R. v. Glad Day, Moldenhauer

ea @
coment

= ls «66

RH HE He HE HEF HF FE EF EE &

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

30

~~ AG 87 (6/76) 7540-1171

10

15

20

25

30

AG 87 (01/90)

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

PAGE

aL

31

38

. 4i

10

20)

25

30

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

AG 87 (6/76) 7540-1171

3
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

AG 87 (6/76) 7540-1171

10

15

20

25

30

4
Ruling - Hayes, J.

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

_ AG 87 (6/76) 7540-1171

10

15

20

25

30

:

2
Ruling - Hayes, J.

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,

AG 87 (6/76) 7540-1171

10

15

20

25

30

AG 87 (6/76) 7540-1171

6 a
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

10

15

:

20 |

25

30

7
Ruling - Hayes, J.

"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

AG 87 (6/76) 7540-1171

-

10

15

25

30

8
R.W. Payne - in-ch. (Campbell)

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

AG 87 (6/76) 7540-1171

10

15

20

25

30

:

9
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

AG 87 (6/76) 7540-1171

10

15

20

25

30

10
R.W. Payne - in-ch (Campbell)

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

' AG 87 (6/76) 7540-1171

10

15

20

25

30

11
R.W. Payne - in-ch (Campbell)

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

AG 87 (6/76) 7540-1171

10

15

20

25

30

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

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.

AG 87 (6/76) 7540-1171

10

15

20

25

30

13
R.W. Payne - in-ch (Campbell)

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

AG 87 (6/76) 7540-1171

10

15

20

25

30

14
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.

AG 87 (6/76) 7540-1171

15
7 R.W. Payne - in-ch (Campbell)

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

AG 87 (6/76) 7540-1171

10

15

20

25

30

16
R.W. Payne - in-ch. (Campbell)

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

_ AG 87 (6/76) 7540-1171 —

10

15

20

25

30

17
R.W. Payne - in-ch. (Campbell)

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

AG 87 (6/76) 7540-1171

18
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

AG 87 (6/76) 7540-1171

10

15

20 |

25

30

19
R.W. Payne - in-ch. (Campbell)

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

AG 87 (6/76) 7540-1171.

10

15

20

25

30

20
R.W. Payne - in-ch. (Campbell)

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,

AG 87 (6/76) 7540-1171

21
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

AG 87 (6/76) 7540-1171

10

15

20

25

30

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

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?

. AG 87 (6/76) 7540-1171

10

15

20

25

30

23
R.W. Payne - cr-ex. (Wilton)

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?

AG 87 (6/76) 7540-1171

10

15

20

25

30

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

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

AG 87 (6/76) 7540-1171

25
R.W. Payne - cr-ex. (Wilton)

|

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

AG 87 (6/76) 7540-1171

|

10

18

20

25

30

26
R.W. Payne - cr-ex. (Wilton)

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 ---

AG 87 (6/76) 7540-1171

27
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

AG 87 (6/76) 7540-1171

10

15

20

25

30

28 | 7
R.W. Payne - cr-ex. (Wilton)

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

' AG 87 (6/76) 7540-1171

10

25

30

29
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

AG 87 (6/76) 7540-1171

10

15

20

25

30

30
R.W. Payne - cr-ex. (Wilton)

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.

AG 87 (6/76) 7540-1171

31
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.

AG 87 (6/76) 7540-1171

32
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

AG 87 (6/76) 7540-1171

33
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?

AG 87 (6/76) 7540-1171

|

10

15

20

25

30

34
K. Raye - in-ch. (Campbell)

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

_ AG 87 (6/76) 7540-1171

|

10

15

20

25

30

35
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

AG 87 (6/76) 7540-1171

10

15

20

25

30

36
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

AG 87 (6/76) 7540-1171

10

15

25

30

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

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

AG 87 (6/76) 7540-1171

10

15

25

30

38

K. Raye - cr-ex. (Brewer)

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.

AG 87 (6/76) 7540-1171 sil

10

15

25

30

AG 87 (6/76)

39

K. Raye - cr-ex. (Brewer)

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

7540-1171

10

15

20

25

30

40

K. Raye - cr-ex. (Brewer)

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.

AG 87 (6/76) 7540-1171

10

15

20

25

30

41

K. Raye - cr-ex. (Brewer)

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

AG 87 (6/76) 7540-1171

10

18

20°

25

30

42

K. Raye - cr-ex. (Brewer)

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.

AG 87 (6/76) 7540-1171

10

15

25

30

43

K. Raye - cr-ex. (Brewer)

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.

AG 87 (6/76) 7540-1171

10

15

20

25

30

44

K. Raye - cr-ex (Brewer)

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.

AG 87 (6/76) 7540-1171

10

15

20)

25

30

45

K. Payne - cr-ex. (Brewer)

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

AG 87 (6/76) 7540-1171