure as chair what is the 
number of the people at the Board been, is it 22, 32, how 
does it range? 

A. You force me to explain. Each member 
of the Board is appointed by order in counsel and the order 
in counsel will have specific time period to it which could 
be anything from one, two, three years, and because the 
numbers are appointed on a staggered basis, it is possible, 
for example, for one member's tenure to run out today and 
another's to run out next week or whatever. In the meantime, 


if anybody comes along to replace them, which is not only 


_possible, it is often likely; the numbers on the Board vary. 


So what I'm saying to you, is that when I took over as 
chairman in 1989, there were 32 members on the Board at 
that time, today there are 22. 

QO. All right. Just another question about 
yourself. Prior to becoming chair of the Board, what was 
your profession or occupation? 

A. I ama broadcaster and writer. 

Q. Now, the other people who are on the 


Board who screen film and video from time to time, how 


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are they selected? 

A. Officially they are appointed by the 
Lieutenant Governor, in fact, they come to the Board via 
elther the Minister of Consumer and Commercial Relations, 
which the Board falls under, or the Premier's office in some 
instances. 

Q. And are you -- what credentials, if any, 
do they bring to the job being on the Board? 

A. Well, part of our mandate is to reflect 
community standards, and I think in the process of trying 
to ensure that these community standards are reflected in 
the appropriate way. The backgrounds of the Board members 


vary; not only geographically, in that they come from all 


parts of the Province, but they also represent both genders 


most of the time equally. The also come from all kinds of 
racial, cultural, religious backgrounds, if you will. So 
to the degree a Board of that kind can reflect the bladder 
community, I think this one does. 


Q. All right. Can you tell us just 


mechanically and briefly how the Board functions in reviewing 


film and video, what do you do? 

A. Well, you never have a situation where 
the entire Board is viewing a film or a video. What we do 
is most of the time work in panels of three; there must be 
at least three members of the Board that watch each film 
Or each video; on any given day, you would have two or three 
panels of three people each. Again, all of them watching 
various videos or various 35 millimetre films and sometimes 
16 millimetre films. There are certain internal guidelines, 
if you will, that we have drawn up over the years that are 
updated and changed as we go along and when I say changed, 


only in the sense that community standards seem to shift 


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from year to year or whatever. 

Q. Can I ask you a little bit of those in 
a minute. So the answer then is, you’look at the films in 
groups of three? 

A. That's right. 

Q. Okay. Now, do you look at films and 
video and is there any difference in the test or criteria 
you apply to films and video? 

A. No, we apply the same criteria to them. 

Q. Now, are you, in your capacity as chair 
of the Film Review Board, in touch with people in other 
Provinces who have the same kinds of functions? 

A. This very morning, the chair of the 
Alberta Board was in my office visiting for a couple of hours 
which happens to be a coincidence; on a regular basis, I 
talk to most of my fellow classification Board heads across 
the country, I don't know, I suppose once a month or a couple 
of times a month. | 

OQ. And do you compare the standards that 
are applied in the different Provinces or attempt to? 

A. Yes, we do. 

Q. And just a little more precisely, how 
do you attempt to make that comparison? 

A. Well, each Board publishes or releases 
at the end of the month all the titles that have gone through 
for screening and classification in that particular month 
and each Board sends its own list to the other Boards across 
the country. There are a total of seven by the way. And 
just by comparing titles, for example, I mean, just to give 


you an example, if it's Terminator 2, the film is released 


almost simultaneously across the country. So each Board 


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1s dealing with it almost at the Same time. So one way we 
compare 1S by what other Provinces Classify each particular 
film, that's one way we do it. We do it in discussion, I 
mean, there are a couple of occasions a year where all of 
us will get together and happened as recently as a month 
ago in London, England, coincidentally. So there are -- 
there is a continuous exchanging of notes and comparing 
systems and talking about various things that we have to 
deal with ona day-to-day basis. 

Q. Now, let me --~ my next question maybe 
you were getting to, do you make any efforts to be knowledgeable 
about the standards of film Classification or censorship 
outside Canada? 

A. Yes, I do. 

Q. And again, briefly, how do you attempt 
to do that? 

A. Well, in a number of ways, I suppose; 
the easiest way to do that is to read material that comes 


from abroad in terms of, you know, quite often they will 


appear, in let's say, magazines or whatever, they appeal 


to either the film and video industry or perhaps that part 
of Government which deals with film and video, -that would 
be one way. I think I explained to you that a month ago 

at the end of March, I was in London at an international 
conference that had delegates from 38 countries that lasted 
for a whole week. During that week, I had a chance to not 
only speak with but compare notes with people from those 

38 countries which included South Africa, Zimbabwe, New 
Zealand all of WesternEurope, what used to be the Soviet 
Union, Japan, Hong Kong, the United States. So all of those 
people happened to be at that ee discussing film 


Classification. 


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Q. All right. The next question may be a 


little bit mechanical here, so we're clear on the record, 


what's the difference between classification and censorship, 
So we all understand? 


A. Well, classification is -- I suppose 


there's an element or tiny component of censorship in classi- 


fication in that classification in Ontario, at least, means 
clamping age restrictions on certain types of films and 


videos. So again, not everybody does it like Ontario does, 


but the systems are comparable. We have four classifications 


in Ontario, so therefore, we would screen every video, we 
would screen every film and based on the components of that 
particular film, we would put it into either a family, 
parental guidance, adult accompaniment or restricted classi- 
fication. And each of those has an age element to it. For 
example, restricted in Ontario means that nobody under the 
age of 18 should have access to it. In the case of adult 
accompaniment, it means that anybody under the age of 14 
must be accompanied by an adult to access either the film 

Or video. 

Q. All right. And then when we're talking 
about censorship while I realize that doesn't -- that word 
doesn't appear in the Theatres Act, but what does that 
normally understood to mean? 

A. Well, censorship means, I suppose, what 
most people assume it to mean; it means banning or rejecting 
of a piece of material or pieces of the piece of material. 

Q. And when you say pieces of the material, 
mechanically how would you do that? If somebody brought 
you a film and they were only pieces that you objected to, 
what would happen? 


A. The most common way for it to happen is 


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R.W. Payne - in-ch (Campbell) 


that the panel members who had viewed that particular film 
or video would say "not approved pending eliminations", and 
then on the back .of what amounts to the official report 
which is called a summary report, on the back of that they 
would list specifically the one or two scenes that in their 
Opinion were beyond community standards. So in most 
instances, the distributor whose film or video it is, would 
comply and make those changes for the purpose of being able 
to release the product. 

Q. All right. Another question, may be 
obvious, so the record is clear, you're dealing with books 
Or with film and video, not books or magazines, is that 
right? 

A. That's correct, sir. 

Q. All right. Now, you've talked about 
community standards, but be a little bit more specific about 
the criteria upon which you make your decisions. First of 
all, in the Theatres Act and its regulations do we find 
anything that gives guidance about how you might make deci- 
sions? 

A. Yes, in the regulations specifically it 
gives a number of criteria that could be applied to the 
approval or rejection of a particular product. For example, 
sex mixed with violence that we consider to be degradation 
or humiliation and abhorent. Mostly sexual behaviour 
involving things such as'7 bestiality, necrophilia, the 
employment of minors in sex films. And there are other 
criteria such as vomiting and defecation that sometimes go 
into that mix. 

MR. CAMPBELL: All right. Your Honour, I 
might just say I am filing a copy of that particular 


regulation for your reference. 


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THE COURT: Thank you. 

MR. CAMPBELL: Q. I don't happen to have 
it right now, but we can get that for you. 

Mr. Payne, you say that these regulations 
were things that could be applied. Does the Board regard 
those regulatory items that you mentioned and the ones 
that we'll read, do you regard them as definitive and 
10 mandatory or is there some flexibility in the way you apply 

them? 

A. Well, I suspect that the specifications 
or regulations were written in a manner that was perhaps 
sufficiently vague so that it would give us some leeway on 
making these kinds of decisions. So for example, the word 

" that appears in the sentence immediately prior to those 
components I just referred to so as the Board may choose 
to reject a film or video. Some members take that to mean 
"may not." 

Q. All right. Well, when you refer to 
20 internal guidelines, were you talking about those regula- 

tions or is there something else that you have in mind when 
you refer to internal guidelines? | 

A. No. In addition to those regulations, 
the Board has its own internal guidelines that are devised 
on a continuing basis, if you will, or at least they are 

26 updated or altered on a continuing basis, things that would 
occur on an everyday basis. I mean, for example, course 
language; does that mean that, you know, at various times 

in the history of the Board there have been situations where, 
for example, you could not have course language in a film 

- that is rated parental guidance. . That was years ago. 


We now have course language, some course language sometimes 


in aP.G. film. So that would be the kind of situation that 


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would be discussed by Board members where eventually we would 
come up with what we thought was the most appropriate way 
of handling it. 

Q. Now, let's zero in on those portions of Sa 
your quidelines that deal with restricted or, I think I should 
say of censored provisions of films. In other words, those 
parts that the Board might rule "no, it cannot be ina 
particular film" and do you have some -- and obviously in 
this case we're talking about sexual items -- do you have 
some guidelines along the lines you've been talking that 
deal with the degree of explicitness of sex that you would 
order censored from any particular film? 

A. No, we have a number of guidelines that — 
pertain to sex films; they don't pertain specifically to 
the explicitness, no. 

QO. And I'm going to ask you a little bit 
about how you develop those, but let's just get to the 
specific point; is it the Board's position today, or excuse 
me, what is the Board's position today with respect to 
whether or not scenes of explicit sex that may be particular, 
explicit sex, penetration could be included ina film or 
video that would receive approval from the Board of Review? = 

A. Well, generally speaking the guidelines 
that we have devised and under which we have been operating 
for the past 18 months or so say that the explicitness of. 
the sexual activity 1s not really of any concern to us as 
long as it involves consenting adults, does not involve 
minors, does not involve violence of any kind, does not 
involve bestiality and necrophilia -- did I say minors? 
And is not in our opinion again degrading. 

QO. All right. And is there any distinction — 


that the Board draws between film or video that shows 


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heterosexual couples as opposed to gay or lesbian couples? 


A. No, we make no differentiation between them. 


QO And in particular, in videos that show 
sex -- illicit sexual activity between men, do you make a 
destinction between anal penetration as opposed to vaginal 
penetration that we might see in heterosexual activity? 

A. No, we don't, but then again we do have 
some so-called heterosexual films that govern anal penetra- 
tion as well. 

Q. Let me -- you said -- you mentioned 
18 months ago that you had revised these -- if you could 
just take us back to that point, 18 months ago and describe 
for the court the process that you went through when you 
did this revision that you referred to? 

A. Sure. I guess the process started 
primarily as a means not to Change anything, the motivating 
factor was one of trying to attain consistency. Up to that 
point, the Board did not have any written guidelines as it 
pertains to sexual kinds of material. And so what was 
happening, because we work in panels and because we have 
different mind sets among Board members in terms of what's 
right and what's not rignt and that kind of thing, depending 


on which day it was, we were getting decisions on sex films 


that were all over the map. That was resulting in distributors 


who, in fact, owned this material complaining to the Board 
that they didn't knowon a day-to-day basis whether their 

film or their video would get through or whether it would 

not get through. So as a means as addressing the consistency 
aspect of it, I| initiated a rather lengthy process and when 

I say a lengthy process, it was done over the course of nine 
montns, it culminated in a weekend retreat in Barrie, Ontario 


to which we invited a member of "Project P." I assume you 


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a R.W. Payne - in-ch. (Campbell) 


know who "Project P" is? 
QO. I think for tne record you'd better tell 
us who "Project P" is? 
A. "Project P" being the Ontario Provincial 
Metro Police Force and that was set up, I guess back in the 
'70's to seek out and destroy pornography and hate literature. 
QO. What was the purpose of this weekend 
10 retreat? 
A. The purpose of the weekend retreat was 
to come up with guidelines that would give the Board a 
consistent approach to this kind of material. So in addition 
to a member of "Project P", we had a distributor, we had 
a couple of facilitators whose expertise was to take a group 
" of people from a diverse background with diverse opinions 
and bring them to some common ground. So over the course 
of the weekend, each Board member was polled as to what it 
was tnat he or she could not abide in this kind of material, 
and so we discussed it and -- I mean, we discussed it and 
20 we debated and eventually came out of the weekend with a 
number of criteria written down on paper wnich had not 
happened up until that point. It was done in a weighted 
system in the sense that there were certain concerns that 
out-weighed other concerns and at the top of the list were 
things like violence, the Board members could not abide 
25 violence, in those kind of films, they could not abide 
children, they could not abide many of the things that I 
referred to earlier. And the least offensive aspect of it 
according to these Board members was the explicitness of 
it. So when we got back from that weekend, taking into con- 
aa Sideration what I knew the courts to have ruled in obscenity 


cases, if you will -- by the way, the officer on "Project 


P" at the time explained to us and the time being 


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September 15th, 1990, the officer from "Project P" explained 
to us that "Project P" was not laying charges at that time 
for material that included only explicit sex involving 
consenting adults, but they did lay charges if it went 
beyond that. So I took into consideration what the 

courts seem to have been saying over the previous couple 

of years, took into consideration what the other Provinces 

of Canada were doing and in this regard, basically followed 
them or allowing sexual explicit material to be cleared by 
their various Boards and took into consideration what most 
of the free world was doing in this area, took into con- 
sideration the gallop polls that had been conducted and 

also keeping in mind the Board members are for the most part 
people who came to the attention of the political apparatus, 
if you will, by virtue of their work grass roots community 
orginisation work or in some instances, political work which 
puts them in touch with a whole bunch of other people. So 
it seemed that the only correct course was to forget about 
explicitness and concentrate our attentions on those other 
troublesome components. 

Q. All right. And again to be clear, in 
that consensus as you described it 18 months ago, was there 
a distinction made between gay and straight films and 
videos? 

A. Well, it came up for a brief discussion 
long enough to come to the conclusion that we Should not 
make any diferentiation between the two; again keeping in 
mind that community standards is what we are trying to 
reflect. 

MR. CAMPBELL: Your Honour, since we are right 
in the middle of this witness's -- this part is not as tidy 


as I would like, I was going to ask Mr. Payne to bring 


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along with him an explicit video that has in it explicit 
sex of a gay nature so that I could demonstrate to you, 
if it 1s required to do so, other than what Mr. Payne has 
said that completely explicit sexual material was being 
approved by the Board Review. The problem is that since 
we were rushing, I didn't get that organized as much as I 
would have liked. Now, whether or not you want to see 
tnat 1S one question I had proposed a manner of dealing 
with that, and I was going to ask Mr. Payne to give my 
articling student, Julie Matthews, a video called 
"Hands Down" and I would ask her tomorrow to bring to the 
court so that we can have that as an exhibit if the court 
wants to see it. It's a little untidy, because I don't want 
to ask Mr. Payne to come back tomorrow, but that's the only 
way I can proceed. I can tell you that I gave to my friend's 
predecessors, counsel of the Department of Justice a copy 
of this video, it's available in the stores to rent so that 
they have noticed that that particular video is one I might 
refer to and I simply want Mr. Payne to bring to the court 
from his files or provide to the court from his files a copy 
of this particular video so you will be satisfied that this 
1s something that was permittea. And I guess the other point 
I wanted to make with reference to that video is that in 
it not only are tnere scenes of explicit sex between two 
men but there are also in one scene there are three people 
involved in sexual activity. 

I have gone perhaps a little further than 
I should have describing it, but I'm just -- I'm over the 
edge in terms of arrangement of the evidence. 

THE COURT: All right. What is your view, 
madam? 


MS. WILTON: I have no objection to that, 


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7 R.W. Payne - cr-ex. (Wilton) 


Your Honour. 

THE COURT: That is satisfactory. 

MR. CAMPBELL: Q. All right. Then, Mr. Payne, 
you will take that request under oath would you confirm that 
you will provide to Ms Matthews a copy of this video and 
that she can bring it to court tomorrow? 

A. I will attempt to do that. We're 
10 Supposed to be keeping a copy of each of those; it might 

take a couple of hours to find it, but yes, I will try. 
O. Ali right, that's all I can ask. 
I said something, and I don't want to be 
giving evidence here, but the reference I made to the fact 
that there were three people in that video, to your recollec- 
- tion in tnat video, or others like it may be scenes that 
had been approved where three people were involved in 
sexual activity, tnree males were involved in sexual activity? 
A. Yes, on occasion that happens. 
MR. CAMPBELL: Those are all my questions 


20 of this witness, Your Honour. 


THE COURT: All right. Ms Wilton? 


CROSS-EXAMINATION BY MS. WILTON: 


Q. Yes, Mr. Payne, I have a couple of 
25 questions, I won't be too long. The one question I have 
1s, I would like your views on this. Do you believe that 
explicit sex depicted on a film or in a magazine degrades 
or dehumanizes the participants? 
A. Do I believe that? 
- Yes. 
No. 


30 2 
A 
Q 


- No. And you've already described that 


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you are aware, in fact, fairly familiar with the activities 
of "Project P", is that correct? 


A. That's correct. 


Q. Are you familiar with a Detective Sergeant 
Bob Matthews? 


A. Yes, I am. 

Q. Do you know whether Detective Sergeant 
Matthews agrees with you on this issue of explicit sex? 

MR. CAMPBELL: Your Honour, I object to that 
hearsay question. If my friend wanted to call in the 
decective, that might have been some evidence on their Side. 
I'm a little troubled here. 

THE COURT: Is there anything you want to 
say? 

MS. WILTON: No, I withdraw the question. 

THE COURT: There may be other views, but 
that's up to you. 

MS. WILTON: Q. Yes, Your Honour. 


Do you believe, sir, if -- do you believe, 


Sir, if portrayals of explicit sex cause harm in your opinion? 


A. I'm sorry, I didn't understand the 
question. 

QO. Do you believe, in your own view, sir, 
do you believe that portrayals of explicit sex cause harm? 

A. No, if I believed that I would not be --- 

Q. All right. 

A. -- acting in the manner that I am. 

Q. Sir, based on your knowledge and under- 
Standing of "Project P", and as I've asked you, you are 
familiar with their activities, would you say that you and 
some of the officers involved in "Project P" share the same 


view on the issue of explicit sex? 


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THE COURT: No, no, nO, nO, Ao. 

MS. WILTON: Fine, I withdraw the question, 
Your Honour. 

THE COURT: This man's --- 

MS. WILTON: Yes, I understand. 

THE COURT: -- within the realm of what is 
his position --- 

MS. WILTON: JI understand. -- and his 
evidence and not the views of others. 


Q. Thank you, Your Honour. 


Are you familiar with the works of Dolf Zillmann? 


A. I don't believe so, although the name does 
seem to ring a slight bell as in a social science researcher, 
1s tnat --- 

Q. Yes. 

A. Yes, Okay. 

QO. And is that the extent of your knowledge 
of Mr. Zillmann? 

A. It is, because my tendency is to read over- 
views there, that is several overviews put out by various 
researchers of the research that has gone into it so there 
are only two or three of these researchers that are really 
familiar to me. 

Q. And this is not one of them? 

A. And he's not one of them. 

Q. All right. Now, sir, do you write a column 
for the Toronto Sun? 

A. Yes, I do. 

QO. And sir, do you recently recall a column 
in which you questioned the issue of whether or not a 
convicted rapist, Mike Tyson, was too severely punisned in 


terms of his sentence? 


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A. I did write a column about Michael Tyson, 
yes. | 

Q. Well, could you just tell us a little bit 
about what was in that column? 

A. The essence of it or, at least, the point 
that I was trying to get across was that in my opinion, and 
keeping in mind that a column is a personal opinion, in my 
Opinion, we seem to approach these matters involving rape 
or domestic violence in black and wnite terms and I was trying 
to suggest that there are perhaps in some instances some grey 
areas. 

O. I see. Now, Sir, in any of the films that 
you reviewed or that perhaps your Board reviewed that involves 
explicit sex in films not involving minors and not involving 
consenting adults that were in fact degrading? 

A. Can I think of any situations --- 

QO. Are there a number of situations where 
you come across that in your review of films? 


A. I tnink I was trying to explain earlier 


in answer to vour question that something that is considered 


degrading by the board does not clear the board. 

QO. I see. How would you define degrading? 

A. Well, again it is awfully tougn to define 
in that the Supreme Court of Canada up until just a couple 
of months ago didn't define what degrading was and people 
who are that brilliant can't do it, what possibly can I do, 
but there are instances, I think, that we -- I mean, I can 
give you anecdotal evidence if you wish --- 

QO. Please. 

A. -- for example, one of these videos came 
through a couple of weeks ago and it involved a man and a 


woman in sexual activity, a man took out a chicken bone and 


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| 


rubbed it on the woman's vagina, sO we unanimously felt that 

this was degrading. So that would be the kind of thing that 

we would cut out of the film. 

Q. So what you're saying then is that you 
tend to define degrading on a film by film basis rather than 
setting out a kind of a quideline for yourselves, is that 
COrrect: 

10 A. That's right. But again, I -- you know, 
my everyday role does not involve screening films. People 
who are screening the films are the other Board members and 
again, keeping in mind that we come up with the various 
guidelines and so on, so I think we feel, as a Board, we nave 
a general idea of what degrading is, what dehumanizing is. 

" Q. I see, and you have come up with this 

general idea, I take it, on the basis of your consultations 

with each other, is that correct? 

A. That*s correct. 

QO. I see. Have you made reference to any 
20 secondary materials in coming up with this particular guide- 
line? 

Bi IT am constantly reading, as I say, research 
into pornograpny; I read transcripts of Court Judgments invol- 
ving obscenity, I -- you kow, Bonerstein, Professor Bonerstein 
is fairly well known in the area; he was in London a month 
25 ago, I not only talked to him but in fact, listened to a rather 

lengthy presentation that he made. So I do that kind of thing 
and pass it on to my Board members in the best way. 

QO. I see. But in essence, you develop 
amongst yourselves based on your own discussions and some 
outside materials, your own guidelines? 

7 A. Well, the final decisions are made by 


ourselves, but again, we don't do it in a vacuum, we try and 


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access as much as -- information as is possible to access 
to make those kinds of decisions. 

QO. I understand. Now, sir, you have indicated 
that the Supreme Court of Canada, brilliant as they are, 
haven't attempted to define degrading and dehumanizing, that 
you perhaps would be perhaps foolish to do so. I would ask 
you, Sir, to listen to this statement from Madam Justice Wilson 
from the Supreme Court of Canada and ask you if you agree 
with this statement. This comes from Town Cinema and it reads 


as follows, 


"The most that can be said, I think, is 
that the public has concluded that exposure 
to material wnich degrades the human 
dimensions of life to a sub-human or merely 
physical dimension and thereby contributes 
to a process of moral desensitization must 
be harmful in some way." 


Would you agree or disagree with that, sir? 

A. I don't agree with it. 

Q. You don't agree with that? 

THE COURT: You don't what? 

THE WITNESS: I do not agree with that. I 
think the Town Cinema case was in 1984, was it not? 

MS. WILTON: Q. I believe it was 1985. But 
the issue is, whether or not you agree with it? 

A. No, there is to my knowledge, no research 
that is universally accepted that supports that view. 

Q. I see. Now, Sir, given that you have done 
a fair amount of consulting as you have indicated and you 
have sought to consider some of the outside sources, if I 
put to you a statement by Professor Zillmann,of whom you are 


aware but are not particularly familiar --- 


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a R.W. Payne - cr-ex. (Wilton) 


THE COURT: What is tne name of the professor? 
MS. WILTON: His name is Dolf Zillmann, Your 
Honour. 
THE COURT: Spell it. 
MS. WILTON: Q. D-O-L-F Z-I-L-L-M-A-N-N. 
And what I'm going to describe is a conclusion 
he comes to as a result of his research on papers for the 
10 Surgeon General Everett Cootes Commission on a workshop on 
pornography, public health in 1986. Dr. Zillmann concluded 
that prolonged exposure by participants, botn male and female, 
to explicit depictions of sex not involving violence tended 
to result in the trivialization to that particular offence 
or the offence of rape on both, not only the male viewers 
Le but also the female viewers and there was a tendency on the 
part of the male viewers to seek a lower sentence or believe 
a lower sentence would be appropriate for rape as a result | 
of the exposure to non violent sex. That is the statement 
Or a conclusion that Dr. Zillmann comes to after extensive 
20 researcn and I would ask you, sir, whetner you agree or 
| disagree with that? 
A. In yes or no terms, or --- 
QO. As well as you can. 
| A. I know because I have read a lot of this 
| material, but for example, tne Commission that you are 
25 referring to is commonly known as the Meese Commission and 
of all the major commissions that have been set up -- we had 
the Frazer Commission in 1985 here in Canada, we had the 
Meese Commission in 1979 in Britain; there was the Williams 
Commission and in 1970, there was a commission -- I can't 
remember precisly what its name was -- but it was appointed 
*° by Lyndon Johnson who at the time was President in 1968 and 


the report came out in 1970. Of all of those, the Meese 


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Commission is the one that is least respected. The reason 
it is least respected, is that the people on the Commission 
were chosen on the basis of higher statements that put them 
firmly on the anti pornography side. 

Q. Sir, I should indicate that this is, in 
fact, a quote, not from the Meese Commission but it was the 
Attorney General's Commission, but this is, in fact, the 
Attorney General, this is the surgeon? a 

A. Well, the Attorney General was in fact 
the Meese. 

Q. I understand that, but the difference is 
that it is the Surgeon General, Edmond Cootes --- 


A. Oh, I'm sorry. 


QO. -- so we're talking about two different 

studies? - 
A. Well, perhaps this was not a major 

commission, because I'm not familiar with that. But the point ay 


I was trying to make is that if you go out there and read 
all the research that has been done you will find research 
that will support whatever argument you want to make. So the 
question is not whether or not this person is right, the 
question is, does it stand -- you know, you people call it 
social science research, it is not social science unless it 
can be replicated. I mean, if the findings of one person's - 
Study cannot be replicated, come to the same conclusions on 
several occasions, most people don't regard it as particularly — 
relevant. 
Q. So I guess I could say to you, sir, that 
your consultation of the various experts in this social 
science research area is really only for your own interest 
because what you are saying is that it is not an exact 


science but really you will come to the conclusion you will 


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R.W. Payne - cr-ex. (Wilton) 


come to because tnere are many opinions out there as there 
are people giving them, is that what you are saying? 

A. No, that's not what I'm saying. 

Q. Could you elaborate? 

A. Wnat I'm saying is that I place great faith 
in those few publications, one of which was put out by the 
British Home Office in 1990 titled "Pornography - It's 
Impacts and Inrluences." There was another one put out by 
the Canadian Federal Department of Justice which in essence 
1s an overview of all the researcn that has been done into 
the area and they will come -- they will take specific pieces 
of research and list the general findings and then they will 
give arguments pro and con as to whether these seem to jive 
with other research that has been done into that area. So 
tnose are the kinds of things that I put in my paper. 

Q. I see. Sir, do you believe that your 
decision and your Board's decision to allow a dissemination 
in society of Ontario, in any event, of explicit sex as long 
as it isn't degrading or dehumanizing as far as you define 
those terms, do you believe that those actions in essence 
reflect the community standard in this Province? 

A. Yes, I do, we have gallop polls --- 

THE COURT: I'm sorry, I can't hear you. 

THE WITNESS: We have gallop polls that were 
done -- tne most recent gallop poll was in January of this 
year, the results appeared in the Toronto Star in early 
February of this year. Whicn indicates a majority, and it's 
a fairly large majority, 55 to 38 or something like that -- 
not something like that, it was 55 to 38, wanting access, 
Canadians wanting access to this kind of material. Virtually 
every major newspaper in Ontario have written editorials 


in support of the Ontario Film Review Boards policies and 


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I'm not talking about individual writers, I'm talking about 
a newspaper editorial board taking a position. I understand 
again from reading through court judgments that community 
standards in Canada, at least in legal terms, are decided 

on a Canada-wide basis as opposed to on the basis of 
individual communities, so if we have nine Provinces of 
Canada that allow this material onto their shelves and on 

to the market place, how could Ontario possibly argue that 
it was within community standards not to allow this material 
to the market place. 

MS. WILTON: OQ. It would be fair to say, 
wouldn't it, Sir, we have nine Provinces according to your 
evidence that have film boards that allow this particular 
material to be disseminated in the Province, in any event? 

A. Tnere are seven film boards of Ontario -- 
(inaudible). 

Q. Going back to your point about the Gallop 
polls, I guess you'll agree with me and I'm sure that you've 
read, too, that the various polls that one reads in the 


newspapers aren't always accurate, witness the polls that 


predicted a Tory loss in England, would agree with me that 


they're not always to be relied upon? 

A. Yes, I agree that they're --- 

QO. Thank you. 

A. -- not always to be relied upon. 

THE COURT: Re-examination? 

MR. CAMPBELL: I have no re-examination. 

THE COURT: Just by way of explanation, sir, 
the Gallop Polls to which you make reference, what is the 
geographic scope of those polls? 

THE WITNESS: This iS a question to me? 

THE COURT: Yes. 


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K. Raye - in-ch. (Campbell) 


| 


THE WITNESS: Your Honour, it iS a coast to 


coast poll. 
. THE COURT: In Canada? 
THE WITNESS: Yes. 
THE COURT: All right, thank you. 
--- Whereupon the court recessed for lunch 
10 
--- Upon resuming at 3:30 p.m. 
MR. CAMPBELL: I call Kyle Raye. 
KYLE RAYE, Sworn 
15 
EXAMINATION-IN-CHIEF BY MR. CAMPBELL: 
Q. Mr. Raye, what position to you hold, please? 
A. I'm the City councillor for Ward 6 which 
1s the downtown City Council constituency --- 
20 QO. Of the City of Toronto? 
A. In the City of Toronto. 
QO. All right, we'll get to that in a minute. 
Can you just give us a very brief Summary of your work history 
up until a point when you were elected as councillor? 
25 A. From 1987 onward, I was the Executive 
Director of the 519 Church Street Community Centre which is 
a city funded community centre located in downtown Toronto, 
near the corner of Church and Wellesley Streets and that 
community centre provided services, assistance, advice, 
referral, meeting space to the community at large in the 
30 


City of Toronto and one can say specifically to the lesbian 


and gay community in the City of Toronto. 


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af K. Raye - in-ch. (Campbell) 


Q. And prior to that, where did you work? 

A. I worked at University of Totonto Libary. 

Q. Just for the record, going back to your 
college education, what's your academic background? 

A. I have taught as a historian, I have a 
Midieval History degree and I have a Masters in library 
Science from the University of Toronto; my history degree 
10 is from Birmingham University in England. 

QO. All right. Let's go to your tenure at 
the 519. Could you describe for us ina brief but general 
way what would be the nature of the job that you did when 
you were there? 

A. I had two jobs there, one is programme 

7 coordinator and one is the executive director, so I will 
telescope them in describing them; both of these jobs dealt 
with working with the community. The 519 is seen as the life- 
line for many people in the North Jarvis neighbourhood, many 
of whom are lesbian and gay. I mean, it's the lifeline for 
20 many people in the lesbian and gay community across the city. 
| So we would deal with crisis problems, we would refer people 
to counselling, we would deal with violence in the neighbour- 
hood, we would deal with providing children's programmes, 
senior's programmes, recreational programmes in the building; 
we ran a summer camp for kids in the neighbourhood. So the 
25 interests and problems of the inner city neighbourhood came 
to our doorstep and we were open from 9:00 in the morning 
until 10:30 at night. So you had a vast array of people 
coming in. Last year we had 135,000 people use the 519 
from the neighbourhood using our programmes, getting advice 
from our staff for referral to other agencies. 
si QO. And is there any way you can estimate the 


breakdown between the programmes that were specifically 


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a K. Raye - in-ch. (Campbell) 


designated or thought to appeal to the lesbian and gay 
community as opposed to the balance of the population? 

A. Yes, in fact, we kept statistics quite 
Closely and I think in about 1988/89 we wrote at our 
programming, we found that about 40 per cent of the 
programmes at the 519 were accessible or named lesbian and 
gay programmes and so, it didn't exclude others, but they 

10 weredesigned to provide services to the lesbian and gay 
community. 

Q. And of the portion of the programmes that 
were not for the lesbian and gay community, were there any 
that were dealing with, since this case is about, potentially 
about sexual violence and violence, were there programmes 


15 dealing with issues of interest to women dealing with sexual 


violence? 
A. Definitely. We ran programmes, counselling 
programmes for women, we ran Wen Do clases which is a 
programme that came about to provide women with a self- 
- defence technique in dealing with violence on the street and 
| sexual violence. The counselling which we provide at the 
919 often would deal with violence against women; we would 
refer people to the Rape Crisis Centre or to the Barbara 
Schlifer Clinic or to Netrac or Safe City in the City of 
Toronto. There were a host of programmes that we were able 
25 to access for people and we would either get them into a 
counselling session at the 519 or send them into a programme, 
of course more in depth and so some of it was done on site, 
some of it was referred out. 
QO. Now, then, you were elected as counsellor 
in, the date, please? 
ee A. Oh, dear, sometime in November of 1991. 


QO. November of '91? 


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A. Yes. 

Q. Could you describe briefly the constituency 
that you serve as counsellor? | 

A. The constituency that I have and my staff 
work with, we've divided it into three parts, the seven partis 
the St. Lawrence neighbourhood which is a 1970's development 
and has a lot of condos and co-ops and social housing. Then 
east downtown, which is east of Yonge Street south of Carlton 
and is another neighbourhood which is about to blossom, in 
fact, Jarvis Street which is larger than this, entire project, 


we have large developments happening there; the City of 


Toronto sees that to be the new development area for residential 


in the city. The north end, north of Carlton is called by 
planners mid, south mid town or north Jarvis and that 
neighbourhood is probably the largest gay neighbourhood in 
the country, it is one of the densest census tracks in the 
country; Charles Street which runs right through Ward 6 at 
the north end is one of the densest in the city as well and 
it is highly inhabited by gay men and lesbians. 

Q. And then could you describe again, generally 
but briefly what is the nature of your functions at City Hall, 
what are you doing on a day-to-day basis? 

A. I'm in meetings all day long, but my staff 
and working with people in the community who for the most 
part, are unhappy about the services, Government services, 
their services from their landlords and problems of, social 


problems in their lives and in the constituency. So most 


of the problems in Ward 6 end up coming to our -- to my office. 


I think it's safe to say that for many people the City 
counsellor's position is one of the more accessible levels 
of Government, City Hall is just on the side of the Ward; 


people know their City counsellor, they often don't know 


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K. Raye - in-ch. (Campbell) 


who their Metro, their Provincial or their Federal, but they 
know how to get in touch with City Hall, and so they end up 
calling my office. So I field a host of questions, a lot 

of them social, a lot of them Government related. 

Q. Now, again going back, and let me ask you 
about your experience, and this will cover both the period 
when you were Director of the 519 and also while you were at 
City Hall, have you had any involvement with the gay community 
and political issues in that for those individuals? 

A. For those -- in my constituency? 

Q. Yes, or in your life or elsewhere, I just 
want to know what you know about that subject? 

A. Well when'’I came back to Canada from having 
studied in Britain, I came to Toronto and it happened at the 
Same time as the Bath raids, so I became quite politicized 
at the same time before getting back to Canada and getting 
involved in the gay and lesbian movement. So I worked since 
1981 in the community development issues in the downtown area 
affecting the gay and lesbian community, I co-ordinated 
lesbian and gay pride day from 1981 to '87. I worked with 
teams that were successful in lobbying the Provincial Government 
amending in 1986 the Human Rights Code with Bill 7 to 
include sexual orientation and the Provincial Code and I have 
worked on the Aids Memorial at the 519, given tnat 40 per 
cent of the programming and users were gay and lesbian. 
People would come to my office with problems, personal problems 
and with constituency or community problems wnich would have 
to be resolved and I often would be helping people work them 
out or referring them to other agencies. A lot of the work 
that I do is centred on working in the lesbian and gay 
community around community issues and individual issues. 


Q. All right. I want to ask you based on 


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K. Raye - in-ch. (Campbell) 


your experience your opinion on this subject. Can you tell 
us is there a concern that you are aware of within the gay 
community with respect to violence or abusive sexual 


behaviour between gay men? 


A. Violence on -- would you like to say that 
again, I just -- it was very long and I --- 

Q. I'm sorry, I didn't mean to make it too 
complicated. Based on your experience that you have described, 


IT want to’ have your opinion on this particular point, but 
T'd like your observations about whether or not within that 
gay community there is a problem with respect to violence 
between gay men, and there may be a second part of that first 
problem or the perception of a problem with respect to abusive 
sexual behaviour between gay men? 

A. In the 12 years of working in the Toronto 
lesbian and gay community, I have never heard or received 
a case of a problem or perceived problem in the lesbian and 
gay community around gay men and violence. There has not 
been in my experience, I have not received a complaint, I have 


not seen it raised aS an issue, the issue of violence in the 


gay community. 


Q. Now, you mentioned, I think, counselling 
for women or rape crisis centres, I think you probably under- 
stand what those institutions are, are there institutions 
like that that are intended to assist a gay man? 

A. I am very familiar with the programmes 
in the women's community and in fact, helped institute some 
of the same kind of programmes in the gay community to protect 
gay men and lesbians from violence outside our community. 
People would come in to the downtown area and attack gay men 
and lesbians merely because they are gay or lesbian and we 


used some of the techniques used by the women's movement 


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for instance, the whistle campaign; everyone carries a 
whistle now to alert the people that there's -- it's 
usually straight young men who come into the neighbourhood 
and attack gay men and lesbians. So I am quite familiar 
with the programmes in the women's community; We ran 

Wen Do at 519 and I know of no programmes in our community 
that could be parallel to the programmes that have been 


set up by the women's movement. We just don't see that kind 


of violence in our community, it doesn't -- it just has never 


been discussed, it has not been -- even in the latest case 
it has not been brought forward. 

Q. I guess the second version of the guestion 
1S whether or not the issue of abusive sexual behaviour was 
an issue between men the same way it iS sometimes said to 
be an issue between men and women? 

A. Well, one of the precepts of gay sex, 
gay relationships is consensual sex and people enter into 
agreements in having sex and I have never had or heard a 
case of someone feeling that they had been abused in the 
sexual experience tnat they're --people enter into it because 
they're both having interest and in the gay community, I 
have not seen that played out in any other way other than 
in consensual sexual experience that that's talking about 
the gay community in downtown Toronto. 

Q. All right. Let me ask you another 
question that 1S again your opinion; can you tell us, based 
On your experience and your knowledge of your constituency 
and your community, would there be a consensus or a view 
within the gay community, gay and lesbian community over 
what people might call degrading sex or degrading sexual 
activity? 


A. I can think of two possible areas where 


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the community would come together on and this refers back 
to my previous comment and that's the lack of a consensual 
sexual experience, that would be considered by many people 
to be degrading. A second one which is talked about in the 
community is the issue of pedophilia which happens in the 
straight community as well as the gay community and I think - 
pedophilia would fall into that category as being degrading 
to many people in the lesbian and gay community. 
MR. CAMPBELL: I have no further questions. 
THE COURT: Mr. Brewer? 


CROSS-EXAMINATION BY MR. BREWER: 


Q. Mr. Raye, I have your resume here, and 
just before you entered work in the 519 Church Street 
Community Centre, you were a library technician? 

A. Iama librarian, I have a library -- 
Masters of Library Science. 

Q. Okay. Have you ever done any work ina 
professional capacity and research in violence among the gay 
community? | 

A. I have done some bibliographic work as 
part of my university training in Library Science. 

QO. But personal research is what I'm asking? 

A. Well, personal bibliographic research I 
did. I would have to confide with the evidence and I chose 
to do it on lesbian and gay issue; that was my personal 
experience in doing work. 

Q. But you yourself have not gone out and 
done polls and surveys and conducted experiments and of 
exposure of people to violence? Pa 

A. No, I have not. 


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Q. SO in essence what we're dealing with here 
1s your observation and your experience under these jobs as 
a director of the community centre and a local politician? 

A. Correct. 

Os All xyight. 

A. And aS a gay male. 

Q. Now, you indicated your work was with the 
519 Church Street Community Centre. Could you please advise 
the court as to wnat the general population size this 
community centre serves? 

A. Who? 

Q. Effectively, as opposed to its intentions, 
what is the effective population served by the community centre? 

A. Population? Well, the population, its 
boundaries were geographically determined and the boundaries 
of Bloor Street, Bay Street, Gerrard and Parliament Street. 

Os So a small part of downtown then? 

A. Yes, it was. 

Q. Okay. And did you work at any other 
community centres during that time? 

A. No, I didn't. 

Q. So your work was restricted to one community 
centre servicing a few blocks in downtown Toronto? 
| A. That's correct, although I was involved 
in an organization called A.H.O.C. which represented other 
community -- which was umbrella organization which was -- 
involved other community centres across the city. 

Q. But again your evidence is based on personal 
experience and observations, but does that work with those 
other groups give you personal observations as to these 
problems? 


A. The discussions and meetings I would have 


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witn other executive directors from those community centres 
would be pertinent to this. 

Q. But that would be what they told you, not 
what you saw? 

A. That's right, but they would say they were 
perhaps having a problem that would involve a gay employee 
or lesbian living in the neighbourhood and would ask me 
advice as to how to refer them to services. 

Q. What I'm trying to establish, Mr. Raye, 
1s that your testimony here is credibility based on what you 
saw, I'm trying to establish clearly in my mind what, in fact, 
you did observe personally? So what I understand so far is 
you to say is your personal experience, your personal view 
of things was with respect to one community centre? 

A. That's correct. 

Q. Okay. Is there anything else that you 
personally saw, activities as opposed to heard from other 
people as happening in their area? 

A. I can only refer to what they had requested 
me to assist them with and that's as far as I can go. 

Q. Okay. Now, you're also a counsellor for 
Ward 6? 

A. That's correct. 

Q. Would you please provide the boundaries 
for Ward 6, please? 

A. Ward 6, the northern boundary is Bloor, 
the eastern boundary is Sherbourneand at King Street, jogs 
out to Parliament and then down to the lake. The lake is 
the southern boundary and Bay Street is the western boundary. 

Q. Okay. So again it is part of a downtown 


Toronto area? 


A. That's correct. 


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Q. Now, would you agree that there are other 
communities within Toronto which are not encompassed by 
Ward 6, are not serviced by this community centre that would 
have a significant gay population? 

A. Well, 'significant' is a statistical term 
and at some point it is significant and at some point it is 
a marginal or minimal population and I would say that in the 
area that I worked and where I now represent, there is a 
Significant lesbian and gay population, but there are other 
pockets of lesbian and gay people in the city, but I don't 
know how significant they are within their wards. 

QO. So there are other wards, other community 
centres that would service other gay population groups? 

A. No. | 

Q. There are no toher wards where gays live? 

A. Yes, but --- 

QO. Tnere are no other community centres where 
gays could go if they had a problem? 

A. But if they do go there, the community 
centre will call the 519 for assistance. Many community 
centres don't want to have gay and lesbian programming and 
so they often will send them to us and we have to then try 
and find space or meeting rooms for them. There is still 
a great stigma in the community at large against our 
community. 

QO. Your experience at 519 is based on people 
coming to the centre, is that correct, they have to initiate 
the procedure? 

A. Oh, no, it works both ways. People would 
call --- 

QO. Yes? 


A. -- people would arrive, but also we do 


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community development work which we would go out and having 
determined a problem or issue or look at what students we 

had available to work with, would set programmes or set 
initiatives and we would then do community development work, 
seeing if there were people who needed a particular programme. 

QO. Well, my problem, sir, is that people have 
to tell you there is a problem first before you know there 
is a problem, jis that correct? So if they don't tell you 
there's a problem, you don't know about it? 

A. Well, we have programmes that people don't 
necessarily come and say they have a problem, but we have 
identified as being a problem and that we will set up and 
these people will register and come to the meetings or have 
an interest. 

Q. Is it possible then, sir, that there are 
people in this neighbourhood who are the victims of an abusive 
homosexual relationship that you don't know about, is that 
possible? 


A. That is possible. 


Q. So in fact, you are seeing a certain segment; 


you can't come to court today and say this problem doesn't 


exist? 

A. Iwill be uncomfortable saying that, because 
if people were having that problem, they would most likely 
come to the 519 for counselling or referral and I would be 
aware of that. 

Q. Okay. But again, you can't say to this 
court this problem doesn't exist? 

A. I can't -- I can't say they're going 
elsewhere, I can't say that it exists, I just know that we 
don't receive those kinds of requests for service from gay 


men. 


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QO. And will you concede, sir, that there are 
Significant gay communities located elsewhere in Canada? 

A. Definitely. 

Q. And your experience of these communities 
are not within the realm of your knowledge, personal know- 
ledge as what you saw? 

A. Personal knowledge --- 

Q. What you saw? 

A. -- what I read in lesbian and gay news- 
papers is all I have. 

Q. All right. But you have no working 
experience in Vancouver? 

A. No. 

Q. Ottawa? 

A. Montreal, no. 

Q. Sir, your only experience with respect 
to the gay community is ina part of Toronto and that's it? 

A. I've travelled in my -- I have experiences 
as being a gay man in other parts of Canada, other parts of 
the world, but I think it's unfair for you to try and say 
that I only know the city by these few blocks. The gay 
community is not defined geographically, it's a shared 
experience. | 

Q. But my questions that I have put to you 
as - in your capacity as a director equally apply to your 
Capacity as a policitician; again as a politician can you 
Say that there is no problem in your ward with abusive 
relationships among homsexuals? 

A. I can say it in my experience that I have 
not received either as executive director or as city 
Counsellor for Ward 6 complaints from gay men being victims 


of violence. 


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Q. But can you say there is no problem, 
absolutely there is no instances of this happening? 

A. I can't say absolutely, no, that's true. 

Q. One further area I wish to ask questions 
on; do you agree that certain sexual practices among homo- 
sexuals involve forms of what would appear to be violent 
or rough behaviour? 

A. You mean, in actuality? 

QO. In actuality, whether it's on consent or 
not; the fact that there are some practices in the community 
which by all appearances would appear to be rough or some- 
what violent? 

A. I would use the term "rough", but I 
feel the term "violence" is loaded, because it involves for 
me non -- it's non-consensual, so I would say, yes, there 
is "rough", sex is available in the gay community, but lI 
wouldn't necessarily say it's violent. 

Q. Okay. Now, what is "rough" sex, sir? 

A. "Rough"-- do you want me to --- 

QO. Yes, an example? 

A. "Rough" sex could involve spanking, could 
involve fisting --- 

Q. What is "fisting", sir? 

A. "Fisting" is the insertion of the hand 
into the anus. 

Q. As a fist? 

A. Not necessarily. 

QO. What else, any other traits of this type 
of sexual practice? 

A. "Rough" -- it is difficult--- "rough" can 
be playful at the same time, so I'm having a hard time. 


There is "rough" sex. 


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O. "Bondage", would that be one, where a 
restraint iS imposed upon one --- 

A. That could be. Many people -- some people 
may see that as rough, but others enjoy it, so -- I don't 
see it as rough. 

Q. And in your opinion and the opinion of 


the people that you have observed, tnis is not regarded as 


degrading? 
A. No. 
Q It is not regarded as dehumanizing? 
A. No. 
Q And you don't find this as harmful conduct? 
A. No, not at all. 


MR. BREWER: Thank you, those are my questions, 
Your Honour. 

THE COURT: Re-examination, if any? 

MR. CAMPBELL: I have no questions, Your Honour. 
Thank you. 

THE COURTS: Next witness. 

MR. CAMPBELL: Your Honour, I'm afraid that 
is the only witness I have for today, so I ask that we 
adjourn until tomorrow morning. 
. THE COURT: All right. Make sure you have 
everybody lined up. 

MR. CAMPBELL: Everybody will be organized 
by tomorrow. 

THE COURT: We will make use of what time that 


is available to us. 
--- Whereupon the court adjourned until May 13, 1992. 


CERTIFIED: 


Gary Ainsworth 
Official Court Reporter 


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