PART TWO: GETTING WET(38,000 words)
DOUBLY STUPID - MY FIRST BUST
DOUBLY STUPID - MY FIRST BUST
I arrived in a chilly April Amsterdam from tropical Sri Lanka and soon had a miserable cold. I was almost broke and stayed at a cheap hostel where I could prepare my own food. It took over a week to find a budget ticket to Vancouver (via SeaTac) and to borrow the money to pay for it. In the meantime I explored the free sights of the city especially the Centrum old town and the bookstores.
I could easily have discarded the disk copies of my BOYABUSE stories that I had not got around to giving away as I had planned. While the blanks had only cost me about a dollar each my frugality and the inconvenience of getting more made up led me to keep them. I knew the stories were very likely illegal according to Canadian child pornography laws but I wasn't worried. I was more concerned about ten photos of two nude blond boys in their late teens, gay lovers at the time, hugging, kissing and hamming it up for the camera. I hardly considered them porn but figured any non artistic nudity could be dangerous. These I slipped into one of my many folders of tourist photos. I also had various longhand notes on foolscap; journals, impressions and rudimentary essays and stories I had worked on.
I should make it clear that I was incredibly stupid. Not only did I not discard the disks and photos but there were minute but detectable traces of some fine Amsterdam marijuana in a pocket of a carry bag. When a sniffer dog at SeaTac International Airport became frisky I was taken aside and while U.S. Customs was not concerned about the pot they went through my luggage meticulously discovering the ten photos, the disks and various notes. I was profoundly fearful and felt about an inch high. After I was held for a couple of hours they surprisingly returned everything except the film taken from my cameras and I was released. Even more stupidly I again did not discard the photos and disks which were of little value to me. The notes, the only things of real value to me, I could have mailed to addresses in Vancouver. `If only' haunted me for weeks. But I was so relieved to be free, deluding myself that my material was not of real interest to the authorities, and impaired with a bad cold which is no real excuse, that I simply caught a Greyhound bus to Vancouver. If stupidity were a capital offence I should be dead.
Possession of this material was not illegal under U.S. law and U.S. Customs viewing me as a Canadian problem had simply contacted their Canadian counterparts who were waiting for me at the Douglas Border Crossing. Canada Customs went through my luggage and found what they were looking for. The disgusted expression on the face of the Customs officer reading the longhand notes for some of my bizarre stories brought home to me the moral outrage attached to child pornography. I faced the horrible stigma of being labelled a child pornographer. I was the lowest of the low. An RCMP Officer, Constable MacDonald took me to the Surrey station. I was processed but not questioned, in fact I never was. I was released very early next morning with a promise to appear in Surrey Court.
RETAINING LARRY MYERS
I was scared and knew I needed a lawyer, a good one. Aside from having paid a hundred dollar consultation fee when I was fired from my teaching job I had never dealt with lawyers. The child pornography law was still new having been proclaimed less than two years earlier. I was vaguely aware of the criticisms that had been made of the laws at the time they were enacted. One knowledgeable acquaintance opined that the law was probably vulnerable to a constitutional challenge. I was referred to Larry Myers a fairly well known and respected criminal lawyer. Mr. Myers greatly impressed me on first meeting. He can be charming. His build and feisty attitude struck me as very similar to that of Tommy Douglas, one of the few politicians I have admired. He described himself as a libertarian and a defender of free expression. To drive home his point he said he was opposed to Canada's anti-hate legislation even though he himself was a Jew. He was also handling another child pornography case so he was familiar with the new law. He said we'd be like a team. What more could I hope for? a gutsy, libertarian Jew with experience in kiddieporn cases. I felt I could place my trust in him. Other people I spoke to thought highly of him, the only sour note came from a female acquaintance who knows some legal secretaries. It was not what she said that made me wary but the way she said it: "Larry Myers wants to be a judge."
From the beginning I suggested to Mr. Myers the possibility of a constitutional challenge. He seemed to consider the idea. I attended a couple of cursory court appearances on my own out in Surrey and a date for a further appearance where I expected charges to be laid was set for July 18th, 1995. This was however set aside and Mr. Myers told me I wouldn't have to attend. I confirmed this myself with a call to the courthouse. In the months after my bust which was not reported in the media life was normal, I did some carpentry work for people I knew, I went to my pub, I wrote some poetry and thought about my case. I did not have much contact with my lawyer and nothing seemed to be happening. I did not know at the time that this delay was because the police investigation was being turned over to Detective Noreen Wolff of CLEU, the Co-ordinated Law Enforcement Unit and head of the Vancouver kiddieporn squad. She married soon after becoming Noreen Waters. In this book I generally use the name she had at the time of the incidents mentioned. I tend to think of her as the Wolflady as she is sometimes referred to by her colleagues. She plays a major role in this book. She had crusaded vigorously for the new child pornography laws especially the prohibition of written materials. It may have been because of the large amount writing involved that she wanted to take over my case.
EARLY REACTIONS AND QUALMS
I had to think over my moral and ethical positions. I was charged with what was widely perceived as a heinous crime. Why this was so I attributed to the general irrational hysteria about kids and sex in our society. Certainly pornography could be part of the abuse of young naive children especially if deceit or coercion were involved. Pictures of children being abused are disturbing, but pictures of playful adolescents? Were my writings a threat to children, adolescent boys in this case? I know most people would find the tales shocking, disgusting and highly offensive but would anyone tempted to act out harmfully as a result of misinterpreting my BOYABUSE stories? I certainly did not think so although I am aware that works of great moral authority such as the BIBLE have had that unfortunate effect. I thought about it, I reread and analyzed my writing as disinterestedly as I could. I wrote a synopsis of each story which I passed on to Larry Myers. I wrote a statement about my writing where I tried to be completely candid and also passed it on. The stories contain much that would be considered obscene and abusive but they were my stories and I felt they had literary merit. I was most interested in getting back my correspondence, my address books and the hundreds of tourist photos I had taken which I could not see as relevant to the case. My lawyer's advice was to not bother the prosecution, "to let sleeping dogs lie".
I feel that for most of my life deference to convention, opinion and people around me have stifled my creative abilities and what I can contribute to society. I believe that moralizing, and greed are the source of all evil and that righteousness kills more surely than speed. The dark side of religions, ideologies and cultures is the enforcement of moral assumptions. The body counts amassed by Christianity, imperialism, Communism, all of them founded on moral precepts are appalling. The legacy of suffering left by Hitler and Stalin pale beside that of Moses.
MY MARIJUANA GROW OPERATION
Lawyers are expensive. Myers got $2500 up front mostly contributed by friends but I could see that the case would cost me tens of thousands of dollars, sums well beyond the resources of my friends and myself. There was no way I could earn that with my hands doing handyman and renovation work and besides I had health problems. Every time I did more than a couple of days labour my carpal tunnel syndrome would return and either my neck or my knees or both would be affected by osteoarthritis. I also have emphysema from forty years smoking and although I didn't find out until later I have hepatitis C, probably from blood transfusions when I had cancer in the early 1970s and I am diabetic. I simply cannot do any hard physical work for any length of time, I collapse if I do. I had however had some experience helping set up indoor marijuana growing operations and taking care of them. This seemed ideal. I have always regarded growing and dealing in marijuana as an honest and honourable, if not technically legal vocation. Satisfying people's real needs directly I believe is superior to attempting the same in some convoluted government or corporate bureaucracy. Do taxpayers or shareholders really want all the costly hype the public is subjected to? I also had fond memories of my first time back in the early 70s when with others I grew fifteen pounds of leaf that would be unmarketable today. My apartment is a compact 450 square feet. I acquired two mother plants of an outdoor strain and set up a cloning operation in my 25 square foot bedroom closet. It cost me well over two thousand to set it up and a lot of labour. I set up three tiers of trays under fluorescent lights for the clones. I invested in a small 250 watt metal halide light for the mother plants but I had hopes of making over ten thousand dollars when the crop was harvested in the fall, enough to keep my lawyer happy I hoped.
I do not, and have never had much respect for what I see as stupid, malicious or capricious laws. Laws must earn respect. One of my perverse childhood delights was consuming margarine when it was banned in Canada. Someone had smuggled it across the border. Another one affecting me was a change in the City of Victoria's rooming house by-law circa 1950 when regulations prohibiting wash basins in housekeeping rooms was abruptly changed to require them. It was however our drug laws, their counterproductivity and the social devastation they wreak, that in the late 1960s convinced me that the political/legislative system is capable of making monstrous and absurd laws, typically passed without substantial debate. In 1967 I lobbied parliamentarians against making LSD illegal and in 1969 I made a lengthy submission to the LeDain Commission advocating the legalization of so called recreational drugs. For many years I always carried in my wallet, "possessed", one illegal drug or another as a matter of principle. The child pornography laws struck me as not deserving of support or automatic compliance. People who obey laws unquestioningly are the heralds of tyranny.
I also do not have much respect for politicians. When I was young I was politically idealistic and active. I was attracted to the romance of the Winnipeg General Strike, the Depression era struggles in Western Canada and the early CCF. My final disillusionment with party politics came in the late 1960s as friends and neighbours in Kitsilano started falling victim to the narcs. I tried to explain to my political friends what the drug laws were doing but most didn't seem to understand what I was talking about, it wasn't a political issue for them. The few politicians I have known were probably a cut above the average and prospered without corruption that I know of. Politicians have less freedom of expression than practically anyone else in Canada, it doesn't mix well with power. Probably their desire to express independent or unpopular ideas is minimal anyway. They are happily prisoners of public opinion increasingly represented by the media, party discipline and commitments to special interests. My view of politicians is more in line with Dan Piraro's 1995 Bizarro cartoon showing two old timers in their rocking chairs where one says,
"Any person who is willing to go through what it takes to get elected is clearly UNFIT to hold office."
It is because of the constraints of party loyalty and re-election that our worst laws, like our drug laws tend to get enacted unanimously with no real debate. Members of Parliament are not free, or do not feel they are to express themselves candidly on non controversial but morally charged topics. One parliamentarian as much as admitted it during what was supposedly a debate on the child pornography bill.
I had to think about it. I was accused of a crime held to be among the most repugnant imaginable. I had no doubt that many if not most people believed I had robbed children of childhood and murdered their souls. The innocence of children would be reflected in my guilt. But then I realized I had done nothing to be ashamed of. I am not claiming any great rectitude but I have remained connected with the scenes of my past and I am confident of the estimation of those who've known me including many I met long ago in their teens. If I had been confronted by an honest victim I doubt if I would have fought.
Very little happened for about a year and I assumed that maybe they weren't going to bother with me. I became complacent. After all the ten photos of the two blond boys did not depict any explicit sex or even arousal and they were arguably over eighteen at the time. Both were still friends and we joked about all the trouble their pictures had caused. They regretted that they would probably never see them. And my writing, for the most part BOYABUSE: Flogging, Fun and Fortitude - A collection of Kiddiekink Classics, a series of erotic boy stories that I had written with no commercial market in mind might have been thought too literary.
Back in the early 80s a seventeen year old hustler had been my roommate for several weeks until he wanted his girl friend to move in too. They both hooked on the same leafy corner in the West End of Vancouver. He wanted some pictures of himself and I took a few roles of him in my apartment and at Wreck Beach in various arty and comic nude poses and made up two albums, one for him and one for myself. After I started travelling I lost contact with him but about a dozen years later through a mutual acquaintance I found out he wanted copies of his pictures as he had lost the album I made for him. I agreed to make up copies for him and took out of storage the suitcase containing all my nude photography which I had not seen for several years. I have never purchased or collected child pornography but I valued the nude boy pictures, mostly young Filipinos that I had taken over the years. Boys in their natural state are the most beautiful of God's creatures. Only a very few of these pictures could be considered clearly pornographic and these were only taken at the boy's insistence. My seized collection is proof of this. The suitcase was on top of the dresser in my bedroom. I also had a few bound hardcopies of my BOYABUSE stories and other stories including some I had submitted for publication to gay magazines on my bookshelves. At this point disaster struck.
THE SECOND BUST
It was on May 13th, 1996 at 7:55AM according to the police REPORT TO CROWN COUNSEL that Detective Noreen Waters accompanied by Sergeant Smith and Constable Hynes knocked insistently at my door. I was asleep. I grabbed a T-shirt to cover my nakedness and unsuspectingly answered the door. It was the police! They had come to arrest me. Once I had opened the door a few a few inches to speak to them the police pushed their way in and started milling around my living room. I was in a quandary. If I had been dressed I could have said, "Let's go." but I wasn't. I was concerned about my cloning operation which they would discover if they came into the bedroom where my clothes were. I managed to put on some clothes and was unsure if the light in the closet was noticed. Detective Noreen Waters whom I had never met or heard of previously told me that my writings were, "the sickest stuff I've ever read."
I was handcuffed and taken outside. A paddy wagon arrived and I was taken to 222 Main Street, booked, fingerprinted and placed in lockup with a few others. My glasses were taken from me (I might cut myself by breaking the lenses) but we were allowed nothing to read anyway. The only entertainment was a Granville Mall preacher roaming the corridor who railed on about salvation. I was released on recognizance about 5:PM with a promise to appear later. When I got back to my apartment the police were still there going through my possessions and taking photographs. I was not allowed in and spent the night at a friend's.
When I returned next day my bedroom was a shambles, things dumped everywhere. The dresser whose lower drawer had contained the ballast for the grow light looked as if it had been violently picked up and tossed on the bed chipping it and gouging the wall behind. My clothes were strewn about. My computer, monitor and keyboard were gone, the latter two suggesting either ignorance or maliciousness. Only the old dot matrix printer remained. All my power bars and extension cords had been cut into short lengths to prevent reuse. The grow equipment was either gone or smashed. My library had been culled of anything that might relate to adolescent sexuality including books by Sir Richard Burton, the Nineteenth Century explorer, Stan Persky's BUDDIES and Dennis Pilon's poetry. They somehow missed a copy of GAYME, a glossy American gay magazine that is on Canada Custom's Index. Twenty large albums of my social and travel photography appeared undisturbed. If they had examined them thoroughly they would have found a few a few pictures of a naked infant gathering firewood at a wilderness beach and playing with his mother, and a nude teenage boy standing demurely in a forest pool as in a Maxwell Parrish painting. I was thankful for that. A friend came over to help me clean up the mess.
After each of my arrests an INFORMATION or REPORT TO CROWN COUNSEL was prepared by the police. I did not see a copy of the REPORT TO CROWN COUNSEL relating to my first bust until after my second bust. It was dated a week before, May 7, 1996. If I had known about it I would have probably taken a few simple precautions. The last dated document, August 10th, 1995, in this INFORMATION is a letter sent to Detective Wolff by Dr. Jean Hlady of the Child Protection Service Unit of the B.C. Children's Hospital which was nine months earlier. Aside from the minutiae of events, often recorded to the exact minute, the documents were reviews of the materials seized from me at the border. Of the three boys in the nude photos it was Dr. Hlady's expert opinion that at least two were under eighteen. Based to a large extent on pubic hair they were placed in Tanner Stage-3, which has a normal range of from 12.5 to 17 years. The writing was reviewed by Detective Wolff who also commented on my notes and correspondence, Marc Everitt of the Film Classification Branch and Mary-Louise McCausland, Director of Film Classification (and censorship) for the province. They concluded that the stories advocated sex with persons under eighteen. Mary-Louise Causland states it most clearly, (page 33) "These stories convey, through a sense of the narrator's satisfaction, that the sexually violent acts being carried out both against the children and by the children are pleasurable, satisfying and beneficial for all involved. It is this theme, and the fact that the abuse of children is presented in all three cases (Timothy and the Terrorist, The Rites at Port Dar Lan: Part One & Tijuana Whip Fight) as being non traumatic, that led me to determine that these works of fiction counsel adult sex with children and are therefore child pornography as defined by Section 163.1 of the Criminal Code." That lack of trauma in fiction may define it as pornography suggests that a graphic depiction of violent rape might not be pornography while a loving encounter would. This determination is not far fetched and is backed Judge McComb's decision in the well known LANGER case. McClausland claimed that the stories she reviewed were "the cruellest pieces of writing I have ever read." None of the reviewers could see any artistic merit.
The second REPORT TO CROWN COUNSEL which I received in late July is more complex. It describes the details of my arrest and the subsequent search warrants. A fairly detailed but poorly organized analysis of my correspondence, musings and scraps of writing is included. In particular the letters I exchanged with the late Edward Brongersma were examined. Even a letter I had sent to my lawyer was discussed. I thought this was a breach of lawyer/client confidence but Myers didn't think anything of it. A large collection of seized newspaper clippings was listed and each article described. This is considered "collateral material". Quotations from my letters, both sent and received were used extensively and repetitiously. The purpose was to show that I had circulated and discussed my writings and offered them to people who might be interested in bizarre boy erotica. That and the multiple copies of BOYABUSE, mostly on disks, was to be the basis of their possession for the purpose of distribution charges. Another purpose I suspect from the selections they quote from my letters and musings in the Report was to present me as an extremely perverse and potentially dangerous pedophile. Fictional excerpts were assumed to be diaries and humour and irony are ignored or taken seriously. Even the material that Detective Waters said she reviewed over six months shows a profound lack of a basic comprehension of what she read.
One novella I wrote is a litany of abuse. THE MOON EYED BEGGAR'S TALE is the story of a Filipino boy Jun, whose family is driven from their hamlet as part of a counterinsurgency campaign and put in a concentration camp where half of the children including his two younger sisters die as well as his mother, a boy who is horribly disfigured and blinded in one eye while stealing food in the camp, a boy who is dumped by his relatives in a downtown Manila park and told not to return home and who finds a place for himself on the street, scavenging and begging. He and other boys including some prostitutes who hang around a particular plaza are beaten and robbed by the police and exploited by cynical child savers. It is a litany of non sexual abuse. There is also some sex when Jun and another barely pubescent boy masturbate together while sniffing solvent. Jun envies the boy hustlers who make lots of money but his one opportunity to emulate them fails. Detective Wolff described the novella only in terms of sex.
After my second bust my charges became public knowledge and I had to make a couple of court appearances. My lawyer, Larry Myers was anxious to avoid publicity and changed court times and dates, anything to keep the volume down. On one occasion TV crews went down to the Main Street courthouse to catch the newsworthy significance of a brief appearance. On the late news that night I saw clips of the disappointed camera crews filming each other at my no show with voiceover decrying sneaky tricks of lawyers and proclaiming the public's right to know. The media complained about this infringement of their freedom of expression to Attorney General, Ujjal Donsanjh who expressed concern that justice be seen to be done. I appreciated Myers' efforts although I knew it was only a temporary reprieve. After my second bust I feared being evicted from my apartment. In my worried state of mind the fact that I had presented no grounds for evictions was irrelevant. Everyday I checked the list for messages and parcels by the elevators for my suite number. At the end of the month I expected a termination notice. Nothing, I was so relieved. But it was a while before I again began feeling secure. The management has been very reasonable and even supportive.
My second bust affected me worse than the first. How can I, "a nice guy" I feel, describe how I felt? There was the horror and the weight of being publicly despised, the stupidity and sickening lamenting of all the "only ifs", the embarrassment of friends and perhaps the perceived endangerment of some. The Thing as I called it became a preoccupation, a worry and a source of insomnia. Ego fantasies were stimulated by the "need" to explain myself. I wallowed and composed speeches for imaginary and unreal audiences and courtrooms. The Thing however was exciting and gave meaning to my life in poignant ways. A corny saying I used to use, "If I can't be famous, I'll settle for notorious." haunted me as self fulfilling. I later wrote a poem about it called Notoriety. The emasculation of my intellectual life, my WordPerfect world of ideas, poems, stories, essays and correspondence that sustained me for hours a day left me feeling empty. I felt naked knowing that much of my private life was being scrutinized by prying, zealous police officers imagining the worse and seeking to expand their case. I wanted to be outraged. I had to master the Thing.
It was around this time that I was interviewed by a person peripheral to both the gay and art scenes who may have had some exotic skeleton in his closet. It was in June just when I had made public my decision to fight for my writing at least. I had known and respected him for a few years. He was interested in my case and well informed and I began turning towards him for support. He provided me with some interesting ideas, articles and web sites to look at. With a friend of his he made a long video interview where he asked many hard questions. It lasted over two hours and at least two beers each. I answered questions, discussed some of my feelings, recited a story from BOYABUSE and spouted off my ideas about my case. It was challenging and fun, uninhibited recollections as we emptied our bottles. He originally planned to do a series, maybe three as the case progressed and there new things to talk about. I was enormously encouraged. But as several months went by and things had changed it was never time yet. It was some time before I pushed him about it, already having my suspicions, that he told me he didn't want to do any more interviews. He was feeling the chill; he probably had friends trying to give him good personal and business advice. I was toxic. And I was bitterly disappointed, I felt abandoned by the person I could talk to most intimately about my case. But that was the last time I let myself get hurt. After that I accepted the loss and drifting away of even close friends as a cost of what I was doing. I found myself outside the gay literary circle that I hadn't got too far into in the first place. Some of them may have read BOYABUSE and found it too corrosive for their stomachs. I only missed a couple of them. Yet I could see that I didn't need to lose these people. If I had quietly pled guilty at the start things would have returned to normal fairly soon. Naughty pictures and writing indeed! It was pleading not guilty, and attracting attention that was the problem. Some of them had boasted of fifteen year old boyfriends, but They were gay. I respect that. I would get realpolitik advice like this: "They're not going to let you get away with it. You'll end up with a heavier sentence if you raise a stink." If it were known that enough people think that way it would be so. Such faith in cynicism. Some old friends became closer and I met new people because of my case. My social life remained rich.
I wanted my writing back, that was my priority and I made this very clear to Larry Myers. I felt I had to be loyal to my writing. I did not want to repudiate my writing by pleading guilty to the written material charges. He kept talking about keeping me out of jail which I told him wasn't my priority. I was already labelled as some sort of monstrous pervert in the media and my fickle friends, mostly the "gay community" types were starting to drift away. But prison was a fearsome prospect, I would not be arriving as some sort of hero like a bank robber or a cop killer. I read Roger Caron's GO BOY and Gregory Bell's BIRDSONG, two fascinating accounts of Canadian prison life by inmates. I have known a few ex-cons and am aware of the despised status and dangers that so called diddlers face in jail. I was also aware that plea bargaining and demonstrations of remorse, for what in my case I was not sure, was no guarantee of leniency. The early Gramlick and Jewell cases where two men videoed consenting adolescent stroll boys in hot action and received maximum sentences were evidence of this. My honour and self respect were more important than whatever consequences I might face in jail including coercive therapy based on junk science. I did not worry so much about the photos, very few of which were clearly pornographic. I was quite prepared to have a jury look at them and compare them to the fare used by the police in their anti-kiddieporn promotion work.
THE WILLIAM BENNEST CASE
Around this time the William Bennest case erupted. Bennest was a popular Burnaby elementary school principal involved in the gay scene who liked adolescent boys. For his own private enjoyment he videoed young hustlers from the stroll. While it was never suggested that he had sex with any of the school's pupils he was very fond of one twelve year old student and took "fashion" videos of him wearing clothes he purchased for him. A hustler he had known for a few years who may also have helped procure other boys went to the police. One story is that he was concerned because Bennest wanted ever younger boys, another is that he was jealous. The media, public and parents were outraged that such a man should be associating with young children and he had to go into hiding to avoid harassment. I saw him on television news dashing from a car into the courthouse with a jacket pulled over his face. It was a powerful image and I swore that I would never behave in such a self degrading way. I had some idea how he felt and wanted to offer him support. I wrote him twice and talked to him on the phone. However he seemed a beaten man and only wanted to get things over with and start a new life. Perhaps because of his contributions to the Gay Pride Parade and other community activities he received some editorial support from XTRA West, the Vancouver gay newspaper. He avoided jail but lost his career and savings.
POT CHARGES , EMP AND COMMUNITY SERVICE
As a result of the raid I was charged with possession for the purposes and cultivation of marijuana. It was nothing to be ashamed of. I decided to plead guilty as I wanted to get the matter out of the way and there was no other practical option. Larry Myers arranged a deal whereby I was sentenced to thirty days and seventy five community service hours. I was satisfied with this. Later I discovered that making surprise, delayed arrests was a standard police practice in pornography cases in order to gain additional evidence. I wondered if my lawyer should have known this and warned me but he may simply have been unaware.
I only spend a day and a half in the Vancouver Remand Centre, enough to get a glimpse of the tedious, regimented life of jail before being placed on EMP, the Electronic Monitoring Program. A black box was attached to my telephone and I had to wear a bracelet around an ankle which I was told would sound an alarm at the EMP headquarters downtown if I went more than a certain unspecified distance from my telephone. Initially I was only allowed out of my apartment for two hours a day, from 10 to 12:AM for shopping and other necessary purposes. I could have visitors but was not allowed to drink or do drugs which was no problem. The lack of exercise was my main frustration which I overcame by taking long walks on my shopping excursions and rearranging furniture to make a pacing route the length of my apartment. They made two unannounced visits to my place to check up on me. On the second occasion they accused me of being absent at a time when I was supposed to be home but later decided their equipment must have been faulty. Towards the end I arranged four hours a day work doing maintenance and repairs at a friend's rooming house and could be absent for six hours a day. After twenty days I was released from EMP.
I did my community service hours at an East Cordova Street drop in centre where I encountered some of the least fortunate people in Vancouver. Having personally known many people with serious drug, alcohol, family and mental problems I found the atmosphere almost congenial. I liked the guy who ran the place and gladly did minor repairs, mopped floors and cleared tables. Other "workers" including one who drove a luxury car found being part of a free labour supply not of their own choosing more difficult. I had read somewhere that under Stalin they consciously used the judicial system to replenish the gulags and I wondered if community service sentencing was linked to the labour needs of the various agencies. However from my own experience and that of others it seems you're lucky if you can keep yourself busy.
After my second bust I began providing Larry Myers with all the material I had or could find that I thought might be helpful. I made up a synopsis of my BOYABUSE and other stories to help him understand them. I also began asking him questions about the law and how it was applied in different situations. By early June I had firmly made up my mind to plead not guilty. I could not repudiate my writings which a guilty plea would imply. I told Myers so in clear terms. I became interested in the Eli Langer case and considered an "artistic merit" defence. But who could I get to testify that BOYABUSE was great writing, certainly no one with a literary reputation, or even without. I indulged in fanciful arguments pointing out irony and wit. I resolved to accept whatever penalties that would come my way. I was told by an ex-inmate that a certain regional jail had a good woodworking shop where I could my hobby of furniture making.
Myers was most concerned about my photos, these would damn me he claimed. I made up and gave him a list to the best of my recall of the nude photographs seized. He never indicated that he had taken the trouble to actually look at them which he could have easily arranged and I doubt if he ever did. I didn't get much in the way of answers but he assured me things were going well. I kept insisting that he try to get back the written material that I was not being charged with. I read the child pornography clipping file at the VPL and came across a case where non pornographic videos were ordered seized and destroyed. Latter I would find that in the theory that Dr. Collins espoused they were "collateral materials". Myers still held that the other material would be returned if it wasn't pornographic.
AMBUSHED AT MY DOOR
Around that time a woman knocked at my door and introduced herself as Suzette Meyers of UTV, now Global TV. As I watch very little television I did not recognize her. She asked if she could interview me and I declined explaining that I did not yet know what charges I faced and suggested she contact me after my appearance the coming Thursday. She thanked me and left. I didn't think much of it at the time, I didn't even wonder why she hadn't phoned first. Later in mid October I received a phone call from a Gerald Higgins who said he had seen me on television the day before and had taped most of the program. UTV News Anchorperson Suzette Meyers was hosting a three day special on child pornography with me as a central figure. I was flabbergasted. I had been surreptitiously videoed at my door with a hidden camera. The request for an interview had simply been a ruse to get some clips of me that they could edit for use in the special. Higgins offered to get me a copy if I paid for it, I agreed to.
Soon afterward a friend phoned me with the same information and said he would tape the subsequent episodes of the three day special. I appeared variously edited in all three segments which were shown at least twice a day on UTV including the family news hour and rebroadcast on CHEK TV and other affiliates. In the first segment of the special they show my well known landmark building, Ms. Myers walking down the corridor, a close up of the number on my apartment door so viewers could be absolutely certain of my exact address, and a brief clip of me at the door. By the angle, the hidden camera would have been the sports bag she carried.
Suzette Meyers warns her viewers that they may see material that is not suitable for even older children and which may be "extremely difficult for most adults." We are told that this is the first time that the Vancouver Police have made their collection available on TV. This is so the public knows "what child pornography really is". Detective Waters, described only as an undercover officer and with her face never clearly depicted, shows Suzette Meyers and the camera photographs from the police kiddieporn collection. Meyers bravely confides she saw the collection before the yellow Hasti-Note tabs were placed over the genitals. What we are to see is not mine but they suggest it gives you the idea. Detective Waters points to pictures of prepubescent girls being urinated by unidentifiable males. While the children's' genitals were covered with little skirt like tabs their faces were not, and anyone knowing some of the children would recognize them. The pictures she claims were only downloaded from the Internet recently so the images could be recent. I do not think Detective Waters saw the pictures as images of real children but only as examples of child pornography, an evil. As porn you protect the public's sense of decency by covering the genitals, not the children's privacy by covering their faces. At the voir dire she mistakenly insisted the opposite, that the faces not the genitals of the girls were covered. So much for protecting children! On the first day of the special I am placed next to a segment on the sordid Belgian child murders much in the news at the time. Another time I am implicitly linked to someone else's porn. Detective Waters introduces her favourite piece of alleged kiddieporn, the comic "BOILED ANGEL" involving cartoons of non human creatures doing gross things by Florida zine artist Mike Diana. A friend whose seen it tells me it's satire. I later found that this comic is part of her standard child pornography presentation that she has given many times. Anchorperson Meyers added her shocked moral slant to the detectives presentation. The two women talked about a case where porn was sent through the mails and Waters brought out a large envelope with a 1972 postmark, 24 years old. The three day special was anti-porn propaganda disguised as investigative journalism.
I was irate over the program, it had caused my family pain. I took the tapes to Larry Myers who had an associate view them. He didn't think I had a case for suing the producers. Needless to say Ms. Meyers did not seek an interview after the charges were made known but she did win a prestigious award for her journalism that year. My resolve to fight the charges became stronger. I also received a "sick puppy" phone call, the first of several abusive calls. There was however no mention of my case in the press.
Gerald Higgins told me he had been convicted of possessing child pornography a year earlier. The charges related to North American Boy Love Association, NAMBLA, publications he subscribed to which are legal and easily available in the United States. He was caught in a sting operation and claimed that his mail was opened and his phone tapped for several months. His arresting officer was also Detective Waters whom he referred to as General Wolf. He regretted not having fought the charges. He felt his lawyer, a Mr. Hughs who caters to a gay clientele, could have done more. However, being a professional who deals with the public he was anxious to avoid publicity and his case was successfully kept out of the papers. He received two years probation.
Some of my gay friends and acquaintances panicked after the UTV special hiding or destroying the most innocuous pictures and purging their computer hard drives. At their request I purged references to them although the police had their names among the hundred or so in my computer address file. As a precaution I had kept the list diluted with dozens of people I hardly knew. I felt they were being overly paranoid but I didn't argue. Little Sisters Bookstore took my poetry books and MANILAMANIC journals off their shelves to avoid harassment by the media and the police. Several people told me, "Don't use your phone to contact me, use a pay phone if you have to." As it cost me a quarter I began to think of them as my "two bit" friends. And if I can't use my own phone to contact someone, I'm not likely to call them casually and friendships wither. Paranoia was rampant. While privately almost everybody was sympathetic and supportive I no longer felt welcome at places and events I normally attended. I was becoming a pariah.
Larry Myers lent me a copy of the SENTENCING BOOK OF AUTHORITIES file his firm had put together for the Richard West case. This book gave the reasons and decisions of the sentencing judges in seven child pornography cases in Canada up to that time. They gave me a fascinating and often frightening insight into the thinking of judges. I was shocked by the profound social ignorance combined with moral zeal that I found in some decisions. I suspect that in giving me this material to read Myers hoped that I would see what I was up against and be persuaded to go along with his plan for me to plead guilty and make some sort of deal. The men had all pled guilty and some got harsh sentences. What would they do to someone who showed no sign of remorse and who not only pleads not guilty but wants to fight the law. I don't know if that was what, if anything was intended but it seemed a reasonable conclusion to draw. Plea bargaining seemed to the only thing Myers was eager to discuss. The sentencing book had the opposite effect. I was morally outraged by what I read and became more determined than ever to fight our pernicious child pornography laws.
R. v. GRAMLICK AND JEWELL and the Reconstruction of Reality
The only case I want to discuss in any depth are the related cases of Gary Arthur Gramlick and Edward Thomas Jewell. See the sentencing decisions in Appendix "XX". It was the first big child pornography case beginning less than two months after the law was proclaimed on August 1st, 1993. I remember reading about it in the press at the time and later being morally outraged at the severity of the sentences, 10 and 15 years. These cases were at the centre of the widely publicized "London Kiddieporn Ring" scandal in southern Ontario which led to dozens of arrests and 45 guilty pleas when the city's street kid hustling scene was exposed after enormous police pressure. Despite it being called a kiddieporn ring Gramlick and Jewell were the only men who were charged with pornography. The only evident ring was the boy hustlers.
The two men who were friends were charged with making videos of adolescent and older boys engaged in sex with each other and sometimes with men. Most of the boys in the videos were known to hustle. According to all accounts there was no violence and all sexual activity depicted was consensual. The videos came to the attention of the police when a young fisherman inadvertently recovered a number of these amateur videos from a river where Gramlick had tried to dispose of them. The fisherman's mother contacted the local Ontario Provincial Police detachment in Lucan who were not interested. However the City of London police led by their ambitious Chief Julian Fantino were. The police took stills from the videos and after showing them around to social workers, teachers and other kids and with the help of one seventeen year old in particular they were able to identify twenty of the twenty three boys appearing in the videos. Jewell, who also had an old conviction for sex with boys, and other men appeared in some of the fifty seven sex videos. He and Gramlick were soon arrested and charged under the new laws prohibiting the making and possession of child pornography. Through the pictures and leads they helped produce the police were able to question hundreds of men boys and men about things the law defines as sexual assault. Gay men felt that they were being unfairly targeted. It became a major scandal. Gramlick and Jewell both made early guilty pleas and were in custody with no application for bail from the time of their arrests until sentencing almost four months later. Jewell anyway seems a bit of a sleaze in that he used a hidden camera to record various sexual activities. This was a violation of trust and the fundamental concept of consent. He exposed these boys to unforeseeable consequences that they had no chance to consider beforehand as actually happened when the videos fell into the hands of the police. Jewell also showed adult pornographic videos to the boys presumably to arouse as well as entertain them.
Both men co-operated with the police by helping to identify the boys in the videos. The court in both cases considered this betrayal of their young friends as a mitigating factor. The fact that they were both in custody continuously, probably scared and at least feeling they were under duress may explain this less than honourable behaviour. As a personal comment I would say that if I had to spend an extended time in jail that I too would have probably pled guilty. And I certainly wouldn't be writing this book.
Neither the prosecutor nor the judge actually viewed the offending videos probably as a result of the eagerness of the defence to avoid additional publicity. Although there was no violence and the activity depicted was consensual some homicide detectives who did view the videos of the boys masturbating and having sex described it as the worst experience of their lives, it was morally disgusting and made them sick to their stomachs. Presumably they found them worse than murder. Given that almost all boys masturbate and many engage in sex this judgement seems curious at least. I wonder how they would react to viewing the Bernardo-Homolka sex torture videos? I suspect that there was an element of advocacy in their opinions. The head of the sexual abuse unit at the London Children's Aid Society Maureen Reid, who probably didn't view them either, felt that the videos were abusive because the children being under eighteen could not consent and because it did not fit in with how they saw sexuality. "I mean, young children, when we see them in sexual ways, it really is counter to how we view children." This may make sense with prepubertal children, young children, but horny adolescent boys? She also felt that it was abusive because it was coerced and non-consensual because of differences in age. This assumption that age differences create an insurmountable power differential in sexual matters is perhaps the principal pillar of contemporary, feminist influenced clinical and psychiatric theories about adolescent sexuality. Ms. Reid saw the boys' activities as a breeding ground for future sex offenders and was worried that few of the children were receiving therapy in which she expressed faith.
In her decision Judge Deborah Livingstone described the boys involved as "street smart", having "little or no supervision or guidance at home, particularly from adult males." (presumably fatherless). Some were "mentally challenged" and "None has a stable or comfortable home environment." Their families were described elsewhere as dysfunctional. "All boys, therefore, were acutely vulnerable to exploitation and predatory behaviour." We usually think of streetsmart as meaning that boys are aware and better able to deal with situations they encounter, in other words as less vulnerable than others who may be ignorant, "innocent" or naive. The judge's use of vulnerable in the context implicitly accepts a social work perspective of the boys as disadvantaged and therefore weak and needy. The boys must be seen as victims of the men and it is the duty of the court to impose this construction of reality on all involved. According to her vulnerability is not a question of a particular person in a particular context but their potential willingness to engage in illicit sexual acts which may be a question of personal values. It is unlikely that the boys in question saw themselves as vulnerable and they certainly didn't see themselves as victims. This was a big problem for the authorities and their theory. The boys may have welcomed the mens' interest in them and were open to the propositions made by the defendants. They are old enough to say "no". It is not a question of the accused preying on vulnerable boys. The situation as described Livingstone herself sounds like a much more mutual relationship. To a great extent the boys most likely to be involved with men such as the defendant are those least likely to be harmed by the association because it represented little new to them and they probably already rejected many of society's norms. The fact that boys from stable comfortable families are less likely to become involved in the street hustling scene is not because they are less vulnerable but because of the greater opportunities they have.
The court unquestioningly accepted the social construction of reality provided by the experts which probably agreed with its own perceptions. The boys involved were street kids. By street kids I mean boys and girls who do not have stable homes and who spend much of their time on the street and who use street connections for social and material purposes. Through operating a group home for troubled teenagers with my wife at the time, through having teenage foster sons, through my everyday life and my interest in boys I have known literally dozens of street kids over the last thirty years. I have also known and known of boy centred scenes similar to those that were maintained by the accused. Some more predatory men create elaborate "chicken traps" with things like video games, pinball machines, pool tables, fancy entertainment centres, hot tubs and saunas to attract boys. Some boys have complained to me and warned their friends that after porn, pot and booze they would wake up with the host fellating them. Other men I have heard of
have yachts and take teenage boys on cruises up Howe Sound and Indian Arm and ply them with liquor and cocaine. This is irresponsible and highly unethical behaviour.
But these are not typical situations, most are more like the accused in this case without the videos. Street kids and other adolescent boys who have little adult male support, and who often have no homes where they can chill out with their friends, frequently end up associating with gay men and youth lovers. Few others would accept them as regular visitors. Think about it, who else would? Are straight men or families going to allow unrelated adolescents to hang around their home? They are a handful to say the least. About the only other people who might accept them are those engaged in certain criminal activities where juveniles can be of practical use to them. Many if not most of these boys have been involved with the law or children's services. Many have been through sexually charged custodial institutions. Facilities provided for street kids like drop in centres offer limited group privacy for socialization and some have added motives such as evangelizing. Boys are more likely to feel comfortable in the home of a youth lover where they can be themselves and express themselves freely. The boys may be offered snacks and drinks, and possibly drugs, or they may be grateful for a place where they can smoke their own. The homes of youth lovers often become hangouts and they may become privy to the boys' thoughts and affairs that parents and social workers know nothing about. Some men function as ad hoc social workers themselves or try to find jobs for their young friends.
Street boys often develop a circuit of youth lovers that they visit. They may meet new people and often go to sport events, concerts and on camping trips and other excursions with their adult friends. The sexual interests of the man is usually clear from the start as reputations get around. Peers monitor and moderate their own affairs. Some boys may get involved in sexual liaisons with the man, perhaps several men, but other boys may not. Strong, asymmetrical but mutually satisfying affairs are happen. Lovers' quarrels provide drama and entertainment. Sex is inevitably to some extent currency, but it is not prostitution given the complex relationships that develop. Courts as in this case often choose not to make the distinction. If you entertain a woman and have sex with her does that make her a prostitute?
Street kids have their own way of looking at things and usually have little desire to reform as it is put to them. Street life is a phase for most and they go on to more ordinary lives. Just as they take what they need and want from the agencies serving them and generally reject the rest so they tend to do the same with the men they meet. Rip-offs are frequent and the men are not in a good position to complain. That boys willingly turn to such men is in large part a reflection on the failure of families and the social welfare system to meet their perceived needs. And it is the failure of youth services which both inspires and justifies their crusade against the "pedos" who they believe lure away their kids.
The London Porn Ring "snarl" as someone called it was unique in that the boys involved were extensively interviewed at the time. Joseph Couture, a London journalist gained their confidence and taped many hours of interviews and conversations with the boys and a few parents. These were part of a series of investigative reports produced by Max Allen on CBC Radio's IDEAS program entitled the "Trials of London" which covered the huge police crackdown that flowed from the discovery of Gramlick's and Jewell's videos. He interviewed child welfare officials, lawyers and other men charged. Several boys, all of them eager to tell their side, were heard from. They talked openly about themselves and what went on and provide insight into their scenes including those of the accused. One boy talks about how he was thrown out of home when his parents found out he was gay. The boys had sex with each other but then one might get a girl friend and stop. As for the men what they experienced was not abuse, they emphatically did not see themselves as victims and those who did testify against the men felt they were manipulated and did it under pressure. Their greatest fear was that their parents, peers and classmates would find out which explains some of their co-operation with the police. Max Allen describes the boys: "almost all were sexually active teenagers having sex for fun and profit." He says, "They found, usually with each other's help, gay men who would give them money and clothes, and sometimes a place to stay." It seems very straightforward although some people may disapprove. Allen raises an interesting point when he suggests that we take the boys at face value and asks, "If so, how much force can be applied (to change them)?"
Victims & Therapy
The ostensible intent of our child pornography laws is the protection of children. Child pornography is considered a heinous crime and the children who participate in it are seen as victims. The popular image of child pornography promoted by child advocates and police activists is one of little children forced to engage in sex, where the abuse is obvious from the depiction. The little girls being urinated on that Detective Waters showed the viewers on Suzette Meyers' program is a good example. Few would dispute that such pornography is repugnant or that the children were victimized. However under the law depictions of the rape of seven year olds is equivalent to those of the consensual acts of seventeen year olds. In GRAMLICK and JEWELL two questions arise: Were the boys children in terms of their sexual capacity, desire and sense of autonomy? and were the boys victims of the men in any sense meaningful to themselves? The boys did not think so. Social workers were "distressed" because the boys did not see themselves as victims and comply with their theories. One boy on the Couture tapes criticized this thinking from his own values, "And you can't be a victim unless you're forced into something." I have already mentioned the remarks of Maureen Reid, the head of the sexual abuse unit. Then there are the comments of Alan Leschied, director of Young Offender Services for the London Family Court Clinic who described the boys thus: "We see them as victims; they see themselves as perhaps nurtured and cared for in a way that's perhaps better than they've experienced prior to this." Boys cannot speak for themselves, their claim to autonomy is denied; the reality constructed in court by witnesses and experts, and judge's preconceptions permits no deviation from the role of victim. The question of being victimized seems more an ideological struggle than anything to do with protecting children, or at least adolescent boys. In the physical sciences if valid data does not conform to theory then the theory is questioned. If this happens in the world of psychiatric/social work theories it seems that the data is blamed. It was the reluctance of the boys to see themselves as victims that caused much of their problems.
If the Gramlick and Jewell cases were about protecting children as defined by law then the actions of the police and social services appear in stark contrast to this aim. While the police did not want to arrest boys as that would contradict the line that they were victims that did not stop them from threatening to do so in order to get their co-operation. Nor did it stop them or the social welfare officials from victimizing the boys far beyond anything they experienced with the men. Exposure to the approbation and homophobia of the community was the boys greatest fear and the police used this to their advantage. Telling the parents was an effective threat and the police often told them anyway on the pretext of getting the boys help. The boys were manipulated; they were told they needed they had to see psychiatrists, that they needed therapy. They were told that for being victims of "paid sex" they might get up to $25,000 under the Ontario's Criminal Injuries Compensation Act. One boy complained to Couture that he talked with a family services counsellor who told him that what he said was confidential. Later the counsellor reveals his confidences in court. When he angrily complained to her she told him she was compelled by the court, something she knew was very likely from the beginning. This calculated use of betrayal is of course quite legal and may in fact be required under mandatory reporting laws intended to protect children. As a victim a person has no honour and deserves no respect.
Boys pressured, tricked and bribed into therapy, informing on peers and testifying against their adult friends, are robbed of something more precious than any postulated innocence. They are robbed of their sense of honour and loyalty, their self respect and integrity. This is profoundly more abusive and destructive of self worth than anything boys are likely to experience in bed with men. Honour and loyalty however are not psychiatric terms, they are not in the lexicon of social workers and do not adapt themselves to victimological theories. Police, social workers and therapists who see the betrayal of old associates as the first step to recovery wreak havoc on young lives. If boys break down or kill themselves there's usually some handy "pervert" to blame. Some end up like Winston Smith in the Chestnut Tree Café at the conclusion of 1984. It may well be that some officials see man/boy sex as such an unmitigated evil that any means, any deceit, any betrayal becomes justified.
Therapy is both promise and punishment and is used as both bribe and threat. One boy interviewed had already been subjected to four years of therapy for sex play with a peer at age nine and was anxious to avoid more. Some may need and benefit from it but for dissenters it can be cruel. A few may gain more insights about the therapy itself than themselves.
The matter of payment is another is another aggravating factor. Judge Livingstone castigating Gramlick speaks of "The lure of quick cash, cigarettes, and other enticements made the activities you requested `just a business transaction' to use the words of one of the boys..." The boys "were victimized by being paid with cash and other enticements". This additional victimization is a dubious assumption from the perspective of the boys. Perhaps the boy she quoted above was simply being candid, but even if he wasn't he may well have chosen to answer that way particularly to state authorities. That answer would help counter any suggestion that he was gay, if that was a concern of his. If he did have some affection for the accused, regarding him as "a kind friend", this being an aggravating factor in the words of Judge Livingstone, then it was also his best answer. Most likely the boys saw the men as useful and generous friends, had sex with them anyway, and for extra payment performed in videos. From both the decision and media accounts I subsequently read and heard, the boys were more interested in defending the accused than condemning them.
The London social service officials also displayed contempt for the boys by submitting unwelcome Victim Impact Information statements on their behalf. Not only were they designated as victims involuntarily but they were not allowed to speak for themselves. As the IDEAS program tapes demonstrate some of the boys were quite articulate. They were denied the opportunity to describe how their defined abuse had affected them. To me, denying kids or anyone the right, call it freedom of expression, to speak for themselves in court of law is a profound violation of civil liberties. It may be disguised as protection. It is the moral equivalent of falsifying confessions. It demonstrates the lengths that officials will go to enforce their perceptions of reality on the courts, which eagerly accepted it in these cases. Livingstone said, "The victim impact information provided suggests continuing, perhaps lifelong, trauma." There was no evidence aside from the theoretical fabrications of experts. And anyway, if they were traumatized what evidence is there that the men, not the boys' families, not the environment and abuse in group homes and correctional facilities were responsible. Do we expect youth lovers to be held responsible for all the sins of those who may have previously may have abused or mistreated the boys? Like anyone else boys will tend to move from a more abusive situation to a lesser one.
After their arrests the men were co-operative. The moral outrage in the community, hyped by the police, media and social welfare system, may partly explain why they did not apply for bail and remained in custody. They were probably a lot more scared than the boys. Like the boys they revealed too much to the police and counsellors for their own good, and also like the boys they probably believed in the idea of professional confidentiality. Gramlick did not help himself, he was weak and stupid. He blabbed, he foolishly revealed some his sexual fantasies. This was a mistake given the current judicial acceptance of clinical psychiatric theory as the judge's words later show. Gramlick said he was raped as a child which reinforced the prosecution's reasoning. For desperate defendants being abused as a child is replacing being drunk at the time as a generic rationalisation of many offences.
Given the facts and the law it was clear that Gramlick and Jewell were guilty, and they so pled. In sentencing the accused the judge has to consider a number of principles and factors. The judge states that, "a denunciatory sentence that reflects society's revulsion" is required. It would appear that the absence of the victims' revulsion makes the offence more heinous. It may be interpreted as evidence of the offender's control over the victims and his deviousness, thereby making the crime worse. Mitigating factors are those that would indicate a lesser sentence while aggravating factors suggest a more severe sentence. It is revealing how Judge Livingstone viewed these. In Gramlick's case the only mitigating factors she mentions are; that no violence or threats of violence were involved, that he pled guilty at an early stage, that he had been in custody since his arrest and that he had co-operated with the police in identifying the boys. This passive response didn't seem to help him very much if at all. I wonder if these "victims" would agree with the latter? I see it as a betrayal of the boys although they probably could have been identified anyway.
The aggravating factors she lists include; the fact that making the videos was a deliberate and planned activity that continued over a number of years and involved twelve young men, that his age and generosity led many of his victims to regard him as a kind friend possibly putting him in a position of authority, that he knew some of the boys' families and was aware of their financial, academic and social difficulties and that he had fantasies where he "raped these boys mentally". If as stated the activities took place over a number of years and with the same boys it should not be surprising that some boys regarded the accused as a friend. In the common male pattern of "sex first - love later" friendship and affection frequently follow sexual contact. Sex bonds people. This makes the judge's claim that the relationships were totally or primarily exploitive seem improbable. As for generosity in Jewell's case it hardly seems that treating some boys to expensive entertainment such as the trip to Disneyworld in Florida was a payment necessary for him to pursue his interest in sex with boys and making videos. Rather it would seem to demonstrate the depth of his non sexual involvement with boys, and perhaps his own weakness in resisting their appeals. It is difficult to see how the fact that Gramlick knew the boys' families and was aware of their difficulties was an aggravating factor. This argument would only have relevance if it were shown that Gramlick got to know the boys' families and problems in order to make sex videos of (or have sex with) the boys. But if the defendant's concern for the needs and problems of the boys arose out of the sex related activities or parallel with them then I would think it should be a mitigating factor. If a man also has real affection for a boy is that aggravating? As for fantasies, are people responsible for what they imagine? Judge Livingstone also suggests that because the boys were "vulnerable" that this is an aggravating factor, but really, would the offence be less serious if the boys were from comfortable stable families? I doubt it. I would think the more experienced and willing, perhaps even eager the boys, the more mitigating the situation. The valid argument that a person's prior sexual history is not a mitigating factor in rape does not apply in consensual or willingly undertaken sex. I have seen first hand the anguish that a prostitute went through after she was raped. But the boys in this case were hardly raped. The abolition of the legal term rape means that everything from unwanted sexual comments to violent physically injurious rapes become merely varying forms of sexual assault. While this may have pleased the sensibilities of certain feminists it obscures the reality of situations.
The judge goes out of her way to twist every possible aspect of the relationships into an aggravating factor to condemn the defendants. Even the defendants' intelligence and maturity is considered as aggravating. Every gesture of a friendly, generous or solicitous nature towards the boys' welfare and concerns is interpreted as a part a devious scheme solely directed at satisfying their lusts. Judge Livingstone's words sound more prosecutorial than judicial. The fact that the demonization of the accused is often at the expense of the boys' autonomy and self respect is ignored. One could argue that boys need to learn how to protect themselves and their honour not just from abuse and assaults but also from the depredations of the criminal justice system and the behaviourial experts it employs. This takes courage and fortitude. They need to be even more streetsmart.
Getting putative victims to acknowledge their victimhood is essential to maintain the validity of victimological theories. This is shown by the extremes the police, social workers and therapists were prepared to go to get the boys to accept victim status. Emotional pressure, deceit, threats and bribes were all used to make the boys conform to their theories. Just as killing Jews or homosexuals may pragmatically reinforce and validate racial and sexual theories, so the breaking of boys' sense of loyalty reinforces and validates victimological theories. Boys attempting to keep their honour and self respect intact would be put down as being in denial in this procrustean approach. In the process the boys were objectified and degraded. The neglect and denial of the boys' personal desire and wishes, needs and context are evidence of their objectification. They were degraded because they were used by the officials in the system for their own professional ends. Victimological theory accomplishes what anti-porn advocates claim that porn does. It dehumanises people.
The metaphor of "sending messages" is a favourite of those who advocate harsh penalties including judges. Somehow it is assumed that the intent of the message sent is identical with the meaning of the one received. But what message do harsher penalties send to those who engage or are tempted to engage in prohibited activities? It is true that some, the more timid and less aggressive potential offenders may be dissuaded. Harsher penalties are an escalation of social conflict and lead to violence, murders and more resources and "glamour" for the police. The adjustments to more restrictive laws and harsher penalties favour organized crime, corruption of our police and justice industry, and the use of weapons. We have seen this happen in the case of drugs where the police, courts and corrections, as well as the legal profession are as dependent on our drug laws as any junkie is on heroin. With high taxes we know we can create a similar situation with respect to cigarettes and smuggling. A few centuries ago during a crime hysteria much like the present one hanging was introduced by the "Reform Party" minded of the day for crimes such as theft and robbery. While some would be robbers may have been discouraged others took the logical step of eliminating witnesses to their crime. As a result murders increased. Because of a "tough on crime" attitude it was centuries, and thousands of unnecessary murders and executions later before the penalties were "softened". Eventually juries and judges often refused to convict despite overwhelming evidence of guilt. The popular theory promoted by politicians, the media and advocate/activist groups is that harsher penalties, with a dollop of "education" will solve problems of crime. It is seen as a sign of moral weakness to acknowledge that the severity of penalties feed back into the type and nature of crimes committed.
We are creating a similar situation in Canada today with respect to child pornography. Before the Bernardo/Homolka cases children involved in producing pornography had not been known to have been murdered as a result. In fact in many cases, especially typical cases where teen aged boys were videoed the alleged victims had no complaints and some felt more victimized by the judicial process. Teen porn usually involves willing if not eager participants and they resent police interference. As in teen prostitution the situation can be more accurately described as a conspiracy of supposed victims and alleged offenders against the police and the justice industry than as simple case of exploitation. The theory of predators using child porn to entice children into sex and porn making that has been repeated again and again by anti-porn advocates has little relevance in reality. Severe penalties for child pornography are a recipe for dead children. Consider the situation of a man, perhaps a frightened, paranoid man who fears that the child he has videoed will expose him. He might see himself as having to choose between either eliminating the child or being sentenced to a lengthy prison term. A politician facing the decision of either supporting a flawed law which he believes will have adverse effects, maybe the opposite to those intended, or being defeated in the next election, is in a similar position. We know how they act in such situations.
And what about the alleged victim? One of boys whom Couture interviewed along with his mother was depressed because he thought he caused a man to be jailed, a heavy responsibility for anybody. What is a boy whose older friend is jailed most likely to feel, especially if he was leaned on to testify - happy or suicidal? And if as in a few cases he does kill himself, who is to blame? Laws designed to protect moral sensibilities and women lead to dead prostitutes. What can we expect of laws to protect moral sensibilities and children? All the concern about child witnesses is based on the assumption that it is the defendant, his presence, his cross examination that the child must be protected from. Testifying in court can be very difficult for anyone, but there's no evidence it's harder for adolescents than adults.
The sentences but not the decisions in Gramlick and Jewell were appealed. The Ontario Court of Appeal reduced the totality of the sentences to five and seven years respectively largely on the reasoning that consecutive sentences for some offences should be subsumed under others and therefore be concurrent. For example the offence of counselling touching for a sexual purpose was part of the offence of making child pornography. The Appeal Court generally agreed with the gross simplifications of the lower court. Justice Finlayson speaking for the court stated that child pornography "increasingly menaces our young people and threatens our values as a society." He described the appellants as men "who prey on young persons, boys in this case, for no other purpose than their own sexual gratification." He also cited the case of Eli Langer's paintings, discussed later where the judge parroted what I call the Collins' Theory of child pornography which later became a factor at my own voir dire. Like Judge Livingston the appeals court twisted every possible fact against the men. The simple fact that some boys had sex with and were videoed by both men was interpreted by the Appeal Court as the men sharing the boys as if the boys had no say in the matter. They were simply passed around. Any capacity for autonomy on the part of the boys is again denied. They are victims pure and simple.
One thing that was held against Jewell on the basis of a Millhaven Institution Assessment of Sexual Behaviour was that he still saw the victims "as freely consenting persons." This sounds like a thought crime and Judge Finlayson said it indicated a "lack of true remorse". His failure to believe in victimological theories, a belief his alleged victims also rejected, didn't help him. Psychiatric theories of child sexual abuse as I found out later have no tolerance for competing interpretations. Perhaps Jewell needed more brainwashing.
The making of child pornography is not without risks to boys. Obviously where young or naive children are persuaded into unwanted or inappropriate activities they may well suffer from them or when they realize their nature. For streetsmart and sexually active boys the greatest risk they take is their potential exposure to the censure, prejudice and ridicule of society, and the resulting shame, embarrassment and social and material losses that could result from the material falling into the wrong hands, those of the police in particular. That men might become aroused by their recorded images and masturbate would probably be taken as flattering in the present cases. The danger lies in the pornographer and other possessors not acting responsibly by discretely controlling circulation. It is true that deprived boys can be very anxious to please someone who pays them personal attention but whose fault is that? It is true that they could get themselves into situations that freak them out and harm their development. Even assuming that Jewell's video porn hints and the prospect of material rewards could leave such a boy with a dangerous lack of self worth the pornographer could still be more, or less, harmful depending on his judgement and how he went about producing his porn. If there are to be child pornographers they should be responsible and careful. In a case like this I believe that the actual harm done by the accused to particular victims, if any should be strongly factored into the sentence. No attempt was made. For veteran performers it is difficult to show that any incremental occurred. The harm in the Gramlick and Jewell cases really got underway after the police got hold of the tapes, perhaps this lapse is what the accused should be punished for.
For some boys making porn might be fun and some even make their own as in the McGowan case. Not long before the child pornography laws came into effect Matthew McGowan who was 19 and two 14 year old boys decided to make sex videos of themselves with some thought to commercial returns. Several copies were sold including one to a John Young who was one of the first convicted under the new child pornography laws of possessing and distributing boy sex videos and who received a two year sentence despite his age, poor health and the fact it was his first offence. This led to the three boys all of whom were Toronto street hustlers. McGowan and one of the 14 year olds were lovers. The young ages of the makers coupled with McGowan's close relationship with one of younger ones presented an awkward legal problem for the Crown. Theory demanded a victim and this was resolved by charging McGowan and his lover with making obscenity under s. 163, which covers all pornography, with the other youngster being portrayed as a victim, a role he tried to resist. McGowan was temporarily unavailable but his young lover was held in custody for 60 days before trial. He was sentenced in juvenile court to time served plus one day. The other boy, as his victim's role demanded, was placed in treatment from whence he soon fled. When McGowan later showed up to face his preliminary hearing in adult court Judge Bovard dismissed the charges against him. This astonishing decision probably arose because the judge actually took the time to view the videos with police commentary. In his decision the judge describes the videos in some detail mentioning masturbation, fellatio, anilingus, caressing, kissing, hugging, light spanking, inhaling poppers, playing with knives, condoms and anal intercourse. It sounds like a tour de force. It was playful, consensual sex with the boys laughing, talking, joking and smiling throughout. It didn't seem like the boys were degrading and dehumanizing themselves, more like having fun, and the audio was even played on radio. Bovard held that at 14 years the boys were not clearly children according to the Criminal Code at the time of making the video. Then taking the Butler decision in a very literal way that obscenity excludes "explicit sex without violence, that is neither degrading nor dehumanizing" he decided that the videos were not obscene, and while of dubious taste they presented no significant risk of harm. The judge made a common sense decision on a realistic appraisal of the facts. I would like to hope that the boy who served 61 days for what turned out not be criminal was given at least an apology if not compensation for his incarceration. A respect for the details of justice on the part of the courts might cause many youngsters to rethink their contempt for the law. (We cannot expect justice for those falsely made victims.) In the Gramlick and Jewell case the videos were not viewed by the court and we were left with the evaluations of homicide detectives who claimed they made them sick to their stomachs.
I have known a number of boys who have performed in sex videos both here and in the Third World. A few of them have performed in both sex videos and child prostitution/pornography docudrama exposés. I have described instances in my books on the Philippines. These are not kids who can easily be made to do things they don't want. Some like posing and showing off. In law and popular perception "pornographic" photos and videos are seen as entirely the work of the maker with the child subject being merely a victim and as such having no autonomy or creative input. This is of course nonsense but it's the operative paradigm. R.v.McGOWAN exposed its inadequacy. But it has limits in man-made as well as kid-made material. Some models have imagination and flair like to show off for the camera going through a gamut of expressions and poses including coy and sexy ones. Why shouldn't they? Must one censor the model?, or destroy the dangerous negatives as soon as one can? The "sexual purpose" intrinsic to an image may be what child model intended. The boys who hustle and make videos have no more use for porn showing little kids getting fucked than anyone else. In fact they may have a better understanding of the problems involved. However as adolescents into sex with a positive attitude they don't mind posing for pictures or making videos as long as it doesn't get them into trouble. It would be extremely difficult if not impossible to convince them that what they do is really so evil, that it defines them as sick and in need of therapy. Labelling men as predators and what they do as abuse and themselves as victims does not help boys. Repentance through accepting the role of victim, like admitting you're a sinner, and redemption if not salvation through embracing therapy are fundamental assaults on the integrity of kids. Like everyone else boys mainly assess things in the here and now, the people and the ethics of real situations, and judge and act accordingly. The boys do not lack moral standards and are ready to condemn those who violate theirs. By the accounts quoted in the Couture interviews the boys knew what they were doing. They were against coercion and rape. From their own perspective they believed they were old enough to engage in sex and for money if they wanted to, although they thought little kids, probably meaning prepubertal, were not.
The social constructions of religions, psychiatrists, social workers, legislators and jurists are frequently remote from the reality participants experience and relate to. They are fantasy lands with only dependent, mechanical and honourless roles for youth. The boys are placed in an awkward and possibly dangerous situation by these constructions. Only by playing the unwelcome role of the victim, and in many cases that of a rat informing on others, are the boys offered salvation. The problem for boys like these and other despised groups is to bring the reality of their experience and situations into the consciousness of legislators and jurists. The fact that they are labelled victims reinforces the low esteem in which hustlers and street kids generally are held, it is merely a device to deny them their own voice. Defence lawyers should strive to bring before the courts the ambience and expectations of the scene within which the alleged child sexual or pornographic abuse occurred. They should also insist in typical cases involving consensual activities that all or large typical parts of the impugned pornography be shown and discussed in court. The details of what the pornography depicts, the expressions and attitudes of the participants is something that should not be left to imaginations titillated by talk shows and outraged by media reports of child rapists. Is it impossible for defence lawyers to challenge hysterical assumptions?, cannot porn be demystified and exposed it to rational consideration as in McGOWAN? How does it compare to "the worst", the Bernardo-Homulka tapes for example? The media can help but typically a media investigator talks to the police and some social workers, is introduced to few token kids, gets some visuals, and then produces a predictable moralistic piece of journalism which lamentably is as close as most adults ever get to street life.
Can any reasonable person interpret the events flowing from the prosecution of Gramlick And Jewell as serving to protect children when so many children, as defined by law, suffered in ways meaningful to them? It is a modern version of the old saw of beating children for their own good. Are we supposed to believe that somehow Canadian children are better off despite the pain inflicted on the few in some cases? A price was paid by both men and boys, and their families. What did that price pay for? What did it buy and for whom? Max Allan said it was about "ruined lives". Was that all that the whole "snarl", as he benignly called it, produce?
While the local press and national media eagerly exploited the scandal giving prominence and praise to Chief Julian Fantino not everyone went along with the official interpretation of the cases. Aside from the IDEAS programs there were critical articles in the Globe and Mail by Henry Hess and Gerald Hannon. In addition London had a large well established gay community centre, HALO, the Homophile Association of London. The local gay community spokesmen saw it as a witch hunt which it clearly was. However their concern was that police actions were discriminatory in that they targeted man/boy commercial sex and while ignoring the more prevalent man/girl commercial sex. This was true in that no charges were laid in respect to underage female prostitution during the period. But HALO spokesmen, being imbued with politically correct, equality ideology, basically felt that straights should be prosecuted with equal vigour. Misery loves company? As late as 1998 Richard Hudler of HALO wrote in XTRA West (October 15th) that this was his "whole argument". I replied that he blindly accepted the premises of fascism. Of course part of the problem is that gays cannot speak up for boys without having their motives questioned and being labelled as "pedos". The motives of psychiatrists and social workers are never questioned however. Nor are they held accountable for any harm they cause children.
R. v. STROEMPL
George Stroempl was a 68 year old retired civil servant caught in a kiddieporn magazine sting operated by American police. He was divorced and presumably used pornography in the absence of a partner. There was no suggestion that he had anything to do with young girls. A report by the psychiatrist, R. Langevin found him to be of low risk for criminal sexual behaviour but nevertheless recommended treatment abetting his incarceration. Stroempl had led an unblemished life and the case is notable for the lack of any aggravating factors. The trial judge had sentenced him to eighteen months in prison. The Ontario Court of Appeal reduced it to ten months. The sentences in GRAMLICK and JEWELL were cited. The Appeal Court ruling quoted another judge referring to a clinical theory of child pornography in support of a significant jail term where there are no aggravating circumstances. This clinical theory was an important factor at my voir dire. R. v. STROEMPL is the case that prosecutors, stressing the principle of denunciation, use to show that even simple possession of child pornography is such a heinous crime that it merits jail. This principle implies both a catharsis for the outraged and a model of sensibility for others. In the manner of `sending messages' harsh penalties define the severity of the crime to the public who might not otherwise recognize harm. How else would some of us know that the offence so bad? Historically harsh penalties have been used to convince populations that seemingly victimless crimes are indeed horrendous. The persecution of heresy by orthodoxies or anti-state activities by the Soviets come to mind. Drug law is a contemporary example although now penalties are being ameliorated as they appear neither effective nor warranted in the minds of many people.
Not all judges in Myers' SENTENCING BOOK OF AUTHORITIES were maliciously vindictive. Judge E.J. Cronin in Vancouver Provincial Court was as reasonable as could be expected in R. v. MARR and R. v. HIGGINS and certainly B.C. Provincial Court Judge Saunders in R. v. LOGAN bent over backwards to get the defendant to plead not guilty and challenge the law. None of these simple possession offenders received jail sentences. Nevertheless after reading these sentencing decisions and related media reports my personal fears were as great as ever but my respect for our child pornography laws and the way they are enforced were at a new low.
I sent Larry Myers a nine page letter containing my critical reviews of the sentencing decisions although some ideas were not as developed as given above. I also raised a number of questions pertaining to judicial practice and the law. I explained some of the radical views I expressed in correspondence and notes some of which had been noted in the REPORT TO CROWN COUNSEL. I began trying to show up flaws in fact and reasoning used by advocates, the media and the courts. By late July I was complaining to him that he was ignoring the questions I was raising. I kept pushing him, preparing notes and background material I thought was relevant. A friend of mine whose place was searched in a fishing expedition connected with the William Bennest case had two of my chap books seized as child pornography, other copies of the same books had already been returned to me by the prosecutor. I kept working on my case despite the lack of encouragement. I began reading about pornography, I read government reports, academic reviews, surprisingly conflicting feminist interpretations, historical accounts and studies in scientific journals. Work kept up my spirits and for a while I was as preoccupied with my case as I was with sex during my celibate teens.
THE SENTENCING OF RICHARD WEST (July 24th 1996.)
I began having my first serious doubts about the capacity and resourcefulness of Larry Myers when I attended the sentencing of Richard West who was also charged with possession, production and distribution of child pornography, videos of boys from boystown stroll. This was the case Myers had mentioned when I first met him. I wanted to attend for the experience and to see my lawyer in action. At the Main Street Courthouse I ran into a young man I knew fairly well. He was there for an appearance on some petty charges and he borrowed quarters to phone his lawyer who hadn't shown up. He knew and liked Rick West, in fact he had performed in some of his sex videos a few years earlier. The boy wondered if he was in the video compilation they had played for the judge. He was concerned about being recognized. I had no way of knowing. When his own case got put over once again he came up to the courtroom half way through the proceedings.
The hearing was held before the Honourable Judge K.J. Libby. The judge seemed to take himself and his job very seriously and for a while I was even optimistic. West, dressed for court in a dark blue suit appeared almost catatonic. He was in a deep state of depression. My young friend didn't even recognize him at first. Larry Myers got off to a bad start when he caused a delay because he was unprepared on a possible point of appeal based on the way the search of his apartment was handled. A short adjournment was called while advice was sought on the question of whether the guilty plea would affect a future challenge of the search warrant. It would not.
What had happened was that Wayne Williams of CBC-TV, acting on his own as a cop, had set up Richard West for a sting operation. William's crew first filmed him as the police busted him at a postal station where he was picking up some mail. Subsequently, co-operating with the police his crew followed them into West's apartment over his objections when it was raided. On appeal the search warrant was quashed overturning the conviction. Myers deserves credit for this.
What struck me most about the situation was the miserable condition of the accused. Myers introduced letters of support from family and friends of West and a report from a mental health expert who had examined the defendant. The prosecutor looked at the report briefly and questioned some point which Judge Libby seemed to pick up on. Myers was not able to overcome doubts raised by the prosecutor with the result that the judge did not feel it necessary to go into the accused's condition in giving his decision. I had to wonder why the expert was not there in person? He could have clarified any questions raised and his physical presence would have made it much more difficult for the judge to ignore the accused's obviously pathetic mental state. It seems to me that testimony regarding the mental condition of the accused, his depression and suicidal tendencies, was potentially the most important factor in achieving a lenient sentence. This opportunity was allowed to slip by. The judge sentenced West to five years imprisonment. I was appalled by the severity of the sentence. So was the boy sitting beside me who was one of the supposed "victims" and he nudged me to show that he agreed with Myers when he said there were no victims.
I was upset, I asked Myers after why he didn't make a more vigorous submission, why he didn't have the expert there in person. He replied that he too was surprised by the sentence but that West was "a private kind of guy" implying that his client didn't want his obvious condition discussed in court. The fact that he was doing the case under legal aid which I discovered later may have been a factor as expert witnesses are expensive.
Judge Libby's sentencing decision which I read later is one of the most indulgently righteous judicial statements I have ever encountered. He began, "I suppose it's not very often that as a sentencing judge, one is able to feel moral indignation about an offence." Later, revelling in ignorance he said, "I don't think it is necessary to get into or dwell upon why young people who are legally children sell their bodies, whether they be males or females. That's way beyond the scope of anything that you or I, or any of us have any understanding of." My young friend sitting beside me could have given him some simple and logical, albeit unwelcome reasons, as could most people who do not insulate themselves from life on the street. In reference to the morality squad he boasts, "bring me a case I can get morally indignant about and I'll give you the kind of sentence you think is appropriate." Judge Libby goes on to praise a Vancouver Island police officer who breached his oath of office to protest the decision in Vern Logan's child pornography case. He commends the CBC for reacting in a "responsible communal fashion." He refers to the Gramlick and Jewell appeal to justify incarceration. The sentence was to send a message to the community that West's conduct is unacceptable.
BREAK WITH MYERS
I was coming to realize how completely one track Larry Myers' thinking was. He was frustrating to deal with. He would not answer my questions or address my concerns. Soothe and reassure seemed to be his operating principal and he didn't appreciate me getting involved in my case. He probably saw it as interference. Time after time I raised legal questions and precedents which I thought might be relevant to my case and help me in my own research and understanding. Possibly he still had hopes I would come around to his way of thinking. I realized that nothing that I was doing was relevant because it was simply a case of getting the best deal.
By late January I was ready to ditch Myers. Then he told me over the phone that he had been talking to the Prosecutor, Peter Gulbransen and that in exchange for a guilty plea I would only be charged with possession of my photos. I would not be facing jail time and I would be getting back everything I was not being charged with. It sounded pretty good and I was ready to swallow my pride and buy it. Two days later I went down to Myers' office and he phoned the prosecutor in my presence. To my surprise I found out that I was still being charged for my writing and that the prosecutor wanted six months jail time. I told Myers I wouldn't consider those terms. Thinking of my writing I mentioned an Ontario case, R. v. JOHN YOUNG that he had given me to read where upon conviction previously returned material was ordered seized and destroyed. When I pressed Myers about getting back my stuff that was not deemed to be pornography he started shouting at me. His ploy with the prosecutor, if that is what it was, may have been to establish some benchmark penalty which he could later improve on, probably in terms of jail time, that would persuade me to make a deal. I cannot believe that the prosecutor would have made such an about face.
I was getting too many excuses and evasions from my lawyer. He asked me to phone him around noon one day as he was going to try to clarify some points with the prosecutor. I call at 12:10 and am asked to wait as he is on another line. I wait maybe a minute or two and then I am told he is going out. I explain that I am going out too. The receptionist presumably confers with Myers and tells me she doesn't know when he will back but to phone back later. On occasions when I do speak to him on the phone he insists on dominating conservation and then breaks them off as another call or something urgent has come up. Pestering him was not my intent. The pattern was too consistent to be coincidence.
Soon after I decided that our relationship was unworkable and terminated it. He had done his job as he saw it impervious to my wishes. He had provided some useful services but that had cost my friends and me over $10,000 with taxes. Larry Myers may be a good lawyer but he appeared to be sloppy, basically a fancy dancer, deal maker. I didn't think that was good enough for my case. He never replied to my requests for advice or explained legal points I raised. He even told me that did not read all my letters where I raised these points. It was like he had everything figured his way and resented me interfering in my case. But ever since his pathetic submission to the sentencing of Richard West, I had been concerned about his dedication and competence. He does not listen and should never be a judge.
While I knew I needed a good lawyer who would aggressively pursue my case I didn't know how to go about finding one or even where to turn for advice. I even composed an advertisement outlining my case and the constitutional possibilities. For the first time I entertained the idea of defending myself if I could find a good legal and courtroom advisor. It was around this time I saw Peter Leask, the high profile criminal lawyer who was handling William Bennest's case. He listened interestedly but warned me that he charged $3500 a day which represented about four months income for me. I learnt a few things and thanked him for his time.
The Gramlick and Jewell cases and the dozens that flowed from them demonstrate the problems of offender centred laws and proactive enforcement. They were "show trials" like Moscow.
Obviously I see the law and its enforcement, as well as the court, at fault in these cases. However abuse exists, it exists at the individual level and is experienced by child participants involved. The making of porn can harm the participants. The law should respond to attempt to deal with abusive situations. Laws dealing with sex between children and older people to effectively target problem situations must be reactive. They must respond to the needs of children, not political agendas and popular pressures. The emphasis should be on the welfare of children not arresting, condemning and sentencing of offenders. A perusal of the media shows the latter to be the main focus. Pro-active crusades such as in London, Ontario simply cause a lot of unnecessary suffering for both men and boys and do nothing to reduce instances of real abuse perceived as such by real victims. Where men and adolescents choose to conspire against the law society should be concerned about abusive situations not technical offences.
The law of course works at a very elementary level through fear. Where it is backed by public hysteria or moral panic as in the case man/boy sex the fear can be so great as to persuade the innocent to plead guilty. This is not the case with man/girl sex, police backed "shame the johns" campaigns notwithstanding. Police activism is leading them into a role not unlike that of the religious police in Iran and Saudi Arabia. They see themselves as guardians of morality, a force in society. Project Guardian was an expression of their new self appointed role.
Our concern for the sexuality of youth has one source in the traditional patriarchal structure of the family where children were regarded as chattels and an unmarried daughter's virginity was a family asset. The sex lives of unmarried sons was of relatively little account as defloration and pregnancy were not factors. This is one area where feminists have got things right. Liberation ideology and the pill have eroded this concern but the so called double standard made sense.
After reading the sentencing decisions I wanted to know how reality came to be reconstructed in such an unreal way. Where did these perceptions and assumptions about relationships between men and boys come from? I got me interested in the background of the law and spent a lot of time at the Vancouver Public Library. I browsed various government studies and reports. I looked at the THE FRASER REPORT - THE SPECIAL COMMITTEE ON PORNOGRAPHY AND PROSTITUTION, 1983. In respect to pornography this report emphasized women's right to equality rather than immoral content. While accepting the radical feminist contention that all porn harms women they proposed that only extremely harmful porn involving violence and children be proscribed. Other porn should be regulated. There was understandable concern about children being exposed to violent porn. The committee relied on police, scientists and academics most of whom had a vested interest in regulating porn. Sex workers and their clients, anti-censorship feminists and of course porn consumers were ignored.
I then read the BADGLEY REPORT: Sexual Offences Against Children, 1984, which unlike the FRASER REPORT, dealt specifically with children including prostitution and pornography although these were not central to the report. The government appointed committee included judges, professors and social welfare officials. Research was undertaken on legal matters, social science studies and a National Population Survey was conducted. Letters from individuals affected by or concerned about child sexual abuse and briefs from professional and interested groups were solicited. In the letters few victims or those knowing them adopted a punitive approach towards offenders and very few commented of either juvenile prostitution or child pornography. The professional associations and the committee favoured more punitive approaches and treatment. The committee saw as its goal rather unrealistically I thought as, "to eradicate it (child porn) from the Canadian market entirely." They found that almost all child pornography was imported and that there was no significant evidence of commercial production in Canada. The imported material was almost entirely kiddieporn magazines, photos and commercially made super 8mm. films. The principal external sources had dried up at the time as a result of international measures in the late 1970s. The committee defined child pornography in terms of photographic depictions of actual children, under eighteen involving explicit sexual conduct including lewd touching and exhibition. Other material would be covered by the existing obscenity laws. They were not attacking "the legitimate expression of ideas but rather a form of criminal conduct". The Badgley Report despite its ideological biases was written at a time, 1984 before psychiatric theories had achieved near total hegemony in the field. The committee had no difficulty agreeing on legal sanctions for making, importing, distributing and selling child pornography but were sharply divided over prohibiting simple possession.
The committee was also concerned about the exposure of children to pornography including men's magazines like Penthouse. Existing research showed no evidence of harm but the available studies were inadequate and there were basic problems including ethical ones in conducting research with children. In a study commissioned by the Department of Justice for the committee the authors claimed that research was in disarray with acute problems of definitions, interpretations, biases and methodology and give examples of inconsistent and perverse results. They also describe studies showing positive aspects of pornography. The National Population Survey questions were however only directed at harm precluding any results showing positive effects. This one sided approach is standard procedure in almost all such studies. This bias would be evident to respondents and it is not surprising that while only 6% of people interviewed had experienced unwanted exposure to pornography and, nearly half had purchased some, most believed that pornography had a negative impact on social and personal values. There was a widespread perception that exposure to it was harmful to children and youth. Accounts provided in the survey and by police showed that pornography was used in connection with sexual assaults. The committee recommended that research be undertaken to determine long term effects of pornography on children. The committee recommended that access to porn be restricted to those over sixteen.
The effect of porn on kids is difficult to assess because it depends on the situation. In extremely sex repressive communities like parts of Ireland where even married couples avoid nudity any porn might disturb children. This is not a logical argument to keep it restricted in such places. What are the effects of the sexual repression to begin with? In Canada outside sheltered enclaves about the only kids who are going to be shocked by corner store porn are those who are profoundly ignorant of sex suggesting a lack of free peer association or irresponsible parents. The increasing availability of porn has probably had little effect as this tends to demystify porn. It may be more important to ensure that kids have a good supply of porn so they can be choosey than to go to any great lengths to deny them any. When porn was rare as when I was young it acquired mystical properties. I remember reading several incomprehensible and boring books because they were banned in Canada. Mind you I picked up a lot of interesting ideas. When pornography is common kids get bored and picky. Most kids can probably find some if they want to. Porn only retains some magic due to its moral condemnation by radical feminists and religious conservatives who in B.C. are no longer limited to Christian fundamentalists. I believe a country with positive attitudes towards sex has much less to fear from pornography than a repressive one. An abundant and diverse supply of porn encourages healthy positive attitudes towards sex. Having been a moralistic loner until my teens I would probably have happier and less sex obsessed when young if porn had been part of my environment. The concern over kids exposure to porn was more related the perceptions of parents than any palpable harm to kids. Kids did not have any say. Like many things to do with children the concern was more for the perceived rights of parents than the welfare of kids.
U.S. SENATE HEARINGS
At the same time as the Fraser and Badgley reports were being prepared the American Senate was investigating child pornography and pedophilia. The Meese Commission was set up by President Ronald Reagan in large part because an earlier commission in 1970 had failed to provide justification for more restrictive pornography laws which many of his supporters were demanding. In the HEARINGS BEFORE THE PERMANENT SUBCOMMITTEE ON GOVERNMENT AFFAIRS U.S. SENATE 1994 child pornography is defined: "Child pornography constitutes a permanent record of a child's sexual exploitation and the harm and the humiliation to the child are exacerbated by the circulation, distribution of such materials." (page 101) One interesting bit of testimony that was well received by the subcommittee was that of a group calling itself the Defence for Children International - USA (page 25). Their spokesman Kenneth J. Herrmann Jr. Professor Dept. Social Work, Suny College of Brockport said: "First, whatever action taken must contain a strong and uncompromising sense of moral outrage. This moral outrage must form the foundation of all intervention, and must take into account the inextricable linking of all forms of sexual exploitation of children." Now moral outrage as a reaction is often understandable but as a recommendation it sounds like a plea for irrationality. I have been morally outraged on a number of occasions such as when I heard of the original sentences of Gramlick and Jewell. I have seen some child pornography of the eight year old being forcibly raped variety that I find that morally outrageous. But moral outrage as a policy recommendation is absurd. However a calculated moral outrage seems to be behind much of the zeal for ever more inclusive definitions of child pornography and more extreme penalties.
Around this time I also started looking at more general books on pornography. I needed to educate myself to obtain a broader perspective. What is Pornography? How is it seen by others? As something that has been around for a few millenniums a fair amount has been written about it. I was surprised by how much has been written about porn by Canadians authors. Feminists in particular provided interesting insights. I had ignorantly assumed that feminists were the most vocal opponents of pornography, but I discovered that many were articulate supporters of pornography and strongly opposed to censorship. Freedom of expression is not a gender issue.
One of the most interesting was XXX: A WOMAN'S RIGHT TO PORNOGRAPHY by Wendy McElroy, a Canadian feminist who unlike almost all other writers on the subject actually went out and investigated the porn industry talking to participants and getting their input. The comments and opinions of women who perform in pornographic productions are practically the opposite of what anti-porn activists would have you believe. Their main concern is the prejudice against the industry and the lack of basic respect they have in society. The industry is not without problems and McElroy makes some practical suggestions to improve it and the welfare of those who perform. She also gives a good historical account of the anti-porn movement going back to the Nineteenth Century covering American Comstockery and the social purity movement and their relationship to the feminism of the day. Her critique of the theories of contemporary radical feminists is devastating.
Dany Lacombe, another Canadian feminist who teaches at Simon Fraser University reviews the recent history of the anti-porn movement in Canada in her book, BLUE POLITICS: Pornography and the Law in the Age of Feminism. She discusses Ontario's well known Project "P" headed by Inspector Bob Matthews that was created in 1965 and which has acted as a lobby group and fuelled the anti-porn movement. She provides a critical review of the 1983 FRASER REPORT and outlines the history of subsequent legislative attempts to deal with pornography. She explains how the Butler decision served as a substitute for new porn laws.
BAD ATTITUDE/S ON TRIAL: PORNOGRAPHY, FEMINISM & THE BUTLER DECISION by Brenda Cossman, Shannon Bell, Lise Gotell & Becki L. Ross. They look at the trial and conviction of Glad Day Books in Toronto which was charged with selling Bad Attitude an American lesbian erotic fiction magazine. This was the first big trial following the Butler decision which ironically had been about protecting women. They are critical of their sister feminists especially those connected with LEAF who were so influential in the Butler decision.
I only include one Canadian pro-censorship feminist source as these arguments are widely known and dominate the media, government reports and the pronouncements of most activists concerned with issue. UNDRESSING THE CANADIAN STATE - The Politics of Pornography from Hicklin to Butler, by Kirsten Johnson, a radical feminist. She believes that the government has not done enough and calls for more anti porn measures. While her book is extremely narrow ideologically it gives a clear statement of pro-censorship feminist (LEAF, Legal Educational and Activism Fund) doctrines: Porn is the practice of sex discrimination. Porn is hate propaganda. It distorts concepts of sexuality and equality. It is political and works against accepted political goals. It harms society. Secondly, porn assaults female credibility, it degrades women as a class, and thirdly it harms the participants. LEAF, the Legal Education and Action Fund believes the law has been lax with mainstream hetero porn of the corner store variety. Her analysis of the Butler decision is interesting although it didn't go far enough.
Two more general books by male Canadian academics are PORNOGRAPHY - THE OTHER SIDE by F.M. Christensen, a University of Alberta professor and THE JAGUAR AND THE ANTEATER by Bernard Arcand, a Quebec anthropology professor which won an award for the author. Christensen claims that, "Anti pornography campaigns are morally evil", a position he supports with rational arguments. He discusses intergenerational sex in anthropological and ethnographic contexts and says that photographic porn is only of interest to children where they are sheltered from real sex. I found that Arcand's historical perspective and often brilliant analysis helped me sharpen my thinking.
Some non Canadian books that I found interesting include; NUDES, PRUDES AND ATTITUDES by Avedon Carol which refers to some interesting research on sex offenders and pornography and tackles all the basic anti-porn arguments, BOUND AND GAGGED: Pornography and the Politics of Fantasy in America by Laura Kipnis, CHILD PORNOGRAPHY by Shirley O'Brien of the University of Arizona which takes a crusading anti-porn position but is somewhat more definitive and honest than more recent pro-censorship works, and GIRLS LEAN BACK EVERYWHERE - The Law of Obscenity and the Assault on Genius by Edward de Grazia who refers to Paul Bender, one time clerk to U.S. Justice Felix Frankfurter, who advocated repeal of all laws regulating access to sexually oriented material by both adults and children.
These and other books I read helped me realize that the subject of pornography is complex with many different aspects and arguments only a few of which enter into public debate in Canada. The ideas expressed are in sharp contrast to the narrow analyses and interpretations found in government reports such as the FRASER REPORT and the BADGLEY REPORT.
THE RITZKER INTERLUDE
I met Michael Ritzker in February at the Surrey Court House where he was serving as duty counsel. He is a modest, good looking man with wavy dark hair and a slightly dishevelled lawyer's look about him. I had a minor question to ask about my appearance there and got talking to him. He gave me a welcome lift back to Vancouver where I explained my lawyerless situation and we arranged a meeting at his modest Victory Square office. He had taken an elective in moral philosophy at university and we discussed the morality of acts. He's a bit of an intellectual and interested in German culture. I found him to be open and frank, and helpful in explaining how the law worked. He loves law. He stressed the necessity of taking the high moral ground. I liked him, he seemed to be a man of integrity. He is a devoted family man which I joked was the next best thing to being a woman as far the nature of my charges was concerned. I was not troubled by his lack of a high profile. I told him I wanted to fight the charges and that I thought there were constitutional aspects. He listened, he was interested in the written material provision, ss. (1)b which prohibits advocacy. He was willing to take my case on legal aid but explained that any challenge meant a lot of preparation and would require more money than legal aid, which is based on per diem rates, would provide. A challenge would be something for later and I applied for and received legal aid.
In early March I watched Michael Ritzker defend a man charged with assault causing bodily harm and while he was not successful I gained confidence in his ability. I was spending a fair amount of time at the Courthouse Library and I sat in on several other trials to get a better understanding of how they worked.
One thing I wanted changed was my bail conditions which aside from reporting requirements prohibited me from any contact with persons under eighteen. This was no problem with children, mostly younger kids that I knew through their parents. They all wrote the necessary letter and Michael Ritzker helped me get me get specific exemptions for ten kids. I had wanted this for some time. Teenagers that I knew independently were a different matter. A seventeen year old boy is hardly likely to ask his parents for a letter to allow him to associate with a presumed pedophile. The condition was onerous. I always like to have a direct window into the thinking and concerns of young people so that I have something by which to assess the statements and claims of advocates, psychiatrists, social workers, the police, politicians and columnists about youth which appear so frequently in the media. Real kids are a valuable reality check. I tried to get a judge to change it to under fourteen, a common condition for those with sexual assault convictions. The judge was adamant and gave a short spiel about protecting children. I knew a number of older teenagers some whom I encountered on my normal social rounds and others who visited me. I did not want to be found in violation of the under eighteen requirement but I felt it was highly presumptuous and violated my sense of self worth. It attacked my freedom of association and that of others. I had been labelled and prejudged. I explained the bail condition to all the boys I knew and left contact up to them. They would have to phone first if they wanted to visit and I would never contact them. With few exceptions I did not know their addresses or phone numbers anyway. There had been little about me in the media for some time and the boys did not take the news very seriously. A young friend joked, "Well I'm nineteen now." They thought it was absurd and would tease me, "You? You dangerous?"
The bail conditions did put a damper on things reducing contact with boys and generally limiting it to visits as neither of us wanted to be seen together in public. I also became increasingly focused on preparing for my trial which took almost all my concentration leaving less time and energy for visitors. They generally stopped visiting following the intense publicity and massive public outrage that erupted after my acquittal on the possession charges. I had suddenly become Canada's number one pariah and any association with me could expose them to the contempt of their peers if it were known.
HOW THE LAW WAS MADE
"A wise man once said that if you like sausages or law, you should never watch either one being made." (quoted from "A bad law on pornography" by Daniel Lyon, G&M June 22, 1993.)
By this time I had a good idea of how our child pornography laws were used and interpreted, and from my reading and research I had developed my own critique. I had also come across criticisms made in the press at the time of their enactment. But how did this pernicious legislation come into being in the first place? In early April I decided to investigate and with the assistance of the helpful staff at the Courthouse Library I photocopied both the hearings of the Standing Committee on Justice and the Solicitor General and the Parliamentary Debates leading to the passage of Bill C-128 in June 1993. At twenty five cents a page this was an expensive proposition for me. However on detailed study this material proved to be real eye opener.
The Standing Committee on Justice and the Solicitor General had been looking into legislative proposals regarding pornography, including child pornography for a number of years. There had been problems with reaching consensus and these measures withered. There was however considerable pressure to bring in new laws particularly laws dealing with child pornography which had been recommended by the 1984 BADGLEY REPORT which investigated child prostitution and pornography. Then in 1992 the Supreme Court came down with the Butler decision. By essentially rewriting the existing obscenity laws through reinterpretation, much to the relief of the politicians, the Court not only delighted the mainstream radical feminists but it appeased the family values conservatives. And while for the first time the Butler decision provided some specific legal protection for children there was considerable pressure to do more.
Standing Committee on Justice hearings: Hotel Vancouver, Weds. January 20th, 1993.
Detective Noreen Wolff was the first to testify. She had previously been in touch with Tom Wappel, the Liberal Justice Critic and informed him about the NAMBLA Bulletin which she had recently discovered. She was invited to testify and immediately brought up the subject of the North American Boy Love Association or NAMBLA. She had talked to a lot of vice cops in the U.S. and they had told her all about NAMBLA. She passed this information on. The big problem with their newsletter, the NAMBLA Bulletin, was that it wasn't obscene. It didn't show photos of frontal nudity and the writing was pretty tame, but it was a manual for child sexual abuse. The American police couldn't do all that much about it because of the protection given to freedom of speech under their First Amendment. According to Detective Wolff the NAMBLA Bulletin "advocated" sex between men and boys, it glorified man-boy sex and it was intimately connected with child sex abusers. She recited a series of cases where NAMBLA members were allegedly involved in child sex and pornography. A number of the cases she mentions in 1993 appear to be the same ones which NAMBLA was exonerated in a report of the U.S. Senate Permanent Subcommittee on Investigations in 1986. (reported in Gay Community News Vol. 14, No. 10 September 21-27 1986) The report was in large part based on the investigations of undercover agents who had infiltrated NAMBLA. They had tried to set up NAMBLA members to back up their contention that the organization was a centre for child prostitution and pornography. In one case they falsely implicated NAMBLA in a child abduction case not unlike the unsolved Michael Dunahee case in Victoria. This is discussed in more detail later. The U.S. Senate report stated, "Such sting operations have become so popular with police that several investigators told the subcommittee that they had corresponded with suspected pedophiles for weeks only to later discover they were writing to other undercover police officers." Detective Wolff mentions approvingly a man in the U.S. who was re-arrested for speaking out in favour of NAMBLA in violation of release conditions. She said NAMBLA was trying to get a foothold in Canada and that nine copies were seized from a Vancouver bookstore. She claims that the people who subscribe to the NAMBLA Bulletin are "the type of people who are going to molest children." She repeatedly mentioned that such material led to child sex abuse, which often resulted in homicides. When asked if the police had seized any NAMBLA publications when they arrested pedophiles she didn't know of any cases. However she tells the committee about a pedophile she met as an undercover agent and who presumably has given her insight into them. Detective Wolff first became aware of the NAMBLA Bulletin through an outspoken old man named Max Hans Reymer. He was once a cameraman with the NFB, was a retired gemologist and had been married for 27 years. He was proud of being a member of MENSA.
Max Reymer discovered the NAMBLA Bulletin at Spartacus Books on Hastings Street opposite Victory Square. One of their volunteers had seen a few issues in San Francisco and believed that NAMBLA had a legitimate point of view. The philosophy of the people running Spartacus tends towards left libertarianism and that there should be no limits on discussion and debate. They knew it would be controversial but decided to sell the NAMBLA Bulletin anyway. They ordered nine copies for the store and a small ad was placed in ANGLES, a gay Vancouver monthly. These sold out in a few days. After a few issues Canada Customs started seizing them at the border. In their appeal to Canada Custom head office in Ottawa, which was rejected, the store pointed out that the newsletter was not obscene, and was in fact a newsletter with articles, reviews, editorials and internal political debate. One of the customers who'd seen the ad was Max Reymer who became friends with the staff. Perhaps it was the revelation of seeing things he had long thought about in reasoned print, but anyway he became a believer in NAMBLA's cause. He read some of the encyclopedic writings of Edward Brongersma, a Dutch jurist, politician, scholar and boylover. He took out a subscription for himself to be delivered to his own address. He was advised that this might be unwise but Reymer was confident of his rights. Detective Wolff knew him at this time and may have thought that the Bulletin corrupted him further, which to her was proof of NAMBLA's evil influence.
In a strange way Max Reymer and Detective Wolff were sociable for a while. As a gemologist Max Reymer had an interest in security and a generally positive attitude towards the police. I don't know how they met but she would periodically drop by his place. He, perhaps in an attempt to dispel hysterical, irrational ideas about boylove and educate her gave her books to read including some of Brongersma's voluminous writings. He may also have been playing some sort of game with her. He showed her copies of the NAMBLA Bulletin to which he subscribed. To Noreen Wolff it was outrageous, as she saw it NAMBLA advocated and would lead to the sexual abuse of boys. She is quoted in the PROVINCE, December 13th, 1992: "It's textbook for pedophiles. It tells them how to seduce children and not get caught." NAMBLA not only advocated criminal behaviour and but it tried to justify it with intellectualizations. To her NAMBLA may have seemed more threatening than the vilest of visual child pornography. Max Reymer who stoutly defended NAMBLA became a dangerous old man. Detective Wolff called him in for a lengthy interrogations but laid no charges, although she said she would pray for him. She began dogging him. She told the Vancouver Aquatic Centre which he used that he was a pedophile. She told the UBC photo lab which he used that he was a child pornographer. She called on his apartment neighbours warning them about the dangerous pedophile. She informed social workers. She made a Vietnamese family return a bicycle he had bought for their son. Reymer was forced to leave his apartment and he moved into a social housing project for the elderly. She then charged him with kidnapping a fourteen year old boy, a regular visitor after he had been seen entering his apartment with the boy. This was simple harassment on her part and the charges were soon dropped for lack of any evidence. She then charged him with sexually assaulting the three year old son of a prostitute he babysat while the mother worked. After over two years he was brought to trial and acquitted. While Max Reymer clearly liked and enjoyed the company of boys he had never been convicted and the two cases pressed against him both lacked evidence. After the two acquittals Max Reymer realized that Detective Wolff would not leave him alone and he left town. Even today Detective Waters uses him to illustrate her knowledge and understanding of pedophiles. He has been called her pet pedo. She referred to him twice although not by name, at my voix dire for this purpose.
As part of her campaign against NAMBLA she gave members of the Standing Committee copies of the Bulletin to read, but judging by the questions they asked her about it few had looked at it. One, thinking the newsletter must be an underground magazine asked her if she knew where it was published and if they knew who was involved. This information is on the masthead. Asked what is known about the organization she refers to Time Magazine and the Geraldo Show as sources of public information and research. She tells the committee that NAMBLA offers free subscriptions to prisoners in the U.S. and one committee member becomes very concerned that it might show up in Canadian prisons. Her message is that NAMBLA promotes sexual abuse. But there is a problem. It's not obscene, it's not pornography "because the pictures themselves are not pornographic". The police cannot legally seize the newsletter and may have to return any that they do. Therefore it is necessary to prohibit advocacy, the written word. To her it is as simple as that. If Customs doesn't stop the Bulletin at the border there's not much the police can do. They are doing the best they can with the existing laws, but they are helpless, held back by the lack of laws prohibiting possession of "advocacy" material. We can almost feel sorry for the police. But Detective Wolff is too professional and probably too reserved to make an emotional pitch. She does not dwell on suffering and victims. Having now dealt with her over a period of years I see her as a crusading warrior, an advocate and an activist, and an extremely successful one at that. Her zeal is evident when she mentions how her department sent NAMBLA a letter threatening legal action against them about which she says, "How we can do that from here I don't know, but the feeling was that we were going to try to do that if we found there were more in Canada." Except when she was answering questions her testimony focused almost exclusively on NAMBLA and the need to prohibit written advocacy of sex with children. Hers is a practical, get the job done, police approach. She is an experienced presenter. By the end of her testimony she had mentioned NAMBLA forty six times. The committee members were eating out of her hand.
The other Vancouver witness was Monica Rainey, Executive Director of Citizens Against Child Exploitation. She spoke for the child reconstructed as a victim. Her victims were quite young and mostly girls. She brought a teddy bear with her to represent the children who cannot speak for themselves. She said that the previous year they took 5000 teddy bears to the steps of the legislature in Victoria which supposedly represented only ten percent of the province's child sexual abuse victims. Her recommendations dealt with sex offender registries, community notification, minimum sentences and treatment. Several times she referred to Dr. William Marshall, who treats sex offenders at the Kingston Penitentiary. She was mainly addressing other issues and did not mention child pornography.
Standing Committee on Justice hearings: Ottawa, April 27th
The Standing Committee on Justice held hearings on child pornography again in Ottawa on April 27th, 1999. The morning witnesses were: Rix Rodgers, Chief Executive Officer, and Patricia Sibbald, Director of Professional Services, Institute for the Prevention of Child Abuse, and Professor Nick Bala of the Faculty of Law, Queens University in Kingston, Ontario. The university in conjunction with the nearby Kingston Penitentiary is a centre of research on sex offenders under the leadership of Dr. William Marshall the well known psychiatrist. He along with Dr. Howard Barbaree and Dr. Peter Collins have been involved in treatment programs for many years. Both Rodgers and Bala have reputations for supporting more restrictive sexual laws. In 1990 Rix Rodgers as special advisor on child abuse to the Minister of National Health and Welfare had recommended new child porn laws. He was concerned about pornography where adults dress as children and believes that novels depicting sex between adults and children should be classed as child pornography. Patricia Sibbald speaks of recovered memories and uncritically accepts satanic ritual child abuse claims. Recovered memory claims are now widely discredited as many have been shown to have been unconsciously implanted by well meaning therapists and dozens of wrongly convicted people have been released. A series of over a hundred ritual satanic abuse daycare cases that erupted largely in Christian communities in the 1980s have generally suffered a similar fate. The well known Martensville, Saskatchewan case was a later although typical example. There was already much criticism of both phenomena at the time of the hearings and it is surprising that a presumably well informed person like Patricia Sibbald should take them seriously enough to offer them as evidence to a government committee.
Both Rodgers and Bala speak highly of Dr. William Marshall who has done research on sex offenders and pornography. Rodgers describes him, "Professor Bill Marshall one of the major authorities in the country." Bala says, "I would certainly defer to Professor Marshall... He's certainly one of the world's leading experts." M.P. Tom Wappel, a family values Liberal who does most of the talking for the committee, wants to invite Marshall before the committee.
In the afternoon The Honourable Pierre Blais, Minister of Justice and Attorney General of Canada appeared along with two department officials, Carolina Gilibertini and Hilary McCormack. The minister is a bit vague and talks about the BADGLEY REPORT and "surgical intervention... addressing child pornography". Tom Wappel, the most vocal member championing prohibition of possession and the written word brings up the question of NAMBLA and reads part of its mission statement from a copy of its newsletter to justify its prohibition: "We work to organize support for boys and men who have or desire consensual sexual and emotional relationships and to educate society on their positive value." He claims "the whole magazine is an intellectual attempt to justify pedophilia." He wants a law prohibiting it. Blais doesn't have "a straight answer" but they are looking into it.
Standing Committee on Justice hearings: April 28th
The next day the committee heard from Detective Staff Sergeant Robert Matthews, of Project P, Canada's largest anti-pornography squad. He asks, "What is child pornography? Child pornography is the permanent record of a child involved in either sexual poses or sexual acts. The result is that the child is scarred for life." This is a sweeping statement that has no scientific substantiation. He shows the committee "Lolita" magazines showing prepubescent girls engaged in sex which he claims are legal to possess. He claims that when he makes presentations to the "normal Canadian public... (those in) the audience are absolutely horrified when they find out that we do not have a law in place to prohibit possession of this form of obscenity." His presentation focuses on the need for simple possession laws. He makes two arguments for possession laws; "it will allow police to seize material that is currently being used by pedophiles to seduce children, and it will also remove the permanent record of children who have previously been sexually exploited." Later he uses the foot in the door argument that possession laws through search warrants would enable the police to investigate other offences. He mentions that there are problems with enforcing laws against distribution as collectors of child pornography commonly trade material but not sell it. Matthews says he has a large collection of child pornography and he uses it for lobbying and his educational purposes - hardly removing it from circulation. Detective Wolff also has a large collection which she even uses on family hour TV specials, again hardly removing it. Canada Customs, Matthews informs the members, intercepts "approximately 332 pieces of child pornography and incest material each year." He says that the Americans treat child pornography very seriously and backs up his call for heavy sentences by referring to American law which incidentally does not cover much of the material he wants included. With respect to NAMBLA he also complains about the problem of the pictures and writing not being obscene. He advises the use of pediatricians to determine ages. He says that child pornography is different from other forms because it directly links to sexual abuse. He boasts about how they had stopped the importation of You Are Not Alone, an award winning 1980 Danish movie about a boys' boarding school revolt which also involved some early adolescent crushes. I saw it at a film festival in Vancouver; there's a bit of nudity, a few funny parts and it gets quite emotional towards the end. Matthews claims that the would be importer was "in a very high position of trust in the community" and lived right beside a public school. And the man tries to import child pornography again. Matthews repeats his fact that the man is in a very high position of trust. I suppose he is known in Toronto but I have no idea. He could just be a big shot art film buff as far as I can tell. Matthews puts his appeal for possession laws at a personal level. "Nothing would make me more upset than to have to give back many, many hours of child pornography... simply because we don't have laws for possession." He tells a story about a clever child pornography distributor who got away because there was no possession law. He suggests attractive targets for the possession law, bad individuals, possibly higher ups. Matthews spins a pragmatic, romantic but narrow vision of possession laws that make good police sense. It is a law to delight a law enforcer.
Standing Committee on Justice hearings: May 10th Ottawa.
Matthews is welcomed and discusses Project P. He discusses porn as a neighbourhood issue with children seeing pornographic photos and videos of their peers. This is a highly unlikely scenario but it fits in with his folksy approach. Pornography must include more than just explicit sex and his preference is for an additional definition which include nudes where genitals are depicted. It's the act of possession that does the harm because of how porn is used; child pornography is a tool used to seduce children. He promotes the grooming theory. He is not concerned about innocent family material but he offers no distinctions. He emphasizes the foot in the door advantages of adding importing and possession offences. Matthews is keen to see the written word added to the definition of child pornography. He is most concerned about disgusting and sick stories on the Internet which can be found by children. He gives the committee members copies of a story called Vicky about a six year old little girl and outlines a plot where she is pimped by her mother. He tells the committee this is what they are after. He only discusses NAMBLA briefly deferring to Detective Wolff.
Noreen Wolff has an aversion to flying but child pornography is such an important issue she says that for the first time in ten years she took a plane. Pleasantries over she gets straight to the point, NAMBLA is not included. She describes a man-boy comic book Cherubino which sounds like those underground Batman comics of the 1970s where Batman and Robin have sex in between battling criminals. These comics she claims are used to break down the child's defences. She shows them a hardcore gay teen video, probably one from a European country where 16 is the legal age for pornography, that was seized by Customs. She mentions that it was destined for someone who has daily contact with children. Importing and possession laws are required. She continues, mentioning NAMBLA twenty seven times before she's done.
Monica Rainey in her second appearance mentions NAMBLA in her opening remarks and recommends that it be banned. She has begun receiving calls from adult survivors of child pornographic sex. She tells the committee that there are child porno rings in Canada where children are bought and sold. One adult survivor has told her that she had her life threatened when she tried to lay charges. There is a conspiracy to cover it up involving politicians, doctors, lawyers, school administrators and police, all tied to the child porno rings. Ms. Rainey says the police can't lay charges because they have destroyed the medical and school records. I suspect that this fantastic tale which she obviously believes may be a recovered memory case which often involve accusations levelled at evil men in high places. If so it brings the witness' gullibility and credibility into question. Ms. Rainey ends, "I implore you to pass this bill without further delay."
The question period is friendly with all speakers supporting stronger laws. Mr. Fee praises the witnesses. Wolff mentions that the BCCLA is studying an issue of the NAMBLA Bulletin she sent them and she quotes them as saying that when it comes to children they have to look at freedom of expression a different way. As I found out the BCCLA as an arbiter of community acceptability and couldn't afford to support even possession of the newsletter, at least not after Detective Wolff had defined it for the public. The public did have not the right to access information and viewpoints often nowhere else available in popular print. And somehow children would be protected.
Matthews reassures the committee that things in museums would be left alone, ruling in effect that they would be protected. He presumed for the benefit of the committee and his recommendations that police, prosecutors and courts wouldn't interfere with the arts and culture. A few months later he later he would eagerly testify for the prosecution at the forfeiture hearing for Eli Langer's paintings that had been seized at a public gallery in Toronto. Matthews argues that literate and verbal depictions of sexual acts should be prohibited because of "the thousands of stories that are on computers and that sort of thing." Detective Wolff makes a curious comparison. Section 22 of the Criminal Code makes it an offence to counsel a criminal act and she justifies the inclusion of the written material advocating sex with children on the basis that it could already be an offence. Ms. Rainey contributes, "It has often been said that sexual assault of a child is murder of the soul, so in many ways I would call it murder, because of the long term damage it does and because our children really have no means of protecting themselves." Her victimologically reconstructed child bears little resemblance to the adolescent boys encountered in actual cases like Bennest, West, Gramlick and Jewell. She again calls for the prohibition of written advocacy.
When asked if there are child pornography rings in Canada, Wolff replies that it has to do with Martensville, a Christian community just north of Saskatoon, where Canada's most notorious satanic ritual abuse case occurred. Among the nine arrested were several police officers who were colleagues of the rookie investigating officer Claudia Bryden. Marjaleena Repo, a freelance Saskatoon writer and researcher, wrote in the July 28th, 1992 Globe and Mail an article entitled "Fairytales of abuse" that exposed the shortcomings of the investigation and pointed to the collapse of similar cases elsewhere. When pressed by committee member Ian Waddell about porn being involved in the Martensville case as there was no mention of it in the press Wolff assures the committee that she has inside information. She tells them that quite a bit of pornography was produced there proving it's being made in Canada. Her contact may have been the zealous Christian, Constable Claudia Bryden who instigated the investigation. The fact that Wolff was wrong is not the main point, what matters is that she unquestioningly accepted the hearsay of her police contacts as she did with NAMBLA. The Martensville daycare abuse case, like dozens of similar ones throughout the Western English speaking world, collapsed with charges being dropped and convictions overturned. Some parents, perhaps believing their children and not what the police and their social work allies were implying refused to allow them to be interviewed perhaps inviting suspicion that they were obstructing justice. However thirty children were interviewed and fifteen of them alleged abuse. The children were pressured by repeated suggestion to disclose things that never occurred. Think of the impact from the child's point of view of being encouraged to invent, lie and falsely accuse. They are psychologically rewarded for "correct" answers and punished for "wrong" answers. This has been documented in Martensville and many of the hundred odd other cases in the decade long epidemic of satanic ritual abuse cases. For those children who succumbed to the pressures they were subjected to, the effect is likely to be greater than if they if they had actually experienced the fairytale nightmare that was constructed from the outrageously flawed interrogations. They are truly victims, they lost their sense of truth and integrity. I have to admire the courage and honesty of the other kids who stood up to the repeated questionings by the authorities and kept their integrity intact. Perhaps they were lucky enough to have parents who taught them to respect the truth and who indeed respected their children as persons. However in the literature of victimology these kids are the ones who lack "the courage to speak up".
As far as "children" are concerned what happened in Martensville is similar to what happened in London. In both cases kids were pressured to disclose, in one case it involved things that didn't happen and in the other things that probably did but which the kids would have preferred not to disclose. Both cases involved assaults by zealous police and social workers on young people's sense of honour and loyalty. In both any sexual abuse was overshadowed by the authorized abuse of officials. To pressure kids, even very young ones, on matters that concern their personal integrity interferes with their development of moral autonomy. Of course some people, such as those calling for raising the age consent, may believe that youth are incapable of any.
As a result of the interviews sixteen people were charged with a total of sixty offences. According to a report by David Roberts in the July 17th, 1995 Globe and Mail the children after repeated interrogations came up with stories that they were cut with knives, forced to have sex with up to forty adults as well as with dogs and flying bats. They had to eat eyeballs and mixtures of "poop" and raw fish shaped like Easter bunnies. Their parents also forced them to watch the neighbour's baby being skinned, buried, dug up, roasted and eaten. Some children told tales of being whipped, raped, confined to cages, penetrated with axe handles and thrown naked into freezers. This was taken seriously by the Crown, after all "children don't lie". Like the other cases it was induced by zealous, self-deluded officials and the improper leading interrogation of small children who were psychologically rewarded for disclosing abuse. The media did its part with sensationalized coverage. There was no child pornography, no bodies and no missing children despite elaborate and expensive searches. A sad footnote to this case is that children persuaded that they were sexually abused suffer the same symptoms and trauma as those who actually were. There are studies to back this up. In this case the abuse the children were led to disclose was particularly horrendous. It raises the question of whether it is the response to sexual abuse or the abuse itself that causes the most harm. We should not forget the trauma that the falsely accused and implicated adults were put through. While all but one have subsequently been cleared people lost their homes cars and the community remains bitterly divided. The officials responsible for eliciting false information are seldom if ever punished or held accountable.
M.P. Ian Waddell the only committee member to press a civil liberties perspective and to defend the arts mentions that in Europe statues of Peter Pan depict him nude. Wolff haughtily replies. "That's Europe. We're not in Europe; we're in Canada."
The next witness was Jack Gray, President of the Writers Guild of Canada, which represents scriptwriters for film and television, rather than authors of books who speak through the Writers' Union of Canada. Gray argues at some length about creativity and freedom of expression. He mentions gender awareness, cultural balance, cultural appropriation and political correctness as threats to freedom of expression. He says that some of his colleagues feel that the bill is being rushed through for "politically opportunistic reasons". He points out, as had Allan Borovoy of the Canadian Civil Liberties Union earlier, that the essence of problems the bill addresses is already covered in the Criminal Code.
This was however before the offence of simple possession was extended beyond sexually explicit materials or the written material definition was added to Bill C-128. While these measures had been advocated by the police witnesses, supported by others, presumably discussed in camera by the committee and mentioned in the House of Commons, they were not in the bill prepared by the Justice Department. With less than a week left major changes seemed unlikely and it was only the persistent efforts of Mr. Wappel that pushed them through. But these were the final bill's two radical, pioneering extensions of state power into personal privacy and freedom to convey meaning, which is what expression is in legal jargon. They set unprecedented precedents which I discuss later.
Gray claims that the bill is dangerously imprecise and overbroad. It prohibits things which impinge on a creators ability to portray reality as they see it. He says that sexual activity involving persons under 18 is common although he acknowledges that it may not be acceptable to many. He points out the chilling effect the law could have. He describes the personal and legal costs of people having to defend their works, or "just the very thought of it", as discouraging creativity. He also notes the enormous costs of a television drama and says producers can't afford this kind of risk. He is alarmed at the rush and warns that if they add print, "then you'll have everybody up to the table again, the writers' union and all the groups." This did not of course happen probably as the uproar which followed the GRAMLICK and JEWELL discouraged people from sticking their necks out.
The Chairman has a hard time listening to Gray's testimony. "I did try to keep an open mind... but I found myself getting rather heated as you were talking." He thinks the witness is "raising a spectre that in my mind does not exist." He hopes that Gray heard the three previous presentations and lectures him on the responsibilities of elected representatives "to protect the weaker and disadvantage elements in our society." Tom Wappel the Liberal Party Justice Critic had a similar problem, "I also have difficulty keeping an open mind on your position." He implies that even if Mr. Gray's points are valid that he would still support the bill. Wappel makes his assumptions and position very clear. "I say that the sexual exploitation of children is so serious that the very existence of our society as we know it is threatened... I simply do not ever wish to be a part of Canadian society at any time during my lifetime where it becomes acceptable for an adult to have sexual relations with a child, no matter how defined." Wappel doesn't want kids to have sex period; he continues, "We can talk about age, we can talk about 18, but if we talk about 18, if children are adults at 18, we can't have the cake and eat it too. We can't have the Young Offenders' Act treating people as children until they are 18 and yet letting them have sex at 14. If they are capable of having sex why can't they vote? If they are capable of having sex why can't they drive? If they are capable of having sex, why can't they drink?" Who is going to allow kids to have sex? Who decides if they are capable? Presumably not the kids themselves. If he was concerned about kids being capable of having sex he should have directed his attention to the age of puberty, not consent, perhaps demanding mandatory, universal chemical castration of kids until their eighteenth birthdays. To him it seems any celebration of adolescent sexuality is wrong.
Gray is condescending and tries to assuage the members during questioning and they in turn reassure him that culture is not being threatened. They also believe in freedom of expression. Chairman Horner claiming to speak for others tells Gray that some of his ideas are not acceptable. He sees the problem of creativity in terms of, "if the minds are so creative that, rather than creating something pornographic, they could create something else?" However when the question of print arises the Chairman Bob Horner boasts that he was instrumental in putting a bill through the last Parliament prohibiting pro-drug literature, such as High Times magazine, over the objections of the Writers' Guild (it was actually the Writers' Union). (This provision was later stuck down as unconstitutional in IORFIDA v. McINTYRE.) Gray's frustration and the disdain of some members is clear in the reading. Later Gray, remarks favourably, "a wise precaution", that the bill, unlike one put forward in 1986, does not include the written word. He offers that the guild would be happy to outline their concerns about written material but hadn't been asked. The chairman bluntly tells him, "You're having it right now, sir." Gray says in effect he isn't prepared.
A question arises as to why the committee chose to hear from these three witnesses twice. There were other police officers who are involved with the sexual abuse of children who might have different perspectives and without such a blatant self interest in the legislation as the porn squad heads.
House of Commons debates: May 11th, 1993.
Mr. Chris Axworthy the NDP member for Saskatoon-Clark's Crossing moved that his own private member's bill on child pornography, Bill C-396, be read a second time. He failed to get the unanimous support of the House which meant it would be talked out and die. His bill which had widespread support included a new crime, that of possessing child pornography. The Parliamentary Secretary to the Minister of Justice, Mr. Rob Nicholson who strongly supports the idea of new laws prohibiting child pornography, mentions the guidelines provided by the Butler Decision and states that the government is going to introduce legislation very soon and asks for patience. Mr. Tom Wappel, the Liberal Party Justice Critic and member for Scarborough West, stresses that possession of child pornography for personal use is not currently a crime, "Something most people would not believe". He complains that NAMBLA is perfectly legal. He states, "Every child depicted is a victim for life. They are scarred forever..."
Standing Committee on Justice hearings: May 12th, 1993.
Dr. William Marshall from the Sexual Behaviour Clinic in Kingston, Ontario testified. He was not speaking specifically about child pornography. The chairman introduced him as "Our distinguished witness... who really needs no introduction." Dr. Marshall mentions his more than twenty years treating sex offenders in prisons all over the world and in clinics. He is an advocate of imprisonment and favours compulsory treatment pointing out that ninety per cent of the offenders in his program "volunteer... simply because of the contingencies they face if they don't." I thought this sounded rather like involuntary volunteering, something that comes up later. He candidly states that prison sentences are necessary to get offenders into treatment. He opposes the abolition of parole for sex offenders because that would reduce the leverage they have over prisoners in treating and controlling them. He is also opposed to offenders being designated as dangerous offenders at the time of sentencing. He laments that some offenders who he feels should have been so designated were not. Showing great confidence in his treatment he says that this decision should be made on the basis of how well they respond to treatment in jail. In effect he wants that decision to be determined by psychiatrists like himself, not judges. This would provide him with even greater leverage over inmates. It would however work to the extreme disadvantage of the wrongly convicted such as those convicted in recovered memory and satanic abuse cases. The proportion of wrongly convicted is probably higher among sex offenders than any other inmate group. The sentences served by sex offenders would presumably depend on their co-operation and response to treatment not the nature of their offences. The New Labour government in England has enacted such policies where power is delegated to experts. As someone who has read about Marshall's techniques, and who has been informed sight unseen by one of his psychiatric colleagues, Dr. Collins that sight unseen I would be difficult to treat, I find his proposal ominous.
Marshall is an obviously intelligent and in some ways a thoughtful man but with an overriding faith in the merits of treatment which he claims reduces recidivism by 20 per cent. However given the resourcefulness of many of many offenders in carrot and stick situations and the fact that they choose what to learn from treatment any claims must be qualified. There was an interesting article in the November 25th, 1999 National Post. A Dr. Michael Seto and Dr. Howard Barbaree, Dr. Collins' boss and colleague of Dr. Marshall report that imprisoned sex offenders who are co-operative in group therapy and who apparently learn to empathize with victims are more likely to reoffend. Many of these were psychopathic. This makes sense as learning to empathize could be very useful to a determined offender. In the same article there is reference to study showing that treated psychopaths are more likely to reoffend that untreated ones.
This could be directly related to the useful insights acquired in therapy. Now when these findings are set beside Dr. William Marshall's testimony that response to treatment should be determinative in the disposition of offenders we may have reason to question his professional wisdom. In victimological theory a victim is a victim, a willing worldly teenage boy is as much a victim as an eight year old who is traumatically raped. And the man in each case is equally an offender. The treatment is the same in each case. Now if the offender who had consensual sex with the boy does not feel guilty then he may be deemed to be in denial and therefore be deemed a greater risk than the offender who raped the eight year old and who expresses some contrition. This is the kind of situation that the moral assumptions and moral theories of psychiatry create. While it may be something that is welcomed by pedophobes it does not auger well for real victims.
Dr. Marshall is also a self promoter. He regards himself as a pioneer in treatment and claims to be devoted to the cause of treating sex offenders despite the fact there is not a lot of money in it. I wonder however if he does not make more testifying as an expert witness? He refers to his good friend and sometimes collaborator Gene Abel, a researcher in Atlanta who interviewed 153 homosexual pedophiles and found they assaulted an average of 150 little boys each. These were from difficult cases referred to him but the figure of 150 is not unrealistic. Marshall notes that less than 50 per cent of the men who molest other people's children are true pedophiles in the sense of preferring children as sex partners. The others are men who assault children opportunistically when suitable adult partners are not available. The latter may be over represented in offender samples as they tend to be more violent and probably less empathic thus calling attention to their behaviour.
House of Commons debates: June 3rd, 1993.
With less than two weeks left before the end of Parliament the Conservative government tabled Bill C-128, an act to amend the Criminal Code and the Customs Tariff. Rob Nicholson states. "The purpose of a law specifically addressing child pornography is to deal with the sexual exploitation of children and to make a statement regarding the inappropriate use and portrayal of children in media and art which have sexual aspects." People in the arts and media might feel that the law was directed at them. The provision prohibiting of possession of sexually explicit material is specifically directed at the home made pornography of pedophiles which may be traded but not sold.
George S. Rideout, M.P. for Moncton sees some problems, "Pornography is difficult to define and difficult to legislate so that it is not struck down once the courts start to have their effect." He nevertheless supports the offence of possession.
Ian Waddell the NDP Justice Critic and member from Port Moody - Coquitlam suggests the government may be "doing this for a little bit window dressing and for a future election campaign." his party supports the bill because it is a serious matter that has to be addressed. He says he has some concerns because he is basically a civil libertarian and worries especially "about freedom of the press and of the print." He reminds the House of what a former Minister of Justice had said. "`Let us have inclusive justice'. Inclusive Justice means that people from all sides come in and discuss the bill, we have a good hearing and then we will get the best bill possible. Then it will hold up in the courts and will not be thrown out as unconstitutional." He then makes a rather remarkable statement for a politician in a democratic country with a tradition of free speech. "I want to strongly draw it to the attention of the House, and it might take a little bit of courage to do it at this time, that there is a civil liberties angle to this." He goes on to say, "We have to be careful not to restrict people's right of disseminating information, no matter how much we dislike the information or what people are saying or arguing." He is talking about the written word not images. He specifically states that written material should not be included in the law. The bill was given second reading and referred to the Standing Committee.
Standing Committee on Justice hearings: June 8th, 1993.
Don Pigaroff for the Justice Department explains the draft Bill C-128 prepared by his department and says that the government has expressed no intention of making any amendments. Possession is a specific offence but only applies to explicit sexual activity. Written material would be covered under the existing obscenity laws (s. 163.) which as a result of the Butler decision makes specific reference to the use of children. Tom Wappel complains that there is no possession offence under obscenity laws, which means people could legally possess obscene stories involving children and the NAMBLA Bulletin. Wappel who completely dominates the session begins what can only be described as an interrogation of the officials. He brings out a copy of the NAMBLA Bulletin and quotes a news story from it: "Thanks in large part to a carefully crafted defence of the Bulletin by a pedophile activist in Quebec, the Justice Minister rejected the push to censor. The seven page defence was photocopied and distributed within the Department of Justice." Wappel demands to know what they know about this defence. Ms. Lieff says she's seen the article, Wappel had sent a copy of the newsletter to the department, but she says that the comments in the article are inaccurate. Wappel is not happy with her answer, "I am asking you a specific question. Are you aware of any written defence of the Bulletin circulated within the Department of Justice?" He asks Pigaroff the same question. Neither know anything of a defence of the NAMBLA Bulletin. Wappel wants to know if anyone put pressure on the Department to not include written material. He makes a further quote from NAMBLA's newsletter: "Pressure also came from within the gay community - Toronto's gay paper XTRA published a long article on the Justice Committee's hearing entitled, `Justice Committee Studies Man-Boy Love'." It is almost as if Wappel believes there is some sort of conspiracy on the part of pedos and gays which the Justice Department officials are covering up. He is also implicitly questioning citizens right to lobby the government.
I was later able to confirm that a brief from a Quebec pedophile activist had in fact been submitted to and circulated within the Department of Justice. It may be that Pigaroff and Lieff were unaware of it, or they may have been reluctant to admit it in face of Tom Wappel's wrath.
Standing Committee on Justice: June 15th, 1993.
The final Bill C-128 hearings of the Standing Committee were on the morning of the day the bill received third reading in Parliament. The witnesses were: Allan Borovoy from the Canadian Civil Liberties Association; Dan MacDonald, President of the ACTRA Performers Guild; Sandra MacDonald President of the Canadian Film and Television Production Association; Dan Lyon from the National Association of Canadian Film & Video Distributors and from the Canadian Broadcasting Corporation; Daniel J. Henry, senior legal counsel, Jim Burt, Creative Head, Movies and Mini-Series, and Gerald A. Flaherty. Q.C. Vice Present dealing with legal matters. The media people were all primarily concerned about the visual arts. Two representatives of the Department of Justice, Don Piagoff, General Counsel, and Elissa Lieff, Senior Counsel both of the Criminal Law section testified. In addition the Parliamentary Secretary to the Minister of Justice, Rob Nicholson appeared.
Allan Borovoy, Chief Counsel appeared for the Canadian Civil Liberties Association. He begins by conceding that he wouldn't be appearing if the bill only covered of images of real children engaged in explicit sexual activities. Such "material is repugnant and there is a strong arguments for making it unlawful". He is not there to defend anything remotely repugnant. His concern is with marginal situations and he cleverly asks who cares if two adults play underaged Romeo and Juliet? Borovoy is concerned about overbreadth and lists examples from movies, plays and television programs that could be affected by the proposed definitions. He also gives examples from the past where officials have acted perhaps foolishly in making seizures and laying charges. He believes the new law is largely redundant and claims the existing obscenity laws cover the important areas. He only expresses concern about possession being an offence in the context of an art gallery. Simple, private possession by collectors and consumers he ignores. He does not challenge any of the victimological assumptions and theories of the police and child advocates. He never tries to see things from the kids' perspectives. Borovoy's concern is totally elitist, he is there to protect the interests of culture, artists and maybe intellectuals. While he may not have known about the determination of some members to add written material he nevertheless does not mention it. Internally, either out of fear or righteous indignation the CCLA had decided that they could not defend NAMBLA which left them with little they could say about free speech. Borovoy's testimony as a civil liberties critic did more to legitimize the bill than raise any fundamental questions about it.
Sandra MacDonald representing distributors was the most enlightened about the implications of the legislation. She is concerned about the popular genre of coming of age films. under the bill she says that the award winning Boys of St. Vincent miniseries could result in the program makers facing ten years in jail. Such subjects will be avoided in the future. She notes "the bill contains unprecedented restrictions on fundamental freedoms". There was no prior consultation with the legal community or affected parties. She concludes by saying, "This legislation, if passed, cannot possibly escape Charter challenge." and suggests that it be withdrawn so its issues can be examined more fully. Dan MacDonald representing 8000 members of ACTRA wants definitions tied to existing definitions in 163. (8), the obscenity provisions of the Criminal Code which have been clarified by the courts. He also wants definitions limited to "realistic" depictions.
Dan Lyon of CBC complains about the haste and lack of consultation including the bar associations. He says that when Bill C-54 was being considered he had tried to argue with Justice Department officials and they told him he should be in jail because the company he worked for distributed the movie Porky's. I believe that this is an accurate reflection of the mentality of the Justice Department bureaucracy. Lyon provides examples of a number of films that could be caught by the bill and says 10,000 video distributors could be at risk. Gerald Flaherty is mainly concerned that the bill would have a chilling effect on the creation of "completely legitimate non-pornographic artistic and creative works." Daniel Henry points out that "artistic merit" which is offered as a defence, may take some time to be recognized. He prefers the term "artistic purpose". A lawyer later pointed out to me that an amateur copying a master's painting which had artistic merit (like the Picasso poster in my bathroom) could be convicted because his copy did not have artistic merit. Henry would prefer to stay with existing, understood legal terms like "undue exploitation" and "dominant characteristic" rather than the new ones proposed. In other words stick with the Butler decision definitions. He claims that CBC has done good job depicting teenage sexuality and sexual abuse of children. Degrassi Junior high he says was effective in talking about AIDS to kids. He discusses a number of dramas that could be effected and claims artists need to understand and depict reality. As a result of some programs that would be affected the KIDS HELP LINE, 1-880 number got children phoning and reporting abuse. Kids who'd been abused at Mount Cashel felt Boys of St. Vincent validated their claims. The chairman counters that they have petitions and letters saying we have to do something.
Tom Wappel wants to know what he means when they say CBC doesn't engage in child pornography. A seemingly animated exchange occurs between Wappel and Mr. MacDonald about what is porn and what is a child. MacDonald accepts under eighteen. Wappel wants to know why the Boys of St Vincent had to be so graphic. MacDonald replies that it is the job of the actor to tell the truth not to prevaricate. Mr. Burt adds, " boys say to me, `Thank God you did that because nobody believes us...'" In terms of preventing abuse the bill is counterproductive. He also thinks they should within the existing definitions of s. 163. Committee member Mr. MacLellan doesn't think the CBC is going to have problem. He had previously commented, it's not clear how seriously, that there were some people in the CBC he would like to see in jail, although he admits that it does have a meaningful role in the country. Discounting any chilling effect he says, "Frankly, the media of this country have too much moxie, and too many guts to roll over and change their perception of what they think they should be doing on the basis of an act they feel might put limitations on their activity." If he was wrong he would buy Mr. Burt dinner. I wonder if this presumption of courage is misplaced. More likely perhaps CBC journalists would see the law as another opportunity for sensationalistic coverage as did Wayne Williams in his excursion into police work in the West case. None of these last minute witnesses made a strong case for excluding the written word from the definition of child pornography, they were all in visual media. Nor did any of them say much about making possession an offence, they were there to represent creators concerned about the limitations on what they could make. No one mentioned the significance of simple possession, certainly not Borovoy who viewed things from the viewpoint of the producers, bona fide intelligentsia, he ignores the consumers and participants and any rights they might think they have. The radical extension of state power into the conscience and privacy of individuals was either not recognized or ignored. Or perhaps he didn't know it was being included.
The committee seemed to regard this testimony more as a challenge to their good intentions than as rational advice. It seems obvious that the committee had already made up their minds and regarded the calling in these last minute witnesses without time for preparation as a formality.
After the witnesses leave according to the minutes the committee spends ten minutes in camera. They meet with the Justice Department officials after. Don Piragroff explains how his department has drafted the simple possession offence into the bill so that it does not conflict with the obscenity laws. Ms. Elissa Lieff makes a technical point about where an accused believed a person was over 18 wouldn't apply "to written material in terms of NAMBLA." This suggests that their newsletter was being explicitly targeted by the committee. The possession offence is discussed in terms of wording only. Afterwards the committee went through the bill section by section making changes. Douglas Fee moved the amendment adding written material.
What is perhaps more significant is what was not presented or discussed before the committee. There was nothing first hand, all the testimony was from those with interests to promote like the police or to defend like the media. There were no actual victims, only ideologically reconstructed ones. No makers or consumers of child pornography testified nor would they have been welcome. I would not have been welcome. Nor would underage hustlers like those in GRAMLICK and JEWELL who like the extra bucks from performing in front of someone's videocam been welcome. Monica Rainey spoke for them. There was nothing about the reality of porn making and those involved. This can of course range from the horrendously violent and cruel tapes made by Bernardo and Homulka to the casual, consensual, and even conspiratorial sex videos in the cases like GRAMLICK and WEST. Boys know what they're doing even when they're facing need or temptation and they are capable of rationalizing on that basis. The criminal justice system should only get involved if that's what the boys want. Boys get the conflicting messages of "grow up" and "stay innocent, remain a child." They have to decide for themselves. Confident, worldly, curious, and autonomous boys have a great advantage in life. Any prohibitions or penalties relating to the affairs of boys and men should relate to the harm done in the particular cases. Excuse me, I am "advocating" again.
Adding the second visual definition, "depiction, for a sexual purpose, of a sexual organ or anal region" was even more ill-conceived than adding the written word. I believe this definition was an attempt to prohibit any depiction of children's genitals out side of certain limited contexts. Nobody wanted to be seen as tackling legitimate artists or works in galleries and museums. At the time my apartment was searched I had a large Picasso poster, "Les Deux Freres" showing a nude twelve tear old boy carrying a smaller child on his back. Interestingly the police did not touch it although similar material by unknown artists was seized. As for nudes it would seem almost certain that Wolff and Matthews had come across coffee table books and glossy magazines such as the French Jeune et Naturelle which feature prepubescent and adolescent boys and girls in beach, wilderness and nudist rec centre scenes. It's the kind of material that pedophiles amongst others enjoy and collect so they had to prohibit it. The reasoning may have been that the more material the law can prohibit including naturalistic nudes, the better. Make it a tough law and make the penalties severe. In the possession of alleged pedophiles they may have anticipated that this material could be deemed child pornography despite its technical and artistic qualities thus denying it to them. They may also have thought that it was generally wrong or abusive to photograph naked children and therefore nudity should be included. In adding this definition at the last minute the committee avoided predictable objections from the arts community. As I will show later this definition became a child abusing, family wrecking tool in the hands of zealous police, welfare officials and courts.
The child pornography law was specifically intended to target pedophiles who clinically, according to Dr. William Marshall, make up well under half of non-family child molesters. Including incest offenders pedophiles comprise approximately one third of all offenders. It may be however that pedophiles are less likely to come to attention of the criminal justice system. This point never came up after his testimony. Perhaps the committee reasoned that at least they were getting at some of the of the child molesters with the law. Or are pedophiles feared beyond other child molesters? The emphasis in the media and the popular mind is on pedophiles yet neither Paul Bernardo nor Clifford Olson are pedophiles. Possibly it is because people fear that pedophiles will corrupt children, such as turning young boys gay, not merely sexually assault them.
Less than two months after the law was proclaimed the Police in London Ontario would be hauling men and boys off to jail. Not long after in Toronto three gay youths, two fourteen and one nineteen were charged with making child pornography for videoing their sexual activities. This led to protests that the law was being used to target youth sex. Tom Wappel might have found this appropriate.
In the afternoon June 15th, only hours after the committee heard the last witnesses and made last minute amendments Bill C-128 received third and final reading. Parliament was in a self congratulatory mood. John Reimer of Kitchener is delighted to be the first to speak. He regurgitates the standard police theories of child pornography and relates the tale of Reverend Charles Dobson's well known interview with the re-born again Ted Bundy shortly before his execution. The brutal serial killer's, porn made me do it confession, earned him some sympathy and made him a respected authority in anti-porn circles. Other parliamentarians speak as if they are intimately familiar with the harm caused by child pornography, and of course it's grown from a five million to ten billion dollar business. This latter claim is of course a preposterous lie typical of those propagated by anti-porn activists. The Secretary to the Minister of Justice praises the department's officials and Monica Rainey. He finds NAMBLA disgusting, and ignorantly equating it with the ephemeral Quebec pedophile activist, he has this to say, "I say to that organization: `This is one bad day for you because we put in that legislation and it is directed specifically at publications like yours so that it is in the Criminal Code and the people who enforce the laws of this country can take action. We are zeroing in on publications like yours'" Coming from the Parliamentary Secretary I mistakenly assumed that this statement was a statement of the intent of Parliament. It cost me almost seventy dollars to find out otherwise. One NDP member assures Parliament that free speech is not an absolute right and that maybe the child pornography laws could serve as a model for future adult porn laws. Canadians can be proud.
Tom Wappel is honoured to speak and tells how he was alerted to NAMBLA by Detective Wolff and repeats much of her presentation for the benefit of the House. The omission of the written material was a serious flaw in the bill and he boasts, "I was instrumental in having that provision included..." He praises Matthews. Wappel whose photo appeared in the NAMBLA Bulletin at the time is proud. "What is NAMBLA and what are its aims? The following are direct quotes taken from the editorial page of the NAMBLA Bulletin. In my view it is critically important that we read them into the record to understand what the bill (C-128) and the amendments which were worked out in committee do, and why.
"It says: `We work to organize support for boys and men who have or desire consensual sexual and emotional relationships and to educate society on their positive nature. We speak out against the oppression endured by boys and men who love each other and support the right of all people to consensual intergenerational relationships.'
"It continues: `NAMBLA condemns sexual abuse and all forms of coercion, but we insist there is a distinction between coercive and consensual sex. Laws that focus only on the age of participants fail to capture the distinction for they ignore the quality of the relationship. Differences in age do not preclude mutual loving interaction between persons any more that differences in race or class.'
Quoting Sergeant Bob Matthews of Project P. he says, "`Any publication that advocates adults having sex with children should be banned from this country.' I say amen to that, and we discussed it."
George H. Rideout of Moncton, a committee member discusses the addition of the written word. He says it was the stories and messages with explicit details and language available on the Internet that shocked some members into including the written word. He was not sure however that this was constitutional: "My concern is that by adding the written word we may find ourselves vulnerable to a Charter challenge. I guess that in these circumstances one says: `Do we not do something for fear of a Charter challenge or do we do something and then see what takes place afterward.'... If it does not pass the test then we will try to correct it later on." He laments the haste and the fact that they were not able to properly consider the comments of the media people and wishes the committee could have done a better job.
Derek Lee, of Scarborough-Rouge River, another committee member tends to dismiss the concerns of the media witnesses. He strongly supports the inclusion of the written word and denigrates some who do not agree. He boasts. "In fact some people in Canadian society over the last few months basically dared Parliament. Their little group (NAMBLA), relying on their interpretation of the Canadian Charter of Rights and Freedoms dared Parliament dared Parliament and the Canadian people to try and infringe upon their right to advocate the sexual abuse of children, the sexual plundering of our youth. We were up to the challenge." I assume the group that dared to dissent is the same one that Don Pigaroff and Elissa Lief didn't know anything about.
There is of course no debate of substance on Bill C-128. Many members of Parliament may feel they have glimpsed the trauma that child porn must inflict on children. They know in their hearts and think with their blood. They have seen the police presentations with their selected examples which represents what they want to go after. They have adopted unquestioningly the concepts advanced by the police and child advocate witnesses.
The hearings of the Standing Committee and debates in HANSARD relating to the passage of Bill C-128 are compelling evidence that Canadians need protection from ignorant, capricious and overzealous politicians. I do not know to what extent other legislation is considered in such an arrogant and prejudicial manner. Written submissions were made but we hear nothing of their contents. Who determines who gets to testify and when? The congenial welcome of Dr. Marshall and the police witnesses contrasts with the hostile and angry treatment of Mr. Gray representing script writers. The last minute changes which kept the last minute witnesses in the dark seems more like deliberate deceit than some internal necessity. Parliament has a responsibility to see that its committees follow basic rules of fairness and democratic procedures. Citizens need recourse when Parliament behind its formal veneer has acted with undisguised expediency and reckless abandon. The Divine Right of Parliament, as strenuously promoted by columnists such as Andrew Coyne and Ian Hunter can be as abusive of the freedom and privacy of citizens as the Divine Right of Kings ever was.
PARTING WITH RITZKER
I, like many Canadians, first heard of NAMBLA as a result of the reportage of Noreen Wolff's testimony before the Standing Committee. However I didn't get a chance to examine the NAMBLA Bulletin until about a week before my first bust when I was in Amsterdam where it is openly sold. I browsed about a dozen issues and could hardly see how it as could constitute a threat to children, but then I don't see them, at least adolescents as particularly vulnerable or gullible. I subsequently wrote to Nambla explaining my case and they sent me three sample issues. I also tried to order a copy of PAIDIKA, The Journal of Paedophilia, a European magazine with a more academic slant than the Bulletin. The editor, Joseph Geraci refused because he was advised that to do so would be in violation of Canadian child pornography laws, which was true. I got my $18 money order back. I could see that in defending myself and my writings I would also have to defend the NAMBLA Bulletin, the publication so clearly targeted by the law.
Around this time the Human Rights Tribunal's inquisition of Doug Collins, a WW2 hero and newspaper columnist was in the news. His lawyer argued that free speech is not something that can be balanced against other rights, it is a means by which other rights can be balanced. I liked that. To argue otherwise would be to claim that things can better be weighed if we discard the scales. Supreme Court Justice and judicial activist John Sopinka who had written the Butler decision was in Edmonton campaigning for the concept of "reasonable" free speech and more child pornography laws to deal with the Internet. A retired military officer in Ontario got fifteen months for possessing Internet child porn. I began passing on to Ritzker a large amount of relevant material that I downloaded off the Internet and excerpts and my own commentaries on articles, books and cases I read. I became ever more convinced of the need to tackle the law head on. He may have felt a bit overwhelmed. I suggested to Ritzker that we enter copies of the NAMBLA Bulletin as exhibits for the defence to demonstrate the overbreadth of the law. He looked at a copy but he did not like the idea and possible risks of submitting illegal material. Men had been jailed for merely possessing it.
I continued to push my lawyer, we had to get a fairly substantial sum together to afford a constitutional challenge although I wanted to stay with legal aid as long as we could. In late October I arranged a for us to meet at a downtown club with an old friend of mine, one of the very few wealthy people I know. He is a successful businessman among other things, a one time idealist who now prides himself on his realpolitik. My friend was impressed with Ritzker. We discussed my case and I expressed my intention to plead not guilty to all charges including those for possession of photographs. My lawyer said I was being too rigid and my friend agreed. Ritzker argued that I should plead guilty to the photographs to show the court that we are prepared to go halfway, and that this would lead to more sympathetic treatment. It sounded like fishing for a plea bargain. I could understand that from talking to other lawyers who were freaked out about child pornography he felt an uncompromising approach was hopeless but I felt he blew it. Nothing came of the meeting or a subsequent one with my friend whom I no longer see and conclude that he has little sympathy for my cause. Ritzker felt I was offering myself as a sacrificial lamb needlessly. I resolved to work harder at educating him.
I wrote Michael Ritzker instructing him to proceed on the basis of not guilty pleas. I included a bit of doggerel, Lamb I Am that came to me at the time:
I was certainly not optimistic. When I got together with him for the last time we had a good talk. He acknowledged the absurdity as well as the majesty of the law. But he was overwhelmed by the certainty of failure and said he could not ethically be my "pilot" on my Icarian voyage into the Sun. His concept of his duty was to serve me in his best professional way and in my case he admitted that didn't go much beyond damage control. I felt he was overawed by the law and lacked legal imagination. I dismissed him but we departed amicably. I already suspected that I would end up defending myself. He knew my determination and the direction I wanted to take and brought up the possibility. He advised me on what to study but warned me that while the courts will listen to what I say they will do what they would do anyway. Not very encouraging. The best advice he gave me was, "Law is simple and words mean what they say." He provided me with the names of a couple of law professors who might be interested and mentioned a third lawyer, Manual Azevedo, a protege of Harry Rankin. Subsequently I consulted Ritzker over the phone several times and he proved helpful.
SHOPPING FOR A LAWYER
After parting ways with Michael Ritzker I began looking for another lawyer. By then I had a fairly well developed basic plan that I wanted them to follow although I was open to alternatives. The law professors Ritzker mentioned were either not interested or unavailable. One friend suggested a female Chilliwack lawyer, I rather liked the idea of a woman representing me, but she simply informed me that she did not take "skinner" cases. I also saw Nathan Ganapathi again, he was a friend of a friend and interested in constitutional issues. He shared some of my misgivings about what measures ostensibly designed to protect children were doing to kids. He was the only lawyer I talked to who gave me positive feedback on my plan. If I had been able to come by the $25,000 retainer he insisted on I might well have employed him.
I seriously considered Manuel Azevedo. He had been involved in the Gustaffsen Lake cases, the biggest trial involving Aboriginal issues in the province's history. I liked his Old Left credentials. He struck me as tough minded and incisive and the question of money did not seem so threatening. My reservations centred on his ignorance concerning alternative sexualities, he was not, for example, aware that there were gay newspapers in Vancouver. I suspect that this was because he grew up in the Azores, isolated Atlantic islands that are part of Portugal. The task of educating him in Canadian sexual politics would be enormous. I could not see him defending my stories, etc. Jonathon Waddington impressed me but $30,000 for the preliminary hearing was increasingly remote. But then the highest mountain within the province is named after an ancestor of his. I began to realize that I could not afford a legal warrior to carry out my plan. It would require $50,000 to $100,000 to hire a good lawyer to challenge the law. It was a burden I could not ask friends to bear should they be willing. The new prosecutor Terry Schultes was concerned that I was still unrepresented, I don't think he liked the idea of me defending myself.
I did find a lawyer whom I would have liked as counsel. Through friends I met Jim Heller a Victoria lawyer and musician. I got to know him when he was in Vancouver defending, unsuccessfully it turned out, a man accused of murder. I sat in on the trial a few times. He is an informal, down to earth man and I found him to be intelligently curious, imaginative and gutsy.
At his funky flat cum office in Victoria's Chinatown I explained my plan of attack. He was interested but admitted he was not familiar with constitutional law and would have to spend a lot of time studying it. He said he would consider doing it on legal aid if they would pay his transportation and out of town costs which he estimated as around $400 a day. I went back to legal aid and asked them if they would pay for him on that basis. The worker refused my request saying that they would only consider paying transportation costs where suitable counsel could not be retained locally. This was certainly not the case in Vancouver. I appealed the ruling but got nowhere. A federal program for funding constitutional challenges was not for my kind of minority and may have expired. It was used for the equality rights issues of respectable minorities and women, not heretical expression. Jim Heller quite reasonably said he could not afford to take my case on that basis. We considered other ways to pay his additional costs but this presented ethical problems and where would the money come from anyway? I continued to seek his advice and encouragement through my preliminary hearing and voir dire.
I approached Victor Svacek who was representing a man facing similar charges. I talked with him several times and met and offered encouragement to his worried client. I also approached Joseph Arvay, the Victoria lawyer who represented Little Sister's Bookstore in their challenge to Canada Customs and has a reputation for defending freedom of expression. Ironically when I met him he was acting as a Crown Prosecutor trying to stifle a challenge to the provincial election spending laws based on freedom of expression arguments. I explained my case but he not interested.
While my focus was on the constitutionality of the laws I wanted to be prepared for an "artistic merit" defence if necessary. I felt I needed to enhance my reputation as a writer, something I had not been concerned about previously. By this time the gay writers' group I'd been part of had stopped meeting and the gay literary magazine, the Sodomite Invasion Review had folded. Detective Waters' seizure and refusal to give me a duplicate of my only disked copy of my novel PETER'S PATH frustrated my intent to publish it. I would have still faced distribution problems. I also had a new collection of poetry, RECENT ACCULATIONS & APPROPRIATED VOICES or RAAV almost finished and while the police had the latest version on my hard drive I still had most of it on a back up disk that survived. I included some new poems to make up for those lost. With the help of a friend's contributions I had a young graffiti artist produce a cover design and had about 240 copies printed up. I dedicated the book to those I see as Canada's contemporary folk heroes, those who liberate and enrich our lives in the face of media and state harassment; hookers, hustlers, strippers, traffickers and taggers. Genuine folk heroes are always in conflict with elitist and mainstream values. Friends distributed a few dozen and I sent off about thirty as samples and for review as I've done with my other publications. I didn't expect much response. I also sent a couple of copies to XTRA West, Vancouver's bi-weekly gay newspaper which had reviewed one of my earlier books. The Editor, Garreth Kirkby left a phone message telling me not to send them any more of my poetry and that he had no intention of covering my trial. He confirmed it when I later spoke to him. I was persona non grata with the official gay community but I was still surprised at his attitude in view of his qualified editorial support for William Bennest. I placed ten copies in Little Sister's and a few in two small bookstores. Little Sister's which is involved in its own constitutional challenge felt it advisable to take my works off their shelves to avoid media and police harassment after only two copies of RAAV had sold. One of these was purchased by an American visitor with whom I have established regular and rewarding correspondence. I was finding it difficult to organize any kind of literary merit defence. It was my former gay literary friends more than anyone else who were anxious to disassociate themselves from me. I thought of them as a bunch of pathetic wimps. I would have somehow to find qualified people to read and evaluate the artistic merit of my bizarre BOYABUSE stories. This would not be easy. Except for close, long time personal friends I was feeling isolated as others drifted away.
Some time before my preliminary hearing I realized that I might have to defend myself. I had already the developed the basic plan for challenging the law which I would later use at the voix dire. I had seen TV clips of William Bennest, the Burnaby elementary school principal charged with child pornography, dashing from a car into the courthouse with a jacket held over his face. I resolved to never behave in such a self demeaning manner. I also remembered the spectacle of a near catatonic Richard West at his sentencing on child pornography charges. I had done nothing I was ashamed of and I was not going to act as if I had. Let people think what they may. I normally walk proudly anyway. I can remember when I was a small child just starting school and I was a full head above most others, a regular beanpole, and I used to walk hunched over to compensate for my embarrassing tallness. My older brother, a much braver person than I was then, told me to walk with my head up and shoulders back. I consciously worked on my posture. In recent years I have found that with my emphysema good posture also makes breathing easier. I knew that if I defended myself that my bearing and health would be important.
Before my preliminary hearing I had a brief pre trial conference before Judge Field where I discussed arrangements with the prosecutor. Terry Schultes who had experience in cases involving constitutional issues had recently replaced Peter Gulbranson with whom Myers had tried to make a sweet deal. Schultes is a short, tidy man who approaches his job in a business like manner. He was genuinely concerned about my lack of a lawyer and offered to put off the hearing until I had retained counsel. After my unsuccessful shopping efforts I had doubts about finding suitable counsel and agreed to proceed as scheduled. I entertained the idea that somehow after the preliminary hearing and my not guilty pleas that it might be easier to find someone I had confidence in to represent me. Schultes seemed to be a very decent fellow and except for some frustrating delays in providing disclosure, which I suspect were due to Detective Waters's zealotry, I never had occasion to doubt his behaviour or integrity during my trial.
The purpose of a preliminary hearing is to decide if there is sufficient evidence to proceed to trial. Defendants have the right to waive the hearing and proceed directly to trial on a guilty plea. I certainly had no doubt about there being sufficient evidence. They do however provide an opportunity to explore the Crown's case, raise legal points, and in my case gain some practical courtroom experience. My preliminary hearing began on February 11th, 1998 in Surrey Provincial Court before Judge R.D. Miller two years and ten months after my first bust. The Crown was proceeding by way of indictment which gave me the right to select the method of trial. I elected trial in Supreme Court before a judge and jury. Given the widespread hysteria about child pornography which made the charges seem particularly odious I was repeatedly asked why I chose a jury trial. I believe no one else had. The answer is simple: My readings of ignorant and righteously indignant sentencing decisions in other child pornography cases led me to think that I could hardly do worse and I could always convert to trial by judge alone but not the opposite. I saw more opportunities to present the personal aspects of my case with a jury.
The Crown called six witnesses. The first was Detective Noreen Waters, the head of the CLEU's pornography portfolio, essentially the kiddieporn squad, the investigation officer, the exhibits officer and the officer who arrested me. At the time she had served with the Vancouver Police Department for twenty two years and had very extensive credentials in the field of investigating child pornography. She became involved in my case three weeks after my first bust and took custody of the exhibits two months after. A copy of her curriculum vitae entered at the subsequent voix dire is attached as Appendix "XX". Detective Waters is a tall slim haughty blond woman in her forties. I found her in my several dealings to be icily reserved and completely humourless. She made her more than professional dislike for me clear on first meeting. She seems to take her job very seriously and gave her testimony as a presentation. Mr. Schultes made a meticulous and often tedious direct examination of the witness. Detective waters replied in minute detail relating the course of her investigation often giving the exact date and minute of such things as turning over an exhibit for analysis by a colleague. I failed to see any point to the minutiae. During her examination she entered 101 exhibits, everything from books and computer disks to my will and one page scraps of scribblings and gave brief descriptions of each. Much of this was to establish facts my residence, my possession and authorship of various exhibits, something which I had already told the prosecutor I had no intention of denying.
Prosecutor Schultes led Detective Waters through the events of May 13th, the day she arrested me and obtained a search warrant. According to her she was advised over the phone by Constable MacDonald of the Surrey RCMP that there was a warrant in effect in Surrey for my arrest on child pornography charges and he asked her to assist in executing the warrant. A copy was faxed. Along with Detective Don Smith and Constable Brian Hynes she arrived at my apartment at 7:55AM. Her description of the event basically corresponds to my earlier description of it. She noted my furniture and a large framed photograph on my living room wall of me handing out joints at a marijuana legalization rally a couple of years previously. The picture had appeared on the front page of the VANCOUVER SUN. She seized a copy of LIFE ON THE CORNER: THE MOON EYED BEGGAR'S TALE, a novella I had recently published. She also seized a computer disk of my novel PETER'S PATH which I had written in 1986. I'd recently had the original typed copy scanned and processed with an optical character recognition program in order to facilitate editing and formatting. This I had done at considered expense and time in case I needed it as part of a literary merit defence at my trial. It was the only digitalized copy I had and I could not afford the two hundred dollars to have the original rescanned. This took maybe twenty minutes.
Continuing her testimony Detective Waters related how she had a police computer technician print out a hard copy of the novel, maybe two hundred pages by her estimate, and she then reviewed it. She also reviewed LIFE ON THE CORNER: THE MOON EYED BEGGAR'S TALE, some forty pages and came to the conclusion that both advocated sexual activity with persons under eighteen and thus constituted child pornography. (Neither was deemed to be child pornography by the Crown and both were subsequently returned.) Detective Waters then prepared a nineteen page INFORMATION TO OBTAIN A SEARCH WARRANT, took it to a justice of the peace and obtained a search warrant. The INFORMATION included two and a half pages quoting Dr. Peter Ian Collins thoughts about pedophiles and collectors of child pornography. He is apparently her guru on such matters. By 2:00PM, a mere six hours after knocking at my door, Detective Waters along with Sergeant Smith, a Detective Harrower and Canada Customs Regional Intelligence Officer, Peter Lee entered my apartment with a search warrant. Detective Waters had an extremely busy day.
I began my cross examination of Detective Waters in mid afternoon. Two things had struck me about her testimony. One was that she seemed to have no comprehension of what she read confusing different stories and the characters within them and making errors of fact. It seemed that in reviewing written material Noreen Waters' mind operates somewhat like a computer word search program. It picks out acts and ages but nothing in the way of plot or context. She doesn't comprehend what she reads. This might be excusable in terms of the material seized during my arrest and reviewed for the purposes of a search warrant a few hours later but not for material she claimed to have spent six months studying. I suspect that she may have a moral block examining material she finds offensive.
I was not very pleased with my cross examination of Detective Waters the first day although it could have been worse. I saw the need for a lawyer's know how and skills. I phoned Jim Heller in Victoria and he gave some impromptu coaching which proved helpful. The next day when Detective Waters resumed the stand she first explained that she had been confused about my books and that she had been thinking about MANILAMANIC when I had questioned her before about LIFE ON THE CORNER which was used as evidence to obtain the search warrant. I had asked her on Wednesday if she understood the story, how did the boy become blinded and deformed. All she remembered was that it was about boys and sex. Boys, sex and sadomasochistic acts seemed to be all she remembered about any of my writing. She had said she had reviewed LIFE ON THE CORNER six months to a year prior to my arrest when in fact it had only been picked up from the printer a couple of weeks before. She said the police had received a complaint about LIFE ON THE CORNER and had purchased a copy (of MANILAMANIC in fact) at Little Sister's Bookstore.
She also corrected herself on the question of how long it took her to review the material. On Wednesday I had asked her about the delay from my original arrest in April 1995 to my second arrest in May 1996. In reply she mentioned that it took six months for her to look over the material. On Thursday she said the six months included both seizures. This did not however seem to explain the delay.
Using ideas I had picked up from Jim Heller I asked her about my arrest. I asked her if they had discussed my arrest before they arrived. She replied that they considered the safety of the arrest. I asked her about the time, early in the morning when people are often asleep. She replied that it was a time when people were likely at home. I asked why three officers were needed. She replied to ensure the safety of the arrest. They can't be too careful and it would give them a chance to seize "plain sight" evidence. She admitted they swarmed into my living room but they did not "mill around the room" as I had suggested. I explained that I just wanted to get dressed without a bunch of people snooping around. Judge Miller reminded me my job was to ask questions. If the police had only been interested in arresting me they could have waited at the door until I put some clothes on. When I asked her this she replied, and I quote from the transcript of the preliminary hearing, "We're concerned that you might go into your suite and possibly get a weapon. And so, once you're told you're under arrest, then we make sure you're secure and that it's for our security as well as your own." I questioned this, "So, you suspected I might be armed?" She replied, "We didn't know and for our safety, and as well for securing evidence, we make sure that you're not going to go in and do something that might cause us to..." I jumped on that, if they had only come to arrest me what evidence were they expecting? Detective Waters replied: "In normal cases, that's the reason. It is for safety reasons or somebody might run in and do something that, if we were going to arrest you, if there were evidence. At that time we weren't looking for evidence. We were looking to arrest you safely and to transport you from there to the jail." I did not believe she was very forthcoming but I couldn't tie her down.
Finally I asked her why she didn't summons me or phone me and ask me to turn myself in at her convenience. She replied that they had to go out and arrest me in order to have a bail condition placed on me prohibiting contact with children under eighteen. She stated: "We didn't... a summons wasn't issued, for the fact we wanted conditions put on, of no contact with children, and not to be in areas where children would frequent. So, we needed you to be arrested and then released, on those conditions." That was the only reason she gave. This served to affirm her belief that porn and abuse are linked. But if she was so concerned about me molesting children why did she not seek to have me arrested months earlier? I told Mr. Schultes after that I would be challenging the basis of the search warrant. During breaks I paced the corridor outside the courtroom strutting proudly to work off physical energy and to convey my attitude.
The next two Crown witnesses were Russ Erickson, a systems analyst for Computer Services with CLEU and Inspector Donald Robinson of the Customs Excise and Taxation Division of Revenue Canada. Both gave straightforward testimony and aside from finding out that over 221 photos had been seized at the border I had no questions. After that Constable David John MacDonald of the Surrey RCMP who arrested me at the Douglas Border crossing and took me to the Surrey Pre Trial Centre testified. He had me fingerprinted and photographed and was the original investigating officer in my case before Detective Wolff, now Detective Waters, took over. Under the prosecutor's direct examination he started off very soldierly fashion but soon seemed somewhat confused referring to his notes frequently some of which he couldn't find. When the prosecutor asked why he requested a warrant for my arrest Constable MacDonald replied in part, "given that he was no longer -- or, pardon me, that he -- I could not confirm as to whether he was living in or where he was living, so I felt that a -- a warrant would be the most appropriate response." Asked if any other considerations applied he continued that he also felt a warrant rather than a summons was appropriate because knew me to be an international traveller and I could flee. He said he contacted Detective Wolff and requested her to execute the warrant. He could not remember the date but according to Detective Waters it would have been early on the morning she arrested me.
In cross examination I asked Constable McDonald why he did not look in the telephone book. He replied, "I -- Your Honour -- quite frankly, Your Honour, I never looked in the phone book." When I asked him if he did not find phone books reliable he conceded, "They are an aid to an investigation, Your Honour. That is correct." He admitted that the possibility of me fleeing was the reason he asked Detective Waters to execute the warrant, that and the fact he could not confirm my address. As for fleeing at that time he had my passport in his possession, unless he'd already passed it on to Detective Waters. I forgot to ask him about the summons I was told to expect in July 1995. Given her early involvement and Robinson's seeming disorganization I wondered if Waters didn't request the case be turned over to her. The constable struck me as a weak witness, maybe a man with problems.
Mary-Louise Causland, Director of Film Classification, Ministry of the Attorney General who had previously submitted a report deeming some of the seized written material to be child pornography was unable to appear. The last Crown witness was Dr. Lois Jean Hlady, Paediatrician, Director, Child Protection Service Unit, B.C. Children's Hospital. She testified as an expert witness giving her opinion about the ages of children based on their physical appearance in photographs. The judge questioned the need for her testimony. I had read her report which gave her estimates of the ages of the boys in my photos based on Tanner stages which correspond to different stages of sexual development. These were devised by James Mourilyan Tanner an English doctor. I consulted her sources at the Woodward Library at UBC. Tanner has written extensively on adolescent development. Photos in his book illustrate the physical, genital and pubic hair characteristics of the five stages from prepubertal to mature, approximately eighteen years. I photocopied excerpts showing various naked children at different stages. Under direct examination Dr. Hlady claimed to have examined at least 20,000 children including 2000 victims of physical and sexual abuse. Under cross examination briefly mentioning the two recent high profile video porn cases, Richard West and William Bennest, in Vancouver I asked if she had treated any of the teenage boy victims. She said she had not and that sexually abused teenage boys are seen by male staff although she has seen some physically abused teenaged boys. She mostly deals with young female victims. I asked her if she had heard of Dr. John Money of Johns Hopkins University and Hospital, a hormone researcher, sexologist and widely read author. Surprisingly she had not. Judge Miller noted that she had not given any evidence that she had examined children and compared that to known ages. He said, "It doesn't look like an area of expertise to me."
Judge Miller was reasonable and at times helpful but was quick to step in when I strayed beyond the purpose of the preliminary hearing by such things as offering my own testimony. I had a lot to learn. I was able with Prosecutor Schultes co-operation to get the trial moved to Vancouver where most of my charges were laid. It suited him as it was more convenient for most of his witnesses. It made an immense difference to me both in terms of personal safety and convenience. It would be a short bus ride or fifteen minute walk as opposed to two hours by bus, Skytrain, bus and a ten minute walk. It would have made defending myself impossible. It was only later that I discovered that Larry Myers had waived the Vancouver charges to Surrey on the promise of a guilty plea. I was not asked. He may have seen it as a damage control measure with less publicity than in Vancouver.
The preliminary hearing was subject to a publication ban and aside from a friend who drove out there a couple of times hardly anyone aside from court officials were present. There was however a large heavy set man with a shaved head and moustache who took notes. He approached me cordially and introduced himself as Leo Knight, an investigative journalist who wrote for THE PROVINCE. I had never seen his byline but then I seldom read that rag as I thought of it although it does have the best comics and bridge column. One day he gave me a lift back to Vancouver for which I was grateful as public transit takes so long. He said he was writing a feature article relating to my case. We talked in a general way and I agreed to meet him later at a 4th Avenue coffee house. He said that he had covered the William Bennest case and claimed that some behind the scenes deals had been made to get Bennest a light sentence. At our meeting I made my sentiments about the child pornography laws clear and explained how they and other laws supposed intended to protect children often had the opposite effect. He said he would like to meet some young hustlers to get their points of view. I lent him a copy of my most recent book of poetry, RAAV, which he promised to return, and said I would make enquiries. I told him he should pay them at least the minimum they would expect for their services, forty dollars. He thought that was a fair price for interviews. I contacted two boys, both over eighteen, that I knew socially and gave them his phone number. He interviewed both of them but the boys reported that he only gave them ten dollars and coffee. I was only able to get through to Mr. Knight once after that. I asked him about the interviews. He excused himself by saying that the money had to come out of his own pocket and despite again promising to return the book he never did. I found out that he writes crime columns for the North Shore News, and other local papers including the Southeast Asia East Post. Leo Knight is an ex-cop and has an in with them. As for the Bennest case he writes that the police were the victims. The Crown, the prosecutors and the judges were the villains for making secret deals. The police who conducted the investigation, on the other hand, are "the only people who can claim the high moral ground in this case." He writes as if he never took off his badge. Subsequently in 1999 one of his columns led to a law suit which contributed to the closure of the Post which on the whole was a very good paper.