PART THREE: STALKING THE LAW
MY SEARCH FOR ALLIES
MY SEARCH FOR ALLIES
Around the beginning of 1998 when I had worked out my basic constitutional arguments I realized how alone I was. I occasionally talked to Michael Ritzker and Jim Heller whom I saw in a voix dire about similar fact evidence in a murder trial. But they were not familiar with things I wanted to know. I read a lot, case law became interesting, I was motivated, but I felt I was walking in blind. I felt a need for allies who could offer me support, advice and guidance. I discovered freedom of expression and anti-censorship sites on the Net which gave me ideas. For example on one of them I found the case, McINTYRE v. IORFIDA where a provision banning drug advocacy literature was struck down. I saw interesting parallels for my own plan to attack the written word provisions of the child pornography laws. In my search for allies I logically, I thought, turned to the Canadian libertarian establishment.
In January I wrote PEN Canada, an organization championing freedom of the press worldwide, explaining my situation and legal case, providing samples of my writing and asking them for advice and assistance. I got no reply and wrote them again in April and August to keep them up to date and provide additional information. I mentioned the scholarly writings which had been seized from me and deemed pornography on the basis of advocacy. Nothing, not a word. I initiated a correspondence with Max Allen of the CBC radio program IDEAS which had broadcast programs highly critical of the London kiddieporn ring "snarl" as he described it. I did not hear the program. I received one reply where he promised to send me tapes of the programs and some other relevant material which never arrived. Subsequent letters went unanswered. I later corresponded briefly with David Jones of Electronic Frontier Canada, a group particularly concerned about Internet censorship, but this too lapsed. I was most disappointed with the response I got from the B.C. Civil Liberties Association. Two years earlier I asked the BCCLA about their position on child pornography as I had come across a reference in the Standing Committee hearings that they were preparing a position paper. Eventually I received a letter from their Executive Director John Westwood which, after some libertarian platitudes, stated very clearly that their position was that it should a criminal offence to even possess NAMBLA-like material. I wondered afterwards if BCCLA might more accurately stand for the B.C. Censorship Legitimization Association.
I also tried to establish communication with NAMBLA, the North American Man-Boy Love Association, but they were apparently disorganized, relying on part time volunteers, and no one ever knew of previous letters I sent. They did send me gratis copies of three issues which I later entered as exhibits at the voix dire. A subsequent brief e-mail exchange ended with several unanswered messages. I was never able to establish any ongoing communication or telephone contact. I joked that maybe NAMBLA didn't want to be associated with me. Months later after Judge Shaw's ruling came out I got a congratulatory e-mail and I heard that they reported it in the Bulletin. They also published my memorium to Edward Brongersma, "A Visit With the Doctor" in a previous issue. I never saw it but a friend gave me a photocopied clipping.
After reading Allan Borovoy's testimony before the Standing Committee I did not bother to contact the Canadian Civil Liberties Association. I did attempt to interest the British Columbia Civil Liberties Association. However the BCCLA, unlike its American counterparts who unequivocally defend freedom of expression of the most unpopular ideas, sees itself as an arbiter of what expression should be permitted, it is merely a more "liberal" arbiter than most others. When it comes to questions that mix "children" and "sex" the BCCLA is only marginally distinguishable from the position of human rights activists. There is an awkward incompatibility between human rights and civil liberties, between "freedom from" and "freedom to", or as I found out reading constitutional law between equality rights and expression rights. Typically in law they are pitted against each. It may be argued that in a stereotypically Canadian way our libertarian establishment seeks to arrange compromises. Compromise itself becomes a goal even where compromise is neither necessary, practical nor desirable. It is like the way parents often force compromises on their squabbling children when right and wrong are clear. Of course when it comes to protecting children there can be no compromise.
I was also disturbed that Craig Jones, the new president of the BCCLA has a long record as a pedo basher. When the now defunct gay monthly, Angles ran a few personal ads in 1994 from men seeking contact with boys under 18 but of legal age Jones wrote some the most inflammatory, prejudiced and righteously indulgent letters to ever appear in that paper. The ads themselves were legal. Jones incredulously claimed the ads promoted incest. The ads were "damaging and hurtful to all victims of sexual abuse." He certainly doesn't like being challenged or contradicted. "I am sick of having editors' self-serving response thrown in my face every time I write, or read other letters, regarding this situation. Their feeble accusation that we would infringe upon the rights of young people to experience consensual physical contact is ludicrous and manufactured solely in their misguided minds." He's not a man to debate a point. Despite his intolerance, arrogance and hyper correct pronouncements he managed to make a name as a civil libertarian in the APEC protest controversy. This was a highly successful political manoeuvre which embarrassed the federal government but involved no substantial issues of freedom of expression as such despite the pretence. The message of the protesters was well known to every Canadian who bothered to follow the news. The message was already known to the intended recipients, President Suharto and his cronies, they just didn't want the embarrassment of having it flaunted in their faces. The only freedom of expression issue was the right to display well known symbols and messages at a specific place for a very limited time. It was at best very marginal to Canadians' freedom to express any non violent content, anywhere and at all times. The civil liberties associations do a good job of defending the interests of the arts communities and respectable protesters in situations like APEC with its students, academics, cops under stress overreacting and an oppressive foreign dictator. So some of the protesters got pepper sprayed, roughed up and arrested, so what. It's not a big deal. I got peppered sprayed, albeit not in the face at the Stanley Cup "riot" on Robson Street. I was taunting the police at the time, just for fun. I wrote a long heroic style poem about the "riot" in RAAV which I dedicated to Ryan Michael Berntt the guy who got a rubber bullet in the head. I don't recall the BCCLA being involved.
My search for allies was disappointing although I got a few interesting tips. I was toxic and I suppose no one in any establishment wanted be associated with a pilotless, foolhardy old man on his Icarian journey into the Sun. After a while I forgot about allies and stumbled along on my own.
Money has the biggest personal problem I have faced. I have no assets, not even a car. I had a small Canada Pension from my four years as a college teacher and was on social assistance at the time of my second bust. I supplemented this with little, under the table handyman jobs as opportunities and my health permitted. Fortunately I am a frugal person with fairly simple tastes which allows me live comfortably. My recent travels had been financed in large part by the repayment of an old debt. At the beginning before there was much publicity I raised about $10,000 for legal fees much of it from one old friend who is a strong supporter of freedom of expression, but unsympathetic with my lifestyle. From the beginning I independently investigated questions relating to my charges. I wanted to know my situation better. This involved significant costs beyond the matter of legal fees and took up a lot of my time, energy and concentration. I continued to do small jobs but this was exhausting and my osteoarthritis and carpal tunnel syndrome returned requiring medication and physiotherapy. Once I collapsed and spent a week mostly in bed.
I tried to get legal aid to help me but I found that a person defending themselves cannot get any assistance from them whatsoever. When I wanted to purchase a copy of the transcript of my preliminary hearing, a rather basic document in my case, I was emphatically told no. I don't think legal aid should be primarily regarded as a service to poor defendants although certainly some do benefit from it. It could more accurately be called lawyers' aid, despite their complaints about its inadequacy, as they are the ones who get the money. It is a way of subsidizing the law profession under the guise of helping needy defendants. While it is not the intent of legal aid to encourage guilty pleas I believe it does. Even defendants believing themselves not guilty, or having a potentially good defence can be taken in by the blandishments of a guilty plea. Legal aid lawyers (and others) are known to promote guilty pleas in arguable cases as a mitigating factor with the promise of lenient treatment. Part of the difficulty is that legal aid payments are based on courtroom time and while they may be roughly fair in most cases they are inadequate where a large amount of preparation is needed to mount an effective defence. This was true in my case. Essentially legal aid helps smooth the processing of the accused through the system by offering them the solace, often the false solace, of having a "lawyer" to help them. I have observed how it functions in courtrooms and spoken to a number of people who feel it did not help them. It is a tranquillizer. It serves as a calming measure and helps control resentful defendants. Legal aid lawyers in criminal cases function more as social workers than as advocates. Part of their job is to help those convicted take their punishment with less protest. Legal aid lawyers often find themselves in hypocritical situations where ostensibly they are helping their "client" but really serving the criminal justice system. Righteous taxpayers should have no complaints.
Awe of Law and the OAKES Test
Soon after I got involved in legal research I began to develop an interest in the law itself. My principal attitude towards it had been one of contempt. I was influenced by all the stupid petty laws I had come across. I always found those old, It's the Law columns both amusing and frightening. In city planning I had become very critical of the regulatory methods my profession espoused. Planning was often the relentless application of principles and standards by supposedly enlightened professionals who treated the realities people faced as a nuisance. I saw the ugly and monotonous residential projects not as a result of greedy developers but of the rigidity of zoning and other regulations where arbitrary standards left little choice. My joy at the defeat of "central planning" in my profession was soon replaced by a distrust of the "participatory democracy" that followed it. Decisions became increasingly political with appeasing vocal and persistent groups overriding consideration of broader community interests. Planners were now to be advocates of nimbyism. I used to joke that the purity of single family zones had become more important than the virginity of daughters. But more than anything else my contempt for laws was fuelled by the absurdity of our drug laws and the minor holocaust they were inflicting on Canadians. Hundreds of thousands of my countrymen were suffering to appease the moral sensibilities of the righteous and serve the interests of the anti-drug industry. Politicians across the board saw the law as too dangerous to challenge. I had no faith in law although in emergencies it could be called upon. People should be guided by ethical principles and consideration and respect for others and take care of themselves as best they can.
My awe of law peaked as I got into studying Charter cases, mostly relating to freedom of expression and conscience issues. Here in the Canadian Charter of Rights and Freedoms was a device whereby anyone, even someone of very limited means like myself, could fight back against flawed and pernicious laws. Pretty amazing, isn't it? Without the Charter only the powerful and the organized lobbyists could hope to challenge laws. I saw the child pornography laws, particularly the sections I was charged under as altogether bad law. Under the Charter my charges gave me the right to put the law on trial. The issues were broad and important. The law was pioneering two bold extensions of state power and my freedom fearing countrymen barely made a whimper of protest. No respectable Canadian would defend the paraphilic masturbator or argue for youth's freedom of sexual expression. With practically no support I submitted my Notice of Constitutional Question, something any Canadian charged under a dubious law should think about.
As for presenting my case I saw little future in nit picking or trying to make a special case. I decided on a bold approach - What I defended had to be something, clear, consistent and defined. I could not choose to defend some wishy washy half way concept which might happen to coincide with my personal beliefs. It is hard to make a case for halfway measures or already compromised principles. Compromise simply invites further compromise. It had to be freedom to advocate pedophilia, or any other sexual heresy period. If we can't even debate things what kind of free and democratic society are we? And the written word provision very clearly and specifically prohibited that. The odd friend began to support my resolve which encouraged me greatly. I generalized and tried to avoid what might seem trite exceptions. I did not particularly want or care if my personal beliefs and values were central. I would if necessary be a generic pedophile, that would be my unapologetic role.
I felt I had to do it. I put up a note in large letters on my kitchen wall saying, I PROMISE MYSELF TO DO MY VERY BEST. It was a bit tacky I confess, but it helped. I couldn't see anyone else trying and I thought I had little to lose. It was a question of ego and honour. The strain was immense. I worked as hard as I could to prepare for the voix dire not knowing how long until the actual trial. My first priority was my health, I had to favour myself. I walked for exercise. I paced. I paced from beside the toilet through the living room to the far end of the bedroom. I moved furniture slightly. Twelve to fourteen steps. Head up, arms swinging bouncing with slight swivels to get around the ends of my sofa. I ate well and rested when tired. I was focused, a monomaniac of sorts. I thought about my case continually, I would get out of bed at night to write things down. I had no idea how the trial would proceed. I thought, speculated, wrote. I approached it as a writer not a speaker. My fascination with the law helped me explore the ramifications of my case.
I began investigating the law with a pragmatic focus on my case. However I soon developed a fascination with it. I discovered it was a universe all to itself. It strives to be a formal, simplified and artificial replication of reality, in a pure form free from personal prejudice and popular pressures. It abstracts reality. It is a space as in a state of mind. It is a drama with stylized roles and rules played behind a curtain that insulates it from political and popular pressures. I could glimpse the majesty that Michael Ritzker felt. I could see the whole concept of law, the rule of law as one of man's greatest intellectual inventions, on a par with mathematics and music. Anyway, it seemed to be a good place to deal with such abhorrent subjects as child pornography. I would try to stay behind the curtain in a world of statutes, interpretations and precedent. The court tries to discover reality through formal procedures, and rules so that it may be aloof from the clamouring "realities" outside. The court abstracts reality in order to deal with it "justly".
I discovered the Oakes test which was a revelation for me at the time. The Oakes test is the most important procedure for determining the constitutionality of laws. Back in the mid 1980s David Edwin Oakes was charged with possessing for the purpose of distribution some quantities of hashish, that pleasant and potent co-product of marijuana. At that time under a section of the Narcotic Control Act anyone convicted of simple possession then had to prove on the balance of probabilities that he did not possess the drug for the purpose of trafficking. Oakes challenged the constitutionality of the section as it constituted "reverse onus" which meant that instead of the Crown having to prove him guilty he had to prove himself innocent. This violated the presumption of innocence which is a fundamental principle of common law now entrenched as s. 11(d) of the Charter: You are innocent until proven guilty. The section clearly violated the presumption of innocence and the question was whether or not this violation could be demonstrably justified in a free and democratic society. After a series of trials much like my own the Supreme Court of Canada ruled that the section of the Narcotic Control Act could not be justified and struck it down. In making their decision the Court set out a series of questions and steps that can be used to determine whether or not a law is constitutional. The Oakes test organized and formalized a number of long held basic principles of law. It is not the only test of laws' constitutionality.
If for example a law is so vague that people cannot understand just what is prohibited, such as a law against "unhealthy practices", it may be struck down on this ground. Vagueness would not be a problem with a law prohibiting tobacco or margarine. The law must have a "pressing and substantial" purpose. For this it is only necessary for Parliament to act as if the problem addressed were "pressing or substantial", there is no need for any evidence to demonstrate how serious it is. Then the means used, the specific law must be proportional to the objectives which has several aspects. It must have a "rational connection" to the problem addressed. The connection does not have to be demonstrated, almost any appeal to conventional wisdom will suffice. The law must also impair freedom as little as possible which is to say that Parliament can't use a sledgehammer to kill a fly. And finally there must be proportionality between the deleterious and salutary effects of the law. This takes into account the value of the freedom infringed and the presumed benefits, in my case the protection of children. Evaluations are subjective and speculative and the court often presumes to speak for others. The Oakes test is a magnificent legal tool. But if the evidence is slanted or unbalanced, the testimony is self serving, ignorant and prejudiced, and the court relies on tenuous theories, unfortunate decisions can result.
The law is also like a game when you start using it, as I found myself doing. I would equate it to backgammon, my favourite game. It combines luck, the seeing of opportunities, risk taking and strategy. I played backgammon regularly almost the whole time I worked on my case. It was not only a welcome distraction but also an intellectual discipline. Without a certain calculated audacity I feel I would not have done as well. I didn't do things very well but I did things no one else was trying to.
FREE SPEECH CASES
"People got so many rights these days that nobody's got any freedom left." James Peter Thurston quoted in RRSP.
I remember my elation when I came across IORFIDA v. McINTYRE on an Internet freedom of expression site. It was the kind of precedent I was looking for with what I saw as some very close parallels between this case and mine in respect to written materials. The law was aimed in particular at High Times magazine and it was intended to protect children and young people. The decision striking down "literature" was unusually unambiguous and unequivocal in affirming free expression. It dealt with the question of political advocacy in relation to the use of prohibited recreational drugs.
Another case I saw as important to my own was R. V. POPERT. This was a pre-charter case which was only resolved months before the Charter was proclaimed. In 1978 the Toronto gay paper, THE BODY POLITIC published an article by Gerald Hannon entitled "Men Loving Boys Loving Men" which according to Canadian Case Digests "described and advocated homosexual relationships between men and young boys." Ken Popert and other members of Pink Triangle Press, the publishers of THE BODY POLITIC, were charged with using the mails for transmitting indecent, immoral or scurrilous material contrary to s. 164 of the Code. There were a series of trials and appeals over three years with the original acquittal eventually upheld by the Ontario Court of Appeal. The case is notable by current standards for the absence of any mention of freedom of expression. In common law everything everything is permissible except that which is specifically prohibited by statute. If it's not illegal then it's legal. Essentially the material was not found to be "indecent" in terms of s.164 and in the circumstances could not be "immoral". Appeal court judge Thomas Mercer did however state, "It is perfectly legal to advocate what in itself would be unacceptable to most Canadians." The article which advocates pederasty or pedophilia was within the pre-Charter limits of expression. It was subsequently republished in Flaunting It! an anthology of gay writing. As far as I know no one has been charged with possession or distribution of "Men Loving Boys Loving Men". Are we to assume that this widely read article has left a trail of abused children in its wake? There is little to distinguish the content of this article from that found in the NAMBLA Bulletin and it would be difficult to draw a legislative line between the two.
IORFIDA v. McINTYRE
Umberto Iorfida was president of NORML, the National Organization for the Reform of Marijuana Laws in Canada. On the information of a carded member informer his residence was raided and material promoting the use and legalization of marijuana was seized. This 1994 Ontario Court case dealt with s. 462.2 (enacted in 1988). The section states: "Everyone who knowingly imports into Canada, exports from Canada, manufactures, promotes or sells instruments or literature for illicit drug use is guilty of an offence". I would note that the word "promotes" is stronger than the words "advocates or counsels" in the child pornography laws. This law originated as a private member's bill, C-264, put forward by Bob Horner, M.P. for Mississaga North who was also Chairman of the Standing Committee on Justice at the time the child pornography laws were drafted. From the minutes of the Standing Committee and speeches in Parliament, which were accepted as evidence, "the bill's objective was to protect vulnerable children and youth and to reduce the influence of organized crime who distribute illicit drugs." It was the type of law that no election respecting politician could vote against. It was estimated that there were approximately 500 head shops selling drug paraphernalia and literature at the time. (All ceased operation after Bill C-264 was passed.) Some parliamentarians doubted the constitutionality of the law at the time and one member was concerned that it was over broad and could apply to works by writers such as Edgar Allen Poe, Sir Arthur Conan Doyle, Lewis Carrol, William Burroughs and Michael Ondaatje.
At the trial Mr. Les Fowlie, retired chief librarian of the Toronto Public Library said he believed that a number of books currently carried would be covered and that the law would have a chilling effect on future acquisitions. He also saw it as leading writers to censor themselves. He commented that in respect to children, "that it is important to allow them to read both fact and fiction so that they can separate truth from falsehood." The judge noted arguments that literature describing and expressing the religious practices of various minority faith communities is also stifled by the law: "Drug using religious movements such as the Rastafarians of Jamaica, and various groups of Aboriginal peoples, cannot describe their religious experiences without potential prosecution for promoting the use of illicit drugs." A similar argument can be made with respect to the written material definition in the child pornography laws. In her decision Judge MacDonald said that the purpose of the law was to restrict free expression and aimed at censorship of content. "It is... to restrict the content of speech by singling out particular meanings that are not to be conveyed." The law failed the Oakes test and was fatally overbroad particularly in view of the lack of defences. But isn't the very idea of defences, in effect excuses for exercising free expression, questionable in itself?
R. v. KEEGSTRA
James Keegstra was a popular anti-Semitic high school teacher in Eckville, Alberta who taught his students his "truth" about Jews and marked accordingly. He was charged with wilfully promoting hatred under section 319(2), the anti-hate propaganda law. His defence was that the law was unconstitutional because it violated the freedom of expression guarantees of the CHARTER. While the majority of the Supreme Court agreed that hate propaganda is not analogous to violence and is thus entitled to protection, prohibition could be justified on the basis of harm to minority groups and their equality and multicultural rights. The majority decision said, "There are two types of injury caused by hate propaganda;" direct harm and its "influence upon society at large". Hate propaganda like any other may also attract new recruits and facilitate freedom of association. The court made a curious and I believe an ominous comment, "Even if the message of hate propaganda is outwardly rejected, the premise of racial or inferiority upon which the premise is based may persist in the recipient's mind as an idea that holds some truth." This sounds like ideas somehow sneaking through, perhaps subliminally. If "subliminal" messages are considered an appropriate target of legislation then almost any attempt at thought control could be justified. Citizens cannot be trusted to assess information and their judgement is degraded. The court's argument could even be twisted into a case against juries. Are the premises they speak of, "cognitive distortions"? The Court's statement that even if the message "is outwardly rejected" suggests that disclaimers be ignored. What if one says, "I don't believe this myself but did you hear (hate message)?" If disclaimers are to be disclaimed how can one communicate information. Or, is "no" not to mean "no"? or not enough? Must certain ideas only be conveyed in the context of condemning them? Does failure to condemn become a criminal offence as well as an epithet of post modern literary criticism? The majority linked the protection of equality rights to the suppression of expression rights. They also used our international treaty obligations to add weight to restrictions on freedom of expression. They assume it is self evident that our democratic society is vulnerable to and threatened by hate messages much as men are seen to be vulnerable to porn. The majority even claimed, "Hate propaganda legislation and trials of (hate propagandists) are means by which the values beneficial to a free and democratic society are publicized." There is a "show trial" benefit to the legislation it seems. Stalin used the same technique for his ends. The minority disagreed sharply on some points taking a more libertarian approach.
R. v. ZUNDEL
Ernst Zundel, Canada's most notorious Holocaust denier was charged under an archaic and seldom used law, section 181, "prohibiting wilful publication of false statement or news that person knows to be false and that is likely to cause injury or mischief to a public interest." The publication was a booklet, Did Six Million Really Die? which questioned generally accepted historical facts and claimed that the Holocaust was a myth perpetuated by a worldwide Jewish conspiracy. After a series of convictions in lower courts Zundel was acquitted when the Supreme Court in a split decision struck down the law as unconstitutional. The majority ruled that the CHARTER protects unpopular minority beliefs that the majority regards as false. They noted that no other free and democratic country had similar criminal legislation and that the law was not necessary to fulfil any international obligations. The minority arguing from equality and multicultural rights upheld the law.
R. v. ROSS
In ROSS a fuller implication of the premises of inferiority became apparent. Malcolm Ross was a Moncton high school teacher who on his own time publicly expressed racist and anti-Semitic views in pamphlets, letters and a TV interview. A Jewish parent filed a complaint with the provincial Human Rights Commission alleging that his employer, the school board violated the provincial Human Rights Act by discriminating against him and his children. A board of inquiry found that Ross's off-duty comments denigrated the faith and beliefs of Jews and that the school board violated the provincial Human Rights Act by failing to discipline him, and that by continuing his employment it endorsed his out-of-school activities. It would seem that failure to condemn equates with advocacy. The school board could not be neutral. There was no evidence as in KEEGSTRA that he promoted hateful ideas to his students. The board of inquiry concluded that his off-duty comments undermined his ability to fulfil his teaching position as his off-duty conduct "poisoned" the educational environment (lack of tolerance and equality) in which he taught. Teachers must be seen as impartial and tolerant. While a direct link was lacking the board found it "reasonable to anticipate" that there was a causal relationship between Ross' conduct and harm, presumably to his students. Ross claimed that his rights to freedom of religion and expression were violated. The Supreme Court ruled that the infringement of his rights was justified under s. 1 of the Charter. The ruling extended the protection of children, high school students in this case from not just the harm of direct exposure to offensive expression as in KEEGSTRA but to the indirect exposure to such ideas through a person who advocates them. Ross was an ideologically "bad" role model. It was as if he was an endorsement for hateful ideas much as Wayne Gretzky endorses a range of products. Similar concerns were expressed about Mohamed Ali for espousing outside the ring, his offensive to many, Black Muslim beliefs. It is also reminiscent of the moral based prohibition of married female teachers which only ended with the exigencies of WW2. More recently simply being gay has been seen as disqualifying teachers for similar reasons. One is led to wonder what other beliefs or lifestyle characteristics can be used against people in sensitive or exemplary positions in society. Gerald Hannon's problems at Ryerson College come to mind.
This case raises the question of how far the state should go in protecting children from offensive ideas. The emphasis on "harm" obscures the fundamental issue. The presumption of harm is based on the helplessness and fragility of kids. Vulnerability offers an attractive way for officials to interpret things. It enhances their role and affirms the dependency of kids. The kids just aren't able to cope with the fact that one of their teachers denigrates certain groups whose members may be among his students. The resentment, especially of his Jewish students is understandable but was the resolution wise? It is as if older children are simply assumed to be vulnerable cannot be trusted with all the knowledge they have, and are denied autonomy and the opportunity of to use it. For example, if children feel free to safely confront an alleged villain within the law of the school, to tell him he's an asshole if that's the case, and to get rid of him if that's what they want, I believe that they could handle it better themselves than any tribunal or court. Schools might be better off with their own charters of rights and freedoms instead of dress and conduct codes. Unless education is viewed as indoctrination, students at the high school level should be expected to be able to deal with ideological controversy, as historically and in much of world today they do. There are bad guys out there, as any kid watching TV knows, and it doesn't hurt to deal with one in the real world.
In a similar way the law, erroneously I believe, "protects" children from accessing pornography. However to go beyond that to trying to protect them from people charged with pornography as the Bennest case with its frantic parents, media hype and imported trauma team demonstrated, is carrying things to an extreme. Where do you stop? In ROSS the hate propaganda is once removed. It is what he preaches to others, regardless of any other characteristics and talents he may have, that define, disqualify and damn him. This is demeaning ideological coddling of youth.
The value placed on hateful speech and ideas by courts is minimal. However for those espousing them, white supremacists and anti-Semites, they may be important, providing an important part of their self identity. Their views may be the one thing giving them a feeling of self worth. Similarly offenders convicted of the most heinous crimes derive moral satisfaction and feel superior in their minds by hating and denigrating skinners and pedos. Hateful ideas can be very important for some people. However if hate propaganda were defined on the basis of actual effects in the real world in terms of inciting assaults, my personal experience suggests we should more concerned about mainstream journalism than fringe groups.
Except for IORFIDA one might almost get the impression from reading case law that political free speech is a neo-nazi, Holocaust denier issue. This is unfortunate for the image of free expression in Canada but ZUNDEL, KEEGSTRA and ROSS have all been significant cases and are relevant to mine. While these defendants may not be libertarians in any usual sense of the word they have not neglected the opportunity to champion free speech. I believe that they have been right to counter our attempts to shut them up. Our hate laws were designed for them although we have no idea if they do any good. I suspect they may even be counterproductive by casting the accused as underdogs and possible martyrs. One is reminded of underground Baptist groups in Cold War Ukraine or democracy advocates in China today whose speech is considered antithetical to the interests of society. Hate laws invite subjective assessments of cases, and permit selective targeting. Perhaps luckily a lot of important freedom of expression cases arose out of commercial concerns relatively free of the passions surrounding hate propaganda. IRWIN TOY was about pitching advertizing to little kids. The children were of course protected but a rational basis was required.
While individual teachers may significantly shape a student's attitudes and thinking, although personally I can't recall any, any teacher is only one amongst many influences that young people encounter in their lives. If students did respect Ross as a person, and knew he held certain racist views, which he did not share with them, their curiosity might be aroused, but so what? Is there such a shortage of more correct role models? Mainstream views of the Holocaust are overwhelming and pervasive in the media, and massive and costly pro-equality and multicultural propaganda is directed at the public, especially youth. To single out one influence is like claiming that one copy of Hustler magazine can overcome five years of a child's Sunday school indoctrination.
The Holocaust was news, not history when I was a kid. The news was absolutely horrific, about twenty million people I heard, were exterminated in cold blood by a fanatical dictatorial state. I could not comprehend it. After the liberation of the concentration camps newspapers and magazines had pictures of stacked bodies and skeletal naked survivors. They were the first photographs of naked people I had seen and in my still prudish adolescent mind the nakedness was almost as shocking as the horror of the camps. The survivors were Poles, Russians, Hungarians and many others including Jews. Although Victoria has the oldest synagogue on the west coast of North America I did not know any kids to be Jewish. There were a few classmates with strange names like Rapanos and Essihos that I erroneously speculated might be Jews but it was something I gave little thought to. Kids innocently used "jew" as a verb but I remember no explicit anti-Semitism. I can however remember as a small child being discouraged from playing with Catholic boys and my mother's unhappiness that my best friend in junior high school was a Catholic. It was some years before the horror of the concentration camps and other atrocities emerged as The Holocaust and the "six million Jews".
Puberty and Related Concerns
When I was preparing for the preliminary hearing I began looking into the question of the physical/sexual development of children, particularly boys. The ten pictures of the two blond boys seized at the border were crucial evidence for two reasons. They were the only photos seized at my first bust at the border which meant that if I could get the search warrant for my apartment thrown out they would be the only photos I could be charged for. Secondly they were the only photos that I was charged with making as my apartment could be identified in the background. From my understanding of other cases the fact that no arousal or sex was depicted was not relevant. This fifth charge which carried a ten year penalty was only dropped shortly before the voir dire, in part because I agreed to acknowledge possession and authorship of the other material I was charged with, which saved the prosecution a fair amount of work, and also, I suspect because the boys were arguably over eighteen. The prosecution had already gone to some trouble to get the expert opinion of Dr. Lois Jean Hlady who had reported at the preliminary hearing that in her opinion at least one of the boys was under eighteen at the time the pictures were taken. Using Tanner stage categories she based her assessment mainly on the amount and distribution of pubic hair and what is colloquially called "the angle of the dangle". If I could get the search warrant voided and if I were successful in challenging the written word provision then these ten pictures could be the most damning evidence against me. I was highly motivated to find out more.
At the time of the preliminary hearing I reviewed the Tanner stages Dr. Hlady had used in her report. The Tanner stage categories are widely used as a method for age determination from photographs. I would note that the clinical photos of same age nude children in J.M. Tanner's books show considerable variability in genital development. Fourteen year old boys can appear to be from eleven to seventeen. I also consulted the works of John Money of Johns Hopkins University, a well known hormone researcher and author of popular as well as scientific books on sex whom surprisingly Dr. Hlady had never heard of. In cross examination Dr. Hlady had said that the first external signs of puberty are increases in the size of the testes which begins about age 11-12, that hormonal changes start at 9-10 and that puberty was complete at 18. Ever since I started writing when I was fifty, and wrote my somewhat autobiographical first novel, RUPERT UNEXPURGATED I been interested in the experience of adolescence. It took a great of introspection and recall to describe growing up from the child's perspective, what he notices and how he feels. Childhood can be a time of experiencing great injustices many of which you later learn are fair. Such realizations are germs of understanding law. Adolescence is when children start taking over their lives, and want to try and experience new things, explore new environments. I think people could learn more from introspectively exploring their own youth than from consulting the pronouncements of experts and the media's human interest morality. They would have a basis for assessment. Myself I went from hypermoralism, telling bullies that God will get them, to shame about masturbation because real boys fuck girls, to realizing that I liked the boys in my classes just as much. In my novels which I tried to get published I attempted to convey the feeling of adolescence with its fears, emotions, passions and fantasies of revenge and power. And decisions. When I was eight at a separation hearing and the judge asked me if I still wanted to see my father, and under my mother's glare, I answered yes and got a bawling out after. It was perhaps my first act of courage. After the openness and amorality of early-mid adolescence boys become more focused by their late teens and interested in money and the future. Despite Detective Waters' lurid description of one of my novels the prosecutor returned them both not long after they were seized.
According to John Money puberty in boys typically begins at about nine and half years when their sex hormones become active. They also become capable of sexual fantasies, feelings and attachments at that time. Their basic sexual orientation however has already been established by middle childhood. At about eleven scrotal/testicular enlargement begins followed a year or so later by penile growth. This agreed with Dr. Hlady's testimony. By thirteen boys start their growth spurt, pubic hair appears and they become capable of ejaculations. Genital development and growth is complete by their sixteenth birthdays and they reach the peak of their sexual drive. Muscular development and broadening of the skeleton continue until about 25 and secondary sexual characteristics such as body hair continue to increase into middle age.
All this is complicated by the fact that the age of puberty is declining and is affected by such things as diet and stress. Malnourished Third World street children living in deprived conditions often appear two to four years younger than their chronological age. In a Nineteenth Century study of children working and living under oppressive conditions in Manchester cotton mills Frederick Engels, of Marx-Engels fame, found that puberty (presumably in terms of pubic hair) was delayed until about nineteen in boys. The general decline in the age of puberty throughout much of the world, including Canada, is most apparent in girls where it is not uncommon for them to develop breasts as early as eight which suggests that puberty may start before seven. It is reasonable to expect that earlier puberty will be accompanied by an earlier interest in sexual activity.
However, when children become sexually active and what forms it takes are affected by society and cultural values. In sex positive cultures children's sex play evolves into intercourse by nine or ten, well before they are capable of procreation. Sex positive cultures regard sex as a natural activity and often celebrate a child's puberty. Examples are found alternative life style communes, kibbutzim and among some Third World communities. Children's sexual activity may become more restricted after puberty to limit unwanted pregnancies. Street kids who are not subject to adult control as in parts of Brazil also begin intercourse at that age. Lee Ann Lloyd, head of the Metro Toronto Special Committee on Child Sex Abuse was quoted in HANSARD, June 1993 as saying that the average age of first sexual intercourse among street kids in Brazil is nine compared to fifteen for Canadian teenagers. In sex positive societies depictions of sexual activities are not pornographic. This does not mean that such depictions could not be sexually arousing for people in those societies but that the concept of pornography requires negative attitudes towards sex. Anti-porn propaganda and activism essentially convey sex negative messages.
A less sexually positive and culturally more widespread pattern is where boys become sexually actively with peers and older youths at a fairly early age and remain primarily homosexual until they are expected to marry. Girls in such societies on the other hand are often secluded and much less is known about their sex lives. Canada and other English speaking countries (outside the middle classes) were in practice more sex positive in the past largely because the sex lives of ordinary people weren't discussed and therefore couldn't be made an issue.
At the other extreme there are highly sex negative societies which try to insist on total abstinence for both sexes before marriage. Adherents of this point of view are common, and apparently growing in the U.S., Canada and other counties influenced by Christian fundamentalism. For a boy sex negativity is like telling an athlete not to exercise or a writer not to write. This places an enormous burden on youth, particularly males at the height of their sexual powers and leads to neuroses and suicides. It is difficult to see what possible purpose abstinence could serve unless it is some kind of absurd moral callisthenics to develop will power. Abstinence becomes moral masochism and puberty becomes a cruel joke played on boys. There may be some increasing tolerance of masturbation among the religious conservatives since they've discovered it doesn't lead to feeblemindedness and apostasy. However youth's right to sex cannot simply be a right to masturbate. Sex is something you have with others and share. Nothing but solo sex for young people is unhealthy. The Nineteenth Century Mormons referred to below, thought it better for boys to have sex with other males than to masturbate. As a child I picked up the idea that masturbation was wrong and I can remember in my early teens trying and trying not to masturbate, sometimes heroically abstaining for a week but always ultimately failing and feeling guilty about it. Sort of like trying to quit smoking only you can't. As a result I became obsessed with sex.
It is generally recognized that in early adolescence girls are more developed physically and socially than boys. Girls interests tend to be more romantic and they look to boys older than themselves rejecting the immaturity of those their own age. In late adolescence boys tend to catch up. However it is a general pattern in most societies that the male is older than the female in sexual pairings. Men on average probably prefer younger female partners. Where the male is expected to be the provider there are also strong economic arguments for an age differential.
An interesting thing about human sexual development is that we reach sexual maturity earlier in relation to our full physical development than most if not all other mammals, and certainly long before procreation is appropriate. How this gap is handled varies from society to society. Only in those societies with well developed extended families where grandparents can take on a major share of the burden of child raising is it practical for adolescents to bear children. Some societies as mentioned previously tolerate or even condone male adolescent homosexual activity seeing it as a phase rather than a permanent orientation. This was very common until recently in Mediterranean countries and not unknown in North America in the recent past. (see AMERICAN MANHOOD by E. Anthony Rotundo, Basic Books 1993. especially chapters "Boy Culture" & "Youth & Male Intimacy" and SAME SEX DYNAMICS AMONG NINETEENTH CENTURY AMERICANS: A MORMON EXAMPLE by D. Michael Quinn) Where there are different standards for boys than for girls it is common for either prostitution or adolescent homosexual behaviour, or both to be tolerated. A very few societies even have transitional formal, age structured homosexual arrangements for young males which lead to adult heterosexual pairings.
Another interesting and seemingly anomalous phenomena given the earlier maturity of girls is that males reach their peak sexual drive long before females. The current bus advertisement for Pond's skin care products which proclaims: "Men's sexual peak 17/ Women's sexual peak 35", is in accord with established scientific knowledge and essentially correct. This imbalance is evident in anecdotal accounts of marriages where in the early years the men want sex more often than their wives while in later years the situation is reversed. Social anthropologists have suggested that the later peaking of women's sexual drive serves to keep couples together for the purpose of raising children. However boys' early peaking of sexual desire or urgency appears to provide no advantage and is frequently seen as a problem. One need only think of all those things like crime that get blamed on testosterone. Very few females show any interest in early adolescent boys suggesting that this difference cannot be accounted for in terms of heterosexual relationships.
The short term "superiority" of females in early adolescence, their earlier maturing, may partly explain their long term disadvantage in many human endeavours. At a time when girls are socially interested in the opposite sex, early adolescent boys are more interested in their own sex, hanging around together more. Competition among boys is less personal and they are more likely to co-operate in order to produce and compete. They learn to work together. In effect boys go through something like an extra phase where they acquire intragender skills which give males an advantage in business, politics, hunting, war and some professions, or wherever teamwork is required. It is a homosocial phase, not necessarily a homosexual phase, but whatever it is called it is a factor in what feminists call patriarchy. But this may simply be due to women's differing biological role and the fact that perhaps appropriately girls do not go through a similar homosocial phase.
In the past social and religious policy was focused on the family, the primary object was to create conditions favouring enduring families for the raising and nurture of children. Adultery which disrupts families was strongly condemned but prostitution and the keeping of mistresses which serve as a safety valve for men were quietly tolerated as a lesser evil. The arguments that prostitution not only reduces rape but also helps to preserve families because it seldom leads to competing affections make a lot of sense. Similar arguments in a less salubrious context have been used to justify the pedophilic activities of priests who are "married" to the church. The argument is basically that boys don't count as a violation of their vows because they don't involve the competing commitment that a spousal relationship with a woman would entail. I used this idea in two short poems, "Priestly Cel'bacy" and "Sri Temple Boys" in RAAV. This argument is no longer politically tenable and is one reason for the movement to allow Catholic priests to marry. Peer adolescent homosexual activity, which also presents no threat to the family ideal, while not condoned has also been widely tolerated. If there was no scandal and people didn't talk or write about it, it wasn't an important concern. It was in fact widely believed up until fairly recently that boys went through a "homosexual phase". This had the welcome side effect of helping to protect the chastity of girls which was the main concern as this related to marriageability and family fortunes. The tradition of fathers encouraging their adolescent sons to visit prostitutes was similarly justified. It also served to introduce boys to heterosexual activity and set them on the right path. The general absence of pornography and the suppression of sexual discussion helped facilitate various informal arrangements which accommodated the contradictions between biology and morality. The so-called "double standard" was a logical accommodation to the perceived need to protect girls and women and to allow sexually charged young males a measure of freedom. In fact up until about a century ago age of consent laws often applied only to females. It was certainly not as some now claim a case of denying boys equal protection.
The early age of puberty relative to the appropriate ages for family formation, the earlier maturity of girls relative to boys and the fact that boys reach their peak sexual drive long before women are the basic natural or God given constraints on adolescent sexuality. What are we to make of the apparent contradictions inherent in these constraints? If instead of adapting to them, as most societies have in practice if not in theory, we attempt to deny them as may increasingly be the case under the organized onslaught of religious and feminist extremists, we can expect a great deal of human suffering as result with boys getting the worst of it. It is ironic that those fundamentalists who claim to be most in tune with God's will should be the most ardent in contriving moral prescriptions for abstinence that deny youth their God given sexuality. The well organized and energetically promoted revival of conservative moralistic concepts disguised as "family values" coupled with the ascendency of a particularly virulent type feminism in recent decades has placed contemporary youth in a difficult position.
The sexual revolution that followed WW2 was more a shift in attitudes and public expression than a shift in behaviour. The removal of prohibitions on a number of formerly banned novels was part of the liberalization of sexual expression. I can remember reading with amazement and prurient fascination James Joyce's ULLYSSES in the mid 1950s. I don't think I understood it but that didn't matter. D.H. Lawrence's LADY CHATTERLEY'S LOVER and some of Henry Miller's works followed as soon as I could get my hands on them. Sometimes the "dirty parts" were already marked. Just as love often follows sex, literary appreciation may follow prurient interest.
The most significant event was the publication in 1948 of the first volume of the KINSEY REPORT which for the first time systematically surveyed and documented male sexual behaviour. This highly controversial and pioneering study produced results which many found shocking and even unacceptable. Perhaps the most astounding findings were that over one third of the subjects had post pubertal homosexual experiences to the point of orgasm and that one in ten males were primarily homosexual. Kinsey saw sexual preferences on a continuum, not on an either or basis. A similar survey today would almost certainly find a much lower rate of homosexual activity, first because of an actual decline, and secondly because contemporary identity politics and homophobia make honest replies less likely. The former is largely a result of the latter. Whereas in the past boys could rationalize same sex activity opportunistically, it now may be seen as a commitment to a gay lifestyle. To some extent the former benign "homosexual phase" concept has been replaced by one of vulnerability where gays and pedos seduce young boys and turn them queer. Viewed through victimological theories it fuels fantasies of abuse.
Along with the post war liberalization of attitudes there has been what has been called the heterosexualization of boys. With WW2 over and men wanting their jobs back a strong domestic family ideal was promoted and reflected in the media. For young people dances and other school activities promoted the ideal of couples and dating. And if you didn't have a girl friend or boy friend you were a wallflower and uncool. The pressure and opportunities for boys to have girl friends and sex increased with the liberalization of attitudes and the greater availability of contraceptives especially the pill which came much later. Things relaxed in the 60s and early 70s. There was even a brief children's' liberation movement where children's' right to sexual expression was recognized. Then came widespread concern over child abuse beginning with physical abuse; the battered child syndrome and revelations of brutal treatment in family and institutional settings. This was followed by a growing concern over sexual abuse which was highlighted by a series of scandals such as the 1973 Emanuel Jacques case in Toronto where a twelve year old shoeshine boy was horribly raped, tortured and finally murdered. Over the years concern and government funding grew. Child sex abuse specialists and bureaucracies, various advocates and activists joined with feminist controlled rape crisis centre's already stridently activism, lobbying for changes and new laws on a range of victims' concerns. With little evidence to back up claims pornography became a dramatic ideological focus for women's issues and concerns of protecting children.
Pornography and Netporn
I had never been very interested in pornography prior to my troubles. I had browsed bookstores in Amsterdam in 1977 which I describe below and even purchased one small booklet as a souvenir and because I felt I should buy something after spending the best part of an hour examining the store's stock. It featured photos of a handsome lad about fourteen with a guitar taken at a marina and on a small sail boat. It was erotic, partly due to its novelty but it was essentially nudist material. I gave it away some time after I returned to Canada. A few years later I saw a couple of the Golden Boys series. These were short, mostly European made super 8 films with little plot but lots of explicit action. They were commercially available by mail order in the 1970s. The two I watched were amateurish with the boys in the 12 to 16 year age range being coy and performing almost diligently. Except for the pictures I took myself I did not collect any material. However after my bust, and being very aware of the extreme moral opprobrium attached to kiddieporn, I became much more interested. I came across several articles supposedly about child pornography on the Internet, they all portrayed it as a serious problem which something should be done about. Aside from sensationalist examples not one writer however attempted to describe what kind of images that might be child pornography are available on the Internet. The "evil" was not to be described other than to condemn it. My curiosity increased, I wanted to find out what all the fuss was about.
First I would like to give a brief history of anti-child pornography measures. In the 1970s a range of child pornography and erotica was available in Canada through mail order from European and American sources. There were little glossy magazines occasionally with cute comments, large format nude youth art books and super 8 movies like those mentioned above. In parts of Europe and North America this material was on the shelves in stores.
The Amsterdam porn bookstore I visited in 1977 was about the size of a small supermarket. I had never seen anything like it. The gay section which took up just under half was divided about equally into three parts; adult, juvenile (under 16) and a mixture of S&M, transsexual and fetish related materials. In the juvenile aisles there were several hundred small thin magazines most of them part of some series. There was also a large selection of coffee table books with collections of artistic pictures of boys mostly in natural and studio settings. Some of the latter were by well known photographers. Both the books and the magazines mainly featured nude boys in the ten to sixteen year age range. Their popularity extended well beyond those with an erotic interest in children. Of the magazines most were "soft core" and did not show any explicit sexual activity though some poses could be considered provocative. Those showing explicit sex activity were frequently playful with the boys shown as enjoying themselves. Masturbation, mutual fondling and oral sex were most common. Although apparently legal at the time there was only a small number of magazines showing adults, usually unrecognizable, coercive sex, distress and humiliation which suggests their lack of popularity. I found these disturbing as I suspect most collectors did.
Beginning in the late 1970s there was a moral panic particularly in the U.S. about child sex abuse with many wild and never substantiated claims. In their book, SATAN'S SILENCE - Ritual Abuse and the Making of a modern American Witch Hunt (Basic Books, NYC, N.Y. 1995) the authors Debbie Nathan and Michael Snedeker describe some of the testimony at congressional hearings. Judianne Denson-Gerber, a crusading American psychiatrist-lawyer claimed that children were being routinely sold for snuff films where they would be murdered and that 1.2 million American children were victims of child pornography and prostitution. Even incest was blamed on kiddieporn and claims were made that up to one in 25 American children were being sold for sex and posed in obscene pictures. These and many other improbable claims were accepted uncritically by the media.
This hysteria resulted in an American backed international crack down on commercially produced child pornography which was then concentrated in a few countries. Open and larger scale suppliers who relied overwhelmingly on foreign material disappeared or went underground. Some continued to come in from the United States. However the American authorities began sting operations which extended into Canada. Police, customs and postal officers placed advertisements in sexually oriented magazines suggesting the availability of child pornography. Contact with consumers would be established, "innocent" pictures might be sent to begin with and then the purchaser would be set up with Canadian police co-operation. Entrapment became the principal means of enforcement and consumers began to distrust any commercial source. With the decline in explicit child pornography police and legislators turned their attention to other material. Originally child pornography tended to be viewed as documentation of actual child sex abuse, in other words as a record of a crime. This clearly included illicit acts involving children and by extension to other sexual activity where the depiction of it is criminal. For example, while the private sex play of ten year olds may not be criminal it is illegal for an adult to contrive to photograph it. While defining child pornography as a record of abuse is still used it is now generally applied to images where no illegal or even sexual activity is involved. According to Laurence O'Toole in his book, PORNOCOPIA: Porn, Sex, Technology and Desire (Serpent's Tail publishers, London, 1998.) in the U.S. and U.K. the broadened definitions including much if not most youth nudist material, images, including clothed ones that are considered suggestive or exploitive, have led to a huge increase in the number of charges and convictions. The largest nudist youth magazines, Jeune et Naturel and Sonnerfreund closed down. Images scanned from these magazines, many thousands in total, make up a significant proportion of the postings to some newsgroups of interest to boylovers. There is an argument that unlike other nudist material, magazines featuring adolescents would only appeal to pedophiles which in effect means it is child pornography. Internationally recognized youth photographers and parents taking bathtub pictures have also been charged and in many cases jailed placing great strains on the children and families involved. This also serves to sexualize nudity in the public mind. Some kids got the message that they should be ashamed of their bodies and reacted by wanting individual shower stalls in gymnasiums, no more gang showers where their peers or the coach might see them naked.
As a consequence of the crackdown and extensive sting operations which made commercial sources highly dangerously some consumers became motivated to become self sufficient by producing their own kiddieporn. Amateur production proliferated aided by new cheap videocam technology. One result was that for the first time significant numbers of Canadian children became involved in the production of pornography. The same thing happened in all countries where laws were made more restrictive including the former source countries. Although it is likely that the total quantity of porn was substantially reduced the number of original videos made and the total number of children that have been involved in producing child pornography increased dramatically. The changes not only failed to protect children as intended but actually abetted their abuse. Canada's new child pornography law which prohibits possession in the hope of eradicating it by targeting all links in the market is unlikely to have much success. Computer technology has already led to an explosion in the amount available and largely replaced market activities by providing material at no cost to the consumer.
The economic consequences of trying to completely prohibit child pornography are much more complex than merely drying up demand. Consumers will certainly become more cautious and paranoid but demand doesn't disappear. It fragments and becomes localized. Especially before the growth of the Internet a man, or a couple of men, not knowing where to get any "good" kiddieporn, but knowing a boy, or two or three boys who would gladly pose and play naked in front of a camera for a good time and some money, might simply make their own. It would be less risky than trying to purchase similar material. This could explain cases like Gramlick, Jewell and originally West. The proliferation of pornography on the Internet may have reduced the incentive for men to make their own pornography although this would be very difficult to determine.
In the cases that have so far come to the attention of the courts such as GRAMLICK, JEWELL and WEST, relations between the pornographers and the boys appear to have been relatively amicable. This is evident from reports in the press and the frustration expressed by the police and therapists. The prosecution has been unhappy with the boys' lack of perceived victimization. However, the more severe the penalties, the greater the fear that lawbreakers will have, the more desperate measures they may take. A man who fears ten years in prison because he believes a boy he has used in making porn will betray him could easily endanger the boy. It can be argued that the new law provides incentives for snuff films where children are killed on camera. Since the Bernardo trial we know that snuff films are not always figments of imagination or clever special effects. Pornographers producing for a market are constrained by that market, by what material consumers will buy. How could one go about selling snuff films in Canada? People producing for themselves have no such built in constraints. Hopefully the new legislation will not inadvertently encourage the most abusive types of porn. Because it is small scale and often personal it will be very difficult for the police to keep track of. It is possible that seizures will
eventually decline which could lead the police into claiming that the war on kiddieporn is being won. But what if more bodies of abused children begin to turn up in fields and alleys?
While escalation of the war against kiddieporn may be very satisfying morally with numerous citizen groups expressing their approval of the severity of the new legislation, the price of these laws may well be paid by children with their lives. Public sentiment, and the law, seem to be based on the naive assumption that the more inclusive, restrictive and punitive our child pornography laws are, the greater the protection of children. It is not difficult to conclude that the new child pornography law poses much more serious threats to children than the milder provisions of s. 163 which only deals with obscenity. The protection of children should be the result as well as the intended purpose of the law.
Partly as research on my case and partly out of personal interest I began looking into material on the Internet that might be considered child pornography. There is a considerable amount, but then there is a huge amount of porn and erotica to be found.
By default and for obvious reasons the Internet contains a preponderance of material that is not readily available or legal in commercial markets. Obscure fetishes and uncommon paraphilias all seem to be represented. I became a serious youth erotica and kiddieporn collector for the first time in my life. I didn't know if I was leaving myself open to further charges or not. Occasionally I had visions of the police knocking at my door again with arrest and search warrants based on monitoring what I had been viewing/downloading from the Internet. I suspected that the question of netporn would come up and I knew if I was challenging the law it would be helpful to know what is out there. On the basis of my experience I was pretty sure that what the police and other anti-porn groups were claiming about child pornography on the Internet was exaggerated and misleading.
I looked especially at newsgroups which men having an erotic interest in boys would likely follow. On newsgroups people post images, requests for images, stories, comments and discussion related to the general subject. The images are scanned from photographs and drawings and are seldom the poster's own original work. Postings can be made anonymously with little additional effort. Other people download them when they select and view them. The person viewing does not know beforehand exactly what the image will depict although he will usually have a good idea. Some groups try to have rules that images of nudes should be identified in the headers that people know beforehand. What many do not know is that downloaded images are temporarily stored in one of several caches where they may remain for some time unless specifically deleted. Even then they may be retrieved from computer hard drives with sophisticated programs. Some police organizations are equipped to do this. In some categories like the alt.fan newsgroups most are designed for teenagers themselves with young television, film and music personalities portrayed and discussed. I focused on material relating to boys rather than girls partly because I believe that there are significant differences in both the sexuality of the sexes and in the consumers of each kind of material. I confined myself to newsgroups and story collections of possible interest to boylovers without defining them too narrowly. For visual material I examined most of the alt.binaries, alt.erotica, alt.fan, and alt.sex newsgroups relating to children, boys, teens, pre-teens, pedophilia and incest. I did not look at any sites requiring credit cards or payment to access and I made no attempt to contact anyone. I only checked to see what was readily available. Despite apparently defined groups the material within them is unorganized making investigation difficult. Some groups such as alt.sex.lolitas, alt.erotica.teen.male, and alt.sex.pedophilia.boys contain mostly, sometimes it seems little else, but spam. Some newsgroups seem to have been completely abandoned to spam. Many are empty. (Spam is indiscriminately posted commercial messages which may have little to do with the group.) A person looking for images of prepubescent males may find more headers relating to HORNY TEEN SLUTS, gay S&M and zoophilia. Postings change frequently and hundreds if not thousands of new headers may be added to a group every day while others are removed. Diligent collectors of specific kinds of images may visit their favourite groups regularly and could amass tens of thousands of images in a few weeks.
There are many newsgroups which men with an erotic interest in boys might turn to for images. Teen idol sites designed for young fans are very popular with some boylovers. A child actor such as Jonathon Taylor Thomas the TV series Home Improvement may have thousands of enthusiastic boylover fans who collect his picture and have fantasy affairs with him. Some of these child stars have probably helped trigger hundreds of thousands if not millions of orgasms. There is not much that the law can do about this salacious state of affairs until society is prepared to deny kids their innocent pleasures and revise some fundamental legal concepts. Certainly there many people who would claim that these child stars are being abused in the process. I have not heard any evidence that the children involved feel victimized. Then there are newsgroups specifically featuring pictures of mostly early adolescent boys in a variety of situations; street shots, fashion poses, sports and everyday scenes, but no sex, suggestiveness or nudity. Some images are apparently posted by proud fathers showing their sons skateboarding or other activities. No doubt many of these are used for erotic purposes and some anti-kiddieporn vigilantes even condemn and harass these groups.
Other groups clearly catering to boylovers judging by comments posted along with the images contain beach, sports, underwear and nude pictures but generally no arousal or sexual activities. It is however practically impossible to prevent people from posting images of explicit sex. Some may show boys undressing or posed in what might be claimed as provocative poses à la Calvin Klein jeans ads. There are many naturalistic nude pictures taken at beaches, camps and in pools, showers, etc. Then there are studio "art" pictures and reproductions of nude paintings. Images like these are found in newsgroups such as alt.binaries.pictures.boys. and alt.fan.prettyboy. These are lively groups with discussion about what images should be allowed or what is or is not kiddieporn and the ethics of man/boy love are interspersed with the images and spam. Heated exchanges are common with vigilantes threatening to report unwelcome posters. Many of these images are scanned from professional quality photographs. One poster who calls himself Soccerboy only posts pictures of boys playing soccer, another confines himself to pictures taken at public beaches. Beyond that there are groups where people post pictures of boys exposing themselves, in sexy poses, with erections, and/or self or mutual touching. Similar scenes occasionally occur in mainstream movies such 1900 starring Robert de Niro and stills are posted.
Clearly beyond commercial media standards are the images showing masturbation, mutual masturbation, fellatio and actual or pretend intercourse involving boys. Far more extreme and definitely abusive are the images where adult actors, violence, bondage or coercion involving young boys are depicted. Many of these images are stills from movies or taken from magazines. The worst I saw showed small boys being restrained and buggered. It is not very common and this type of material is condemned even on some pedophile newsgroups. Some of these images appear to be scanned from the most extreme kiddieporn booklets from the 1970's when material like this was available. Other such images depicting rape appear to be of more recent origins. There are also advertisements for explicit boy videos, often with a few stills. Most of these appear to be made in Russia.
Another category which some people would find disturbing are images of children being spanked or caned. These include photos, etchings, drawings and often annotated cartoons. Most appear to be from books, magazines and stills from movies where children are punished. Some of the amateurish drawings appear to have been made by children. For the most part these images are perfectly legal as they are not sexual. There are photos of domestic discipline, school paddlings and judicial floggings. Most of the latter are from former British colonies such as Kenya, Malasia and Singapore where the use of corporal penalties has increased exponentially since independence. These include pictures of boys modestly displaying their welts and residual scars. There was even a "boyspank" site offering images and videos but it required a credit card or money to access its wares so I only saw a few sample images. Another site offers contemporary news about corporal punishment, historical accounts about punishments in the military, schools, prisons, juvenile institutions including personal memoirs and discussions pro and con about physical punishment. There is also alt.parenting.spanking where many posters quote biblical injunctions for applying the rod. As an aside I would note that religious conservatives who strongly oppose child pornography of any sort are the principal proponents of spanking in our society. Instructional videos for parents showing them how to administer corporal punishment to their children are available. To the extent that they stress avoiding injury while maximizing pain they may in some sense help protect children. They are controversial and their distribution has been banned in the U.K. I do not think that is any doubt that some viewers use much of this material for sexual purposes regardless of the motivation of those placing the material there.
Most newsgroups to which anyone can post have a degree of self regulation. Mixed with the images and inevitable spam are messages to other posters and viewers. In the previously mentioned alt.binaries.pictures.boys there is a self appointed group called the Guards who try to impose certain standards. While nudes of all ages are welcome anyone posting KP, images of boys showing sexual arousal or sexual activity "will be reported to their Internet service provider", and if they persist, "they will be reported to the appropriate authorities in their country", all "WITHOUT PRIOR WARNING". They may be told to make their postings to more appropriate groups like alt.sex.pedophilia. It is difficult to determine how effective vigilantes are although there are frequent postings announcing that so and so has been arrested or jailed. Others users of the newsgroup "flame" the alleged offenders, tell them they are "sick" and should commit suicide. Non users may not share the group's definition of what is not kiddieporn but they seem to have achieved substantial compliance to theirs. Some people have kill file programs in their computers so that the images/messages of unwanted posters (and spammers) are not downloaded. There are also complaints about overposting, inferior quality postings and many requests to repost certain favourite images. I would note that many image programs enable the viewer to blow up and crop images which can be used to make them subjectively more pornographic.
Written material, erotic stories relating to sex involving boys is found in several newsgroups and web sites as part of larger gay sex story collections under adult/youth. M/B (man/boy), intergen. or incest headings. A story may be classified under more than one heading. Of the ones that I have looked at most are graphic, amateurish masturbation fantasies. Rape and violence are less common but I have come across a few "snuff" stories. Erotic spanking stories usually in school or family settings are fairly common. While many involve no sex others have both the adult and the boy deriving sexual satisfaction from the experience. Internet stories are typically indulgent and soon boring. Contributors often write a series of similar stories or follow a few characters through many episodes. Many are narrowly focused on the writers pet paraphilia. Quite a few stories are written as childhood reminiscences or as told by a boy narrator. Some claim they are pure autobiography, others admit to some embellishment. A few are plotted stories sometimes with exotic historical or sci-fi backgrounds. For the purpose of arousing and satisfying the sexual appetite the written word can be extremely powerful. Imagination is the only limit unlike film and video. If the priority of anti-child pornography laws is to stop pedophiles from masturbating, if that is the real goal, then efforts should emphasize written material.
Cleaning up the Internet involves the problem that effectively discouraging the worst would require the cooperation of those enjoying and defending less offensive material. However many crusaders believing in zero tolerance are not prepared to make the distinctions required for this approach to be used.
Catherine Ford writing in the VANCOUVER SUN [21/05/99] in a column titled, "Thinking skills are the best defence against Internet filth" asks in respect to children what is the cure? She points out that selective censorship to weed out filth on the Internet is impractical. She suggests, "Lessons in philosophy, morality and old-fashioned critical and creative thinking, everything that the schools, parents and churches are actually supposed to be doing." She advocates that youth be educated "to assess what they see", and learn to use their judgement. In effect she advocates empowering children and inculcating autonomy. Ford concludes, "In the move to wire the schools for computers we've forgotten to wire the students."
The harm engendered by child pornography is often defined on three bases. One is the abuse entailed in the making of the images. Where children are threatened, coerced, tricked or deceived (hidden cameras) into participating the abuse is self evident. The worst is often evident from the images itself. We should however objectively ask how serious most child pornography is in relation to other abuse experience. The claims that it is "worse than homicide" and amounts to "soul murder" are obviously far fetched. Usually there is little evidence of actual experienced abuse in the images themselves where the boys are often cheerful and enthusiastic. Small children may be ignorant of what is happening. Judging by what is available, and there is an abundance, most child pornography consumers find images of coercion, rape and brutality highly offensive. If continuum theories, which suggest that consumers seek ever more extreme material, were valid we would expect a much larger proportion it on the Internet.
A second area of potential harm to children is the question of identification. If pictures which a boy may have allowed a man to take as a personal matter are afterwards widely circulated, sold or published causing embarrassment or exposure the damage can be traumatic. A boy may be particularly anxious that the images do not fall into the hands of the police. If he is identified he may be subjected to abusive interrogations and be exposed to the humiliation and contempt of peers, family and community.
The third and most controversial potential harm to children is the effect of child pornography on the consumers. Never before has there been so much child pornography available with so little risk, effort and cost in accessing it. There is conflicting evidence. On the one hand there is no evidence that the over all availability of child erotica and porn bears a positive relationship to child sex abuse, in fact the opposite may be true. On the other hand there is anecdotal evidence and the testimony of some clinicians that there is a causal relationship with some convicted offenders.
Perhaps overriding the question of harm to children is the widespread repugnance at the idea of men being able to possess and use child related material for their sexual gratification. It is considered morally wrong for men to do this and this is why, I believe, child pornography and sexual assault laws are enforcement and offender oriented rather than directed at protecting children.
If we are to accept the word of serial killer Ted Bundy that porn made him do it, as some of our parliamentarians did in justifying the need for our pornography laws, then we should also consider the claim of serial killer Clifford Olson that he started killing his victims because he did not want to go back to jail. Both claims are self serving but Olson's, despite all his bullshit, raises the question of whether harsh penalties for sex crimes involving children are wise.
Images of boys masturbating often show them looking at boy porn mags. This may be one reason for the contention that men use child porn to "groom" their victims which has been unquestioningly accepted by many. The simple fact may be that it is the only kind of porn that the men have around and use themselves. Consumers may of course be flattered to think that boys enjoy it themselves. In a practical sense straight porn, especially videos, would be much more effective in seducing young boys.
To talk about pornography outside the context of masturbation is like talking about cooking without reference to eating. Pornography is very important to many people without attractive sex partners. It is a substitute for the real thing. Even unattached people who have access to desirable partners may prefer pornography for reasons of cost, convenience or kinkiness. Pornography is a tool for experiencing sexual release, something that is considered conducive to health by many people. Pornography, or rather people are very selective. Men only respond to a certain range of imagery in terms of solitary sexual activity. Few things are more boring than another person's porn. Also, I believe the same porn cannot be reused successfully over and over again. More rather than less porn may be beneficial for users. Images used for aesthetic enjoyment rather than arousal can be enjoyed repeatedly.
I would suggest that anyone deciding to study porn on the Net, even if only prurient reasons, should study the images closely, the backgrounds, the attitudes of the bodies and especially the expressions on the faces. Are the kids happy, indifferent, laughing, distressed, in pain, relaxed, being prompted? The quality of direction is likely no better than the quality of the picture. In addition anti-porn advocates might be able to be more honest if not effective if they knew what they were talking about.
My plan to challenge the law was very audacious and I wasn't optimistic, but I was positive in my mind most of the time. I knew I was attempting something never done before and this gave me a sense of mission although not one I could share much with anybody. The friends who spoke most meaningfully to me were books and articles. I explained my plan to any who might be interested but usually they weren't. Most were pessimistic, so was I, and at least a few thought I was foolhardy, and they didn't want to know the details. Only Jim Heller seemed curious but it was out of his field. Seeking reassurance was not profitable. I was dealing with a bad law and I had some arguments that made sense to me. But then I recalled the other thing that Ritzker had said about the court listening to you and then doing what they would do anyway. In law things appear different than in reality, which is necessarily subjective for everybody, and words may have different meanings. I felt there could at least be a good fight and maybe I would get some assistance if put on a good show. I know enough to expect the unanticipated, and I knew there would be many unknowns.
THE BUTLER AND LANGER DECISIONS
"The truth about sex is that sex is just sex - basically it's bad, unless it's good, and we all know which one it is when we see it." Brenda Cossman commenting on the Butler decision in BAD ATTITUDE/S ON TRIAL, page 125,
In 1983, nine years before the Butler decision there were a number of changes redefining rape and sexual assault laws which greatly increased control over individuals through the criminal law. New offences were created, penalties were increased and potential defences were removed. It may be seen as part of the strong, long term historical trend towards greater state control of the individual through criminal law. Legal reform - Social control by Loureen Snider in, "The Dangers of Abolishing Rape" published in the International Journal of the Sociology of Law examines sex assault law proposals and reforms. She says, "Reform has come to mean changing the laws so that they are in theory equally repressive for all." While women got changes that made it easier for women victims to testify, none of their liberalizing proposals were successful. The Justice Minister of the day, Jean Chretien was not anxious to again go through the "public abuse" he took over the legalization of private homosexual acts between consenting adults, a reform he had nothing to do with. The changes made it easier to charge and convict men accused of sexual offences. The police had virtually all of their recommendations instituted. The parallels with the making of the child pornography laws are interesting. Laureen Snider explains, "Because they (state law enforcement agencies) were inside the state control structure and because resistance to centralized power in Canada is virtually non-existent, they were consulted extensively, formally and informally, and were able to shape the very contours of the Bill throughout." In a way it is like government consulting with engineers about construction codes except that it's us, as people, that's being regulated and punished. Few care or question the police role in law making.
Rape and attempted rape had traditionally been specific offences. Rape is not putting your hand on an unwilling person's crotch. Rape is defined as sexual intercourse (penetration) without consent effected by force, duress, intimidation or deception as to the nature of the act. Rape is an outrageous sexual violation of one person of by another. This is pretty clear. However certain feminists didn't like rape being separate, and they had their way when the Criminal Code was amended in 1982. It's the violence, not the sex that should be targeted they argued, and women don't just suffer from rape. Except for hiving off cases involving injury or weapons everything from classic rape to minor instances of sexual touch became sexual assault. Rape which had been a separate crime with a clear cultural meaning was now just part of a continuum it shared with unwanted kisses. Rather than trivializing rape, the new classification raised trivial, but arguably traumatic acts in terms of victimological theory to serious offences. It became very easy for a man to get into trouble. Bureaucracies arose in offices and colleges to define and regulate gender relations and human rights tribunals were established.
Some feminists resisted this attempt to define sexually mature females as pathetic defenceless creatures dependent on the laws and agents of the state. It is hard to be victim and equal at the same time. A women who has her breasts touched or a boy who has his bum patted is not raped but they may well have been sexually assaulted. But aren't they mini-rapes? And isn't the perpetrator is on a continuum with violent rapists? A horny teenage boy can very easily push things too far. I remember the roman hands and russian fingers of back seat adolescent encounters. I think I described a typical encounter in my autobiographical novel, RUPERT UNEXPUGATED. It used to be that the girl would remove the boy's hand and tell him to behave, now she may have him charged with sexual assault. By current standards most of the boys in my high school, circa 1950, would have been criminals. Also when I recall the probably hundreds of depantings and other schoolyard and locker room sexual assaults I witnessed, and took part in, as a kid I cannot help but think of the many millions in legal and therapeutic expenses that those incidents would generate today. "Fooling around" as it was called, was common. The taunting, teasing play often with sexual overtones that kids engage in is perfectly normal and part of the rough and tumble experience of childhood. Kids growing up necessarily have to deal with things which adults with their cultivated sensitivities would find intolerable, including things intended to make them good and behave such as spankings, lectures, time outs and groundings. Children are fortunately resilient. The important things for kids are positive; acceptance and love, both of which provide a foundation for self worth.
The ascendancy of psychiatric and other therapies with their inherent disrespect for the autonomy and social intelligence of children has led to a decline in our ability to deal with such incidents. Teachers used to ignore such "fooling around" or terminate it with a simple, non-moralistic, "Cut it out." or "Settle down." unless it was too blatant or a kid was frightened. What is now termed sexual assault was in the past commonplace. It was also no big deal. Those who were over enthusiastic might get teased. Not long ago the twelve year old son of an acquaintance was suspended from his school for sexual assault, to wit abusive, obscene words. His father stood up for him and rightly got legal satisfaction. Applying feminist victimocratic theory to the rough and tumble, learning world of kids is stupid and can only harm kids. Today with child sex hysteria and mandatory reporting laws people who work with kids are often obligated to report such behaviour and have it dealt with by "experts". And some really believe in zero tolerance and experts.
Kids pretty well have to take seriously, sometimes traumatically so, things that adults suggest or insist they do. Teaching toddlers and young children what to fear and what not to is fundamental to parenting. Kids though their own experience and the influence of their peers soon begin to modify the fears their parents give them becoming more sophisticated. They are continually made aware of new things to fear (It's a lifelong process) which with growing capacity for autonomy they assess. How to react to sexual advances, particularly by much older kids or adults needs to be learned. In most cases where a kid's not interested a simple "Fuck off." or "NO" should work and the kid should warn his friends if he's been bothered.
Ordinary people generally know this. Therapists may also know this but it is not part of their "professional" knowledge or "ethics" and it is costly to their professional "integrity" and pocket books to admit it. Some therapists, like Dr. Collins who testified at my voir dire have to dogmatically deny the harm of exposure to justify their professional existence. Therapists are frequently the major part of the problem with their expensive and invasive solutions. Well into the 1970s it was widely recognized that exposure and the reaction of adult authorities could be more harmful to kids than the incidents themselves and informal resolutions were often favoured. However, under the onslaught of therapists, feminists, opportunistic politicians and a media hyping sex abuse and child pornography this approach no longer became publicly tenable. Like many other reforms to protect children they became foremost among the victims.
Any kid who believes he should tell parents or teachers anything they might like to know is stupid and not being what he should be. Keeping secrets from adults is part of healthy socialization and maturation for children. But they should free to tell appropriate adults things they want them to know about such as things that they themselves experience as abuse.
Concern about the increasing availability of pornography had been growing for a number of years prior to the Butler decision. Social conservatives who saw pornography as a threat to family values and who basically opposed any representations of explicit sex were joined by feminists who saw much pornography as harmful to both women and women's equality. Both lobbied the government for more stringent laws. The 1985 FRASER REPORT which had adopted a feminist definition of obscenity led the Conservative government to introduce Bill C-114 the following year. Anti-porn advocates claimed it didn't go far enough although most religious and family oriented groups and the Association of Police Chiefs approved of it. However the proposed legislation met with widespread and strong opposition from libertarians, the arts community and some feminists for being too restrictive and placing too much emphasis on sex relative to violence. It died on the order paper. In 1987 the government introduced Bill C-54 which attempted a meticulous codification of obscenity. The definitions were overbroad potentially covering a huge range of artist and intellectual material. Librarians were particularly outspoken and articulate in their criticisms. Any practical consensus become impossible and it too died. Even government spokesmen admitted that Canada would have to live with the existing legislation.
The feminist arguments that were so influential derive from the theories of Catherine McKinnon, a prominent academic and Andrea Dworkin a prolific anti-male writer. They led the radical feminist crusade against pornography using their theme that porn inspired rape and led to women's subjugation. Their evidence was anecdotal and moral, reinterpreted as harm to women. What little scientific evidence they referred to was mainly laboratory experiments with college students, which I discuss elsewhere. McKinnon sees pornography as an act of violence against women. She is quoted: "the message of these materials, and there is one... is `get her', pointing at all women, to the perpetrators benefit of ten billion dollars a year and counting. This message is addressed directly at the penis, delivered through an erection, and taken out on the women of the world." Porn incites men to rape and there is no place in their theories for men using it as a "safety valve". Their theories found their way into the FRASER REPORT whose authors acknowledged their contribution. McKinnon and Dworkin had mixed success implementing their theories locally in the U.S. with one of their ordinances being ruled unconstitutional. But their ideas came to dominate mainstream feminist ideology, inspiring organized anti-porn activism and attracting the interest of social conservatives who opposed porn for different reasons. And then there was the Butler decision.
Catherine McKinnon was invited by LEAF, the Legal Equality Action Fund, a feminist anti-porn group to co-author their factum with Kathleen Mahoney. The LEAF factum provided a rational for reinterpreting the existing legislation in a way to satisfy those insisting on reform.
The Butler Decision and Judicial Activism
Shortly after Donald Victor Butler opened the Avenue Video Boutique in Winnipeg in August 1987 his store was raided and he was charged with over two hundred counts of selling and possessing for the purpose of distribution obscene material; "hard core" videos, magazines and sexual paraphernalia. The core issues of the case were firstly whether the definition of obscenity infringed on the right to freedom of expression. Obscenity is defined as: "any publication a dominant characteristic of which is the undue exploitation of sex, or sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene." Judge Wright of the Court of Queen's Bench ruled that the definition did. Secondly, whether the infringement was saved under section 1 of the CHARTER. Based on content of the material the trial judge found this was the case in counts relating to 8 films for which he convicted Butler, but not in 242 counts where he acquitted the defendant. He ruled that only materials containing scenes involving violence or cruelty intermingled with sexual activity, or which depicted a lack of consent or otherwise, could be said to be dehumanizing. These were legitimately proscribed under section 1 of the CHARTER. His ruling seems to be based on the simple meanings of the words in the definition. The Crown appealed the acquittals and the defence appealed the convictions.
The Manitoba Court of Appeal in a majority decision entered convictions on all counts saying that the materials lacked protection since they constituted purely physical activity and involved the undue exploitation of sex and degradation of human sexuality. Obscene material was simply not a form of expression that the CHARTER was designed or intended to protect. Obscenity cannot convey a meaningful message. One dissenting judge wrote that a law deciding what others may read and view was contrary to the principles of a free and democratic society and upheld the trial judge while the other dissenting judge felt that the law was arbitrary and vague and would have acquitted the defendants on all counts. The Appeal Court ruling was appealed to the Supreme Court of Canada.
The Supreme Court heard the appeal and ordered a new trial on all charges. They ruled that while section 163 infringed on the freedom of expression provisions of the CHARTER it could be demonstrably justified as a reasonable limit in a free and democratic society. The significance of the Butler decision is that it re-interpreted Canada's obscenity laws supposedly on the basis of harm rather than morality. The Court had to stretch the weak and since disowned and widely discredited studies offered by LEAF as "proof of harm" to justify obscenity as constituting a "substantial risk of harm". In the process the Court expanded the definition of obscenity to include a wide range of material then available. Most feminists were jubilant as it entailed the acceptance of their theories. The decision was even welcomed by social conservatives who got much of what they wanted albeit rationalized in words not of their choice. It was also welcomed by the politicians who were no longer under pressure to rewrite the pornography laws which could be a divisive and onerous task. The Supreme Court of Canada effectively amended the law without changing a word. This piece of judicial activism was supported by most of the same groups that are now complaining most stridently against it. Perhaps they are only opposed to "bad" judicial activism.
The decision revolved around what is obscenity as set forth in subsection (8) of section 163. The Court stated: "In order for a work or material to qualify as `obscene', the exploitation of sex must not only be its dominant characteristic, but such exploitation must be `undue'." Undue is to be based primarily on the "community standard of tolerance" test. "This is concerned not with what Canadians would not tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed." In other words what are you prepared to let your neighbour read or view? Tolerance is assumably based on people's perceptions of the degree of harm, in terms of predisposing people to act in anti-social manner, that may result from such exposure. The Court speaks of a "reasonable apprehension of harm" and of a "substantial risk of harm" as self evident and not in need of proof or demonstration. Public opinion about what people may think may lead to harm defines obscenity. Any to need to demonstrate a causal or correlational relationship objectively is superseded by evidence that public opinion accepts that such a relationship exists. It is like saying that if people believe that tomatoes cause cancer then they indeed do cause cancer. The Court rationalizes: "While a direct link between obscenity and harm may be difficult to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs." It is not said why this is reasonable to presume. It sounds like the Court's very own community standards. They then go on speak of "the gravity of the harm" and "the threat to the values at stake". The argument is one directional in that it looks only at the possibility that porn may incite sex assault and completely ignores the possibility that it may substitute for assaultive behaviour, the so called cathartic effect. The cathartic theory widely accepted a few decades ago has been a victim of the anti-porn crusaders. It is antithetical to their interests and those of the criminal justice system. Public opinion and presumably community standards have shifted. The cathartic theory was an important consideration at my voir dire
The Court refers to "a growing recognition" that material said to exploit sex in a degrading or dehumanizing" manner will necessarily fail the community standards test, "not because it offends against morals but because it is perceived by public opinion to be harmful to society". It might be argued that the Court simply replaced morality with presumed public opinion concerning moral questions. Moral authority democratized? They also note that in deciding whether material is degrading or dehumanizing, "the appearance of consent is not necessarily determinative." For many feminists consent or apparent pleasure could make material even more degrading.
In their qualifying remarks Justices L'Hereux-Dubé and Gonthier state: "Obscenity leads to many ills. Obscene materials convey a distorted image of human sexuality, by making public and open elements of human nature that are usually hidden behind a veil of modesty and privacy. These materials are often evidence of the commission of reprehensible actions in their making, and can induce attitudinal changes which may lead to abuse and harm." They succinctly say: "The assessment of the risk of harm (here) depends on the tolerance of the community. If the community cannot tolerate the risk of harm, the materials... will constitute undue exploitation of sex and fall within the definition of obscenity." They seem to believe that obscene materials possess almost magical powers to alter attitudes and values. This seems to be the very similar to the concept of "cognitive distortions" used by the Crown at my voir dire.
Community standards based on public opinion can presumably change, just as conventional wisdom changes over time. Canada has a small industry monitoring changes in public opinion. Public opinion can also be manipulated and this involves large industries. As for community standards there are many groups that are trying to change peoples attitudes and thinking on what is permissible is terms sex related matters. The various intervenors with their factums were part of this. Anti-porn feminists, victim rights groups and certain members of Parliament have taken an overtly crusading stance. The police in their "educational" work, as per Detective Noreen Waters, try to influence public opinion as in the ongoing debate to raise the age of consent. Community standards as public opinion invites activism with influential and well organized and funded (often funded by the taxpayer) groups having an advantage. This could be a never ending war for the community standards of Canadians, a war with many casualties. I wonder if perhaps deference to some moral authority rather than public opinion might be preferable, especially if enforcement is lax. History is replete with societies that have managed to have their moral cake and eat it too.
The Butler decision pitted equality rights against expression rights. Following feminist reasoning the court saw pornography as an obstacle to women achieving equality. They made further assaults on the integrity of the English language by rejecting the ordinary meanings of words by making them contextually sensitive.
In BUTLER, as in perhaps Canadian pornography trials generally there was nobody there to represent the consumer. The consumers, especially of "hard core" obscenity are a denigrated group and are highly unlikely to stand up for their interests. It would be humiliating, who wants to say they need, prefer or sometimes want this kind of material as a masturbation aid? Nobody. This means there is no one there to express directly the value to some people of the freedom of expression involved. The court can simply degrade the value to a base level demeaning the value of sexual expression generally. Nobody was there to energetically and articulately contest the simplistic "monkey see, monkey do" theories of psychiatrists, radical feminists and social workers wrapped in victimological sophistries.
While there was more material that could be deemed obscene there was no change in the direction of enforcement. Gay and lesbian bookstores continued to be targeted and it seemed that the goal of protecting women from males could be satisfied by censoring gay and lesbian materials devoid of man/woman encounters. The words of the obscenity definition, abused into abstractions by the decision, were open to clever and perhaps valid interpretation as former feminist supporters were sad to discovered. Gays' access to sexual material, especially that dealing with S&M, also suffered as men were found to be in equal need of protection from dehumanization. Their theories of harm were used against them. The consumers of XXX adult porn faced curtailed selections but most probably learned to like vanilla.
There have been some excellent analyses of the Butler decision. Perhaps the most incisive is that of Brenda Cossman in BAD ATTITUDE/S ON TRIAL: Pornography, Feminism and the Butler Decision, co-authored with three other Canadian academic feminists; Shannon Bell, Lise Gotell and Becki L. Ross. The title refers to the American lesbian magazine, Bad Attitude that was seized by police from a Toronto bookstore. It was ironic that a feminist publication should be the subject of the first big obscenity trial following the Butler decision which was heralded as offering protection for women. Dany Lacombe's BLUE POLITICS is also very helpful in providing an historical and theoretical context for the Butler decision and I have relied on both but draw my own insights.
Richard Posner, the well known conservative American jurist in the October 18, 1993 edition of the New Republic gives a reasoned analysis of the ideas Catherine McKinnon which were so useful in the Butler decision. He sees her as "obsessed with pornography". He says she appeals to the elemental passions of fear, disgust, anger and hatred rather than the rational intellect. Pornography is hate literature and is used to oppress women. He quotes her theory of censorship, "The more speech is protected, the more dominant they (men) become." Posner points to the glaring contradiction between declining rates of rape and the proliferation of pornography. He also notes that "women's status is lowest in societies that repress pornography (such as those of the Islamic nations) than in societies that do not (such as those of the Scandinavian nations)." Social conservatives felt that pornography endangered the family by deflecting husbands from intercourse to masturbation.
It may be unfair to overly fault the Court. There were a number of practical and political considerations which were difficult to ignore and quite literally the ball was in their court. They are also bound to make decisions on the basis of evidence before them and the evidence was one sided. Often it is only the voices of the respectable or powerful that are heard and listened to. When the poor and disreputable are heard it is likely to be some wretch, who feeling shafted by the system, has a screaming outburst as he is led out of the courtroom. There was no factum from the Canadian Pornography Consumers Association. That association does not exist any more than does the Unshamed Johns of Canada. We are talking about people, men for the most part, that cannot afford to speak publicly in the present moral climate. I have personally experienced the power of stigmatization. The Court in referring to the impracticality of exhaustive definitions, as the failure of Bill C-54 demonstrated, say they "strive towards a more abstract definition of obscenity which is contextually sensitive and responsive to the progress in the knowledge and understanding of the phenomena to which the legislation is directed." What about the simple meanings of words? This is an invitation to more abstruse constructions of reality. It certainly gives courts more leeway than ordinary meaning of words. The "progress of knowledge and understanding of the phenomena" is interesting. Does it mean that if the shaky scientific evidence is shown to be worthless that the definition in practice would change? I doubt it because for community standards to change new evidence would have to become entrenched in conventional wisdom. I assume the Court knew what it was doing. They had to engage in some intellectual gymnastics to accomplish it. Perhaps they believed they were making the correct and best decision and this was the best way they could justify it. Behind the curtain they may have stretched the fabric of the law but they did not rend it.
R. v. THE ART OF ELI LANGER (forfeiture hearing under s. 164)
"When I use a word," said Humpty Dumpty, "It means exactly what I want it to mean, no more and no less."
The other big case I want to refer to is the Langer forfeiture hearing. This is probably Canada's best known child pornography case under the new law. The basic facts are quite simple. The impugned child pornography was a series of paintings and sketches which depicted young preteen children in sexual situations sometimes with adults which were seized from a public art gallery in Toronto four months after the law was proclaimed. The gallery owner and the artist, Eli Langer were charged under both the obscenity laws and the new child pornography laws. Langer did not believe that an artist should have to defend his works, they speak for themselves. His friends saw them as addressing social issues, the artist had spend time talking to people who had been victimized as children. The Crown described it as a test case and cited the need for judicial interpretation of the new law without placing any individual in jeopardy of a criminal conviction. The charges against the individuals were dropped and the art works themselves were put on trial through a forfeiture hearing. The case was to decide if the new law was constitutional and whether the works were indeed child pornography. Eli Langer had widespread support from Toronto's art community and the Canadian Civil Liberties Association, the Canadian Conference of the Arts and Pen Canada made representations as intervenors on Langer's behalf. Canadians for Decency were intervenors on the side of the Crown. Frank Addario was retained to defend his works on the basis that the law violated freedom of expression as guaranteed by the CHARTER. The judge, Mr.Justice McComb of the Ontario Court of Justice (General Division) ruled that the statutory definition of child pornography, 163.1 (1) violated section 2(b) of the Charter but was saved by section 1 of the CHARTER. In other words the law was constitutional. He decided however that Langer's works were not child pornography because of their "artistic merit", a defence written into the law. Langer "won" and got his works back. Some saw that as a victory for freedom of expression.
The Crown claimed that Langer's works were child pornography and should be forfeited and presumably destroyed. They brought in as expert witnesses Detective Sergeant Robert Matthews head of Project P, Canada's largest anti-pornography unit, a member of the Ontario Film Review Board and psychiatrists, Dr. Peter Collins, Dr. Howard Barbaree and Dr. William Marshall. These clinicians are associates who work with convicted sex offenders. Marshall and Barbaree often co-author articles, and Barbaree is Collins' superior. Dr. Marshall has testified before the Standing Committee on Justice a number of times on matters dealing with sex offences and youth. He has produced a number of studies on sex offenders funded by the Department of Justice. All three have very cosy relationships with the criminal justice system.
Sergeant Matthews who testified extensively before the Standing Committee in support of the law provided samples of alleged child pornography; the Nambla Bulletin, an obscene collage, photos and kiddieporn magazines from his collection and described the exhibits explaining how pedophiles acquire, distribute and use child pornography to place children at risk. A few months earlier Matthews had assured the Standing Committee that the arts community had nothing to fear from the law yet now he was leading the charge against an recognized artist's works. Matthews was quoted in MACLEANS Magazine: "In my opinion an art gallery cannot be used as a sanctuary for pornography." (July 24th, 1994.) In the same article Bob Horner who was Chairman of the Standing Committee is quoted, "the police have overstepped their boundaries in this case." How sincere was Matthews? Or was it simply a case of doing his job?
The three psychiatrists offered their theories about the harm of child pornography; fuelling fantasies, reinforcing cognitive distortions and grooming children. The three psychiatrists were also of the opinion that Langer's paintings and sketches could incite a pedophile to sexually assault a child. Dr. Barbaree suggested that the distress obvious in the faces of the paintings' children wouldn't be apparent to a pedophile implying that they are basically insensitive men.
Frank Addario brought in his own expert witnesses, Dr. Jonathan Freedman and Dr. Ronald Langevin who testified that there was no scientific basis for concluding that "explicit depictions sexualizing children will increase the likelihood of sexual abuse of children." Langevin didn't think Langer's works would turn on pedophiles suggesting that photos showing genitalia would be better for fuelling the fantasies of pedophiles and that even "innocuous mainstream advertising images" would be more effective. He was by no means defending child pornography, he would lose credibility if he did, but he was making the point that some porn might be more effective than others and not just on the basis of explicitness as advanced by the psychiatrists. Langevin also testified at Stoempl's trial recommending therapy, and implicitly incarceration for the accused.
Judge McComb in his ruling upheld the entire pornography law. He uncritically accepted the testimony of Sergeant Matthews about the exhibits he entered. In his ruling McComb describes the NAMBLA Bulletin in words that sound like they were borrowed directly from the head of Project P: "The publication panders to homosexual paedophiles. It contains pseudo-intellectual editorializing purporting to justify sexual relations between men and boys, and argues for the removal of societal taboos against such behaviour." His words suggest that he had not seriously examined the newsletter himself. Later this suspicion influenced me to enter sample copies of the NAMBLA Bulletin at the trial so the court could decide for itself. He continues: "It also panders to the prurient interests of its readers with photographs of (they have a no nudes policy) young boys, and first person accounts of sexual activity between men and boys." Nowhere is the meaning of "advocates or counsels sexual activity ..." discussed in his decision, he seems to assume that the positive presentation of ideas constitutes advocacy. Nevertheless this brief exposition served as his justification for the constitutionality of prohibiting written material "which counsels or advocates..." I found this disturbing. Written material had nothing to do with the Langer case. It was not on trial; there was no one present with a primary interest in defending it. I believe that Judge McComb erred in allowing Detective Sergeant Matthews to enter exhibits from his child pornography collection that did not relate to the material in question. I can find no indication that Frank Addario raised any objections to this material being used. Matthews may well have wanted to get a ruling on as much material as he could, perhaps especially NAMBLA, knowing it would not be seriously questioned. It would be feather in his cap to have testified when the law was upheld. Judge McComb seems to be sympathetic to his position in this regard.
Judge McComb also uncritically accepted the child pornography theories advocated by the three psychiatrists. His ruling seems to have borrowed all the terminology and logic as he repeats their ideas. He accepts the clinicians' testimony as evidence "that paedophiles fuel their fantasies not only with explicit sexual images of children, but also with material that is not overtly sexual." and "that the determined paedophile is able to get his hands on it, and as will be seen, uses it in ways that are harmful to children." Actually a pedophile didn't have to be very determined in 1994 to accumulate a large amount of explicit material. McComb states that pedophiles use child pornography to: "reinforce cognitive distortions" by rationalizing paedophilia as a normal sexual preference." The judge also repeats in clinical phraseology that child pornography is also used to "groom" children, to entice children into posing for porn and sexual activities. This theory may be plausible with very young and naive children but for adolescents XXX adult porn would be much more effective than pictures of naked children in eliciting their sexual cooperation. The common sense approach is to ask what materials are used to groom what kind of potential victims. The psychiatric approach based on moral assumptions seeks only to show that some materials may be so used by some men in unspecified situations. The "grooming" theory at best has limited application and should be applied on a case by case basis depending on the nature of the image and the apparent age of the participants. The problem in reality is the misuse of porn whether child or adult. The problem in law is the misuse of the grooming theory. It had no relevance in LANGER. In fairness to the judge it should be noted that he was offered no competing theories or explanations. In terms of the constitutional issues the defence was possibly derelict in its duty by not advancing any alternatives.
While the judge admits: "That there is considerable controversy within the behavioural science community about the effects, if any of child pornography upon behaviour." He then concludes: "However, although the evidence may not establish a clear link between child pornography and child sexual abuse, I accept the clinical opinions of experts Dr. Peter Collins, Dr. Howard Barbaree and Dr. William Marshall, each of whom has extensive experience in treating sex offenders, that paedophiles are often highly motivated to get their hands on explicit child pornography, (This only proves that the material is highly valued by the men) and to use it in ways that put children at risk." No degree of probability or likelihood is mentioned.
The judge also agreed "that material that stimulates the arousal of paedophiles is on a continuum with explicit motion pictures being more stimulating than still photos, which are more potently arousing than less explicit depictions. To a paedophile, the more realistic and explicit the depiction, the greater the erotic stimulation." I don't think this distinguishes pedophiles from any other men who use pornography nor does it mean that men prefer this material. Most men who use porn of any sort prefer images well short of the most extreme or violent available to them. There is no continuum. Pornography consumers have their standards like all consumers. Is there any reason to believe that pedophiles are different?
owever Judge McComb is not satisfied that Langer's works pose a realistic risk of harm to children. In support of this he alludes to a concept similar to the definition given in 163.1 (1) b. dealing with material that "advocates and counsels". He prefers the view that although "the subject matter ... is shocking and disturbing, the work as a whole is presented in a condemnatory manner that is not intended to celebrate the subject matter." and states, "the purpose is not to condone child sex abuse..." In saying that the works are condemnatory and do not celebrate sexual abuse the judge is staking out a claim on applying "advocates or counsels" criteria to visual material as well as written. The children depicted in Langer's paintings and drawings appear unhappy and distressed. They are not having a good time. The works in effect do not advocate sexual activity with a person who is under the age of eighteen that would be an offence. Where the visual representation requires detailed crafting and often emotional input by the artist, paintings, drawings and professional studio photography and videos, there is a logic to the negative implication argument, or judging the work on the basis of apparent intent. And certainly visual works showing even extreme child sex abuse which are made by people undergoing treatment should be protected as they may well be therapeutic. These could however be covered by "medical purpose" in the list of defences.
But in visual representations depicting real children in real situations this could be paradoxical. An expression of distress may itself suggest abuse or transform another's innocent gesture into a threat. If an image can be judged on the basis of whether or not it presents child sexual activity in a positive or negative manner then in otherwise similar images, including photos, could it be argued that the one with a child appearing happy is pornography while one with the child cringing is not? The implications are absurd. If we extend this reasoning to written material then a work can be judged by which side of an argument it takes, or how a plot develops or the moral tone of the author. We would be into censorship on the basis of opinion, interpretation and conclusions, in other words content. But content is protected. Even McComb himself recognizes this when he quotes from R. v. KEEGSTRA to show that this is so. But isn't any difference between condemning something and celebrating it a question of content?
This reasoning is similar to, and probably derived from the claim by some feminists that depictions of women enjoying being raped are particularly pernicious as they convey the message that women actually enjoy being dominated thereby encouraging male violence against women. Such images condone rape in a way that a depiction of a woman struggling would not. But what about reality?
Judge McComb is also leaning towards classifying things as porn on the basis of the perceived intent of the creator. If it's intended to arouse rather than disgust or bring forth sympathy, then it becomes more likely to be defined as pornography. I am reminded that deploring something but describing all the juicy details is an old and common journalistic trick. Perhaps it could serve pornographers equally well. I have heard some of the fund raising letters of the late Father Ritter, founder of Covenant House described as such.
In the wording of the law the artistic merit defence appears absolute. However if this were the case anything with artistic merit could not be used to secure a conviction. The judge sees this as a problem for the judiciary to remedy and reads the community standards test used in obscenity law into the "artistic merit" defence of the child pornography. (No doubt this bit of judicial activism was applauded by those who usually condemn it.) This serves to limit the scope of the defence. He says, "harm must be measured with reference to community standards." Community standards refer to moral sensibilities not to the harm that any individuals may experience. This is consistent with Marshall's position that abuse should be defined in relation to social norms. This enables him to justify the use of loaded terms such as "abuse", "victim" and "perpetrator" rather than more neutral terminology in scientific discourse. McComb concludes: "both on policy grounds, and on the grounds of consistency with other criminal offences involving sexual expression, that the legal meaning of `artistic merit'... is the same as in the law of obscenity." Therefore it is subject to community standards test. He further limits the artistic merit defence by stating "where the safety of children is concerned, community standards of tolerance based on the risk of harm are more important than freedom of expression, no matter how `fundamental' that freedom may be to a free and democratic society." This could be used to completely negate the defence provided for in the law. The statement is absurd, it is posturing at its most extreme. He seems to be saying that any scintilla of risk to children may justify suppressing any freedom of expression. But in today's climate of fear it is not something that any politician or lawyer could dare oppose in public.
McComb then, rather quaintly in my opinion goes on to agree that section 2 b. is there to protect unpopular, offensive expression. Is free expression as the judge seems to assume harmful to children? Is there a correlation? Any evidence or examples? Free and open discussion of adolescent sexuality including fictional and polemical expression is necessary in a free and democratic society. We have a huge amount of evidence that the suppression of debate that facilitated the self abuse hysteria of the last two centuries possible caused immeasurable harm to boys and young men.
What could this be? Does anyone anywhere know of any image or writing aside from religious scriptures that poses even a moderate risk of harm? Anyway he states that in these "rare cases" they would then fail the community standards test and lose the protection of the artistic merit defence.
The purpose of the legal exercise of LANGER was to establish the constitutionality of the law; Langer's works were merely a prop, a convenient prop that didn't involve sordid reality and which provided a foil for the main job of validating the law. It became a show trial. Collins and Marshall were sent in by the government to provide any "science" that might be required. People cheered when Langer got his paintings back. Meanwhile McComb basically transcribed the theories presented to the court by Dr. Collins and Dr. Marshall into his decision. In doing so he wove them into the fabric of the law through subsuming, precedents, reference to other laws and decisions, and his own conclusions and pronouncements. The child pornography laws which many had felt were overbroad, flawed and even bound to fail, had a successful baptism of legal fire.
The most ominous thing about LANGER is the way Justice McComb abuses the English language. He says: "I agree that child sexual abuse (presumably as defined by the Code) is an act of violence." He says it twice in the context of adult/child sex. Where does he get this hysterical claim from? It sounds like McComb is proclaiming a new meaning for a common term. One might reasonably argue that most adult/small child sex is exploitive but to categorically define all adult/child sex as violent is patently untrue. There is a great deal of evidence that a large majority of adult/child sexual relationships are non-violent, non-coercive and often affectionate. At my voir dire Dr. Collins would say that 80 to 90 percent of offenders were "of the non violent ilk". But if all child sex abuse is violent, and all contact is abuse, then all pedophiles must be violent. This is similar to the ideological position of some feminists (see Andrea Dworkin's INTERCOURSE) that all sexual intercourse is rape. The mentality is the same: Sex equals violence.
Justice McComb is not alone in reading violence into sex abuse. In the Sentencing of Gordon Stuckless in the Maple Leaf Gardens scandal Justice David Watt gave him two years saying that the lack of violence, force, weapons, or penetration warranted a lower end sentence. Madame Justice Rosalie Abella added, "Sexual abuse is an act of violence... and represents the use of compulsion against someone who is defenceless". The hardly defenceless boys in the Gardens' cases were similar to those in Gramlick and Jewell. The Gardens was just one of several places in central Toronto where street kids would go to exchange sex for favours or money. She uncritically accepted and probably believed the constructions of reality concocted by psychiatrists and social workers. If consensual non violent behaviour is defined as violence how long will it be before courts define thought crimes as violence? Long live Big Brother!
I thought of Ritzker's advice, "Words mean what they say." It's at least a good place to start. McComb and Abella define violence into such acts rather than seeing violence as one possible characteristic of such acts. It suggests that violence is independent of any force, coercion, injury or physical or moral attack. If child sex abuse is inherently violent how do we describe truly violent acts? Violent violence as opposed to non-violent violence? This is abuse of the English language because it erodes the integrity of the meaning of words. If law is based on language then is not abuse of language a fundamental abuse of law?
One way of looking at McComb's Newspeak is to assume that he is not referring to violence related to the child participants but violence to, abuse of, moral sensibilities or community standards. This interpretation follows the theories of Marshall and Finkelhor. Whether or not the child experiences violence is totally irrelevant from this perspective. They are passive pawns in clinical theory. It is not the child that suffers the abuse and the violence, of which it may never aware, but those whose moral sensibilities are assaulted by the existence, or at least the knowledge of illegal acts. They are the ones who suffer, who are offended. Perhaps it would be kinder if they never knew. This justifies the punishment of those who do the offending. If heavy penalties are demanded it is a measure of how deeply moral sensibilities have been wounded. But is it necessary to twist and abuse the ordinary meanings of words so that they lose their integrity?
But this twisting has a potentially useful purpose. Violence is a form of expression, often an extremely powerful one. But violence receives no protection under common law or the CHARTER. Violence can be absolutely prohibited. By defining child sex abuse, and with it child pornography, as violent he is making an argument to exempt child pornography from any protection under freedom of provisions of the CHARTER. When Judge McComb walks Langer's constitutional challenge through the stages of the OAKES test, applying the wisdom he's perceived from the evidence and weighting factors accordingly, the law emerges triumphant. McComb does not go so far as to discount the expressive activity entailed in child pornography entirely, but he says it is "a form of expression which can hardly be said to be crucial to the principles which lie at the core of s. 2(b)." What principles lie at the core of freedom of expression? Certainly artistic and political freedom. But what about personal fulfilment, possessing and doing things that define oneself. Suppose Parliament perceiving some pressing and substantial objectives were to enact a law criminalizing masturbation and setting a five year penalty for those convicted. Let us say a man, it could be a woman, challenged the law claiming it violated his freedom of expression. What does the freedom to masturbate mean to people? Many people believe they have a right to sex and have no practical alternatives for sexual relief. Some people believe masturbation contributes to both their mental and physical health. It may be part of yogic practices. As a highly sexed adolescent I would sometimes masturbate so I could concentrate on homework. Can these "hardly be said to lie at the core of s. 2(b)"? I claim that masturbation can be of substantial importance to many people, especially the single young and elderly. The right to masturbate should be protected and if that requires pornography then any protection should be extended to it. Even the clinicians claim that pedophiles value their porn highly. McComb, as a finder of fact, was completely unjustified in assigning a low value to pornography. However it can be rationalized by resorting to community standards which enables him to ignore any actual effects for individuals. In fact by using community standards coupled with psychiatric theory almost any restriction on expression can be justified since it can then be judged not by those who possess and want it but by those who are offended by it. Community standards replace the corruption of public morals, the will of God and the best interests of the state.
In LANGER we have entered a world where words no longer have their ordinary meanings, a world where abuse does not necessarily mean that any participant was harmed, a world where violence exists independent of coercion or force and where the pornographic aspect of images may not be inherent but involve the alleged intent of the producer, and the particular category of viewer. These special non-ordinary meanings of words can become entrenched in law just as others did in Soviet Marxist/Leninist dogma or in the doctrines of some religious sects. The reconstruction of reality along narrow ideological lines so apparent in GRAMLICK and JEWELL is provided with linguistic legitimacy in LANGER.
Another case which promised some interesting constitutional questions was R. v. LOGAN. Vern Logan was a small businessman in a small northern Vancouver Island community. He was an older married man and not in the best health. As a result of a sting operation his residence was searched, a variety of child pornography mostly relating to mature teenage boys was seized and he was charged with simple possession. Among the materials seized were copies of the Sodomite Invasion Review a gay literary magazine to which I contributed. At his trial in February 1996, Logan who had no record of any offences, pled guilty. However Provincial Court Judge Brian Saunderson said that the child pornography law violated the CHARTER because it is "an infringement of one's freedom of thought, belief or opinion..." Among the materials concerned were copies of the NAMBLA Bulletin which he described as 90 per cent editorial with no pictures of a pornographic nature. Judge Saunderson suggested that the B.C. Civil Liberties Association might be prompted to take on the case and fight it to the Supreme Court of Canada. The accused in poor health had no wish to be wish to become a "crusader". He received an absolute discharge. There was outrage in the media over the judge's statements and leniency and a local RCMP officer made a public call for action. The Crown appealed the sentence to the B.C. Supreme Court which saw no reason to change it. Vern Logan's case, being less complex than my own might have offered a better basis for mounting constitutional challenges. He had to relocate and face the problems of re-establishing himself elsewhere. It is difficult to see how justice and the public good was served by charging him. I do not know if the BCCLA was ever approached about it but given their stand against the NAMBLA Bulletin I doubt if they would have been interested.
R. v. SCHLICK
Except for the Langer case where the artist had substantial community support, and the conviction (forfeiture) of his works would have alienated the arts community, defendants have generally not dared to challenge the police and prosecution's deeming of child pornography. Defendant after defendant has pled guilty often to marginal material to avoid more publicity. The stigmatization, the rejection and the huge social, economic and professional costs of being associated with "child pornography" overwhelmed them. And there were some genuinely nasty people involved. The law and its definitions were not being tested. As a result the police end up deciding what the law covers which may then become legally entrenched through judicial decisions. The expert witnesses and the police can then testify that they have obtained many convictions on the basis of similar material an argument which could sway many judges. I know of only one case where a defendant challenged the definition in terms of the depiction of real children, and he was convicted. This case illustrates how the child pornography laws can abuse children, disrupt families and perhaps be used as a tool of persecution. At issue is the s.(1)(a)(ii) definition of child pornography: A photographic or other visual representation, "the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years".
Victor Schlick comes from a liberal European background where family nudity and saunas are common, they have a sauna and exercise equipment incorporated into the large bathroom of their house in the small interior town of Merritt, B.C. Schlick is a photographer, basically a keen amateur who prides himself on his skill and who takes several thousand frames annually. He takes a wide variety of pictures a few of which he sells. Among his favourite subjects are flowers and his family whose daily life he has recorded over many years. His wife and two daughters are used to this and enjoy taking part in his hobby which is a source of pride for all. Like many children his daughters often copy poses and expressions used by models in ads and fashion magazines. He also collects the work of others including some art and naturist photographers.
Viktor Schlick is also a local activist, he tried to help a minority teenager in a wrongful dismissal case which brought him into conflict with the police, he filed various complaints against the local assessment authority, the school board and social welfare officials presenting evidence that they had violated their legal responsibilities. He has made enemies and believes that some people in his community would like to see him shut up, or down. But he also has people in the community who support him wholeheartedly and believes he's had some positive effect.
The case arose out of a roll of film that Viktor Schlick took in to Costco, his processor in Kamloops. Two pictures showing his thirteen year old daughter naked above the waist were turned over to the RCMP. Schlick had taken the pictures to document chest injuries resulting from a schoolyard assault which he had reported to the school. His daughter did not want to press the incident further. Subsequently the RCMP, using the two pictures to obtain a search warrant, raided their home and seized a large quantity of material consisting of photos, albums, magazines, clippings and books selected from their large family library. All of the books and magazines were commercially available. The seized magazines listed were MacLean's, Hustler, Psychology Today, Playboy, Playgirl, Mad Magazine, Discover, Atlantic Monthly and Time. Among the many books listed are ones on erotic art, sexual health and glamour photography, The Joy of Sex, a Kinsey Report, the Ms. Guide to a woman's Health, a novel by Anais Nin, Margaret Mead's Sex and Temperament, More Jokes for the John pocketbook and Machiavelli's The Prince. While this kind of material probably wouldn't raise any eyebrows with most urban dwellers it was used by the Crown to create a snare to convict Schlick.
iktor Schlick who is well known in the community was charged with three counts of possessing child pornography and his two teenaged daughters were apprehended and given a choice of living in a group home or with a relative on the Coast. His partner was not charged. Schlick was outraged by the charges and let it be known that he wanted trial by jury so that he could be clearly exonerated in the eyes of the community. The Crown however chose to proceed summarily, with concomitant lesser penalties but which denied the accused the option of a jury trial. Schlick pled not guilty. In September 1997 in Provincial Court Judge Dollis convicted Viktor Schlick of one count of possessing child pornography, specifically twelve, out of over three hundred photos of his adolescent daughters which were seized.
In a decision that accepted every argument of the Crown and every innuendo of its chief expert witness as fact, Judge Dollis ruled that the breast was a sexual organ because it related to reproduction in mammals and because some guy in Ontario who grabbed a 15 year old girl's breasts was convicted of sexual assault. The judge would not "deny reality", the breasts are sexual organs. She proceeded to decide that where the viewer's eyes are drawn, even if not initially, to the depiction of a sexual organ (even where it is not clearly discernible) then that was the dominant characteristic of the picture. She simply concluded that the only reason anyone would take such pictures would be for a sexual purpose. The fact that books relating to erotica and glamour photography were found in the same house confirmed her view that the pictures must have been for a sexual purpose. The trial operated under a presumption of guilt which Schlick's counsel was unable to shake despite her efforts. Schlick didn't want his daughters to testify and claims that social workers misrepresented his daughters' statements to the court. The workers claimed that the daughters' decision to live with a relative implied they didn't want to live at home when that was not a choice they were allowed. The judge goes out of her way to deny Schlick any benefit of doubt. In her lengthy decision she doesn't mention that there had never been an overt suggestion of any sexual abuse involved. She states: "I think it is important to be clear about the issues in this case. What this case is not about is community standards of morality or appropriate behaviour in one's home, including nudity, or attitudes towards nudity or partial nudity in pubescent boys or girls, or whether young girls should be taught to have pride in their bodies. The issue is whether the Crown has proved its case beyond a reasonable doubt." It sounds very nice.
R. v. SCHLICK is notable for the way the Crown interpreted the impugned photos as pornographic through creating a context that suggested an inappropriate lifestyle and possible abuse. The Crown perhaps concerned about the accused's intent to plead not guilty brought in Dr. Peter Ian Collins, an expensive forensic psychiatrist from Toronto as an expert witness. This was despite the fact the Crown was proceeding summarily, not by indictment. This was the same Dr. Collins who testified in LANGER and who would later testify at my voir dire. This was the seventh time that Collins had testified for the Crown at a child pornography trial. He is one of the new breed of psychiatric entrepreneurs who offer themselves to the Crown as experts in securing convictions in cases where guilty pleas are not forthcoming. At the time he claimed to have been an expert witness over 375 times. In SCHLICK his job was to interpret the large amount of supposedly related material seized from the accused's home as indicative of the accused's deviant sexual interests. Under direct examination by the prosecutor, Mr. Oliphant, Dr. Collins admits he cannot diagnose the accused as a pedophile or paraphiliac as he has never examined him however he describes the concept of "collateral materials" about which he has testified over twenty times previously. Collateral materials, he claims are possessions that speak to the particular type of sexual deviancy of those who collect them. He has been able to study Schlick's collateral material and this has led him to certain conclusions but of course he can't diagnose the accused because he has never examined him. By classifying Schlick's material as "collateral material" he makes an immediate presumption of deviance and implicit guilt. He never has to say why it is collateral material because he uses it to define abusers who give it meaning. According to the witness collateral material "may not be directly related to crime, but gives us in forensic psychiatry and the authorities an indication of what a person's sexual preferences are, sexual hobbies or sexual interests." He says that there are four types of collateral material including erotic materials. The latter can include a vast range of material and he specifically mentions underwear ads in the Sear's Catalogue and telephoto pictures of children playing hockey. The other types are educational, introspective and intelligence which are discussed later. Collateral materials define deviant sexual preferences and in respect to the seized materials Dr. Collins answers his questions from the unstated premise that Schlick is an incest offender. He sees homemade collateral material (such as Schlick's photos) as evidence that the possessor is also a sex abuser. He explains that while it is less common for incest perpetrators to collect collateral material, some do, and referring to Schlick he says, "your collection is not as great". The implication is clear.
With Prosecutor Oliphant leading him Dr. Collins begins a comparison of Schlick's family photos of his daughters with examples selected from the RCMP's collection of child and other pornography. Collins selects examples from the police collection and again and again he finds similarities in poses and expressions between pornographic images and Schlick's photos of his daughters. In reference to one photo the expert witness states, "In some respect it mimics what you can see in the adult magazines in terms of posing, but the positioning of the body, the smiling, just the way the subject is looking at the camera, to me there's no practical purpose of having pictures of a girl of that age posing in this manner." He is certain that pedophiles would seek out and highly value pictures like these. He speaks of seductive looks, the spreading of legs and breast areas as being of concern. The witness repeatedly expresses his concern as if he were the only one to see the underlying abuse. Dr. Collins also claims that some of the books in the Schlick's library have also been found in the possession of pedophiles implying deviant interests. It is like claiming that possessing a copy of the National Post means you're some kind of looney. The article clipped from MacLean's about "obscenity" is also used to damn Schlick. The expert witness sees ominous implications in any number of trivial details. Innuendoes and often wild speculations abound, and he is repeatedly concerned. He knows inappropriate behaviour and lifestyle when he comes across it. His narrow, bodyphobic Jewish morality becomes a standard by which to condemn liberal family lifestyles. Relentlessly through the use of the concept of collateral materials Collins establishes a sexualized, pornographic context for Schlick's family photography. Through what may best be described as "guilt by association" approach he sets the stage for the key material. In discussing the pictures that had got Schlick into trouble, the ones documenting the injuries to his daughter's chest, Collins, at times assuming the role of prosecutor, wants to know why the injuries to the nipple area weren't documented by someone else. Presumably by his moral standards this is not something that a father should do. Better done by a stranger? He also wants to know why the girl wasn't taken to a clinician, and why the assault wasn't reported to the police. There would appear to be no evidence from the photos that medical attention was required but presumably parents, and the child are not competent to make such decisions. He says that the pictures don't "hone in on... the scratches and excoriations on the chest area, but are a general upper body shot." Presumably the pictures show more than necessary to document the injuries and this in his mind proves sexual intent. Dr. Collins never once varies from his premise that Schlick is guilty, and that it his duty to help convict by never once granting the defendant a benefit of a doubt. He continues, "The only other comment I have is that people who take these photographs of children in various stages of undress, whether they be sex offenders or incest perpetrators, they almost to a person have what's called cognitive distortions." The expert witness who modestly admits he can't diagnose a man without examining him can however narrow him down to two choices of deviance.
Because of Dr. Collins's busy schedule Ms. Suzy Gray, Schlick's lawyer has only one day to examine the witness. Dr. Collins busy schedule was also a problem at my voir dire. And as he did later at my trial Dr. Collins he asserts his Jewishness as he is sworn in. I am puzzled as to why he makes a point of this. Under cross-examination Ms. Gray begins by questioning Dr. Collins' impartiality and his ability to view things from the point of view of the defendant being innocent. It is obvious he can't. The witness who has only testified for the crown protests, "I'm not a hired gun". "I'm here to educate." Myself, I tend to see him more as heavy artillery. Suzy Gray tries to untangle the web created by the witnesses' use of the collateral materials concept. She questions him about the book LITTLE BIRDS EROTICA by Anais Nin and asks him if people can have a healthy collection of erotica for other than a sexual purpose. Collins doesn't want to deny this but when it occurs in the same case as pictures of their daughters in various stages of undress he says it, "pushes alarm bells in me." She questions him about other books classed as collateral material including Ms. Magazine and THE PRINCE by Machiavelli. She points out that the MacLean's "obscenity" article is about the Butler decision and asks him if that case isn't also about artistic merit and freedom of expression. Collins admits that freedom of expression is valuable, "but I also have to, as a forensic psychiatrist and criminologist, be acutely aware of when people are perhaps -- their rights are being infringed on by having photographs taken of them in stages of undress." Collins claims that the other material ties in when seen in context of the photos of the girls. What he has seen, the "signs and symptoms" lead to "a reasonable conclusion" of "what conditions" might affect Schlick. He is accusing the defendant of being sexually deviant but he is not of course giving a diagnosis. The fact that the library includes books belonging to all family members does not change Collins' views "because then one has to question the sexualization of the children." Collins maintains that the photos would have been sinister even without the material in the library. He is "concerned that anyone would photography their step daughters like that." Collins refers to a "normal family". Gray asks if there's anything wrong with the Northern European tradition of public saunas, public bathing and a more open view of nudity and body image? Collins replies that his family was not like that and where it can be explained as normal in families "it turns out that it's the early sexualization of children." At every stage the psychiatrist holds up his own prudish, bodyphobic, Jewish family ideal against the Schlick's family's open, liberal, body accepting one. The choice is between righteousness and probable child sex abuse. To the judge who accepts the expert witness uncritically there is little choice.
As a social photographer Schlick takes many pictures, often several at a time of an animated subject. I do the same myself when I can afford the film. Some of Schlick's clusters of shots show one of his daughters sitting down on a sofa with a towel around her after a shower and the question is whether one or two frames actually provided a glimpse of her genitals, others show them in T-shirts reading at a table, another shows a girl wearing only an oversize sweatshirt. Out of the thousands of photos of the girls the police find a few where there are glimpses of nipples, outlines of genitals, a curl of pubic hair or other evidence of "child pornography". Disagreements arise over whether a girl sitting at a table has shorts on or not. It is hard to tell, she could be displaying her naked buttocks and thighs. When the girl in the oversize sweatshirt series expressively raises her arms apparently parts of her genital area are visible, but again it is hard to tell. Dr. Collins cannot see any thing other than sexual purpose in the pictures. He repeatedly expresses his concern. When Gray questions him about the photos showing the girl's chest injuries, the result of a schoolyard scrap, he refuses to say whether or not they would need medical attention. However he maintains that if they were serious enough to document then they were serious enough for medical attention and why would one document it anyway. He also seems to believe that all schoolyard scraps should be reported to the police. She questions him about many of the collateral material pictures, almost all of which the witness finds something sinister about. Dr. Collins sees as inappropriate pictures of a barechested girl exercising with weights, flexing and doing muscle poses, as "Totally unacceptable" and as suggesting "abuse from other sources." To substantiate this he says that similar poses are found in commercial and amateur pornography. Guilt by analogy and association arguments are conclusive to the psychiatric expert witness. Gray makes him admit that similar photos of a boy the same age would not cause him as much concern. Collins however, speaking as "a psychiatrist who works with families, being a medical doctor, this (taking of such photos) does not occur." Gray points out that he doesn't work with normal families, only abnormal ones. He only treats sex offenders and she claims it is something outside his experience. He can't comment on the family he admits, only on the photos, but he finds them "alarming" and "abnormal". He repeats the suggestion that Schlick's pictures would be valuable in the kiddieporn market. This claim impressed the court.
Dr. Collins continually returns to his conservative Jewish family values and anything that does not correspond to them is abnormal and anything like the photography of Peter Schlick is a symptom of sexual deviance. It was a clash of cultures but one side had impressive professional credentials to back its narrow moralistic assumptions. Schlick ended up as an abuser in the mind of the court without ever being accused. R.v.SCHLICK provides compelling evidence of how the child pornography laws are used to attack the integrity of families whose lifestyles do not conform to conservative norms. When you consider that Dr. Collins saw Eli Langer's paintings as an incitement for pedos to go out and assault children it is not difficult to see him claim that a photo of a bruised breast would do the same. It is extremely unlikely that a jury of Schlick's peers from the ordinary ranching, logging town of Merritt would have been as gullible as Judge Dollis.
R.v.SCHLICK raises the question of the cultural and moral values of expert witnesses where it relates to the nature of their testimony. Dr. Collins offers his conservative Semitic morality, which historically abhors nakedness, as a norm from which to label other behaviour as "inappropriate", a cause for concern or "rings an alarm bell with me". Christianity unlike Judaism and Islam has a tradition of nudity in religious art. The magnificent works of the Renaissance masters such as the Sistine Chapel celebrate the nude through depictions of the Christ child, angels and characters from the Bible. There are even religious statues of the Christ child with an erection intended to demonstrate His humanity. Dr. Collins was in effect an expert witness on conservative Jewish cultural morality of the "if you shake it three times you're playing with it" school. While Ms. Gray tried she was unable to expose his narrow puritanism for what it is or to make Schlick seem the normal guy he is. Judge Dollis, despite her disclaimer about what the trial was not, convicted Schlick for his lifestyle by uncritically accepting the moral testimony of a supposedly scientific witness. This may well have agreed with her own personal moral outlook.
Another reason why R.v.SCHLICK is notable is that it demonstrates the harm that the child pornography laws can do to families and children. It can be a weapon in the hands of vindictive authorities to attack those who question their decisions and perquisites. I am not usually a believer in conspiracy theories as there are usually more mundane explanations for the perverse course of events. However Schlick as mentioned earlier is a local political activist and has stepped on a few toes including some of those arraigned against him at the trial. I wonder. The definitions of child pornography, particularly the one pertaining to depictions of sexual organs for a sexual purpose is an invitation to abuse by the police, the Crown or any aggrieved bureaucracy. This definition was one of the last minute amendments to Bill C-128 which was never subject to any public scrutiny. No doubt many people including the drafters of the law assumed the broader the definitions were, the better the law would be, and that the more people that could be caught by the definitions, the greater would be the resultant protection of children. Their aim presumably was to cover any image that could be interpreted in any way as sexualizing children under eighteen. Hundreds of thousands of Canadian families could be affected. Inevitably as part of the team the social welfare system moved in to grab Schlick's daughters. Luckily they were placed with a relative and did not have to endure the vagaries of typical foster placements. It took nine months and a courageous decision by a family court judge in Vancouver before the girls were allowed to return home. All the members of the family who lived in a small community have been subject to enormous and unnecessary stress due the prosecution of this case. The girls' social life was disrupted in a way few adults could tolerate and their academic performance understandably suffered. The law abuses children. The Schlick case shows how the child pornography laws can be and are used to reach into people's homes with potentially devastating consequences for the integrity of families. A man in Schlick's position wants to defend himself, and he wants to protect his children from the hyped hysteria of the courts and media. The two are in conflict and the defendant faces a difficult dilemma with social welfare officials striving to portray his children as victims regardless of what they state in their affidavits. The law targets adolescent sexual expression as Tom Wappel very clearly intended it to do. Remember his rant. Section 163.1 is a family wrecking, kid abusing law masquerading as protecting children. It should be judged by its effects not by its intent. Any good it may have done could have also been accomplished under other provisions of the Criminal Code.
FREEDOM OF CONSCIENCE
Under Fundamental Freedoms the Canadian Charter of Rights and Freedoms in s. 2(a) guarantees "freedom of conscience and religion".
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1966) defines conscience as "the sense of right or wrong within the individual; the faculty, power, or principle that guides toward the right and away from the wrong; innermost thought or sense: knowledge of inner self." The complete OXFORD DICTIONARY OF THE ENGLISH LANGUAGE defines conscience variously as: "Inward knowledge, consciousness; inmost thought, mind... internal conviction... Internal or mental recognition or acknowledgement of something... Consciousness of right or wrong; moral sense."
My main concern as a defendant and writer was freedom of expression, in particular the "advocates or counsels" definition for written material, s. 163.1 (1) (b). That was my priority but I also felt that prohibiting the simple possession of material that may define one to oneself was both extremely intrusive and vulnerable to challenge. I saw it in terms of freedom of conscience. The CHARTER protects freedom of conscience and religion. What is the conscience that the Charter protects? Protection implies that what is protected might otherwise be denied or prohibited. It cannot specifically or only protect what people may think such as their thoughts about gods, races, good and evil or sex which cannot be externally controlled although they can certainly be influenced. Conscience must be more than that.
I argue that freedom of conscience is the foundation of freedom of expression. Without it, freedom of expression is incomplete and illusory. What is the use of freedom of expression if you have nothing to say? If you cannot independently explore experience, ideas, concepts, alternative explanations and lifestyles, then freedom of expression can have no personal foundation. We can simply defer to a friend's opinion, a political party, journalists or editorial writers. Freedom of conscience is freedom to know yourself. It is the right to form, declare and share your ideas and values. It is essential to the full exercise of freedom of expression. At a minimum in a free and democratic society people must be free to record their thoughts about culture and society and share them privately with others who are interested. I am not talking about conspiring to commit crimes or inciting crimes. I think we should be clear about what conspiring and inciting mean. Conspiring is not fantasizing or speculating. Inciting is not reasoned argument, advocacy or the promotion of offensive ideas. This includes possessing the things that give meaning to one's life and for some that includes what others may define as child pornography.
As I see it freedom of conscience includes the right to say who or what you are, and expressing how you see the world and what you believe. It is freedom to be an individual, to be who you are. It subsumes private personal acts that are part of that being. While regulation of these activities by the state may be appropriate where others are involved no intervention can be warranted in instances of solitary prayer, meditation, callisthenics or masturbation. Do we really care what is going on in the minds of people when they masturbate? Is fantasy control an appropriate subject for state intervention?
Aside from child pornography what else is there that is absolutely illegal for ordinary people to possess? Stolen property is if you know it is. The need and purpose of such a prohibition is clear. Clearly dangerous and threatening things such as weapons of mass destruction, and quantities of explosives and toxins are also logically prohibited. The dangers posed by people possessing these items are obvious and relate to normal usage, not exceptional usage. Weapons kill, explosives blow up and toxins poison. The fact that knives, small guns, axes and a multitude of other things are used to murder is not an argument to prohibit them although there may be sound arguments for regulation in some cases. The major legal prohibition of possession relates to recreational drugs. I use the term "recreational" because most users of even heroin and cocaine are not addicts and use them as part of their normal lives without serious consequences. These prohibitions are being increasingly questioned and even seen as counterproductive to the intent of the legislation. Drugs are not expressive materials, it is their consumption, not their continued possession that provides satisfaction. Only when the possession of drugs is an act of political defiance in itself would drugs relate to expression. Unlike pornography drugs in themselves have no meaning. While I often find myself morally outraged by the consequences of drug possession laws, drugs are not equivalent to things like symbols, talismans, images and writing.
It is not illegal to possess hate literature although no doubt many Canadians would support the idea of making it illegal to do so in the belief that some good would thereby be accomplished. What one believes about the organization of society and the status of groups within it is a matter of conscience. It should be no more illegal to believe in an authoritarian racist state than it is to believe in an open, egalitarian democracy. It follows that one should be able to possess literature, symbols and paraphernalia that support and develop one's beliefs. Nor is it illegal to possess obscene materials although here again there are many who would like to see them prohibited. People may possess such materials for their personal use without fear of criminal prosecution even though access to them is subject to restraint. Practical measures to suppress the possession would entail actions on the part of agencies of the state that would grossly compromise many other freedoms that Canadian society stoutly claims to uphold. Prohibition of hate literature would also tend to mystify it and give it an unwanted appeal.
The prohibition of possession of child pornography is unique and pioneering legislation. It is an unprecedented extension of state power into the private lives of people. This was not publicly noted by any politicians at the time or the Department of Justice although they may have had their qualms.
And what about the use and value of child pornography to those who possess it? The main uses of pornography are to delight, to arouse and most importantly to aid successful masturbation. Pornography is also used to enhance sexual activities and where partners are not mutually attracted to each other. Masturbation is increasingly believed to be beneficial to the health of people lacking regular sex partners. This is an extremely common situation and is typical of the situation facing many older people. Pornographic preferences, or what will satisfy the needs of arousal and orgasm are frequently narrowly focused as to the object and activity. This may well increase with age. There is limited substitutability. Few things can be more boring than another person's porn, unless people want to be shocked.
For some men, and some women, sex fantasies involving children or adolescents may be necessary for successful masturbation. For others it may be fantasies focusing on pain, humiliation, domination, animals or fetish objects. There are a myriad of explanations why this may be so but as long as effort is focused on suppression rather than understanding we are unlikely to learn very much. Certainly they can vary among individuals. There is not much that the state can do about what goes on inside people's heads. I am tempted to add, "yet" as many vocal anti-porn advocates would welcome such a possibility. Pornography helps generate fantasies. For some, effective fantasies leading to orgasm may be impossible without the appropriate (to the person) pornography. The three, pornography, fantasy and masturbation are closely connected. I do not think many people would disagree with this statement. To deny people "their" pornography can deny some of them the opportunity to masturbate and its benefits to their health. Something as personal as masturbation should be of no concern to the state. For some of those who enjoy child pornography its prohibition can entail significant personal costs. They therefore place a high value on possessing it.
Porn, all kinds of pornography can be misused. Just as we try to prohibit the dangerous use of vehicles, prescription drugs etc. we should prohibit the dangerous use of pornography, all pornography. It is difficult to argue that child pornography is any more dangerous than much adult pornography is in seducing adolescent boys. If porn, any porn is used to entice children into unwanted sex then it is an improper use of porn and wrong. The law should deal with misuse not possession.
Possession laws create potential Catch 22 situations. In my own case I felt that material which had been established as illegal to possess by previous judicial decisions was important for me to possess as part of my defence. Rightly or wrongly I saw the NAMBLA Bulletin as the key to demonstrating that the written material provision was targeting what was essentially political expression. Certainly Tom Wappel seemed to have that in mind when he read NAMBLA's mission statement into the Parliamentary record to justify the provision. I felt that I had to break the law in order to challenge it.
Possession also allows us to know what is involved in other prohibitions and enables laws to adapt. With people legally being able to possess the thing, say child pornography, which is illegal to make or distribute, then we at least know what we are dealing with. If possession itself is illegal then exactly what it is, the thing that it is illegal to make or sell, becomes uncertain and effectively what the police may decide it is, particularly with something like child pornography. The preponderance of extreme examples used by police in their presentations to others obscure the fact that it is not representative of much if not most of the material they charge men for. Knowledge requires private possession. I argue that allowing private possession is essential to having fair enforcement of laws prohibiting making and selling things like pornography. Citizens could know or find out just what is involved. To support this argument that society needs to allow possession so people can know exactly what is banned by importation, making and distribution laws I would point out that many books now acclaimed as great literature were banned not long ago in Canada. I think of the works of Henry Miller, James Joyce and D.H. Lawrence. While banned from the country possession of these works was not however prohibited. Some people were able to read them and form their own opinion independent of any description that Canada Customs might permit them to hear. With very limited circulation these books were read and discussed. This permitted the people's perceptions to develop and for attitudes to change. Unless we regard the decline of censorship in the 1950s, 60s and early 70s as a mistake we should be thankful that possession was not an offence. I am not going to claim that my impugned literary efforts will be viewed more favourably at some point in the future but can we not trust the wisdom of future legislators and courts to make decisions concerning a wide range of materials currently deemed repugnant? Or are we so sure of our eternal wisdom that we do not ask the question?
Reading case law on freedom of conscience Charter cases was not that profitable. Religion, which is of course a matter of conscience, was central to most. Two major cases related to Sunday observance laws and led to businesses being allowed to operate on Sundays, another pertained to government funding of the electoral expenses of political minorities. The only case that seemed relevant was the trial of a Victoria man, Ian Hunter who tried to challenge the marijuana possession law claiming pot was a sacrament. The attack was not well crafted and failed. It seemed to me that freedom of conscience was underused.
Supoena for Waddell
From my reading of the hearings of the Standing Committee on Justice and Hansard, the debates in Parliament I had become convinced that Parliament's intent in adding written material to the definition of child pornography was to suppress the political advocacy of certain sexual heresies. The immediate target was the NAMBLA Bulletin. I made this clear earlier. This intent I believed was clearly in violation of the freedom of expressions guarantees in the Charter of Rights and Freedoms. Incidentally only one Member of Parliament, Mr. Ian Waddell, former Justice Critic for the NDP and a member of the Standing Committee, suggested that there was any question of civil liberties involved in the legislation and he said it took courage to mention it. To back up my contention that the intent of Parliament was unconstitutional I subpoened Mr. Waddell whom I had known slightly for a number of years. There was nothing personal in this and the fact that he had mentioned the matter of civil liberties was not relevant. He was the only former member of the Standing Committee that drafted the legislation residing in the region and I certainly could not afford to pay transportation costs for a witness. I had already spent almost seventy dollars to have the subpoena served. He immediately sought to have the subpoena quashed.
Less than three weeks before my trial was scheduled to begin I was in court to argue against the quashing of Mr. Waddell's subpoena I had served on him. His lawyer, Jack Woodward a big amiable man cited case law dating back a few centuries. I submitted a list of questions I wanted to ask the former M.P. and presented an argument based on statements in Hansard that parliament clearly sought to prohibit political advocacy and that they specifically targeted NAMBLA. I more or less had to out myself as a boylover. The judge, Madame Justice Humphries, listened attentively but as I expected ruled to quash. She described me as forthright. I found out that parliamentarians cannot except in rare undefined instances be held accountable for statements they make in Parliament. This led me to wonder momentarily if I should try to subpoena Department of Justice officials and question them. The judge explained that what I wanted to ask Mr. Waddell, which mainly related to Parliament's intent and the process of making the law, did not relate to material evidence but rather to his interpretation and opinions. It is up to the courts she said, not parliamentarians, to decide what Parliament intended. In other words parliamentarians statements of intent cannot be used as evidence of Parliament's intent. I confess it makes some sense. Otherwise someone charged with an offence relating to opium could argue that he should be acquitted because the stated intent of the original 1917 Opium Act, was to prevent Chinese pimps and brothel keepers from using opium to enslave white women, a purpose no longer relevant or correct if it ever was. It was a good experience in speaking in court; every skirmish helped. Prosecutor Schultes attended.
Keeping in Shape
As the trial approached and stress increased I began smoking again after having more or less quit for over three years. I was what might be called a chipper, the term applied to occasional users of heroin. If I have not had a cigarette for several days or a week I get the most fantastic rush from the first puff which I claim is better than a toke of freebase cocaine or crack. I also know of no better drug for clearing and focusing the mind than tobacco. However nicotine is very addictive and I was soon creeping up to a pack a day. I resented the recent provincial law, ostensibly to protect children, which made the sale of single cigarettes illegal, something which offered me a chance to control my consumption. Kids too must also buy by the pack which makes them more likely to share and more liable to get hooked. Where suburban campaigns have been successful in preventing cigarette sales to minors teenagers may resort to going down to Hastings Street where they will have no problems scoring very cheap cigarettes and find a wide range of other drugs readily available. Marijuana was not very helpful except in very small quantities to overcome mental blocks, but it's wonderful for relaxing. I made it a point to walk a couple of miles everyday. I went nowhere without pen and paper. I swam in the building's large outdoor pool whenever I could. I found bridge columns an intellectual oasis of non moralistic thought.
I knew nothing about Judge Shaw before the voix dire. I looked him up in the Courthouse Library but I could find only one rather obscure and irrelevant decision involving a constitutional issue. I enquired about him from some of the lawyers I'd come to know but was told nothing startling. Those who knew anything about him said he was a conservative, by the book, kind of judge about my own age. This was reassuring. I had been worried I might get some gung ho feminist judge of either gender. I resolved to put aside the misgivings about the judiciary that I had acquired from reading case law and would go before him with in open respectful manner. I would follow his advice and instructions although this might affect the points I could make. My attitude and trust would have to offset my gross lack of courtroom experience and technique. For once I welcomed rules and convention. Again I remembered Michael Ritzker's advice, "The law is simple and words mean what they say."