'The Body Politic' wins case against Crown

TORONTO The two-year-old, campaign to harass The Body Politic and its readers sustained a double defeat December 27, in Courtroom 25 of Toronto's Old City Hall.

First, Ontario Provincial Court Judge Sydney M Harris told the Crown that it must return every scrap of material seized December 30, 1977, in a police raid on the paper's offices.

Then, taking a completely unexpected step, Harris went on to order the Crown to reimburse TBP for all expenses incurred in seeking the court order for the return of the materials.

The awarding of costs in a criminal proceeding is highly unusual, and can only be construed as a calmly consi-

dered slap at the police and the Crown. Harris allowed 30 days (until January 26) for compliance with the order, or for asking a higher court to overturn it. As of press date, January 22, no such appeal has been launched, but neither have the materials been returned to TBP's office.

Body Politic Collective member Rick Bebout had mixed feelings about the turn of events. "it's gratifying that the Crown has been nailed, finally, for perpetrating this kind of abusive

injustice. But it makes me angry that it's taken so much effort to secure this little bit of justice. No amount of money can erase what has been done to us."

Harris's findings against the Crown were made as he' rendered his decisión on a motion placed before him October 26 by Pink Triangle Press, TBP's publisher.

Except for a few documents. and some books returned September 8, 1978 and May 4, 1979, the Crown has continued to hold the material, even though Pink Triangle Press and its three directors were acquitted last February 14 of a charge of using the mail to transmit immoral, indecent or scurrilous matter.

That acquittal was appealed by the Crown. The appeal is scheduled to be heard February? and

In requesting the order for return, Pink Triangle counsel Clayton Ruby maintained that the Crown had no legitimate reason, to retain, the seized material after acquittal.

Ruby pointed out that none of the material was introduced as evidence, and argued that, once the trial concluded January 9, the Crown had no good reason to retain it

Representing the Crown, lan MacDonnell said the Crown would need the material as evidence if its appeal of the acquittal ordered. is successful and a new trial is

Responding to MacDonnell, Ruby noted that the accused had already admitted at trial all of the facts which could possibly be proven, and that these admissions would be binding in any new trial. Ruby was referring to the fact that, at the beginning of last year's trial, the accused agreed to admit certain facts rather than making the Crown present evidence to establish them.

The admissions made were that the accused were directors of Pink Triangle Press, that the Press published The Body Politic, that the Press published the issue in question, that the Press used the mails to distribute it, that a complaint was made against the issue, that the issue contained an article. "Men Lov-

ing Boys Loving Men" under the byline of Gerald Hannon, and that responsibility for the magazine lies with The Body Politic Collective, including two of the accused

. These admissions were made because the accused wished the

trial to proceed not on technicalities, but on the question whether TBP was, as charged, indecent, immoral or scurrilous.

In rendering his decision on the motion for an order for return, Harris agreed completely with Ruby. He declared: "Every thing (continued in the material) necessary to establish the Crown's case had been admitt-

ed."

Then, citing two other cases, he went on: "In the two criminal cases cited, it was the plea of the accused through Counsel that was held admissable against him in a new trial.

"If a plea is admissible, it appears to me a fortiori that lesser matters, that is, matters of evidentiary facts, are admissible against an accused."

"The cases I have indicated permit the use against the accused of such admissions in new trials."

Harris then announced his finding: "The articles seized being only necessary to prove facts, all of which, insofar as the Crown's case is concerned, are admitted, are no longer required for the purpose referred to in the Criminal Code.

"They have long since ceased

'Cruising' producers asked for 'donation'

San Francisco Mayor Diane Feinstein, who said that she would send the producers of Cruising" a bill for $130.450 for extra police protection. has decided to just ask for the money instead

After local gay leaders saw a private preview screening of the film and met with Feinstein to express their fears that there would be violence if the film opened on schedule, she asked Andrew Albeck. United Artists president, to delay the opening of the film. He refused.

When the film opened on schedule in San Francisco on February 15 several hundred pickets rallied in a peaceful demonstration in front of the St Francis Theater on Market Street Several hundred police officers were on standby

NEW

The original announcement from Feinstein's office that she would bill United Artists for the extra protection was immediately attacked by the American Civil Liberties Union Dorothy M Ehrlich, executive director of the ACLU'S North California office argued that sending the bill would set a precedent for send-

ng bills to anyone holding any kind of rally that might be considered controversial

Ehrlich said that even Feinstein s informal telephone request for the delay was "armed with the coercive force of law and was therefore a clear violation of the First Amendment "

The ACLU threatened to sue City Hall if the bill was sent

Instead of sending United Artists president Andrew Albeck a bill. Feinstein sent him a letter which, in effect, asked for the money as a donation

Said Feinstein in the letter. I would hope as an expression of public concern and responsibil-

ity, that you will repay the city for the police action necessary to protect not only your venture. but the peace of the city as well Having pushed the movie as a profit making venture. Feinstein said United Artists should be willing from its box office receipts to compensate the city for a major expense that otherwise must be borne by the taxpayers"

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to be needed for investigative purposes for the charges against these accused and they're no longer required in order to be produced at any trial

"The articles seized under the search warrant above referred to and presently retained...are her eby ordered to be returned."

But, having made this finding.. Harris continued Further, there was no reason, since the admissions were made, for the Crown to retain the articles in question.

"They could be of no use or advantage to the Crown and could only cause inconvenience. distress and, perhaps, monetary loss to the accused."

"I do hereby award the accused costs against the Crown..."

"As guidance (in assessing costs) I make the following further comment. The Crown has shown no reason for retention of the seized material after the second day of January, 1979, and in my opinion, the costs should be on an exemplary, if not punitive, scale."

Ken Popert Courtesy of THE BODY POLITIC

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