PART FOUR: THE VOIR DIRE(42,000 words)
I went to the courthouse alone and found it unusually crowded with TV camera crews stationed by the entrances. They were not for me however, my hearing just happened to coincide with the trial involving Sarah McLachlin's songs. I found the designated courtroom on the seventh floor where a gallery runs the length of the building overlooking the terraces of the lower levels under the enormous glass shed roof. A statue of Justice, blindfolded and holding scales is at one end of the main floor plaza. The Arthur Erickson designed courthouse is a beautiful and extravagant structure especially from inside. I was disappointed later when part way through the voir dire the trial was moved down to a small stuffy basement courtroom.
Even though I knew there was a publicity ban I had expected that there would be some curious observers and media people there but to my knowledge no one from the media attended during the entire voir dire. I was glad of this and aside from a few friends of mine who came from time to time I noticed only a few other visitors including some I assumed to be law students who sat in briefly one day. Being pre-occupied with the task in hand I did not pay much attention to spectators. I always had cordial relations with the prosecutor Mr. Terry Schultes and we got along well. He seems very much, a "by the book" prosecutor. His job was to present the Crown's case which he did conscientiously but colourlessly. Perhaps his best line came when I was demeaning the rigid "offender/victim paradigm" of Dr. Collins's thinking. He brightly remarked that the law was based on the victim/offender paradigm. He introduced me to his handsome young assistant, Mr. Brian Wasiliew, a criminology student from SFU doing his practicum. Brian struck me as very dour at first. Initially I imagined him with a pitchfork in his hand as the man in the famous "American Gothic" painting. He had a "christian chic" look about him in the style of young white missionaries in the tropics wearing their gabardine suits. I'm sure he initially saw me as some media constructed pedophile. His demeanour relaxed, possibly because I failed to fulfil some preconceptions of a pariah monster, and I was able to have easy conversations with him. He is a personable young man that both women and gays would find attractive.
Mr. Schultes advised me on some basic courtroom procedures and rules and we discussed how to proceed. At the pre-trial conference in early October before Judge Gil I learnt that he would be calling nine witnesses, basically the same ones who had testified at my preliminary hearing in February in Surrey. No mention was made of a Dr. Peter Collins.
When Justice Shaw took the bench we both gave our names and the voir dire began with the reading of the four charges against me. Two related to simple possession of the material seized in the two arrests and two related to possession for the purposes of distribution of my collection of short stories, BOYABUSE: Flogging, Fun & Fortitude. The prosecutor who did most of the talking stated that I had filed a proper notice of a constitutional question which is a technical requirement to mount a challenge to the law. He conceded that the two sections of the child pornography laws that I challenged; the written material definition [section 163.1 (1)(b)] and the simple possession offence [163.1 (4)] infringed on the freedom of expression provisions [section 2(b)] of the CHARTER, but claimed that the legislation was saved under s. 1 of the CHARTER which allows rights and freedoms to be limited "subject to such reasonable limits as may be proscribed by law as can be demonstrably justified in a free and democratic society." This provision is the key to many challenges. The prosecutor claimed that my rights under the other sections of the CHARTER I was challenging, namely sections 2(a), freedom of conscience, 2(d) freedom of association, and 15, equality rights, were not breached. I would have to substantiate that the two sections I was challenging did infringe on my rights under those sections of the CHARTER.
Mr. Schultes referred to the case of ONTARIO v. LANGER, the 1995 decision of the Ontario Court General Division that I had looked at earlier. He said that because this was a forfeiture hearing pursuant to section 164 an appeal to the Supreme Court of Canada was refused. This was fortunate for me because of the paucity of evidence and argument at that hearing would probably have led to the law receiving the Supreme Court seal of approval. Referring to LANGER he said the Crown submits that this decision be adopted as an accurate statement of the law. He would be calling witnesses with respect to the pressing and substantial objectives of the legislation. This was to be the essence of the Crown's case.
I informed the Court that I would not be calling up any witnesses. I had given up that idea as impractical. My search for allies who might have been able to support me had been futile. I had thought of possible witnesses during my readings but I couldn't afford to bring one in anyway. I was going alone, I would have to rely solely on casting doubt on the testimony of the Crown's witnesses. I thought I had a chance with Detective Waters because of her obvious zealotry. I listed the items I wanted to submit as evidence and explained that they related to the question of overbreadth and the suppression of political advocacy. In reply to a question from the Court I said that advocacy in respect to changes in the law and advocacy in respect to human conduct "can be one and the same thing." I can understand the Court wanting me to clarify what I was trying to do. He was proceeding cautiously, asking questions to make sure points were understood by all. I would also be making a "public good" argument.
I wish I had known more - even a few basic hints at this stage.
I had planned things much too formally, writing down arguments I intended to make and to counter those I expected I would have to deal with. I went into the voir dire not knowing what to expect. I had studied several constitutional decisions but this only gave me a vague idea of what to expect in a actual courtroom. I suppose I was expecting a set piece battle fought with arguments. I approached things as a writer, I made a lot of notes giving my constitutional arguments. I had my Preliminary Comments, my Opening Remarks and write ups on the precedents and cases I felt supported my arguments. Much of this I never used or used only partly. Some was not relevant and a fair amount got covered superficially out of context making it difficult to come back to. Some I couldn't work in. A lot of it was more appropriate for the summary. Cross examination involves the art of making statements through questions and I was a neophyte. I had to keep adapting and playing it by ear when I had expected a more prepared speech type of thing. While I knew that Detective Waters would be testifying and I would be able to cross examine her I saw the voir dire as mainly a debate about the law between myself and the prosecutor. I had not watched any constitutional cases and perhaps fortunately very few courtroom dramas on television. I would have benefited enormously from some simple advice from a lawyer experienced in such matters but all those I was talking to had other expertise. The law is so vast that most practitioners are necessarily poorly informed about most of it. I was taking on the whole system by myself with no allies. It was scary. Despite my profound ignorance I had accumulated a large amount of legal and social science knowledge during my apprenticeship which I could draw upon.
We discussed exhibits. I said I wanted Brongersma's LOVING BOYS and MALE INTERGENERATIONAL INTIMACY entered. Mr. Schultes said that he had no objections, although I was not specifically charged with them he said Brongersma's works met the definition of child pornography. Earlier he had said that they were "too positive". There was some question about the admissibility of the hearings of the Standing Committee on Justice and HANSARD. Schultes emphasized that "Parliament speaks as corporate entity. And the will and purpose of Parliament is to be construed from the legislation as a whole." However he volunteered, "But in numerous cases, the legislative committee proceedings and HANSARD have been received by the courts." The point had been made at the hearing where Mr. Waddell's subpoena had been quashed which he had attended. Prosecutor Schultes was basically honest and fair as ideally he should be, a servant of the truth. I was going to try to be the same and my early impressions of Justice Shaw was that it could cost me if I tried to do otherwise. No fancy dancing here.
The Court explained that the usual procedure in a hearing was for the evidence to be presented first followed by the arguments. I didn't know this, probably most lawyers could have told me but I never asked. My carefully prepared opening remarks and arguments could not be used although I hoped to salvage parts for later. It was agreed that I would submit my evidence, consisting solely of exhibits consisting of written material, and then the Crown would submit their exhibits consisting of my impugned child pornography, case authorities and testimony of expert witnesses who could submit their own exhibits. This would be followed by arguments based primarily on legal precedents. That was the plan of the voir dire.
The first exhibit I entered was copies of three issues of the NAMBLA Bulletin, the newsletter of the North American Man-Boy Love Association. I prepared and included a detailed content analysis for each of the three issues submitted. As they were simple factual summaries neither Court nor Mr. Schultes offered any objection. I had been concerned that entering material already deemed in other cases as child pornography might get me into trouble as practically everybody I had discussed this with, including lawyers, thought it would be a dangerous move. I could be seen as being contemptuous of the law and perhaps face additional charges. I alluded to this and the Court assured me that items used for the purpose of defence are protected. I explained that the NAMBLA Bulletin was the principle target of the written material provision to the child pornography law. I wanted to argue that if this was the intent of the law, then this intent is improper because the publication is essentially political speech which, I believed was unequivocally protected, not only by the CHARTER but also common law. I was unable to say as much as I wanted but I felt that the law by targeting advocacy with political meaning was a blatant if not deliberate violation of free expression. It would have been very nice if that argument impressed the court but since failing to stop the quashing of Waddell's subpoena I had less faith in it. At least, I rationalized, I wanted to force the judge to rule on the legality of the newsletter, which could result in a minor victory although it would not necessarily exempt my stories.
In the words of its members, Parliament was in particular targeting the NAMBLA Bulletin and similar publications because they support consensual intergenerational emotional and sexual relations and call for the repeal of age of consent laws. The mission statement of NAMBLA, which I quote elsewhere, supporting the above was read into the parliamentary debates as evidence of the need to prohibit written material!
NAMBLA's goals as evidenced by its statements and editorial content are clearly political. They lobby. They give news favourable to their cause that is not readily available from other sources and offer support to both men and boys who they believe are victims of misguided laws. They also provide a forum for discussion of issues related man/boy relationships. As you would expect from a group that is subject to widespread opprobrium there is a tendency to self justification with theories and analyses that would bolster the self esteem of their readers. They definitely feel themselves to be on the defence. Except for the fact that the content, the ideas and viewpoints expressed are very offensive to many people the NAMBLA Bulletin is similar to many other special interest newsletters. It provides some insight into the concerns, thinking and behaviour of boylovers which could enable others to understand them better.
I argued that the provisions prohibiting material that "advocates or counsels" sex with kids is not only a violation of the freedom of expression of those wishing to favourably comment on intergenerational sex but it also violates the freedom of expression of all Canadians in that it denies them information upon which to form their own opinions and express themselves. In denying others "the right to know" it is thus doubly restrictive of freedom of expression. The Supreme Court of Newfoundland had ruled in the 1987 case, RE GEORGE RIDEOUT: "Freedom of expression includes access to such information as may be essential to a responsible exercise of freedom of expression." (referred to in CRD 525. 70-01). For example at the present time there is a concerted effort by police, so called child advocacy groups and governments in Canada to raise the age of consent to 16 or 18. This is promoted as a measure to combat underage prostitution. It is also assumed that teenagers are too immature to have sex anyway. No counter-arguments about raising the age of consent have appeared in the mainstream media that I know of. Anyone who publicly argues against the idea runs the risk of being suspected of promoting the interests of pimps and pedophiles. We need publications like NAMBLA so that counter-arguments are at least articulated.
I first examined a number of issues of the Bulletin in bookstores in Amsterdam in 1995 just a few days before I was first arrested on my return to Canada. In common with the newsletters of most special interest groups it contains news, articles, editorials, letters from readers and short pieces of fiction, for the most part stories involving an erotic interest in boys.
NAMBLA has brought public attention to serious social problems, one being the extremely high suicide rate among gay teenagers and youth. Studies in Canada including a recent one in Calgary have confirmed this problem. The gay community in the United States was reluctant to act on this problem for fear of being identified with pedophilia. NAMBLA through its publications and albeit weak voice basically shamed gays into taking some action. The outreach programs for gay youth which seek to bolster their self esteem through intellectual and organizational support from the gay community are in part the result of lobbying by NAMBLA. I am glad to be able to say that we have such programs in the Vancouver area.
The articles include information and points of view not accessible elsewhere. The May 1993 issue contains a report, "Janet Reno's Dark Past". The same story was just recently broken by Public Television, PBS in 1998, five years later. It details how a fourteen year old boy, Bobby Finje, was jailed for twenty months on very dubious sex abuse charges where he faced life imprisonment before he was acquitted by a jury. Six of those months he was in solitary confinement and sometimes kept naked as a suicide prevention measure. Janet Reno, the U.S Attorney General made her reputation prosecuting child sex abuse cases in Florida and used the protection of children from such abuse as a rationalization for the assault on the Branch Davidians in Waco, Texas which resulted in 72 deaths including several teenagers and ten children five and under.
The April 1997 issue of the NAMBLA Bulletin includes, "Molested" the testament of the mother of two young boys whose innocent sex play was inadvertently mentioned to a school counsellor who reported it. The mother describes the suffering her whole family, and other families are going through as a result of zeal and insensitivity of child abuse officials. It implicitly questions the workings of mandatory reporting procedures for suspected child abuse. More recently similar stories of the legal/bureaucratic abuse of children have appeared the mainstream media. The letters sections include discussion of internal politics and rants and testimonials from readers both men and boys. The erotic fiction which is sometimes passionate, if not all that graphic, explores the thinking, often accurately paranoid, of men in their relations with boys. The stories are often about thinking about, watching, wanting, approaching, or being approached by a boy, and some ensuing adventure with the boy. Sometimes they are written with insight but more often they are not. In common with romance stories generally there are often social and ethical dilemmas, they are about relationships set a cultural context for behaviour.
Even reading the content analysis (the magazine has been deemed illegal to possess and men have been jailed for having done so) provides some idea what the NAMBLA Bulletin is all about. It is of course mainly written by and for boylovers, men who are attracted to boys and who usually have an erotic interest in them. Men like this have always existed everywhere. They are not created by such magazines as is claimed by people like Detective Noreen Waters. She stated, "NAMBLA promotes the sexual molestation of children." and described it as a manual for the sexual abuse of boys. I submit that it is not a question of men reading NAMBLA being inspired to have sex with boys but one of men who have an erotic interest in boys discovering NAMBLA and political, cultural and ethical contexts it provides.
Men who lack any contact with others of similar interests may become moral isolates and pursue their interests with less responsibility. They are exposed to less social control and review. Such men can be potentially very dangerous. People who commit heinous crimes are often moral isolates subject to little social or peer pressure. Or more likely they are psychopaths. NAMBLA provides an ethical context for men attracted to boys. It ties their interests into the news, politics, art and literature, it contextualizes and entertains. This socializing includes ethical standards to reflect their own activities. Depriving people of an ethical and moral context of their behaviour, however offensive that morality may be to correct sensibilities, can be a recipe for dead children. While it may be reasonable to claim that banning written material favourable to intergenerational sex reduces the number of instances that occur it is also very arguable that it increases the chances of substantial harm in others. Severe penalties create fearful and desperate men. Where children are involved we need to exercise extreme caution. It is quite reasonable to believe that the net effect, the balance of probabilities, is that NAMBLA-like materials serve the public good and help to protect children. While intergenerational affairs are treated positively the newsletter is not an incitement to assault children. It should be asked whether or not young boys are safer if boylovers can read magazines such as this. It provides some structure for their thoughts and behaviour.
I also tried to enter a table of contents from PAIDIKA: The Journal of Paedophilia, the somewhat more academic European magazine that had refused to send me a sample copy because of Canadians laws. This was refused as the Court considered a table of contents as hearsay evidence. My second exhibit was the book FLANTING IT!, an anthology of gay journalism edited by Edward Jackson and Stan Persky. I had recently purchased it at a downtown bookstore. It contains the article, "Men Loving Boys Loving Men" by Gerald Hannon. This controversial article was the subject of a long drawn out pre-Charter legal case, R. v. POPERT which was only resolved in favour of free expression a couple of months prior to the proclamation of the CHARTER OF RIGHTS AND FREEDOMS.
My next exhibit was the case, IORFIDA v. McINTYRE discussed earlier which struck down the prohibition against literature promoting illicit drug use in section 462.1 of the Criminal Code. I drew a parallel with the written materials provision of the child pornography laws, "which advocates or counsels" . Wasn't IORIFIDA & McINTYRE about "advocates or counsels"? I was still innocent of the complexities of judicial thinking, I was quite idealistic for a while when I began to love law. Although the decision was at the Ontario Provincial Court level, the fact that the ruling was not appealed by the Crown gives it weight. This means however that the decision is technically only binding in Ontario. The Crown's prospects were gloomy and an unsuccessful appeal would more deeply entrench the regained freedom. They didn't want to give NORMAL's cause more publicity. A wide variety of "drug positive" literature became legally available again, and also paraphernalia which was still on the books, but the police have continued to make punitive seizures of literature to harass distributors. The lack of a Supreme Court decision on the matter makes it costly for distributors to fight seizures.
Exhibit #3: Three copies of High Times. This American magazine was banned from Canada for a number of years under section 462.1. It's currently available in most Canadian cities thanks to the decision in IORFIDA. The magazine was in fact the chief target of the "literature" provision according to parliamentary debate. High Times used to be the potlover's equivalent of the NAMBLA Bulletin. Now we grow our own magazines too. One example is Cannabis Culture published in Vancouver which has a circulation of 56,000. I did not refer to any specific articles in High Times, I merely wanted to show that as a result of IORFIDA Canadians now enjoy the freedom to be informed on and discuss matters relating to recreational drugs including advice on cultivating marijuana. Perhaps we even have the right to access all countervailing points of view. The political implications of IORFIDA seemed obvious to me.
Exhibit #4. The next exhibit I entered was the book, DARES TO SPEAK - Historical and Contemporary Perspectives on Boy-Love edited by Joseph Geraci, who is also Editor-in-Chief of PAIDIKA. This is an anthology of boylove articles from many different sources and contains many positive references to adult/child sex. I purchased it locally with the specific intent of entering it as an exhibit. My purpose, aside from bringing the content of certain articles to the attention of the court was to demonstrate the breadth of the law. Similar works had been deemed child pornography by the Crown.
Exhibit #5: the 1991 NETHERLANDS SEX LAWS, unfortunately available only in Dutch. The judge agreed to accept it in part because I was able to provide two commentaries on it in English. One of them was an article in the above book entitled "The Netherlands Changes its Age of Consent Laws". In Dutch law the age of consent which approximates the age of puberty is 12. Because the legislation allows sexual activity with children which would be illegal in Canada I wondered if it could be seen as "advocating" and hence be deemed child pornography in itself. I also wanted to show that countries equally concerned about protecting children adopt quite different approaches, in this case a reactive as opposed to our pro-active one.
Exhibits #9 and 10: My erotic, often sadomasochisticly themed boy stories titled BOYABUSE: Flogging, Fun and Fortitude were entered by the Crown and were the principal material evidence against me. An unfinished story, Stand by America was entered separately. I wrote these stories using the nom de plume of Sam Paloc. Sampaloc is the Tagalog name for the sour-sweet leguminous fruit we call tamarind. Most of the stories would probably be obscene under section 163, however I was not charged under that section which contains no simple possession offence.
Exhibit # 17: LOVING BOYS, this two volume study by my late friend Edward Brongersma was entered by Detective Waters at my request. This is a pioneering study of the subject and is more encyclopedic than scientific. Dr. Brongersma had a background in medicine, his father was a doctor, he earned a doctorate in law and was a noted jurist. He was fluent in English, German, Dutch, French, Spanish and Portuguese and could read the Scandinavian languages. As a result of earlier writings he amassed an enormous amount of correspondence with both men and boys who were or had been involved in intergenerational relationships many of which lasted for years. This enabled him to draw extensively on the experience of those involved. He also built up an archive of material relating to boylove which was seized and essentially destroyed in 2000 by the Dutch police under pressure from the Americans. Brongersma is possibly the man most vilified by those who crusade against child pornography. Detective Noreen Waters sees him as an insidious influence and Dr. Peter Collins dismisses him as "a convicted pedophile". I read a paragraph from the book jacket to the court:
"Dr. Edward Brongersma is one of Holland's most distinguished jurists. In 1946 he became a member of the Dutch Upper House of Parliament, or Senate. Four tears later he was arrested for having sexual contact with a 16 year old boy - under an archaic law which he helped repeal in 1971. After release from ten months in prison, he rebuilt his shattered law career and returned to the Senate in 1963, where he was chairman of the important Judiciary Committee from 1968 until his retirement in 1977.The Queen knighted him into the Order of the Dutch Lion in 1975."
Edward Brongersma died April 27th, 1998, the day I received his last letter. Dr. Brongersma sought to understand what Dr. Collins seeks to treat without understanding. I wrote a memorium, "A visit with the doctor", and posted it on the Internet along with those of others. It was also printed in the NAMBLA Bulletin.
Exhibit #18: MALE INTERGENERATIONAL INTIMACY: Historical, socio-psychological and Legal Perspectives: This book was also seized from my library. This is another anthology made of articles and reviews. The seventeen academic contributors include David Finkelhor one of Dr. Collins' authorities. This book also "met the definition" of child pornography and the prosecutor would not allow me a have a photocopy of the Introduction by Dr. Gunther Schmidt as even it was deemed child pornography.
Exhibit #19: WITCHHUNT FOILED: The FBI vs. NAMBLA: I discovered a review of this 1985 NAMBLA publication by Hamilton on an Internet site. The review said that the book chronicled a series of confrontations in the courts and the media between the FBI and NAMBLA in the Northeastern United States. The review mentioned certain events in a way which seemed to contradict testimony about NAMBLA given by then Detective Wolff before the Standing Committee on Justice. I had already noted several errors and gross distortions in her testimony before the committee and was looking for further evidence that might challenge her credibility. I ordered WITCHHUNT FOILED but it was intercepted and detained by Canada Customs as it was considered to be child pornography. I appealed and the book was forwarded to Ottawa where the ruling that it was child pornography was upheld. Ottawa passed the book on to Detective Waters, the investigating officer in my case. I called the prosecutor, Mr. Schultes, explaining that I needed the book to prepare my case. He told me he could not obtain WITCHHUNT FOILED for me, he said later he never saw it, but he was good enough to arrange that I could examine the book at CLEU headquarters under the gaze of Detective Waters and one of her colleagues.
The main incident described in the book was an attempt by the FBI in conjunction with local police and the media to tie in some NAMBLA members with the highly publicized disappearance of a six year old boy, Etan Patz in 1979. The case was similar to the unsolved disappearance of Michael Dunahee in Victoria a few years ago. The police "leaned on" some teenaged boys and gave them alcohol to gain their co-operation, and then on a pretext of child pornography three NAMBLA members were arrested and had their homes searched. Amongst the material seized was a photo of a boy that the police suggested to the public and the media as being that of the missing Etan Patz. No child pornography was found. The picture was on the front page of the Boston Herald American with headlines pointing towards NAMBLA. After many months the FBI case collapsed when the picture turned out to be from a 1968 calendar. Some of the police were later indicted for theft of the arrestees' property. The book also documents a series of trumped charges which failed or were withdrawn. Admissions made by the police in one of these cases, cited in the New York Times, appeared to contradict facts presented by then Detective Wolff to the Standing Committee on Justice in 1993. To deem WITCHHUNT FOILED child pornography is absurd and was a blatant abuse of Canada Custom's powers. Canadian authorities apparently considered "egg on the face" of the American FBI to be sufficient reason to deem WITCHHUNT FOILED as child pornography. After reading it I informed Detective Waters that I wanted the book entered as a defence exhibit at my trial. She threatened me with charges of importing child pornography if I did. I decided to take that chance.
My final exhibit was copies of the hearings of the Standing Committee on Justice and the Solicitor General and HANSARD which related to the drafting and enactment of our child pornography laws. I covered this in some detail earlier.
TESTIMONY OF DETECTIVE NOREEN WATERS
Detective Noreen Marie Waters was icily formal in court. I saw her as a primly dressed, determined zealot with contempt in her eyes. This was a big improvement over her hostile attitude at the CLEU fortress when I had dealings with her. I spent many hours there listing and looking over my seized materials with her and a colleague watching me closely, although sometimes she worked on crossword puzzles. I knew from the preliminary hearing that she had a lot of ready, lengthy replies which might relate to aspects of questions but not answer them. Despite my lack of courtroom savvy I almost looked forward to cross examining her.
According to her CV (Exhibit #7) Detective Waters has been a member of the Vancouver Police Department for 22 years. For three and a half years in the late 1980s she was an undercover narcotics officer participating in "buy and bust" operations in the Granville Mall area. During this period she claims she got to know prostitutes in this area well enough to determine that almost all were sexually abused as children. She was very likely involved in busting a number of them in her role as a drug cop. As such undercover operators soon become known to the regulars in the area it seems surprising that any significant number of them would extend candid personal confidences to her. Beginning in 1992 she was assigned to the Pornography Portfolio of CLEU, The Co-ordinated Law Enforcement Unit. She states that she had been involved in 200 to 300 local, national and international investigations relating to child pornography and prohibited adult material. In October 1998, a month before the voir dire she was presented with Criminal Intelligence Canada's "Award of Excellence in Policing" for her child pornography investigations. She has attended lectures by forensic psychiatrist Dr. Peter Collins of the Ontario Provincial Police Behavioural Science Unit and Kenneth Lanning of the FBI relating to pedophiles and child pornography. Except for material seized in investigations her study of these subjects as given in her CV seems confined to material made available by criminal justice sources.
In addition to three presentations (including one on Bill-C27) to the Standing Committee on Justice she has given thirty lectures and presentations dealing with child pornography and sex abuse to police, social workers and community groups. She has appeared on a panel with Dr. Collins and had hosted the recent large international conference in Vancouver focusing on child pornography on the Internet. From a law enforcement perspective these are impressive credentials.
In her direct examination by the prosecutor she spoke confidently and eagerly often at length and was asked to slow down several times. She said pornography can take whatever form people want and described photographs, contact sheets, videos and she went on and on. She described some of the most extreme examples of visual child porn and fiction she had seen. She then turned to NAMBLA which was the main concern of her presentations to the Standing Committee. She says that the NAMBLA Bulletin has been deemed child pornography and that they have obtained convictions for possessing it. In particular she mentions an article in the October 1991 newsletter, "Staying Safe and Happy as a Man/Boy Lover" which provides practical cautionary advice and ethical guidelines for the behaviour of both men and boys. She is particularly upset by advice on how to terminate relationships. She felt that this was evidence of their callous attitude toward boys. However the etiquette of breaking up is a common theme in magazines which deal with relationships such as those written specifically for teens, women and men. Why should it be different with men and boys?
She also mentions my late friend Dr. Brongersma and manages to confuse his two volume, 848 page study, LOVING BOYS with a ten page article by Gerald Hannon in FLANTING IT!. This is an error of fact. She then became so excited that both the prosecutor and judge asked her to slow down. She spends some time discussing Internet porn and the use of digital manipulation including morphing. She claims that child pornography can be made from innocent material such the National Geographic, Sears Catalogue and parenting magazines by cutting and pasting pictures to make it look like children engaged in sex.
She said that most material is distributed through the Internet and she describes how material is scanned from old kiddieporn magazines and other material. Twice she claims that there is a "tidal wave" of child pornography on the Internet. This she says has made it so much easier for people to collect it and men have collected tens of thousands of images. With computer technology this would be very easy. Detective Waters' testimony makes it clear that there has been a huge increase in the amount of child pornography available and that it is easier for pedophiles to obtain.
Detective Waters goes on to mention NAMBLA and says, "I was involved in 1996 in November with working with U.S. authorities in Seattle with their Criminal Intelligence Unit doing surveillance and working on the conference NAMBLA held in Seattle at which there were over 60 members attended." She talked to a police officer who had infiltrated NAMBLA and said he believed that pornography was traded. Hearsay? She also mentions a case in B.C. where the U.S. Customs set up an Internet sting operation. Their website which made it appear that they had and were interested in child pornography had 40,000 visits in eight weeks she said. (Some sites get over a million "hits" a week.) Depending on how it was set up for search engines 40,000 may not be a large number, it is repeat hits or visits which show real interest in a site and she doesn't mention them. This could still be several thousands. There were probably many similar sites which anyone on the Net could check out in a few minutes for themselves. She said that people sent in a lot of porn to the sting operation and a number were arrested.
She repeats the argument that the simple possession law has facilitated their work by enabling search warrants to be obtained. Before the possession laws she explains that the police were unable to seize even the most egregious material and horrific written words. This has led them to uncovering other crimes including child sex abuse.
She describes a sample of the photographs and stories seized from me which she entered as exhibits #8 to #15 completing her direct examination. From her descriptions of my photos it is clear that she considers nude pictures generally as child pornography. It seems that all frontal views "focus on the genitals" and that rear views inevitably "focus on the anal region". This is certainly what some members of the Standing Committee wanted and probably was why the definition referring to depictions of sexual organs and the anal region were added to the law at the last minute. Computer disks of Sam Paloc's BOYABUSE: Flogging, Fun & Fortitude - A Collection of Kiddiekink Classics which comprises seventeen separate short stories with a total of about 200,000 words were entered. She described the stories as extremely disturbing with sadomasochist and violent sex acts with children often enjoying their abuse. Another story intended for inclusion in BOYABUSE but never finished, called Stand By America was entered separately. She then enters the contents of Sam Paloc's yellow suitcase where I kept my arty/erotic boy photography. Several photos and an album of nudes of an older boy were excluded. There are maybe a couple of hundred of photos with a few portraying erections and one very naughty one which I'm sure she included in her sample for the court. That completed her direct testimony. In court the next event was the Direct examination of Dr. Peter Collins but for the purposes of the book I am moving on to Detective Waters cross examination to keep each witness's testimony together. I had about a day and felt reasonably prepared.
The prosecutor knew I would be arguing that the law was overbroad. I had been fairly insistent in my communication with him in demanding to know which books of mine he was deeming child pornography. In fact my only real criticism of the prosecutor was his tardiness in making disclosure, and this I believe had more to do with Detective Waters than Mr. Schultes. Some books had been returned as had my poetry and my novella about the disfigured beggar boy. MANILAMANIC, my Filipino journal they would neither return nor deem it to be child pornography and I am not sure why. Before starting my cross examination I had Detective Waters, who had custody of the remaining seized material, enter Brongersma's study, the intergenerational anthology and WITCH HUNT FOILED as Exhibits #17 to 19. A total of thirteen books including several boylove romances from my library were retained but none were entered as exhibits by the prosecution. I was surprised they did not seize my copy of CROWSTONE - The Chronicles of Qaamar by Hakim Bey perhaps the best known of this genre, and I speculated if it might somehow have been successfully defended in some other case. I wanted to be charged with as much material as possible. I felt a certain satisfaction when Canada Customs seized WITCH HUNT FOILED and deemed it child pornography. I had appealed to Ottawa and lost! What better piece of alleged porn to be charged for, to show the absurdity and overbreadth of the law. I wanted the prosecution to pile up the exhibits to prove my point. Terry Schultes knew this, and although I suspect that Detective Waters also wanted him to enter more, he only charged me with the stories I had authored. I believe that the detective wanted to get me on as much as possible and have Brongersma's works officially declared child pornography. I didn't know about Max Reymer at the time, but from her response to a comment I had made to her outside of court about seizing his scholarly works, I gathered she saw him as an evil sinister figure. After I had Brongersma's works entered as an exhibit the prosecution had an analysis of his LOVING BOYS prepared by Constable Nancy Midbow of the RCMP. This was simply a series of quotations taken completely out of context and which suggested his work was some sort of compilation of obscenity and depravity. It was submitted for the Crown as Exhibit #20. Initially I thought I would have to refute it but when I saw how, ignorant, blatantly biased and incompetent it was I made only a few brief comments, and decided to let Constable Midbow's analysis speak for itself. If the judge treated it with less than derision I was doomed. I was sure this piece of trash was the detective's idea: She was out to discredit Brongersma by any means.
This upset me, I became quite emotional and had to wipe away my tears. Edward Brongersma was a friend. He had died only a few months earlier. I encountered him first in print, quoted in some book I was reading, and later I bought his LOVING BOYS study, a major purchase for me at almost a hundred dollars. In 1991 I began corresponding with Dr. Brongersma through the Brongersma Foundation as I had heard they archived boylove material. Not many people liked my more bizarre stuff anyway and I always worried about preserving my stories, my unpublishable, sadomasochisticfaggotkiddieporn or SMFKP as I called it before I digitalized the stories and assembled them as BOYABUSE. Brongersma liked my "atrocious" stories and we found we had certain interests in common including Filipino culture. We got into lengthy debates and discussions on many subjects, mostly relating to youth and the men who are drawn to them. He had a curious encyclopedic mind and like me he was fascinated by strange customs and practices. We wrote back and forth at least monthly for years. He never used a keyboard and wrote in a small neat script. I hope some day to publish his letters. I had kept him informed of my case. He was a jurist and had written on constitutional matters. He was no fan of the English Common Law system. We argued about juries, the Dutch had gotten rid of them, and he couldn't understand why I had chosen (at that time) trial by judge and jury. I tried to explain that despite its flaws, and arguments that justice would be more effectively served etc., that juries keep law in the hands of the people. The results can be unfortunate, but there are times when juries see things that judges can't or are reluctant to. There are also times when the implications of the law are unconscionable, and while it almost never happens juries can be perverse. I also saw a jury as a way to slow things down so that in court I could make points with greater exposition of details which I thought could help my case. Maybe I could establish rapport with one or two? It was all speculation, fantasy, I had no idea of what it would be like.
Brongersma was into his eighties and in declining health when we started correspondence. I visited him for a day in 1994 at his home in Overveen in Holland and was able to spend a couple of hours exploring the Foundation's archives little of which is in English. I gave him one of the few bound copies of BOYABUSE I had made up and later archived another copy in Berlin. He was a large man with a broad gentle face and abundant white hair. He was at peace with himself but was concerned about the increasing hysteria about man/boy sex and the growing power of police authorities everywhere. He had recently been visited unannounced by American police officials who threatened him and he had been shouted down at public meetings where he had been invited to speak. Later his house was attacked at night by stonethrowers.
In the detective's presentations to the Standing Committee discussed earlier she had stressed the need to prohibit the NAMBLA Bulletin, I asked if this was because of its advocacy. She replied that she had been asked to focus on the written word (I failed to enquire by whom) and said it was a very outspoken organization. She goes on to mention that she was dealing with a man who was a very strong proponent of NAMBLA and who was on TV, radio and the newspapers about this organization. She fails to mention that this was as a result of her laying unsubstantiated charges against the man in the first place. Detective Waters did admit in reply to my questions that he had twice been charged with sexual offences against children but was acquitted both times. This man was old Max Reymer although I didn't know that until some time later. She denied that he was targeted because he was outspoken.
I asked Detective Waters if she was a student of child pornography and pedophiles. She replies that she is an investigator. In her CV she lists some of the material she has read such as psychiatrist's reports and American police material. I asked her if she had read anything with a positive slant. She mentions NAMBLA and "Men Loving Boys Loving Men" I asked her if she regarded the latter as child pornography. In her opinion it was, although she obviously confused Hannon's article with Brongersma's study. I pointed out her error and mentioned that the article was found not indecent or immoral under the law at the time in R. v. POPERT in 1978. She felt it would be child pornography now. I begin asking her if she has read specific books starting with the American 1970 Presidential Report on Pornography. She had not. I then name three books by Canadian feminists, XXX: A WOMAN"S RIGHT TO PORNOGRAPHY, BLUE POLITICS and BAD ATTITUDES. She had not. I then name two well known books on pornography by male Canadian academics, PORNOGRAPHY: THE OTHER SIDE and THE JAGUAR AND THE ANTEATER. She had not read them. As her readings were almost exclusively American I allowed myself the sarcastic question, "Do you distrust Canadian sources?" She had however read about the Butler and Langer decisions. She again mentions reading seized material as part of her job. Her level of comprehension of my writings suggest she did no more than look for evidence. She said, "I don't read the material other than as part of my job." I assume she does not read, or risk reading, to understand.
Detective Waters' CV had mentioned her work on raising the age of consent and I asked her about it. She said she wanted it raised from 14 to 16 or 18 to combat child prostitution as that is the age they are drawn into it. In reasoning similar to that of Tom Wappel's rant against adolescent sex (SCJ hearings) she states: "We've written many reports on the issue of other areas of investigation where we have -- don't allow children to drive a car 'til they're 16; we don't allow them to vote 'til they're 19; we don't allow them to go into an outlet that either shows pornographic films or -- which are termed peep shows or sells pornographic material until they're 18; and yet our age of consent is 14." This is obviously an absurd statement but I believe it illustrates the mentality of the witness and perhaps a certain religiously held belief. Perhaps it should be mentioned that one has to be thirty to be appointed to the Senate. I then asked her if I were to advocate lowering the age of consent to ten, say by handing out pamphlets on the Granville Mall, if she would charge me? The witness replied that it would depend on the content. I said scientific and cultural reasons. Detective Waters answered: "Quite possibly, you would be charged with possession... or distribution of child pornography. Standing on the Granville Mall, I think, is somewhat different to standing before a committee in Ottawa or in Vancouver, a justice committee in relation to lobbying for this type of changes." I asked her if she was suggesting lobbying be limited to certain locations? If it advocated sexual activity with someone aged ten she said I would be charged. The court astonished: "Just so that I've got this right. Are you saying that if the pamphlets advocate sexual relations under 14 that's basically the reason you would --" The witness: "Yes." The Court: "consider a charge? If the pamphlets advocate lowering the age of consent by Parliament, I think that's the question --" Waters: "Yes, that would be --" The Court: "-- the witness is getting at." After a further query from the judge about advocating changes in the law she claimed she had misunderstood the question. I think Detective Waters finally realized what I was trying to get at; that if she could advocate changing the law one way others might be free to argue for changing it in the other direction. After another question she also admitted that people may advocate pedophilia without other parts that would be an offence. It seemed analogous to being able to advocate democracy without being able to advocate elections.
But when I questioned Detective Waters later about an article in the October 1991 NAMBLA Bulletin she had mentioned in her direct examination by Mr. Schultes she reverted to her previous position. The article which I have never read, had according to the witness, included a proposal where a man, a child and parent could go before a judge and get a consent degree so they could have sex. I asked her if the proposal itself would be child pornography? She replied: "If it advocates sexual activity with a child under 18, yes, My Lord under the legislation, it would constitute child pornography." Once again the judge pointed out that this was advocating a legal change, and that she had earlier agreed that there was a distinction between advocating legal change and advocating sexual activity. Detective Waters argued that the proposal mentioned specific sexual acts and that the earlier discussion was about the age of consent not sexual activity. The Court reminded the witness that sexual activity is implicit in the age of consent.
I was trying to portray Detective as a zealot who allowed her moral beliefs to interfere with her professional objectivity. I felt my previous line of questioning had suggested her judgement was clouded. In their book, RESTRICTED ENTRY (Press Gang Publishers, 1995. p. 157) about the Little Sister's trial, authors Janine Fuller and Stuart Blackley claim that during the trial Detective Waters left the witness stand in order to run after an associate of the defence team whom she believed was going to photocopy an exhibit entitled BOILED ANGEL. This would certainly have been evidence of overweening zealotry. I was unable to contact Ms. Fuller the day before but I questioned Detective Waters about the incident as described anyway only to have it denied. I had to accept that. Following it up later I found that the authors had been mistaken in their facts. This was embarrassing.
I referred back to her testimony in direct examination about there being a "tidal wave" of child pornography on the Internet. Detective Waters agreed that there had been a dramatic increase in both the availability of child porn on the Internet and in the percentage of households connected in recent years. She testified that the size of collections had increased a hundred fold as a result of the Internet. This is not surprising as a collector could easily download a thousand images in an evening. The old kiddieporn magazines had perhaps 30 to 40 pictures each in them. She said over 100,000 images of child pornography had been downloaded from computers and that this could represent 100,000 different children. I knew this could not possibly be the case, hundreds of images of the same child are often posted at one time, but she insisted that it was possible. Having established that there had been a substantial increase in child pornography I asked the witness if there had been a corresponding increase in child sexual assaults. Detective Waters would not answer this question and insisted on talking about the relationship between porn and sex abuse. When repeatedly pressed, she knew what I was trying to do, she said, "I can't answer, My Lord." Given her professed expertise I suspect she could have answered but didn't want to because the truth would have cast doubt on the claim that there is a causal, or even correlational relationship between child pornography and child sex assault.
I next asked Detective Waters, who can legally possess child pornography? She didn't answer the question but mentioned the defences provided in the law so I asked her what defences she relied on for her own possession of child pornography. The witness rambled on about the artistic merit defence. I reminded her about the time she appeared on television with a bunch of pictures of little naked girls being urinated on in which the genitals but not the faces were covered. It took three interjections by the judge for her to understand what I was asking. She finally replied that this was for an educational purpose, and added, contradicting me, that the faces were covered. The latter point is categorically is untrue. I have a video tape copy of the program to prove it. I asked her if advocating or promoting anti-porn measures would be an educational purpose. She replied that to educate the public she would show them child pornography. I then asked if anybody could view the examples of child pornography the police have in their possession? "No, My Lord." She had been talking about nudist material as child pornography but also about artistic merit as if not all nudist material was child porn. I asked her how an ordinary citizen could find out exactly what is child pornography? I found out that if I was part of a citizens group that asked her to make a presentation I might get to see some examples. I asked her how a person might determine if something they had, say a postcard they received showing naked children frolicking, was safe to keep without drawing attention to themselves. She didn't know any way they could but if they come forward, the police wouldn't look at them as someone horribly involved with children. The judge pointed out that possession does not necessarily mean involvement with children.
I wanted to clarify the definition of visual child pornography that does not involve explicit sexual activity. Sub-section (1) (a)ii referring to images states:
In an attempt to clarify matters I asked her if images of nude children were necessarily porn? She said it depended on how the child is posed but it also depends on if it's used for a sexual purpose. I asked her if the same identical material could be porn in one situation and not in another. She said that was correct. I find the idea that the mere transfer of possession of an image could change it from something innocent into something subject to a five year penalty. The question of who possesses it seems fraught with uncertainty. Could an image of a child be porn in the hands of a pedophile but not in the hands of a gerontophile? Would an image cease to be porn when the police seize it from a pedophile? And what would be a pedophile anyway? Lacking any criminal convictions would the person possessing the image have to be phallometrically tested to determine if he is a pedophile? Could such tests be constitutionally justified? I asked her what is "sexual purpose"? This was not an easy question for the detective and she talked about differences in poses and focus that could not apply to identical images. It seemed that sexual purpose depended on how the image was used and who possessed it. The question of how an image is used can only be a matter of speculation unless a person is caught red handed using it as a masturbatory aid. I could not get a clear answer to the question of whether child pornography is intrinsic to the image or not but it seemed that at least sometimes pornography lay in the eye of the beholder or in his possession.
I then asked the witness what "dominant characteristic" meant. She answered that it was question of focus, "where the person's vision is drawn to". I asked if this was a question of flow, the convergence of lines? She replied that it was not difficult when she saw the material, that it was usually quite obvious. Hers was basically, "I know it when I see it" criteria. She spoke of natural poses not being pornographic but I was unable to get a clear idea of when a nude picture might be child pornography. I asked her if it was a natural pose for a teenage boy to be sprawled back on a sofa with his legs apart. She admitted it was. I then asked if the boy was nude if it would still be a natural pose. This relates to some of my own material. She answered that it would not be child pornography if the boy was "just nude standing there". Nor would it be a boy sprawled on a sofa. I tried a few other hypothetical situations such as a series of a naked child doing flips or somersaults where one frame focused on the genitals but got no clear answers. In reply to other questions Detective Waters said that her determinations of child pornography had never been challenged by defendants or ruled innocent by a judge. To me this suggested that the defendants or their lawyers had been too afraid of making a fuss which they believed might create publicity and possibly lead to a more severe sentence. I was getting off the track and the judge let me know. I had the cover of a book that I entered as part of Exhibit #4, DARES TO SPEAK shown to the witness. The cover is a detail from the painting, "Apollo, Hyancinthus and Cyparyssus Singing and Dancing" by Alexander Ivanov, a Nineteenth Century Russian artist. Apollo half draped sits beside Hyancinthus with an arm around the nude pubescent boy. I asked her if the cover was child pornography. The witness said it was nudist and had artistic merit and would not constitute child pornography. I believe it would be easy for many people to interpret the picture on first sight as erotic although as with many other things this may decline over time. Although her testimony on the matter has helped send men to prison I concluded that the witness was not able to consistently define child pornography under sub-section (1) (a)ii.
Detective Waters, then Wolff, had been the strongest advocate for criminalizing written material to appear before the Standing Committee, in fact she said she had been asked to do this. The definitional sub-section of the law states:
I asked her how she defined "advocates or counsels". She replied: "That the material is written in such a manner that it advocates that behaviour, that it's written in a sort of glorifying it or in a positive light, if you read what the definitions are." And it would have to be an offence under the Criminal Code. If the writing made the behaviour appear to be normal that would be positive. I did not specifically ask but I would gather that a written description of a man raping an unwilling twelve year old would not be child pornography but if they were having willing, pleasant, non-coercive sex it would be child pornography. I wanted to get the detective's ideas on a book I had purchased at a Robson Street bookstore which I had entered along with a sales receipt as Exhibit #XX, THE 120 DAYS OF SODOM by the Marquis de Sade. No happy children here. The book is considered a classic and my copy has an introduction by the well known feminist Simone de Beauvoir. De Sade's at least trendy these days. In the book sixteen kidnapped children, boys and girls from 12 to 15 are forced to have sex with each other, whipped, raped, tortured, maimed and murdered by the four protagonists. I asked her if that sounded like child pornography. She didn't want to say without reading it but thought it might. As she had not read it I unable to question her any further on it.
I next turned to the book, WITCH HUNT FOILED. This was the book I had ordered that was seized by Canada Customs and deemed by them to be child pornography. I asked her if she had reviewed it? She replied: "I have, My Lord." I asked her what it was about? Detective Waters replied: "It deals with the whole issue of man/boy love... it's produced by NAMBLA... Deals with the issue of an investigation by the FBI, but it also has -- advocates sexual activity with children under the age of 18. It would be an offence under the Act. The material would fall under the advocating, the entire publication throughout advocates that behaviour." She had custody of this book and I read it under her gaze at CLEU headquarters. There is no description of sexual activity in the book. I hoped the judge would look at it. Detective Waters was either deliberately lying or hopelessly confused. I wish I had the nerve or presence of mind to accuse her of lying under oath at the time. I don't know why she persisted in this falsehood. She even said she re-reviewed WITCH HUNT FOILED and this confirmed her opinion that the book was child pornography. She could not however say in what way the book advocated illegal sexual activities. The detective is I believe a fairly honest person in that she does not deny concrete facts yet this is hard to explain. Perhaps given Noreen Waters' zealotry and strong moralistic outlook it could be that in her mind any NAMBLA publication is axiomatically child pornography regardless of the content. It could also be related to her identification with and faith in the American police system, particularly the FBI which has been expanding into the child sex abuse field. Her unquestioning acceptance of discredited information from police sources and disregard of other sources suggest a lack of objectivity.
There is one other explanation for her falsehood: She simply does not comprehend what she reads. At the preliminary hearing when she was explaining her justification for obtaining a search warrant for my apartment she had hopelessly confused my journal, MANILAMANIC which she claimed to have reviewed months earlier with my novella, LIFE ON THE CORNER - THE MOON EYED BEGGAR'S TALE which she seized when she arrested me. When she resumed the stand the following day, all the while under oath, she made a point of correcting her error. Now, she must have either realized her mistake on her own, something I doubt given her zealotry, or someone, perhaps a fellow police officer who was familiar with both works, had pointed it out to her. If the latter was the case Detective Waters violated her oath as a witness that she swore on the BIBLE. Once a witness takes the stand they are forbidden from discussing their evidence with anyone else. The other example showing a serious lack of comprehension was her confusion of Hannon's ten page article with Brongersma's two volume study. These suggest that she does not comprehend what she reads and cannot even relate what she may pick up to the source. Despite the detective's fondness for cross word puzzles she has profound literacy problems. Also, based on her analyses of my writing given in the REPORT TO CROWN COUNSEL it would appear that her mind works like a computer word search program; she picks out the names of acts and the ages of participants, usually expressed in terms of as "as low as", and remains totally oblivious to meaning, context and plot. The acts and ages mentioned in WITCH HUNT FOILED were references in police and media allegations. In her uncritical mind these became "advocacy". Thus an exposé of police harassment becomes child pornography. This does not explain Ottawa's deeming however, or does it?
When I read WITCH HUNT FOILED I decided that the book would be excellent evidence for the law's overbreadth and that I wanted the book entered as an exhibit at my trial. When I told her this at CLEU Headquarters I remember her threatening to charge me with importing child pornography if I insisted on having it entered. This would be an additional and most serious charge. Of course there was nothing to prevent her from charging me anyway assuming she really believed the book was child pornography. I asked her about this in court. She denied threatening me; she claimed she merely advised me that she could. That was not what I heard but I had to leave it at that.
The final point I wanted to make was her own advocacy. Her CV listed thirty lectures, hearings and conferences at which she had made presentations, all but one involving child pornography. It became clear that many if not most of these presentations involved proposals for change in laws and policies. She also submitted reports on various matters to provincial and federal justice ministers recommending changes. I asked her if she considered this advocacy? Except for her appearances before the Standing Committee she did not: "I don't consider it anything other than a part of my job to -- in the protection of children." That basically completed my cross examination of Detective Noreen Waters.
I argued when discussing GRAMLICK and JEWELL that defence lawyers should seriously consider having the impugned child pornography put before the court to demystify it. Unlike drugs pornography is not a set of homogenous categories. Cocaine and heroin vary only in terms of purity and potency and this is usually the luck of the market, not the consumers' choice. Pornography is what economists call a heterogeneous product like women's clothing which reflects taste and preferences of the user. While a collector of child pornography may accumulate a variety of kinds he will have his preferences. The Internet allows the collector to pick and choose. His collection will reflect his tastes and interests. It is not a simple matter of preferring the most extreme porn as the remarks of Dr. Collins would have us believe. As we will see he himself, despite his ample opportunities, professed ignorance about such things. The law as it stands makes no distinction; something is either child pornography or it is not although the line between may be unclear. In this definitional democracy an image of a seven year old being raped is equal to a seventeen year old with an erection. Legally the abuse the subjects' are assumed to have suffered is also equal. Obviously this situation is absurd but it is not one that can easily be questioned. Better to just quietly plead guilty. Making distinctions is not in the interests of the police or prosecution. It is however important if looked at from the point of view of the actual or potential children involved. What I am saying is that people should see the impugned porn. They should study it until any initial shock has had a chance to subside. If in photographic images, child pornography is "a permanent record of abuse" as almost all anti-porn advocates claim then let us examine what the image shows. Are the children portrayed distressed? I personally do not think that we can apply to photos Justice McComb's opinion re Langer's paintings that the distress of the subjects is an ameliorating factor. But the radical feminists claim that videos depicting women being raped are worse if the subjects appear to enjoy it. Would these feminists apply the same criteria to child pornography? What about coercion, violence or lack of willingness, rape for example that is evident in the images? What about the involvement of adults or significantly older people? What about the question of naturalness or spontaneity? Or is all child pornography such an unmitigated evil than any distinctions are irrelevant?
THE TESTIMONY OF DR. PETER IAN COLLINS
"It is not possible to serve Hippocrates, the Healer, at the same time as Hammurabi, the Law Giver." (Felicity Goodyear-Smith in FIRST DO NO HARM: THE SEXUAL ABUSE INDUSTRY, New Zealand: Benton Guy Publishing Ltd. p.38)
The Crown's second expert witness was Dr. Peter Ian Collins, a forensic psychiatrist. Psychiatry is a branch of medicine and practitioners must have a general medical license. They treat major mental illnesses and acute conditions frequently using drugs and neurological intervention. Forensic psychiatrists are those who specialize in determining criminal responsibility in the courts. Psychologists who are academically trained and have their own association are more likely to use talk and counselling techniques. Psychoanalysis is a therapeutic method based on free association which is extremely expensive. Both psychiatrists and psychologists may be psychoanalysts. Social workers are a more practical profession trained in casework which often incorporates psychiatric theories.
Dr. Peter Ian Collins submitted a 17 page CURRICULUM VITAE entered as Exhibit #16. He holds degrees in psychology, criminology, medicine and psychiatry. He lists extensive post graduate education principally in psychiatry and has taken fifteen advanced courses. His five present positions included Staff Psychiatrist at the Clarke Institute, Manager of Forensic Psychiatry Unit for the Ontario Provincial Police, Co-ordinator of Police Liaison and Criminal Investigative Support Service, Consultant Psychiatrist at the Sex Behaviour Clinic and Assistant Professor in the Department of Psychiatry at the University of Toronto. Dr. Collins' previous employment includes work in mental health centres and probation. He holds appointments as Consultant Psychiatrist to the RCMP and the International Criminal Investigative Analysis Fellowship, Forensic Psychiatrist to the Toronto Police Service, Consultant to Critical Response Group of the FBI, and is on the Advisory Board of Forensic Sciences Program at the University of Toronto. He is also on two government committees. In addition he lists fourteen professional memberships and eight teaching experiences including an "Expert Witness" class at the University of Toronto Faculty of Law for the past eleven years. He has provided staff training to twenty police and law enforcement agencies including six in the U.S. including the FBI. Dr. Collins had given 106 presentations both here and in the U.S. These have dealt with pedophilia, child pornography, child sex abuse, sex offender treatment, hostage taking, stalking, victimization and suicide. He has also testified as an expert witness over 400 times. While he has testified overwhelmingly for the prosecution he was an expert witness for the defence at the trial of Karla Homulka. Dr. Collins claimed that she was really a victim and was controlled by Paul Bernardo.
Accompanying his CV was a copy of a letter addressed to the prosecutor, Mr. Schultes. He had been asked to review material in the REPORT TO CROWN COUNSEL and "collateral material" including my personal correspondence. In his letter Dr. Collins outlines a theory of child pornography which could form a basis for his direct examination by the prosecutor. He discusses NAMBLA and mentions that members feel their "persecution" is analogous to that of the Jews in Nazi Germany. In his summary, after noting that he never examined me, "and cannot offer a diagnosis", he states in his professional opinion that I would "likely be extremely difficult, if not impossible to treat given the extent of his cognitive distortions thereby placing him at high risk for reoffending." I took this as threatening, especially his presumption of reoffending when I have not offended in the first place. The letter also suggests that the Crown knew well ahead of time that he would likely be an expert witness in my case a fact I was not made aware of. I feel that I should have been informed at the pre-trial conference.
There can be no question but that Dr. Peter Collins is one of the foremost Canadian authorities in his field, a fact which should be noted. It should also be noted that his career is intimately bound up with the criminal justice system. He works closely with the police, advises them as a consultant and trains their members. He is in effect, "married" to the criminal justice system and I wondered if his testimony should be treated as akin to a spouse's. He has great influence on the assumptions, policies and goals of the police. He is in no way an independent professional. His testimony in support of the scientific basis of the law is akin to the testimonial of a manufacturer about the quality of his product.
Dr. Collins is a large, balding middle aged man who looks very confident and business like in a conservative suit and tie. The first thing he said when he entered the courtroom before taking the stand to testify was that he hoped nobody had any difficulty with his "Toronto Jewish accent". This was his sole attempt at levity. I noticed nothing unusual about his manner of speaking.
Prosecutor Schultes began his direct examination by highlighting Dr. Collins' credentials emphasizing his work with pedophiles. The witness mentions that he recently gave "a half day to the National Organized Crime Workshop for the Criminal Intelligence Service Canada on pedophilia". He said that pedophilia "comes under the auspices of organized crime because of the way they communicate with each other and the advent of the Internet and Internet pornography". For people who tend to think of organized crimes in terms mafias this is a novel definition. However police organizations have been working to extend the definition of organized crime to many criminal activities where any semblance organized co-operation is employed. Legislation incorporating the new definition makes it easier for them to get at people who are not easy to prosecute otherwise and to seek higher penalties for them. Under this definition two teenagers with cell phones engaged in an illegal activity can become organized crime blurring any distinction between them and "The Mob". Dr. Collins's use of it is also novel, in that he defines organized crime not in terms of an illegal activity such as money laundering or extortion but in terms of sexual orientation, or paraphilia as the witness would term it, of those in communication with each other. A feature of the Internet is that communication requires no organization.
Dr. Collins mentions that he spoke on Internet pornography and collateral materials at the international conference hosted weeks earlier by Detective Waters. He talked about the way pedophiles think, how to structure search warrants (police work), and how to interview pedophiles. I had only a few minor questions regarding his credentials.
Prosecutor Schultes continued his examination by asking the witness "what is pedophilia?" He says it is a paraphilia which he defines as a clinical term denoting sexual deviance. The most recent official classification (see DSM-IV) says that paraphilias are based on fantasies that begin in childhood or early adolescence. The fantasies are described as reoccurring, chronic and lifelong. As they are used for masturbation this is to be expected. Supposedly fantasies are only paraphilic when they lead to clinically significant stress. I wondered if this included the stress arising from fears of persecution. Another curious characteristic of paraphilias is that clinically they are found almost exclusively in males. I tried to think of other mental illnesses that were confined to one sex but aside from PMS which is triggered by physiological changes I couldn't. Dr. Collins said that pedophilia is one of the more common types described in the Diagnostic and Statistical Manual of Mental Disorders, or DSM which is a standard nomenclature of all forms of mental illness published by the American Psychiatric Association. This APA classification is offered as evidence that pedophilia is a mental disorder with the implication that it is treatable, which is what he claims to do.
The original 1952 APA DSM classified masturbation, homosexuality, fellatio, cunnilingus and promiscuity as pathological and presumably treatable by psychiatrists. The classification was clearly based on moral and legal considerations even though it claimed to be scientific. In psychiatry however there is no clear line between science and morality which partly explains why the profession is favoured by state authorities. In fact psychiatry has grown up under the wing of the modern state and retain the mentality of asylum keepers. The current version, DSM-IV lists pedophilia, zoophilia, voyeurism and fetishes among other paraphilias. This attempt to classify all mental diseases, illnesses and disorders is widely used by the medical insurance industry to determine if the symptoms or diagnosis of a claimant are covered. If they are not covered by the DSM then the insurance company may not pay out. Over the years since the first DSM the number of disorders have increased, which it can be argued, serve the interests of those who treat mental problems.
In the following comments I rely in part on the work of Dr. Frederick Suppe of the University of Maryland. (Classifying Sexual Disorders: The Diagnostic and Statistical Manual of the American Psychiatric Association) There is some controversy in other professions about whether the sexual paraphilias are actually mental disorders. Up to 1973 homosexuality was listed as a mental disorder. Psychiatric evaluation at the time had been based almost exclusively on studies of clinical and prison populations (men were often jailed for homosexual acts) just as they are for pedophiles at the present time. In neither case are these populations representative. However after other scientific studies cast doubt on the prevailing psychiatric orthodoxy that homosexuality was a disorder, intense lobbying by the gay liberation movement and considerable and bitter debate within the psychiatric community, a referendum was held where psychiatrists voted on what was ostensibly a question of science. They voted to drop homosexuality from the list. Voting? Scientific democracy? Can we imagine physicists voting on the validity of quantum theory? Clearly the whole matter was more political than scientific if it was decided by a vote.
As it was, a compromise was reached whereby a category called "ego-dystonic homosexuality" was included in the next DSM. Ego-dystonic homosexuals were those who were disturbed by, in conflict with or wished to change their sexual orientation. In simple terms those who were unsatisfied with their homosexuality were sick, but those who were not were healthy. It begs the question of why some homosexuals are unsatisfied with their sexual orientation and whether the reasons lie within themselves or in society. Can the consequences of a condition, not the condition itself be considered a disorder? Many Jews in Nazi Germany became neurotic and suicidal: Was this because of their Jewish identity or the persecution they experienced? It also raises the question of whether psychiatric evaluations of sexual paraphilias generally are matters of science or pseudo-scientific rationalizations for conservative sexual mores. Clinically significant stress might result from guilt or culturally induced fear. Is social deviance a mental disorder? If so we can understand why the boys in the Gramlick and Jewell cases were told to get psychiatric help. Professor Suppe concludes that including the so-called "sexual paraphilias" in the DSM is "unwarranted, unscientific and only serves to strengthen the conclusion that psychiatry has resorted to the codification of social mores while masquerading as an objective science."
Dr. Collins defines pedophilia as the erotic or the sexual attraction to prepubescent children which he suggests is up to 12 - 14. He then points out there are two sub groups, the first being hebephilia which is an attraction to post pubescent or early adolescent children and not technically pedophilia according to the DSM, the second is infantiphilia involving children under five. In common usage pedophilia is frequently defined as where adults have sex with minors or persons under 18 although this often limited to men having sex with boys not adolescent girls. He further classes them as heterosexual, homosexual and bisexual pedophiles. He said that child molesters can be classified as preferential offenders (sometimes called true pedophiles) and situational or surrogate offenders who use children opportunistically. They are not pedophiles as are 80 per cent of incest offenders. These distinctions are significant as studies the witness submitted show that a substantial majority of child molester offenders are not true pedophiles. They would prefer adults but because of a lack of opportunity or personal inadequacy they molest children. Almost all his subsequent testimony deals with pedophiles neglecting the majority non-pedophilic child molesters.
What I can gather from Dr. Collins' testimony, reading the latest DSM-IV and critical comments is that the category of sexual paraphilias comprises a number of different fantasies each focused on a particular type of person, activity or object that are used by paraphilics to masturbate. For some, particularly older people, the range of fantasies that are effective may be limited and quite narrow. While paraphiliacs may, like almost all men who lack regular partners, successfully masturbate on fantasy alone, many prefer at least sometimes to use aids. Each paraphilia has its own pornography in effect, or objects and paraphernalia which may assist the user to become aroused and successfully masturbate. Most of this material would not be recognized by outsiders as such unless it was part of an obvious collection. Only pornography, or certain kinds of pornography appealing to particular paraphilias are commonly prohibited. Only child pornography is illegal to possess. Some pedophiles use it to trigger to masturbation fantasies, others may never use it or even encounter it. Harm based pornography theories assume that a pedophile is more likely to sexually assault children if he has child pornography. This is regardless of the type, form, variety, quantity or nature of the child pornography. There is also commonplace material called "collateral material" that Dr. Collins believes also incites offending behaviour. This may be found anywhere and is accessible to all pedophiles.
With Schultes leading him with more or less set questions Dr. Collins began his exposition of what I call the Collins' theory of child pornography although it is not specifically his but rather the orthodox forensic psychiatric cluster of child pornography theories. The prosecutor started off by asking, "What role does fantasy play in pedophilia?" The witness replies that fantasy is the driving force behind all paraphilias. This is not surprising as all paraphilias are defined by fantasies which are used for sexual arousal and masturbation. He then claims tautologically, "I, as a forensic psychiatrist, can diagnose someone as being a pedophile solely based on the fact that they have (particular) fantasies." It would seem that the only thing which distinguishes paraphiliacs from other people is what turns them on. He says that pedophiles are notorious collectors of material to "fuel their fantasies". This would include non pornographic material, what psychiatrists call collateral material, that a pedophile finds interesting. It includes ordinary pictures and items that cannot be deemed pornography but which can be used as a basis of fantasies. Anything that might turn on a pedophile can be collateral material. He goes on to say the material is problematic "because we don't want them to fantasize at all". Fantasy prevention. He repeats this statement throughout his testimony, and preventing fantasies is the primary goal of his treatment. He admits that it's a tall order but it's so important that he, and his FBI associates, designed collateral materials into VICLAS, the Violent Crime Linkage Analysis System. He explains that the concept of "collateral materials" was developed by the FBI in the early 1990s and that for pedophiles erotic collateral materials can include any pictures, drawings or stories involving the age group they prefer. Obviously it could include much advertising, teen fan magazines, main stream movies "which they misinterpret as having pedophilic themes" or which have semi naked boys, television programs with child stars and the Sears Catalogue which he specifically mentions. He said that collateral materials are in essence aids to masturbation but warns that they can be used for other purposes as well. There seems to be no end to what could be collateral materials. There is also educational collateral materials which provide offenders with knowledge about the criminal justice system, police investigations and how to thwart the law. This, in his experience, even includes copies of Supreme Court decisions. He makes an indirect reference to NAMBLA. There are also introspective collateral materials, books and articles in journals that they have to gain insights into their sexual disorder. He finally mentions intelligence collateral material including such things as list of children's names and addresses and travel brochures. This new FBI concept of collateral materials seems to be nothing more than a new label for what police have been doing for generations. Sherlock Holmes was a collateral material expert.
Dr. Collins next explained the "grooming theory" whereby pedophiles use child pornography to seduce children, and most of them are seductive he claims. And, "In actuality they perceive their selfish desire as being healthy for children." he claimed. once they get to know the child, that they have "targeted", which may involve non sexual touching, they introduce the subject of sex and try to "normalize" it, and "demystify it using their own pedophilic prejudices." They will then use pornography which he admitted may be of the "adult variety" and sexually assault the child. Child pornography is a tool used to seduce children.
The second way Dr. Collins claimed that child pornography endangers children is by inciting pedophiles to sexually assault children. This is often called "fuelling fantasies". He claimed that there is very good literature about child pornography inciting pedophiles to reoffend. He refers to and enters as an exhibit, Exhibit # 21 a study by Dr. William Marshall of Queens University titled, "The Use of Sexually Explicit Stimuli by Rapists, Child Molesters and Non-Offenders" that appeared in the Journal of Sex Research, May 1988. This is the same Dr. Marshall who testified before the Standing Committee and at LANGER. I wondered if there was any ulterior reason for grouping child molesters who are not usually violent with rapists who usually are. The witness quoted from the study: "Slightly more than one-third of the child molesters and rapists claim to have at least occasionally been incited to commit an offence by exposure to one or the other type of the sexual materials specified in the study. For some of them, the role of sexual depictions as an instigator to offend was accidental, or at least the stimuli was not deliberately sought out to incite them to offend. However, amongst those child molesters who were incited, 53 per cent of them deliberately used the stimuli in their typical planned preparation for offending". It seemed to conjure up images of pedophiles bringing out their kiddieporn, becoming all excited and dashing out to rape some poor child. I saw it as a "monkey fantasize - monkey do" theory. The witness did allow that some child molesters use such material solely for masturbation fantasies. Interestingly another study (Kant and Goldstein, 1978) quoted in a Department of Justice report (A GUIDE TO THE SOCIAL SCIENCE EVIDENCE ON THE EFFECTS OF PORNOGRAPHY, p. 75.) found that "a family background with conservative sexual attitudes and repressed discussions on sexual matters is a better statistical predictor of sex crimes and other deviant sexual activities than self reports of the influence of pornography consumption on activities."
There are a number of problems with Dr. Marshall's study including the fact that he never makes clear how many of the child molesters were actually pedophiles. This study of offender "volunteers" involved in the criminal justice system, which I discuss further when I come to the cross examination, was his main support for the fuelling fantasies theory. Dr. Collins said that the use of child pornography ties in with the use of erotic collateral materials for masturbation fantasies. In his treatment work he insists that pedophiles purge their collections because "we don't want them to fantasize about children at all." That is the basis of his treatment.
Another example of Dr. Marshall's research which provides a better idea of his approach is his widely noted study of Canada Customs officers who review possible pornographic material. These officers spend many hours looking at porn in the line of duty. The researchers applied various tests to 91 Customs officers to determine the effect of "massive exposure on the viewers propensity to commit non-normative sexual acts." Marshall concluded that they were not ordinary mortals and credited the officers with extraordinarily high resistance to immoral influences. He implies that most of us are not able to take such high dosages without committing non-normative acts. The researchers are quoted as saying, "The overall lack of ill effects may be seen as puzzling". (VANCOUVER COURIER, July 6th, 1995) Assuming Dr. Marshall is not a consumer of porn the explanation may lie in an ignorant demonological concept of what it is. But beyond that his study was based on false assumptions. Consumers of porn usually choose when, where and what type of porn to watch. They also usually choose a situation where they can masturbate if they want to. A lonely man may like to look at pictures of women wearing only high heels and a black lace bra as he masturbates before going to sleep. What does his experience have in common with that of a customs officer sitting at his or her desk trying to get through a pile of alleged porn before quitting time. They can't masturbate should they want to. Obviously the two situations don't have much in common but Dr. Marshall got a government grant to check it out anyway. It makes me glad I don't pay more in taxes. This same fallacy was incorporated in dozens if not hundreds of university laboratory studies which attempted to prove links between porn and violence. In these experiments supposedly naive first year male psychology students, as part of their course requirements, were show various types of porn and then had their reactions analysed. One of the principal researchers in this field, Dr. Edward Donnerstein has publicly stated his work should not be used for legislative purposes. This type of research has generally been discredited and abandoned. It was however research of this type that was used as scientific evidence by intervenors in the Butler decision and presumably accepted by the Supreme Court. It still makes the rounds as "proof" in anti-porn circles. That these methods persisted as long as they did is a testimony to the popularity of the results with radical feminists and the insularity of psychiatry. Dr. Marshall's study is not research, it is farce. It is more evidence of his cosy relationship with the government than it is of the stalwart moral character of our customs officers.
According to Dr. Collins the third way that child pornography puts children at risk is by affecting the thinking of pedophiles, creating and reinforcing, what forensic psychiatrists term "cognitive distortions". Cognitive distortions he said, are pro-offending beliefs such as that children want sex with adults, are not harmed by such sex and that sex enhances such relationships. Cognitive distortions he said, were ways of validating their beliefs and behaviour. He then moves on to organized cognitive distortions, namely NAMBLA. NAMBLA and its publications "support and actively seek changes in legislation pertaining to sexual contact with children." He is saying that it is a political organization. The NAMBLA Bulletin is "another way of, for them, gaining acceptance and status and trust, and more importantly psychological support." This sounds very much like what therapists are supposed to do for their clients. NAMBLA he claims, also contains pseudo-intellectual and pseudo-scientific articles by Ph.Ds. regardless of what their degree is in. It's not true science he claims, just "another way of them espousing their beliefs." Isn't espousing beliefs true of most special interest magazines? "My testimony in some cases has been reported in NAMBLA. I'm regarded as an enemy of pedophiles. I would not be surprised if somehow this case finds its way into NAMBLA as well. They refer to incarcerated child molesters as political prisoners", he said sounding self important, "and in conversations I have had with a police officer who in an undercover capacity infiltrated NAMBLA..." The judge interjects that the testimony is getting into hearsay which it obviously was. In retrospect after his boasts and indignation I found it amusing. Mr. Shultes explained the testimony was needed to demonstrate "the overwhelming distortion inherent in that organization's philosophy." Dr. Collins continues saying that an agent who infiltrated NAMBLA, the same one Detective Waters mentioned, said "they see themselves being persecuted by the criminal justice system, by the press and they use an analogy in their organization that this persecution, is analogous to that of the Jews in Nazi Germany." It was clear that the witness was upset by NAMBLA's comparison of itself with the Jews. When he brought up the comparison again during cross examination he admitted he found it offensive and an insult to the Jews who perished in the Holocaust. He was however only using it in his testimony only as an illustration of "their mindset when it comes to these cognitive distortions, these rationalizations and justifications". It does however beg the question of how much do pedophiles and members of NAMBLA have to fear. It could be argued that the series of infiltrations, false accusations, the laying of unsubstantiated charges and their vilification in the media could make them feel acutely persecuted. Another way he sees pedophiles as augmenting their cognitive distortions is by communicating with each other. Dr. Collins seems to think like a policeman investigating an underground Communist cell in McCarthyite America.
The witness again mentioned written material and strongly denounced pseudo-scientific works available from pedophilic publishing houses: "There is no scientific validation for what these `findings' are and they have absolutely no basis in fact or in science." In discussing the question of novels, fantasies and stories, he says that written material can be more powerful and disturbing than visual material. In answer to a question from the judge Dr. Collins said he was referring to the reactions of the investigators who read it. Written material can both fuel fantasies and create cognitive distortions. "The problem is, is that some of these pedophilic authors don't just write for their own personal use but they make an attempt to show others their writing." Of course that is why most writers write.
That concluded Dr. Peter Collins' testimony for the Crown. I felt that I understood clearly what he had said, I had taken some notes, and I believed that his theories were vulnerable with many weak points. I dearly wished I had a verbatim transcript as I have now. The prosecutor with his assistant Brian Wasyliew to takes notes for him had no need for a transcript. I had checked the rates with the transcribing company and the three day service would, I calculated, cost me well over a thousand dollars. I also had time problems. Each day after court I prepared for the next day. I would read cases and articles, and write and revise notes. I gave up on my word processor and reverted to more sensible foolscap pads. Usually at least one friend would be in the courtroom part of each day and I kept most social visits brief. Friends contributed money so I could take a taxi to the courthouse and arrive fresher, and to have some meals in restaurants which saved me time. I took short walks, paced my apartment, and tried to get a good sleep every night. I was also smoking more and more as the voir dire progressed. My apartment was cluttered with papers and books and housework was neglected. I needed time to prepare for Dr. Collins cross examination. He was a surprise witness. While I had known for many months what other witnesses the Crown would be calling at the trial proper I did not know that he would be an expert witness at the voir dire. I explained that the introduction of Dr. Collins had dramatically shifted the case as I been prepared to argue on the basis of political advocacy as the basis of freedom of freedom of expression. I requested a ten day adjournment to prepare my cross examination. Mr. Schultes said he expected it would be exactly the evidence he gave in the LANGER case which was subsequently cited favourably by Mr. Justice Macomb. He briefly lists the components of the Collins' theory. The Court asked me if I was familiar with the LANGER decision. I replied that I was but pointed out that LANGER dealt with visual representations not writing which was central to my case and that, "LANGER was the scientists on behalf of the Crown against artists on behalf of the defence". In LANGER the scientific theories were not seriously challenged; the judge had simply accepted them at face value and repeated them in his decision thereby giving them a judicial seal of approval even though they were peripheral to the case. There were problems with Dr. Collins availability due to his busy schedule and he would have to make an extra trip out from Ontario. The adjournment was arranged.
I did however agree to begin my cross examination as I had some exploratory questions. After listening to him being led through his supposedly scientific theories I saw Dr. Collins as a narrow, dedicated, self righteous man thoroughly immersed in cop culture, a sort of policeman-psychiatrist hybrid. I also saw him as a judge-executioner. He had judged me sight unseen, "solely on the basis of fantasy" I suppose, and decided I would be difficult if not impossible to treat. I knew that psychiatric orthodoxy as expressed by Dr. William Marshall before the Standing Committee was that sentences should be based on response to their treatment, not the nature of the offence. And I knew that Dr. Collins, in Canada's ultimate legal power trip of one man over another, is like an executioner too. He administers chemical castration to men convicted of consensual sex with adolescent boys such as Gordon Stuckless.
I started my cross examination of Dr. Collins by going over the main points of his child pornography theories which I saw as involving four things; fantasy, pornography, masturbation and harm, and how they related. The witness added collateral materials, grooming and cognitive distortions which I had subsumed under the other headings. I asked him if he was in general agreement with the ideas of Dr. William Marshall. Somewhat evasively I thought, he replied that he had some differences with Marshall on the question of sex offender registries. It seems that stress can predispose offenders to reoffend and Marshall believed that sex offender registries can add significantly to the stress they face. Collins prefers a hard line approach. I asked him if he knew Professor John Money of John Hopkins University. (Money is the author of fourteen popular and academic books stocked by the Vancouver Public Library dealing with sexual matters including pedophilia. Among his books are: SIN, SCIENCE AND THE SEX POLICE, 1998; LOVE MAPS, 1993; LOVE AND LOVE SICKNESS, 1980. He also appeared for the defence in POPERT.) The witness chose to construe the question socially and replied that he had never met the man. I had to rephrase the question and ask him if he was familiar with his writings and he said only in terms of gender research but not pedophilia. I then asked him if he was familiar with the works and theories of David Finkelhor, and if he was in general agreement with his ideas. The witness's replies seemed evasive and the judge asked him to clarify what he meant. I repeated the question about being in general agreement with Dr. Finkelhor and Dr. Collins said that he had contributed to the literature in terms of looking at the impact of harm to children but he was not familiar with all his studies. He then said he had some of Finkelhor's studies in his briefcase and produced one from the Journal of Child Abuse entitled "The International Epidemiology of Child Sexual Abuse". This is a cross cultural study which purports to show that child sexual abuse is an international problem, it is found everywhere. This study is based on the assumption that Western values and standards apply to foreign cultures. It sounded like moral imperialism. On this basis we would find that child sexual abuse is universal in some societies and normal in many others although it is not seen as such. Dr. Collins was being very careful not to commit himself.
I then proceeded to ask him about Dr. Theo Sandfort and Dr. Fritz Bernard. Dr. Sandfort is Co-Director of the research program of the Department of Gay and Lesbian Studies at the University of Utrecht in the Netherlands. In 1987 he published a study, BOYS AND THEIR CONTACTS WITH MEN (Global Academic Publishers, Elmhurst N.Y.) based on interviews with 25 boys in ongoing relationships involving sex with older men. Dr. Bernard is a clinical psychologist who has published several works on pedophilia. In reply Dr. Collins asked me if I meant the ones who had co-authored some works with the pedophile, Dr. Brongersma. It turned how that he had read some of their works years ago but said he believed they were pedophiles. He stated emphatically that their works "are self serving tracts" that "it flies in the face of all the scientific literature out there." The witness tended to label and condemn rather than refute those he disagrees with. He felt Sanfort's unique study was tainted simply because the boys were contacted through a pedophile organization. How else?
It is now all but impossible to conduct research on ongoing relationships between adults and minors. If the subject was not such a big issue there would be little need for research. In recent decades a strident pedophobia has emerged in Western countries proclaiming that all such relationships are exploitive and abusive. This increases the difficulty of carrying out studies. It is a melodrama of good guys and bad guys, predators and victims. This pedophobia fuelled the police zealotry in London and Martensville which harmed a lot of people including children and adolescents. Research carried out by the sex abuse industry tends to be results oriented often with funding in mind. Distinctions are often conveniently obscure. Epidemiological studies and retrospective studies based on years later accounts, often produce the "wrong" results. Interviews with men in Kingston Penitentiary or under some legal duress apparently produce better results. In the uproar following the publication of the KINSEY REPORT in 1948 the Institute lost its funding from the Rockefeller Foundation and was investigated and monitored by the FBI. Any researchers investigating childhood or adolescent sexuality not only have trouble getting funding but face harassment and sometimes persecution. David Sonenschein wrote in the Journal of Sex Research, August 1989, an article, "On having one's research seized". He gives examples of legitimate researchers having research data seized as "child pornography", and even being charged and convicted. In one extreme case a published research psychologist was fined $10,000 US and sentenced to ten years in jail. How to control the spread of AIDS among young people made sex research more urgent. However in the early 1990s the U.S. Government cancelled a major study of teenaged sex because asking kids about sex might give them ideas and the Health Secretary's policy was to advocate abstinence. It was also feared that the survey would invade privacy, offend morals and legitimize homosexual lifestyles.
More recently we have been exposed to the ludicrous situation surrounding, "A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples" by Bruce Rind, Philip Tromovitch and Robert Bauserman which appeared in a 1998 issue of Psychological Bulletin. A meta-study does not do original research but analyses and compares the results of previous investigations, in this case 59 academic studies in the field of child sex abuse. The authors found much pejorative terminology which confused wrongfulness with harm, inconsistent results, generally low reporting of perceived adverse effects from non family adult contacts especially among males. Family environment more than sex abuse correlated with long term adverse psychological effects. The meta-study was condemned as "junk" by "Dr. Laura" (Laura Schlessinger) the radio show host and newspaper columnists. She felt it was it was unprofessional, unconscionable and irresponsible for the American Psychological (not psychiatry) Association to give a forum to such inflammatory and dangerous conclusions. She defers to Dr. Finkelhor. It was not so much the study itself but the message it sent. In the U.S. reports of this study so outraged the child abuse industry that they got the U.S. House of Representatives to unanimously pass a motion condemning the study. It seems we not only have psychiatrists voting on scientific truth but politicians as well. How far have we come since the days of Galileo and Pope Leo?
The theory of cognitive distortions related mainly to the written word, and the more serious charges I faced. If my stories did indeed "advocate or counsel" sex with children this might well be because in the mind of a pedophile they might create or reinforce cognitive distortions that children wanted sex, enjoyed sex, or that it is OK for kids to have sex with adults. In a variation on the "community standards" approach it might be asked what a reasonable person would tolerate (not an another ordinary person but) a pedophile having in his possession. I also felt that the theory of cognitive distortions was politically dangerous but vulnerable to logical analysis. To begin with, in selecting or contriving the pejorative term "cognitive distortions" a conclusion is premeditated. It's another example of Newspeak. If we believe that they are indeed "cognitive distortions" then there's not too much else worth knowing about them. End of debate. This practice of loaded terminology is very common in some social sciences. There are clear and common English words that would serve more objectively. To me unorthodox beliefs and unconventional ways of looking at things would suffice. Do Muslims who believe in charging interest on loans have cognitive distortions? Would democracy be a cognitive distortion to a slave? Are sexual heresies cognitive distortions?
I asked Dr. Collins if he had once described them as "screwed up thinking". He had, but preferred describing them as very odd and bizarre thinking that pedophiles have. I asked him if they were the same as "sexual heresy"? He had not heard of the term. I then asked him, partly in view of the study he had quoted from, if cognitive distortions are cultural relative in that they vary from society to society. He said he didn't know and began to re-explain what they were. The Court interjected that he was not answering the question. He repeated that he didn't know but offered that it was certainly one of the defences that pedophiles use in respect to some Third World countries. I was surprised in view to his claims to expertise that he would proffer ignorance about the nature of cognitive distortions which were so central to his theories. I rephrased the question but he could not say if they were the same throughout all societies.
The cross examination was adjourned for ten days. In the meantime I would be cross examining Detective Waters which I discussed earlier. I felt that in the first part of my cross examination I had established the narrowness and intolerance of the witness's personal and professional viewpoint. While this was helpful it in no way cast doubt on his credibility as an expert witness in forensic psychiatry. I felt in the few days I had that I would have to get deeper into the literature in the field. Months earlier when I had been thinking about questions for Dr. Lois Jean Hlady, the Crown's expert on determining ages from photos, I had spent some time at the Woodward (medical) Library at UBC. I had in fact photocopied several articles from the Journal of Sex Research that I had come across including the Dr. Marshall's that Dr. Collins had entered as an exhibit to show that pedophiles use child pornography to incite themselves to sexually assault children. I returned to the Woodward Library but despite the help of the staff I could find nothing more that might help me. I wasted a precious day.
I went over the material I had accumulated, I spent time at the Vancouver Public Library reading, I analysed Dr. Marshall's article. I felt it was junk science, pseudo-science, but I couldn't understand all the statistical techniques, standard deviations etc. that he used and I needed to cast doubt on it. The definitions were not always clear and the classifications were confusing. I was smoking heavily again; tobacco is such a wonderful drug for clearing the mind and concentration, but horribly addictive. You can't just buy one or two cigarettes, it's illegal. I had to take care of my fragile health. I ate irregularly but well. I paced for exercise and was never more than a few steps from pen and paper when ideas occurred. Friends would drop by and we'd play backgammon, for a while it seemed I couldn't lose. An older friend, a suburban businessman would arrive with a six pack and give me pep talks. I needed also to relax and at the end of the day I would have a few tokes of the primo bud a friend had given me. While normally this would help me disengage and relax I was so immersed in what I was doing that it often sent me off on new and sometimes constructive lines of thinking and I would go back to writing. Some nights I lay awake with my mind racing.
When the cross examination resumed I asked Dr. Collins if there were important differences between pedophilia a hebephilia. He didn't believe that there were, and that the treatment was the same. The treatment would recognize no difference between a man attracted to fifteen year old girls and one attracted to five year old boys. If that were the case his treatment should work equally well on men attracted to thirty year old women. The treatment of course is simply to prevent the man from fantasizing about what turns him on. Would it work on bank robbers? Or smokers?
I asked him a number of questions about paraphilias. He did not know how they originated but said they could not, according to the literature, originate before puberty. (I later found that this is contradicted in DSM-IV) He said sexual orientation is not a paraphilia although he conceded that homosexuality was erroneously thought to be paraphilic but now it is not. This relates to the earlier discussion of the DSM. He said this doesn't apply to homosexual pedophiles because in psychiatry they are in separate categories. I then asked him if many homosexuals are attracted to people younger than themselves. He strongly denied that this was true. My own experience and observations suggest that many gays are attracted to younger people with maybe half of the relationships involving significant age differences. Youth is valued. I believe this is obvious to anyone with social knowledge of gay scenes. I also believe that many if not most heterosexual men are attracted to women several years younger than themselves and that there are good reasons why this is so including the preferences of many girls and women for men older than themselves. There are, of course, also gerontophiles who are attracted to the elderly, three have contacted me as a result of my case. The witness however saw the idea that many gays prefer younger partners as a "myth... perpetrated by pedophiles". He claimed that there was an advocacy group among pedophiles trying to link themselves up with the mainstream conventional homosexual community who don't want anything to do with them. An embarrassing fact for many respectable gays is that it was youth and boylovers that pioneered gay liberation in the 1960s and 70s. He makes indirect allusions to NAMBLA. I ask him bluntly if homosexuals are attracted to people their own age and he replies that there are probably more heterosexual than homosexual pedophiles. I didn't know how to deal with his evasiveness and ramblings. He said that because one is heterosexual it doesn't mean that they're attracted to little girls. He said phallometric (peter meter) testing proves this. So I asked him about former times (meaning within the last century) when it was common for adult men to marry girls as young as twelve, if that was pedophilic? He says we don't know because in "antiquity" people didn't live that long and views and mores were different. He sees it as another cognitive distortion of pedophiles: "Well doc, it was done in ancient Greece..." But: "We just don't accept that." To me it suggests that what he calls cognitive distortions are culturally relative, something he refused to admit earlier. I found his profound ignorance disturbing but I couldn't tell if it was constitutional or calculated.
We next got onto the question of consent when I asked him if young children of say five, eight years old could have fantasies with erotic content. He brings out a well known and very influential paper by David Finkelhor entitled "What's Wrong with Sex Between Adults and Children? Ethics and the Problem of Sexual Abuse" from the October 1979 issue of the American Journal of Orthopsychiatry. Dr. David Finkelhor is head of the Family Research Laboratory of the University of New Hampshire. He is recognized as a leading American authority on child sex abuse. In his book, SEXUALLY VICTIMIZED CHILDREN he defines abuse in terms of "social appropriateness" not in terms of the child's experience or the effects on the child. Finkelhor believes that children are victims of many sexual acts they don't even notice. He believes that it is wrong to interpret things like fondling and masturbation as lesser forms of sexual contact although he says violence causes trauma. He notes that only 25 to 33 per cent of incarcerated child sex offenders have a primary interest in children. He argues in the context of the family and easily generalizes from father/daughter incest to non family situations making no distinctions. The dealings of independent street youth with men, as in GRAMLICK and JEWELL, becomes essentially the same thing as a man forcing sex on his eight year old daughter. It is all child sex abuse.
Dr. Collins said that the core of Finkelhor's argument is that children are incapable of giving consent, and that his statement is generally quoted and accepted in the literature. I had already come across it a few times myself and knew it was popular with some feminists and fundamentalists. It is the foundation of psychiatric child abuse theories. The witness quoted it at length and I reproduce it here directly from the transcript:
These widely separated excerpts from Finkelhor's article distort the author's meaning suggesting that either Collins did not understand the article or was attempting to misrepresent it. Dr. Finkelhor sets out to "criticize some of the more complacent arguments against sex between adults and children, and to suggest a sounder line of reasoning in support of such a prohibition." Finkelhor explicitly states in his article that "adult" means a person 18 or over and "child" means a prepubertal youngster. He is clearly not referring to adolescents. He even points out that he approves of sex play among prepubescent children and sexual experimentation among adolescents. His arguments make more sense with very young children although an approach through ethics would lead to similar if less rigid conclusions. Finkelhor rejects three common "intuitive" arguments against the idea of sex with children: "such sex is intrinsically wrong", "it entails a premature sexualization of the child" and "sexual encounters are clearly damaging to the child". The latter he claims is rather weak because it is based on an empirical, not a moral, foundation, and an empirical foundation that is far from absolutely established." He also further says that "harm is not sufficient in itself to earn condemnation." He claims that many normal activities may cause harm and trauma to children. Finkelhor then advances as a substitute for the "intuitive" arguments his consent based theory from which Collins took his excerpts. These are solely based on assumptions about the ignorance and incompetence of children rather than assumptions about harm. Finkelhor, the psychiatrist and scientist believes his consent theory about adult-child sex is "a great improvement" because, "It puts the argument on a moral, rather than empirical, footing." In doing so he makes his theory impervious to scientific and empirical challenge. By denying children autonomy he makes facts irrelevant. In practice his theory is not just applied to prepubertal children, as Finkelhor does, but also to persons up to eighteen who may in the case of males be at the peak of their sexual powers. There may be no better example of this misapplication than to the "children" in GRAMLICK and JEWELL and the boys, many being the same ones, in the Couture interviews. Collins was involved in this case.
I would like to mention one other study by David Finkelhor, his book NURSERY CRIMES, Sexual Abuse in Day Care. This is a meta study in the sense that he examines dozens of ritual sexual abuse daycare cases similar to the one Martensville. He uses sophisticated statistical analyses comparing the cases and he draws up a profile of the typical offender - a woman, and offers psychological explanations for this unusual result. The only problem with his study is the data. The cases it was based on, like the one in Martensville, have almost all collapsed with convictions being overturned and people released, a process underway before the book was published. NURSERY CRIMES is analogous to a study of murder based on the convictions of David Milguard, Donald Marshall and Guy Morin. The point is Dr. Finkelhor's gullibility and moral zealotry in pursuing this study long after serious questions about this iatrogenic hysteria had been made known.
The boys in GRAMLICK and JEWELL certainly believed they were capable of giving consent, of saying yes. They did not lack information. They certainly did not seem to ignorant of the mechanics of sex and in gay sex reproduction is not an issue. The boys were clearly aware of the social meaning of sex in their case which is why they did not want their activities exposed and were reluctant to co-operage with the authorities. The social meaning was that what they had done was "wrong". They denied they were harmed and resisted the attempts to make them out as victims although under pressure and offered what were in effect bribes some acquiesced.
But what more precisely is consent and when is it an issue? We do not usually think of consent if we agree to requests to eat, play chess or dance. We're either willing or not and merely agree or refuse as the case may be. Acts with no implications beyond the act itself do not involve consent. Beyond the mere fact of willingness, for consent to arise there are a number of factors. The act must have significance beyond the immediate situation or possible consequences in the future. Where some sort of commitment or contractual arrangement is implied, or the act has some symbolic or lifestyle significance consent may be an issue. We can never fully know the consequences of any act but we can have an idea of what makes consent an issue.
Sex, engaging in sexual activity, has traditionally been an area where the question of consent has been considered important. In the past the reasons for this, which generally applied only to females, was the dangers of pregnancy and the prospects of marriageability, all things involving the future for both the daughter and the family. If sex is a matter of immediate impact only with no future consequences either legally, physically or emotionally then consent beyond willingness is meaningless, it is like a shared workout for example. But we never raise the question of consent in other things which clearly entail coercion, pain and possibly trauma, such as when a child is spanked.
Should consent be viewed in terms of ethics governing interpersonal behaviour, situational ethics which would include the maturity and relative power of the individuals and possible consequences involved? Or is it a special case if certain acts are performed which are judged in respect to a moral code? It would be much simpler, more honest and healthier for society if the question of consent were treated as a purely moral issue. At least this way we will not be empowering a priesthood of professionals like Dr. Collins.
What can children consent to? Can an eight year old consent if he or she engages in sexual play with an age mate? Is consent an issue? Is willingness consent? This is not a problem for parents who accept that sex play is normal and nothing to be concerned about but it can however distress others. The latter think in terms of parents' rights which means greater legal control by them and the police over their children. Now if a twelve year old can twelve old can consent to sex with an age mate or even someone fourteen why can't he consent to sex someone twenty five or older. What is the difference?
Objections are made that differences in age create a power imbalance which makes meaningful consent impossible. This certainly can be the case with naive, sexually ignorant, attention hungry children including prepubescents generally. Even with older children a reluctant child who is persuaded by lies, enticements or teasing is not giving consent. But to apply it uncritically to all adult-child sexual activity, without examining the particular situation simply because accepted concepts say it must be so, in no way serves to protect children. The tragic results of the London "snarl" illustrate this. In terms of man-boy relationships it is true that men provide things the boys want which may be both social and material. It is also true that the boys have something the men like or want and boys are usually aware of this. Boys are not powerless and soon learn to negotiate as the background to GRAMLICK and JEWELL indicate. However, a man who conceals his interests and then acts upon them is behaving unethically. Boys should be prepared for any advances and they should warn each other that so & so is a FAG. The fact that man-boy relationships are usually asymmetrical is no barrier to mutuality and respect any more than most relationships which are complementary.
In terms of consequences where injury, trauma, pregnancy and disease are not involved the most important are those arising from prevailing attitudes and exposure. If something is "bad" then those engaging in it are likely to suffer especially, or only if discovered and exposed. The widespread neurosis and suicides resulting from centuries of campaigning against self abuse or masturbation is probably the most striking example. It can be argued that adult-child sex is harmful for the simple reason that society defines it as "wrong". This often operates through fear and some might argue the more fear the better. Some writers including Edward Brongersma see it as a powerful reason to avoid sex with children below the legal age of consent. It is certainly effective even if it is costly in terms of harm to both men and boys in particular instances.
Dr. Collins had mentioned that pedophiles were notorious collectors of child related material and pornography and that they placed great value on it. I certainly agree with him on that point. Many collectors do place a great deal of value on their pornographic collections some of which may be irreplaceable. I feel this is strong evidence for the argument that the courts are mistaken in putting a low value on the "right" to possess child pornography as they did in LANGER. In that case the value of child pornography was dismissed as, "a form of expression that can hardly be said to be crucial to the principles which lie at the core of s. 2(b)." This discounting of the value of porn is taken for granted and never questioned as it appeals to the most "base aspect" of men, that of physical arousal. This is a comment on sex as much as on pornography and skews the whole question of proportionality. I submit however that the value of something to society must take into account the value it has to individual members. It should not be decided on an abstract basis. The value to some would include the value of effective or enhanced masturbation, something of considerable interest to men without partners.
Using his classification of child molesters as preferential and opportunistic/surrogate molesters, I asked which would prefer child to adult pornography. Only the preferential offenders he said because the others are mostly incest offenders who do not usually use porn anyway. This classification system is based on Finkelhor's theories and looks at incest as a sub-category within each of the other categories rather than a distinct one itself. This classification seemed to cut across the classification of pedophiles, presumably the preferential offenders, that Dr. Collins had used earlier. I asked him if the different types of molesters committed different types of acts. He didn't know if the question had ever been addressed. I asked him if one type was more prone to violence. Again he replied he didn't know if it had ever been addressed. He said he had seen varying degrees of violence in incest cases which he partly defined in terms of penetration. I asked him if incest was the most widespread taboo in the world. He didn't know but said it was certainly a taboo. It began to appear that the only things he knew were what was in the psychiatric literature. This was from a prominent expert witness in the field. He again tied in collecting to pedophiles so I asked him if laws against child pornography were mainly directed at pedophiles. He couldn't say who the laws were directed at explaining that he was not a lawyer. I felt I could have provided him with some expert testimony.
I moved on to the use of phallometric devices or peter meters as they are commonly called. He explained that phallometric testing is another term for penile plysmography. I found that an interesting piece of trivia. The procedure involves attaching measuring devices to a man's penis, showing him different kinds of dirty and neutral pictures and recording the results. The technique was developed by Dr. Kurt Freund to help weed out homosexuals from the Czechoslovakian army but he also found it could measure age preference. Dr. Freund later came to Canada and worked with Collins at the Clarke Institute. Dr. Collins sees the peter meter as a good diagnostic tool to determine whether or not someone is a pedophile. He said earlier he could define pedophiles on the basis of fantasy alone. Phallometric testing assumes that porn can be used to induce fantasies and arousal. Results however can be faked by some men, and "it's usually pedophiles who do the faking." Dr. Collins said. Essentially I gather that phallometric testing doesn't diagnose pedophilia but is used to define it. If we think in terms of AIDS, a person who is HIV positive is defined by the presence of the virus in his system, he is diagnosed by various tests.
Having been somewhat surprised by his previous "don't know" replies I asked him if he claimed to understand the thinking and behaviour of pedophiles. He said there appeared to be different patterns to their thinking but that there was no typical profile. This didn't seem to be an answer to my question so I asked him if he had gained any useful insights talking to pedophiles. He said of course but I failed to follow up on this.
On many occasions when Collins did not or could not answer my question he would answer some other question and ramble on. I began to wonder if this was a technique he taught in his expert witness classes. I did not have enough experience or know how to control the witness and several times the judge had to remind him to stay on track. I appreciated this if only for the time saved. Another tactic that effectively interfered with my cross examination when I had a related series of questions to ask was that he would continue and partially cover future questions making it awkward to bring them up later. I wished I had some courtroom skills.
Dr. Collins was perhaps being shrewd in evading the questions about the increase in porn and any related increase in sexual assaults. From his very extensive contacts in the criminal justice system he could be expected to know a great deal about both. Given the fact that he has been hired by the Crown several times before one could argue that he was derelict not to know these things. Detective Waters is right, there has been a "tidal wave" of so-called child pornography on the Internet. The increase has been exponential and is still estimated as doubling each year. There has also been a huge increase in the number of households connected to the Internet. All this has been accompanied by a dramatic increase in the number of men, including of course pedophiles, who have for the first time been exposed to child pornography. Others who may have only seen child pornography, or had only a few items can now pick and choose from an abundance of child erotica and pornography. The question to ask in respect to the safety of children is what effect this abundance has had on the behaviour of pedophiles. Has it sent them rushing out into the streets looking for children to assault? Or has it merely improved their solo sex lives? For Dr. Collins to admit that there has indeed been a "tidal wave" of child pornography would undercut his "fuelling fantasies" theory. It would also question the basis of his clinical practice.
There has been no clear increase in child sexual assault that can in any way be related to porn. Collins, desperately I thought, postulated a delayed reaction. I suspect that he proffered ignorance to avoid betraying his theory. His theory logically requires that a massive increase in the quantity and availability of child pornography would lead to a substantial increase in sexual assaults. The fact that this hasn't happened casts fundamental doubt on his fuelling fantasies theory. It is not enough to say that some men may sometimes be incited to commit offences. I like to use the analogy of inflatable air bags in cars. It has been shown that these safety devices sometimes kill children and other small people. Is this a sufficient reason to ban them? Is the fact that air bags save many more lives than they terminate relevant? In the case of air bags common sense can prevail and modifications are being made but in the emotionally charged world of pornography with its deep ideological commitments this is not easy. This lack of evidence that porn harms kids may bother Dr. Collins but it is good news for parents and children.
The development of criminal profiles, another concept pioneered by the FBI, is part of their VICLAS system that Dr. Collins worked on. From my own experience of having known many pedophiles, or more accurately boy and youth lovers, I had the impression that a high proportion of them suffered problems such as alcoholism, drug dependency, paranoia and low self esteem, if only because of the opprobrium they face from society. I asked Dr. Collins if pedophiles were more prone to these problems than the general population. He was unable to say but said that they came from all walks of life and that there was no psychological profile for a pedophile and no psychological tests that could identify them. There is no cause or correlations worth knowing. They are, he claimed, as mentally healthy as anyone else and quoted from Dr. Marshall's book, SEXUAL DEVIANCE supporting his contention. "Their problem is they molest children." And according to him fantasies are what causes offending. He seemed to be arguing that pedos are not sick people, just people with wrong fantasies. There is no cure, just fantasies to suppress. Just as there is no psychological test to identify pedophiles in the first place there can be no psychological test to show improvement or any objective way to assess a man undergoing his treatment except through his fantasies. With the shortcomings of self reporting and peter meter results, decisions would seem to be in the hands of those treating them, like the doctor himself. A truly innocent man convicted of a sex offence would be at a great disadvantage. If he persisted in maintaining his innocence, or denial as it would be called, he might never be released under the proposals made by Dr. Marshall before the Standing Committee.
Still pursuing the idea that some of the problems that pedos face was due to how society perceives and treats them I tried to ask the witness if pedophiles were affected by sensationalist media coverage linking them to child sex crimes. I was thinking it might affect their self esteem. He replied that they use newspaper clippings as collateral material and said that cases get reported in the NAMBLA Bulletin. I felt he was being evasive again so I asked if he felt the coverage was sometimes sensationalistic? He couldn't say and I tried the same question a different way Dr. Collins replied, "I am not an expert in journalism sir." This was not an important point but I believe it illustrates how narrow and closed the witness's mind was. The judge didn't think it was very relevant either but it led to my next point, "Do pedophiles often feel that they are being persecuted?" He didn't think so, not more than other law breakers. He couldn't comment on whether they were more vilified more than almost any other group. He did not think they were maligned and again brought up their comparison with the Jews which he found odious. Keeping in mind his differences with Dr. Marshall over sex offender registries I asked him if expressions of public outrage and media sensationalism might not lead to offence inducing stress. He didn't think so.
To me the relationship between fantasies and masturbation has always seemed clear if not inevitable. To Dr. Collins fantasies were the driving force behind child sex abuse. I started by asking if masturbation was healthy, and if it could be therapeutic for older men. For him this all depended on the content of the fantasies. He agreed that masturbation is usually or always accompanied by fantasy and I asked him if some men required fantasizing about children in order to successfully masturbate. The witness did not like the question and said he couldn't understand it. After I repeated it he said they'd probably masturbate anyway, still not answering the question. The problem with men who masturbate as an alternative to offending, he claimed, is that they may offend, anyway. He doesn't want men to have fantasies that would enable them to masturbate if the fantasies involved children. If pedophiles can't masturbate without fantasies involving children then they shouldn't masturbate. In effect, pedophiles in his mind do not have the right to masturbate. This belief provides moral justification for castrating them, something he does chemically. But are children safer if pedophiles don't or can't masturbate? I was trying to conjure an image of pedophiles seeking victims as a substitute for fantasies and porn. Even the judge was having difficulty following this reasoning and asked his own questions. Collins replied that if pedophiles thought about sex with children they were automatically in danger of doing so. If, as he claims pedophiles are psychologically the same as others then women are in danger every time men without partners think about sex with them.
Thinking of Marshall's study I asked him, trying to confirm what he had previously said, if most child molesters prefer adult porn. He didn't want to admit that nor contradict himself so he talked about pedophiles being more incited by more graphic materials. I let him get away with changing the subject again but I was going to ask him about pornographic content anyway. In reply to a question Dr. Collins said he had studied the pornography collections of pedophiles. I asked him if collections were almost entirely of sexually explicit activity or simply nudes? He said he'd seen both. He refused to say which was more typical. I asked him if pedophiles preferred explicit to non-explicit materials. He said explicit material but he wouldn't say if this was true of their collections. He said explicit materials were harder to acquire suggesting they were under-represented in the collections he'd studied. Dr. Collins evasions and answers leave open the possibility that most "child pornography" and collections may be little more than nudist pictures. Leaving open the possibility of deeming most depictions of nude children as child pornography may explain the Standing Committee's last minute addition to the visual definition of child pornography. This definition combined with using the "eye of the beholder" as an aspect of the criteria for the deeming of child pornography would provide the flexibility and the freedom to enforce the law selectively against those they can label as pedos. Both Detective Waters and Dr. Collins support the idea that porn can be defined by who has it. When laws are officially enforced on the basis of who one is, not what one does, one usually thinks in terms of Blacks, Jews and Aboriginals.
Dr. Collins strongly supports the concept that photographic child pornography constitutes a "permanent record of abuse" although this might only be the case when a pedophile looked at it. Porn as a record of abuse has become a mantra repeated by all anti-porn advocates and is becoming definitionally entrenched in judicial decisions despite its lack of rational substance. He mentioned an article in the journal, Sexual Abuse 1977, called "Proof Positive: Pornography in a Daycare Centre" which he said looks at the effects afterwards. There was no suggestion that the pictures were more than simple nudes. I asked him if that included the effects on the children. He quoted from the study to show that the pictures of the pre-school children were "devastating, not because it is violent or less obtrusive, but because it creates an indelible record of a disturbing and humiliating offence". The existence of the material not its production makes it devastating? It is not clear how this works but in topics eliciting moral outrage such as child pornography it unnecessary to back up righteous statements with reasons. Under the permanent record of abuse definition of child pornography if an image depicts a nude child then nakedness must be the abuse depicted. If it depicts a boy with an erection then arousal is the abuse depicted. Are nudity, masturbation or sex play forms of abuse? Many, even today believe they are. This is the same thinking that fuelled the anti-masturbation hysteria of recent centuries that drove thousands of boys and young men to suicide. This approach can easily be used to harm children and wreck families. This occurred in R. v. SCHLICK where Dr. Collins himself testified for the Crown that the breast is a sexual organ in a politically charged case in a small Interior community.
Alternately it can be argued that it is the actual recording of the child that is the abuse, not what was recorded. Abuse is not necessary for abuse to occur. Things which are not abuse in themselves (many will disagree) such as nudity, arousal, masturbation and sex play with peers become abuse when recorded. The photos or videos are not evidence of abuse but the abuse itself. This basically MacKinnonite theory assumes "exploitation" to avoid the question of actual abuse in any meaningful sense. This is usually justified by ideologically postulating some externality such as a power imbalance which "proves" exploitation. This approach, rather than the simple permanent record of abuse is favoured by the police as it readily extends to the creation of porn by cropping, enlarging, collaging, morphing and other forms of computer manipulation where no abuse was involved in producing the original material. Anyone who has ever been photographed could potentially be made into a victim of child pornography and would probably be unaware of the fact.
The concern in the Proof Positive is mainly with parents and community standards or moral sensibilities. Collins concludes by stating that no parent would want a nude photo of their child in the hands of a pedophile confirming his relativist definition of child pornography. This question had arisen earlier, so I asked him if porn consisting of pictures of nude children is a record of abuse, whether the abuse was intrinsic to the photo or is it based on context. Collins firmly says it is context. Child pornography can lie in the eye of the beholder. Pictures can become child pornography by passing into the hands of a pedophile. He uses an example of a pedophile clipping an innocent photo from Japan Camera and using it abusively. Presumably the child is violated when the pedo gets aroused by the picture. Dr. Collins is one short intellectual step from the voodoo concept of harming someone by sticking pins in "their" doll.
Following up on the permanent record of abuse idea I asked the witness if the head of one child, say some well known child TV star is realistically placed on the nude body of another, unidentifiable child if both of them are abused. (Such images are widely available on the Internet) He thought both children were abused especially the unidentifiable one because of its nudity. This would suggest that some child stars like Aaron Carter, the Hanson brothers and McCauley Culkin are abused thousands of times a week. He said some pedos cut the faces out of pictures so the subject can't be identified but that it was still pornography and a record of abuse. It was not clear if the child was more or less abused if its face was not shown. Another point, not mentioned, is that most pictures of young children after several years would no longer identify them. I was interested to learn that the endlessly repeated permanent record of abuse concept was not dependent on the subject being recognizable but had a life of its own. It would seem that the child is not violated in his/her own right but in service to society's moral sensibilities.
Dr. Collins brought up another article which I never had time to check, "The Influence of Child Pornography on Sex Crimes:" by Murrin and Law which reputedly supports Dr. Marshall, and in facts quotes him. In professional journals this incestuous business of researchers quoting each other is common. After quoting from another article, more Marshall fans, he brings up the London Porn Ring cases referring to a new report by Project Guardian which was the name of the police operation in the crack down. Here is proof, he claims that it is not just small children that are harmed in making porn but adolescent boys as well. The proof he claims is in the victim impact statements. At the Gramlick and Jewell, and related trials the boys who reluctantly if at all accepted victim status were not permitted to make their own victim impact statements. What they may have wanted to say was not what the London social service people and the police wanted the court and the public to hear. Victim impact informations were prepared by therapists who weren't getting the co-operation they wanted from the boys. The boys may have been persuaded to sign these informations just as were being pressured about other things. Their sense of honour was being ground down. Now their victimization by the therapists is recycled as victimization by pornographers. It seems that the victim impact informations prepared by the therapists have become a permanent record of their abuse by the system! Here we have it as official history, now who would dare question the suffering of those poor, porn abused boy victims in London.
I ask him if he is referring to cases of Gramlick and Jewell. He doesn't remember the names but tells the court that he was involved in a number of aspects including the search warrants and with collateral material. Presumably he was wearing his policeman's hat. He said he spoke to officials who interviewed the boys and set up treatment teams. All this victim and abuse talk got me carried away and I started referring to contradictory press interviews with the boys. I was out of order and the judge stopped me. I can only ask questions.
We returned to the "fuelling fantasies" part of the theory of child pornography. I was thinking of the still low esteem of masturbation vis-à-vis "the real thing" when I asked Dr. Collins if more positive attitudes towards masturbation would reduce sexual assaults. He had no answer. I asked him in respect to men who use porn to masturbate if they prefer fresh porn or can they use the same material over and over again. He didn't know. He couldn't say if men get bored with the same stuff. He goes on in a revealing way to explain why he doesn't know: "I'm not... really never professionally taken interest or studied masturbation. I only have knowledge that pornography in terms of pedophiles can be used as masturbatory aid and that that's been studied and been reported by pedophiles. But to get into greater details, I would have to say I wouldn't know." Masturbation is perhaps the critical component in his theory of child pornography. It is only when porn does not lead to masturbation that there's a potential problem. His disdain for a subject so close to his supposed expertise amazed me. For him to assert, and it sounded almost like a boast to me, that he is proudly ignorant about matters central to his work is an admission of incompetence. I questioned him further and he referred to his treatment, "My focus is that they get rid of pornography period." I do not think that the witness was being untruthful, only that he is such a moralist that he cannot extend his curiosity beyond what may be necessary to accomplish his prohibitory goals. This is why he cannot even contemplate the internal distinctions and characteristics of fantasy and pornography. He is not interested in what turns men on, only that images of child sex, nudity or boundless collateral materials may do so. He has a zero tolerance mentality.
Dr. Collins agrees that cognitive distortions are the pedo's rationalizations and justifications for deviant behaviour. I asked him if didn't everyone to a great extent rationalize and justify their behaviour. He would only admit that some people do to some extent but he is using the term scientifically in the area of sexually offending against children. He saw cognitive distortions as applying to paraphiliacs. I asked him if a cognitive distortion can also be a true fact. He didn't believe so. They were offence facilitating beliefs like for example, "sex with a child is healthy for the child". To test what he meant by cognitive distortions being untrue I gave him a few statements that I felt to be true and asked him if they were cognitive distortions: "One, most boys who have entered puberty are capable of enjoying sex." He didn't know if the statement was a cognitive distortion but then he said it would depend on who believes it. It's a cognitive distortion if a pedophile says it but not if said by "an adolescent male who is dating and he's beginning to have exploratory sex with an age appropriate individual". I tried other examples with similar results. Truth, according to Dr. Collins, does not necessarily lie in statements themselves but in the minds of speakers and listeners. Some statements would appear to always be cognitive distortions. I tried several quotes all expressing tolerance for intergenerational sex from well known people; Jane Rule, Michel Foucault and Allan Ginsberg. The witness labelled them all cognitive distortions. The idea that science (psychiatry) can assign the truth of any meaning on the basis of whether a man is a pedophile or other paraphilic or not is truly revolutionary. It's all the more amazing given that he claims that pedophiles have no profile and aside from self reporting can be identified solely, and perhaps only, on the basis of his fantasies. Dr. Collins makes no claims to being a philosopher or theorist. He also explicitly states that he is not a researcher, an expert on the Internet, student of history, a journalist, an ethicist, an endocrinologist, a judge or a lawyer.
I asked him if cognitive distortions change over time. The witness replied that they can get some pedos to change theirs. I felt he was being evasive again so I told him I meant historically, are they historically relative? Dr. Collins replied that he was not a student of history, but he knew that some pedos use examples from antiquity to justify the sexual abuse of children. I then asked if pedophiles should be allowed to state their positions publicly. Collins replied; "It's a tough question. I would... people have a right to express their views, but I don't have a good answer for you. I am offended, or at least I'm concerned when these views promote the sexual abuse of children, so a balance has to be reached and really as a psychiatrist, I can't give you a professional opinion as these things are determined by other people... As to what limits on freedom of speech need to be put in place, you know, is it equitable to hate crime? Perhaps so and I don't like hate crime so... but I haven't really given it much thought, to be honest with you Mr. Sharpe." Mr. Schultes broke in at this point to point out quite rightly that what the witness thought about free speech was not relevant to his area of expertise. Perhaps it was a cognitive distortion on my part to see some irony in what the prosecutor said. The equating of pornography with hate is a radical feminist idea. The slogan, "Pornography is the theory, rape is the practice" popularized by some feminists is based on this idea. The "hate" implied is not that the maker or consumer of pornography actually hate women, or children, as in the case of hate literature directed at racial or ethnic groups, but rather that in the material "objectifies" or "dehumanizes" the subject. Toronto Police Chief Julian Fantino is promoting this concept. It seems that any ideological construction that leads to the desired negative conclusion is valid in the minds of many anti-porn advocates. Logic and reason become tools for the oppression of women and children. "Child lovers" are ipso facto "child haters". With children there is the awkward fact that while biological men have never been women they have always been children.
We moved on to the concept using child pornography to "groom" prospective victims of child sexual assault. I agreed that some child molesters would find child pornography useful to sexually seduce some children. I think that child pornography in the hands of a non pedophile molester would be most worrisome because they would not be using it for their own personal gratification. As an aside I would mention that the kiddieporn magazines of the 1970s often show children looking at other kiddieporn books. This is sometimes offered as proof of the use of child pornography in grooming. The truth may well be that that was the only porn the pornographers had around because that was what they made or enjoyed themselves, and including it helped to sexualize the image for the consumer. The boy patiently being fellated by another would probably have preferred a comic book.
I could see that for pre-adolescent children pictures of age mates engaged in sex, particularly with adults could tend to normalize such sexual activity for them. For older kids especially boys, the purpose of using porn would not be to induce what might be termed cognitive distortions but to get them sexually aroused. The most effective, easiest to get and safest porn to use would be adult XXX from Red Hot Video or the adult section of your typical video rental store. Given the risks, costs and general poor quality of child porn videos I cannot see them as significant grooming tools for adolescents. This does not mean that adolescents would not be keenly interested in seeing porn made with kids their age. In what is known as the MacGowan case two boys of 14 years and one 19 made a sex video of themselves shortly before the child pornography was proclaimed. A copy came into the hands of the police and the boys were arrested and victimized by those supposedly there to help them. An audio of this sex video was played on CBC Radio's IDEAS program. The boys can be heard wondering what to do, talking about various things and apparently having a good time. They even talked about using condoms. In one of my BOYABUSE stories two teenagers take naughty polaroids of each other only to have them immediately discovered by the maid who becomes aroused and unsuccessfully attempts to seduce one of the boys. Incidentally there is also some porn made for gerontophiles using elderly people.
I had thought about the question of grooming that, instead of focusing exclusively on child pornography, it might be more profitable to look at just what would be most effective and most likely to be used in that context. When I asked Dr. Collins if adult XXX porn would be more effective for "grooming" adolescent boys he didn't want to agree because, "I don't believe that grooming should go on, period." I hoped that the judge could see that I was getting statements of moral principle in reply to questions within his technical expertise. I asked him if he felt alcohol would be more effective than child pornography for seducing adolescent boys. He said it was more popular and that he had been involved in cases with varying combinations of alcohol and pornography. I asked him if he thought that crack cocaine would be more effective still? I have personally seen the devastation that crack wreaks by turning boys into coke sluts and eroding their sense of honour. Dr. Collins couldn't answer and gave the same reason that it shouldn't be done, period. "It's a false argument, sir." Well, I asked him, are the problems in the things themselves, or their misuse? "It's both." And then he recited a credo: "I don't feel that there should be child pornography, and I don't feel that child pornography should be used to groom children to have sex with adults, and I do not believe that children should have sex with adults, or that adults should prey upon children for sexual purposes." I asked him if this was a moral position? He replied: "This is a psychiatric position as well. As a forensic psychiatrist." I believe him.
I tried through a series of questions to get Dr. Collins to discuss specific aspects of the effects of pornography but he either did not know or did not want to say. I suspect the former even though his thousands of sessions with pedophiles provided a unique opportunity to learn about the relationship between types, forms and availability of porn, and the behaviour of the offenders who use it. All he says is that pedos like more explicit porn but offers no evidence even though he has reviewed many collections which could have provided him with some insight. His profound belief that child pornography is morally wrong may explain his obvious lack of intellectual curiosity to find out more.
I asked Dr. Collins if he agreed with Detective Waters that there has been a "tidal wave" of child pornography, particularly on the Internet. The witness was very reluctant to agree or concede that there had been much of an increase, "I would imagine, to hazard an opinion, that there's probably a greater amount because of the Internet." He did concede that porn was easier for a pedophile to collect but he couldn't say if that meant there was more collecting. I suspect he had guessed my next question which was if there had been a corresponding increase in child sex abuse as a result. That there actually has been an increase, almost an exponential increase, seemed to me obvious. He couldn't say. When he finally did answer the question about the increase in sex abuse it was in terms of his own practice which had modestly increased. This is from a man who frequently lectures and trains criminal justice personnel on child pornography and is in close contact with people in the field. Surely he would have a good idea yet he was claiming ignorance in his field of expertise. I felt he was trying to deny the obvious in order to protect his theory. I had put him in an awkward situation where he couldn't admit to the vast increase in the availability of child pornography in the light of no significant increase in abuse attributed to it. He hints that better investigations, understanding and treatment may have made a difference but: "Whether there's a causal relationship between the pornography and the abuse that's out there, I couldn't say." Dr. Collins had just spent hours giving the court his theories of how child pornography caused child sex abuse and now he can't say if there's a causal relationship. He falls back on individual cases he knows where offenders had collections, a correlational not causal situation. The police assume that where offenders have collections that is what caused the offence. He mentions better policing and the need for research. When pressed if there a simple correlation between child porn and overall child sex abuse he thinks "yes". But with the Internet he thinks there needs to be some studies and I'm not sure what he means but then he adds, "I'm not an expert on the Internet." He had just been a participant at the large international conference hosted weeks earlier by Detective Waters. Dr. Collins had given a presentation on Internet pornography. The Court asks if he has basis for thinking that there's been an overall increase. It takes several questions by the judge before the witness admits that he's basing his answers on his own limited practice.
We take a short break at this point. We have been working very late because of the witness's other commitments and I am ill and exhausted. I lie down on a bench in the corridor and Dr. Collins sympathetically asks me how I'm feeling. He advises me to rest sitting with my head bent forward. He seems genuinely concerned. I would have preferred to have had another day to finish my cross examination. I saw his testimony and credibility as very important. I had found a number of social science sources that challenged some of Dr. Collins's basic claims and beliefs about the harmfulness of any adult-child sexual contact and thought if I could put some of their points to the witness that I could weaken his arguments. I had made photocopies of articles by Allie Kilpatrick, Paul Okami and other academics. I was unable to do much with them as the witness had simply not heard of them and I could not make my points. I wished that I could have had my own expert witness so other materials and theories could have been brought to the attention of the court. I don't think it would have been difficult to refute the more absurd pretensions of Dr. Collins.
There were several things I wanted to do but didn't have the energy for. I was tired and weak, But I decided to tackle the Marshall study that the witness had entered as scientific evidence to back up his claim that child pornography incites pedophiles to offend. Dr. Marshall's study was based on interviews with volunteer sex offenders who gave answers based on autobiographical recall including their deviant fantasies. It was more than just self reporting Dr. Collins pointed out. The conclusions being that some men excited by child pornography sometimes commit offences against children. The evidence was in the results of the study. I am basically sceptical of how honest people in that position are, or want to be. To begin with I didn't think that the subjects in the study were "volunteers" in the usual meaning of that word. I asked the witness if Dr. Marshall believed in compulsory treatment. He couldn't say. I read from Dr. Marshall's testimony before the Standing Committee when asked if sex offenders should be required to take treatment, he replied "Yes. If the contingencies are there, then we don't have to require it, because they really have no choice. More than 90 per cent of them... volunteer for treatment simply because of the contingencies the face if they don't." I saw it as a unusual definition of volunteer so I asked Dr. Collins, are men acting subject to contingencies voluntary or not? He replied that they would have to agree and wouldn't be denied treatment if they didn't. He didn't think the men in Marshall's study were subject to contingencies. I quoted from Marshall's study: "Approximately 69 per cent of the patients were at some point in the judicial process; ie. under investigation, charged, convicted or on parole or probation but none were incarcerated or hospitalized when they were assessed." What are contingencies anyway? He said that the ethical committee and the scientific committee at Queen's University would have reviewed his proposal and that they are very strict about such things, "so if Dr. Marshall says they're voluntary, I can guarantee you, sir, they are voluntary." The witness had earlier said that pedophiles do not seek out treatment on their own because they don't believe they are sick. Referring to treatment I asked if the ones who were arrested to begin with and who did volunteer for treatment would be representative of all pedophiles. I was thinking that the more clumsy and abusive pedophiles would be more likely to come to attention of the courts. Dr. Collins felt that the sample was representative pointing out that 80 to 90 per cent of the offenders in his programs are "of the non-violent ilk". That was interesting. Dr. Marshall's "child molesters" are classified as heterosexual molesters, homosexual molesters and incest offenders. He never uses the terms pedophile or pedophilia and it's not clear how many are pedophiles in his sample although the subjects were given phallometric tests to determine gender and age preferences. It may be assumed that few of the incest offenders but perhaps most of the homosexual molesters were pedophiles but Dr. Collins could not sort them out. The study involved questions about "deviant fantasies" and masturbation and I questioned the results which showed which showed some child molesters masturbating without deviant fantasies. The witness dismissed the anomalies saying, "So they claim, which is the problem with the self reporting study to begin with", explaining it could mean an underestimation. Yet the study, and presumably its conclusions were based on self reporting! I asked if this didn't cast some doubt on the conclusions? The witness seemed indignant, "Not at all... I can't keep repeating myself, sir; he hadn't sub-categorized the heterosexual group so I can't comment." He seemed to imply we should take the conclusions on faith. We discussed a few other topics but I was unable to continue after much longer. The judge noted that Dr. Collins had been long winded. I wondered if this was another technique that he taught his students in his expert witness classes. But it was not practical to arrange for the witness to return on another day and that was the end of my cross examination of Dr. Peter Ian Collins.
At times I could feel fear. Here was a very powerful man. He is chemical castrator. He is taken very seriously at high levels of government. He can decide if prisoners are recommended for release and like Marshall he probably believes such decisions should be in the hands of psychiatrists, not panels and the courts. He felt that resistance to psychiatric treatment could, or should get one designated a dangerous offender. The truly innocent and stoutly heretical thereby being disadvantaged. He has a unique role in the power he holds over other men through the response to his treatment and the weight of his professional opinion which I had come to believe was narrow, biased and unsupported by hard evidence. A man who confidently labels paintings and photos of breasts as offence facilitating. A man with theories he promotes; an advocate, a trainer, a witness, a therapist, a judge and executioner wearing a professional's suit, shirt and tie. No doubt he could persuade men to "volunteer" for chemical castration given the contingencies. I felt a bit like Winston Smith in the presence of O'Brien in 1984. And he had already deemed me highly likely to reoffend.
His theories of child pornography if they apply at all only work with his stereotyped pedos who may be quite atypical. They could seem more common to clinicians. A lot of things work with desperate men. The offender's role as defined by the theory may be seen as an effective one to assume in order to get good treatment reports. The attempt by psychiatrists to impose their orthodoxy on society is similar to that of the Christian Church to impose its own orthodoxy on Europe after it had finally overcome the influence of indigenous religions around the beginning the last millennium.
To Collins the question of pornography distinctions is answered by his claim that pedos shouldn't fantasize, period. Therefore questions of whether children would be safer if pedos had some kinds of "porn" but not others cannot even be discussed.
The Prosecutor's Summary
Terry Schultes based his submission on R. v. Paintings, Drawings and Photographic Slides and basically wanted the court to adopt LANGER in its entirety. While this decision was not binding he claimed that it is a very persuasive authority: "I submit that this court can resolve this entire Charter application by adopting the reasoning in LANGER." He claims that this decision considered the constitutionality of all of s. 163.1 and that the Charter justifications for the law under s. 1 were "fully considered." LANGER which I discussed earlier was an expression rights versus equality rights case, phrased in terms of "protecting society's most vulnerable group, its children from the lifelong harm caused by sexual abuse". Mr. Schultes pretty well ties himself down to Justice McComb's pronouncements and revisions to the meaning of English words. He accepts the mantra that depictions of actual children engaged in sexual activity is expression conveyed via violence and consequently not protected. It is violent because child abuse is an inherently harmful activity. Would gross neglect, also a form of abuse, therefore be a violent act? He implies that violence is intrinsic to illicit sexual acts involving children rather than a characteristic that may or may not apply to such acts. Logically then such acts cannot be non violent. Common sense? He would also probably accept Dr. Collins' claim that 80 to 90 per cent of his child molesters were of the "non violent ilk". He concedes that depictions of children engaged in legal sexual activities and works of the imagination are not violent and therefore their prohibition must be justified as a reasonable limitation of expression under s. 1 of the Charter. This he sets out to do. He says that my case, notwithstanding the different subject matter, is similar to the challenge in LANGER.
The section 1 analysis for determining the constitutionality of a law is set forward in the steps developed in R. v. OAKES. The inputs however are based on subjective evaluations. Schultes quotes at length Justice McComb's summary of the Oakes test:
In respect to (a) I had not claimed that the sections I was challenging were vague, to me they were all too clear and overbroad which was part of my challenge. "Advocates or counsels" to me meant positive portrayal. This certainly seemed to be the police interpretation. Dr. Collins assumed it extended to "pseudo-scientific" theories that conflicted with his own. In the visual definitions however vagueness is a question and Schultes, repeatedly referring to Judge McComb, defends the terms; "who is or is depicted as being under the age of eighteen years:", "explicit sexual activity", "for a sexual purpose" and "artistic merit". He says that the Supreme Court of Canada has been reluctant to strike down laws on the basis of vagueness and quotes from LANGER and BUTLER. He says that s. 163.1 is more precise than other sections of the Code and would cover my writing. Mr. Schultes submits that I would have no difficulty identifying the type of material caught by the legislation.
The question of just what is prohibited in terms of visual depictions of is not clear. Can kissing be a sexual activity as defined in ss. (1)(a)i. Would a photograph showing from the waist up two twelve year old boys passionately kissing be interpreted as explicit sexual activity. It would likely appeal to many pedophiles and some might find it arousing. Is having an erection or self touching a sexual activity. The definition, ss. (1)(a)ii, where the "dominant characteristic" is the depiction of a "sexual organ" for a "sexual purpose" is far more problematic as Viktor Schlick found out. While Schultes does not attempt to interpret them at this point he needs justify both definitions and in doing so he relies on Justice McComb who viewed them as equally exploitive. McComb in turn was adopting the opinions of Drs. Collins and Marshall. In his attempt to be consistent and justify both sections as "equally harmful" Schultes states: "In my submission, the way these are defined is to treat, and reasonably so, to treat both types of depictions as harmful in the same way. So in the Crown's submission, there isn't a helpful distinction to be drawn between the first one, which shows a person in an explicit sexual activity, or something where the dominant characteristic is showing the sexual organs or the anal region of a person under 18.... they're equally harmful and they're equally intrusive, in that they are the ones which require an actual participant". The Court had some difficulty accepting this. Would a depiction of a nude that some might think of as naughty be equal to one of a violent rape? It was fairly clear from the evidence that both Detective Waters and Dr. Collins have expansive interpretations perhaps only exempting nudes in certified art. The forensic psychiatrist could even see harm in bathtub photos. Mr. Schultes, specifically rejecting that example and noting that they are not lawyers, cannot accept the witnesses' broad definitions which is a problem for him as he uncritically accepts their other evidence. Additionally the Court is having difficulty finding nude depictions harmful. In order to justify the harmfulness of ss. (1)(a)ii depictions of real children he advances a narrower interpretation: "And I say the sexual purpose has to be intrinsic to the depiction of a sexual organ, the genitals or the anal region of a person under 18." Abuse or exploitation would presumably have to be evident. Applied to the material in my case hundreds of impugned photos would be reduced to a handful at the most. Porn that depicts only genitals is rare and sexiness does not require the depiction of genitals in any case. As for sexual purpose, two pictures of mine, which Detective Waters twice goes out of her way to mention, and referred to by Schultes show a boy's genitals with a ribbon tied around them. Out of a hundred odd pictures of the boy these were, I believe, the only close ups of his genitals. On one of the prints I dodged (blurred the edges to form an oval) in the darkroom to create an old fashioned cameo effect. Now I regarded these pictures as whimsical, cute perhaps but certainly not sexy in the sense of arousing.
As for sexual organs, if breasts can be sexual organs, could mouths also be included? They are used as such. Consider a photo of a young girl's face with her lips pursed as if offering a passionate kiss or oral sex. Some men might find it a turn on.
Pressing and Substantial Legislative Objectives
In respect to (b) above, pressing and substantial legislative objectives, Mr. Schultes lists the three purposes enumerated by Judge McComb: protecting actual children from the abuse that takes place in production, protecting these children from further abuse through the circulation of child pornography and protecting all children from the indirect harm of child pornography. He sees my challenge as directed at the latter. The prosecutor speaks of the "inherent abuse in capturing the actual acts of sexual exploitation". The Court asks if he is talking about explicit sexual activity or children in the nude. Mr. Schultes says "both", if the result is child pornography. The Court has difficulty seeing nudity as abuse and Schultes appears to backtrack, saying the Crown witnesses who had implied as much are not lawyers and that their definitions were not child pornography under the law. He uses the child in a bathtub example. I was confused. He refers back to the definitions in the law, ss. (1) (a) i & ii, and says that abuse must be inherent in the photograph. He strives for a reasonable and consistent interpretation which obviates the question of the eye of the beholder or the use it may be put to by the possessor.
This required refining what would be included in each definition. This is easier with explicit sexual activity ss. (1)(a)i than with the depiction of organs, ss. (1)(a)ii. Following Justice McComb, who was uncritically accepting Collins, he had to claim both equally harmful.
Mr. Schultes does not dwell on the matter of circulation but quotes Detective Waters at length where she testifies about the prevalence of child pornography including materials that "justify and glorify sexual activity with children", explicit stories and "pseudo-scientific articles and journals". We are back to cognitive distortions. He quotes McComb where he dismisses the inconclusive testimony of defence witnesses at that trial and relies on the opinions of the clinicians, Drs. Collins, Marshall and Barbaree. He repeats the Collins' theory of child pornography and claims that even comic strips give rise to the same risks as child pornography involving real children. The comic in question, Boiled Angel which consisted of funny looking humanoids, could presumably could be used to convince children that sex was normal. Fantasy and reality are equated.
To emphasize the pressing and substantial nature of the legislation Mr. Schultes makes an indirect quote from another decision which quotes Justice Finlayson in GRAMLICK and JEWELL; "The conduct underlying these convictions discloses a subculture that is unsettling and repugnant. These appeals confront the court with the pressing issue of how to deal with offenders... who prey on young persons... for no purpose other than their own sexual gratification." The subculture was not before the court, neither Justice Finlayson nor the trial judge ever viewed the impugned videos, and I was surprised that Schultes who is generally a fair and reasonable prosecutor should recycle such pejorative moralistic garbage. It may simply be that any illicit sexual activity involving minors must be assumed to be in a context lacking any but the most base and selfish motives. He then repeats the market arguments (which do not apply in my case) and urges the court to accept the decision in LANGER.
While agreeing that the Supreme Court has "required nothing approaching a causal link in a scientific sense" between depictions and harm the Court mentions there is also common sense: "And that's concerning me somewhat because although I can see the reasoning that a photograph of a nude boy that focuses on the genitals may be particularly inviting to a pedophile and part of the pedophile's process of... fantasy in masturbation, I'm having difficulty in going the next step..., that there's any evidence or common sense that says that those photographs are going to incite the pedophile to do something that the pedophile isn't -- because he is a pedophile, isn't quite prepared to do in any event." He is not ready to accept the evidence of the experts on that point, that in effect such depictions solidify cognitive distortions. Mr. Schultes claims that Dr. Collins' evidence is compelling. The Court is prepared to accept that explicit materials can be used in grooming. There has never been to my knowledge an attempt to quantify the pressing and substantial nature of the harm of child pornography and it would be very difficult to establish.
In dealing with the question of proportionality Schultes points out that the Supreme Court has ruled that not all forms of expression lie at the "core of the values that are sought to be protected". He quotes from KEEGSTRA where the court ruled that "hate propaganda was only remotely related to "core" free expression values and that in BUTLER pornography was entitled to a very low level of protection. Incidentally Dr. Collins borrowing from extreme radical feminist ideology equated child pornography with hate speech. Mr. Schultes also uses the R.J.R. MacDONALD decision dealing with tobacco advertising which also was held that to be of low expressive value. That decision accepted the argument on the basis of common sense that reducing advertising would reduce consumption when the social science evidence was inconclusive. He seems to be arguing that child pornography is an advertisement for sexual assault. But then could people consume tobacco advertising as a substitute for cigarettes? Common sense can be used to argue that porn is a substitute rather than incitement for sexual assault. As for the value of any expression I suggest that it should be based on its value to those making use of it, not to those who don't. If pornography is overwhelmingly used for the purpose of masturbation then it needs to asked what is the value of masturbation to the person who uses it. If masturbation contributes to health, as many claim, then pornography, including child pornography could be said to serve a medical purpose. Similar arguments have been made about the medical use of marijuana. The legislation actually provides for a medical a defence.
The Rational Connection Test
Approaching the question of "advocate or counsels" The prosecutor says that written material or visual representations "must advocate or counsel sexual activity with children that would be an offence under the Criminal Code. So written material that simply describes or narrates would not violate the section." It "must be promoted as beneficial or good or as something that should happen". This begs the question of where a depiction becomes promotion. Is a positive portrayal promotion? And isn't "promotion" a stronger term than "advocate"? Would a story depicting unwelcome and brutal sexual activity escape the definition while a story depicting an affectionate relationship be covered by it? Can definitions be based on a story's outcome or plot? He lists prohibited sex acts including those where an adult is in a position of authority. On this basis one could promote sex between a man and a fourteen year old boy if they were casual acquaintances but not if the man were the boy's teacher or coach. This also means that it would be legal to argue against but not for such activity.
Mr. Schultes, never deviating from LANGER raises the question of the defence of artistic merit. I did not raise this question at the voir dire although I intended to do so at the trial proper. He claims that it is a "very onerous test for the Crown." in that in that it did not require a great deal of artistic merit in the opinion of the artistic community. However Justice McComb imported the test of community standards from the obscenity law as developed in BUTLER. If the Crown could show that the material was harmful as perceived by public opinion then the artistic merit defence could be overridden. As I said earlier it is questionable if public opinion which is both fickle and malleable is superior to an arbitrary but consistent "moral" standard. In any case it depends on the context of the material. It was as an example of the vagaries of community standards that I referred to the Marquis de Sade's 120 DAYS OF SODOM, available in mainstream Vancouver bookstores. Presumably Canada Customs allows this book which is far more gruesome than any of my stories to be imported into Canada. It is considered a classic by some authorities. While other written material seized from me was said to meet the definition of child pornography it was only my stories that I was charged with. The Court questioned Mr. Schultes on Dr. Brongersma's books which he describes as "chalk full of observations relating to man/boy love and they're certainly the product of an immense amount of work." He replies, that without finding the other way, he has chosen not to proceed. It would, he says, be very difficult to prove that they did not have a scientific purpose which is an unqualified defence as he interprets the legislation. (He also chose not to proceed on the copies of the NAMBLA Bulletin I entered.) Mr. Schultes portrays the defences listed in ss. (6); scientific, educational or medical purpose as being very broad and as permitting "advocacy of all actions short of criminal offence against children". This is certainly far narrower than the type of material that Dr. Collins saw as child pornography. The photographs are the other evidence against me. Judge Shaw recollects, that off the top of his head, only one in which there is explicit sexual activity. Schultes says that there might be a couple of others.
I argue that the right of advocacy subsumes the following rights:
I would add that literature and personal testimonies can provide glimpses of realities as people experience them in their lives that all the clinical, scientific and academic studies in the world cannot accomplish. Their insights usually predate those of scientific investigations and legislative changes. What has often been yesterday's obscenity, or pornography, (birth control information, abortion advocacy, public approval of juvenile masturbation, and the works of numerous writers becomes the norm at a later time. The decriminalization of homosexual activity in 1968 for example was abetted by literary works such as Canada's Jane Rule's DESERT OF THE HEART which was published in 1964. I argue that literary works exploring the diversity of human behaviour have served a political purpose and that many were intended to do so by changing the public's understanding of and attitudes towards controversial and frequently despised behaviour.
I would ask the court to consider the defence of "educational purpose". For many years, since before my time, the subject of sex education has been controversial. The debate has been about what young people, but not exclusively young people, should be publicly taught. What information may be conveyed to them? The debate is about what we are prepared to see others taught, "community standards" in other words. Fortunately for many youths the street, and the pornography they can get their hands on, fills in some of the gaps that the imposition of what is already in effect "community standards" will not permit. I would think that anything that might remotely be considered child pornography would not be tolerated in education no matter how beneficial it might be. The controversy over the book SHOW ME which was clearly designed as an educational tool is an example. Perhaps the only situations where child pornography would qualify for an "educational purpose" defence would be where it was used to instruct police and customs officials and for lobbying politicians and community groups to support even more restrictive laws. To overcome the "educational purpose" defence a court would merely have to recognize that community standards already apply. The "educational purpose" defence could apply to medical education material such as the photos of nude children used by people like Dr. Hlady, a Crown witness, for the assessment of Tanner stages. It would, I believe, be foolhardy for an ordinary defendant to rely on an "educational purpose" defence.
Few "scientific purposes" would require child pornography, perhaps only a study of the material itself. At present all that is available is anti-porn advocacy prepared by police agencies that uses pejorative definitions and extreme examples to illustrate their claims. Until and unless scientific studies are carried out there is no way to challenge the biased and self serving presentations made by people like Detective Waters. A serious researcher-scientist might wish to investigate the extent, nature and accessibility of "child pornography" on the Internet. I do not know of any scientific study that has looked at the matter qualitatively, i.e. one that describes, analyses, contextualizes and objectively classifies. The researcher would need to download (possess) images and text for detailed classification, comparison and analysis. This could enable society and relevant public officials to better understand what is actually out there. I believe we need research into what is alleged to be child pornography. Unless some type of preclearance could be obtained such research is highly unlikely given the provisions of s.163.1. and the climate of moral outrage surrounding the subject.
It is not clear, at least to me, what "medical purpose" would include. Dr. Marshall and Dr. Collins use child pornography for diagnostic and assessment purposes. It has also been used in aversion therapy for some sex offenders where it is used in conjunction with phallometric devices and electric shocks. The patient is punished for "inappropriate" penile responses and rewarded for appropriate responses to acceptable types of porn. The intent is to refocus the patient's sexual interests on acceptable behaviours. These treatments are based on Pavlov's famous experiments using salivating dogs. The ethics of this therapy has been questioned. I would mention that sexually explicit material destined for medical schools for teaching purposes have already been detained.
Mr. Schultes goes on to deal with IOFIDA v. MacINTYRE which I had submitted as an authority to support my challenge to the written material provision. He claims that it cannot be relied upon in my case. He says that the provision in s. 462 dealing with importing, exporting, manufacturing or sale of "literature for illicit drug use" had "an absurdly broad effect on many valuable and non harmful forms of expression." because it contained no defences for literature produced in pursuit of artistic, scientific or political ends." This is his most persuasive argument. "Its purpose was found to be the restriction of debate about drug use, which is an impermissible legislative objective." "This stands in stark contrast to the legislative objective of protecting children." I had claimed that ss.(1)(b) had a similar effect of restricting debate about intergenerational sex. He claims that IORFIDA lacked evidence that "the prohibited material... would be used in a way that would put a vulnerable section of society at risk of harm, in our case children." While this may be true it could simply be an oversight on the part of the Crown. S. 462 he claims "targeted expression itself, not allegedly harmful consequences flowing from it." I find this argument devious given that protecting young people was certainly a stated intent of the legislation according to the Parliamentary records. Would Schultes claim that for young people the adverse consequences child pornography are greater than drugs? He states that s. 163.1 does not prevent people from advocating changes in the law. While this may be true, debate about an issue cannot be confined to narrow political concerns, it must also permit positive artistic, polemic and literary exploration of the question that flesh out the political discourse. If one is free to argue that the age of consent should be reduced to twelve, as it is in some countries - or abolished completely, then one should be able to develop the argument in fiction which can treat questions at more subtle, complex and personal levels. In the past the private circulation of banned novels has helped prepare the way for subsequent liberalization of laws. In respect to s. 462 there would seem in legal terms to be rational connection between suppressing written drug advocacy material and discouraging drug use, but rational connections often depend on which way things are looked at and may work both ways. There can be competing rational connections. I would note that the drug literature provision was seen as precedent for ss. (1)(b) by some members of the Standing Committee. The prosecutor concludes that the child pornography law "appears carefully formed to avoid just the sort of overbreadth that troubled the court in IORFIDA."
Minimal impairment means that a law should limit a freedom as little as possible in order to achieve its objective. A law mandating the seizure of vehicles to discourage parking violations would probably fail on this basis. Mr. Schultes quoting Justice McComb deferring to the expert opinion evidence of Drs. Collins, Marshall and Barbaree supports his conclusion that the child pornography provisions meet this standard. He says that "the linchpin, the link supporting the evidence of harm... and that Dr. Collins evidence is key on that." He claims that the provisions are "tightly focused" and that they "do not catch behaviour that is not likely to lead to harm to children." This is a very sweeping claim. If true, given the abundance of child pornography available, we should expect horrendous levels of child sex abuse by pedophiles. Bearing in mind Dr. Collins' testimony which suggests that less than one third of child molesters are pedophiles the "link" would appear very tenuous. "Lesser restrictions only suppressing material that shows illicit child sexual activity, material using real children in its production and material with no artistic purpose would not meet the legitimate objectives of Parliament."
Mr. Schultes next dealt with my claim that my freedom of conscience, s.2(a) of the Charter was violated by the simple possession provision of s. (4) of the child pornography laws. Unlike my challenge under the freedom of expression guarantees he is not willing to concede that my freedom of conscience rights have been infringed. In this he relies on R. v. BIG M DRUG MART LTD. a 1985 Supreme Court decision. This was a successful challenge to the old Lord's Day Act which prohibited the selling of certain goods on Sundays. The accused corporation had challenged the Act on the basis that it infringed on its freedom of conscience and religion. The legislation was held unconstitutional in provincial court and this decision was upheld by the Alberta Court of Appeal. The Crown appealed to the Supreme Court of Canada which dismissed the appeal. The Court held that: "Government may not compel individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others". The Crown argued that the Act did not interfere with the right to "free exercise of religion", and that even if it did the Act constituted a reasonable secular limit. The Crown "urged that public convenience, order and health necessitate standardized working hours and a standardized day of rest." In other words that while the legislation may have originally had a religious purpose it now served a valid secular purpose and that the law should be judged on its beneficial effects. The Court had rejected this shifting purpose argument.
Prosecutor Schultes quotes from BIG M DRUG MART: "Viewed in this context, [i.e. that these freedoms are fundamental to the purpose of the Charter] the purpose of freedom of conscience and religion becomes clear. The values that underlie our political and philosophical traditions demand that every individual be free to hold and manifest whatever beliefs and opinions his or her conscience dictates, provided that inter alia, only that such manifestations do not injure his or her neighbours (Crown's emphasis) or their parallel rights to hold and manifest beliefs and opinions of their own." He proceeds to state that my "wish to possess" child pornography is not an aspect of religious belief or a "deeply and sincerely held matter of conscience. Indeed , the most reliable evidence (that of Dr. Collins) is that a sexual interest in children is a kind of paraphilia, or sexual deviancy. The outward manifestation of such deviancy, which are no more than the means of satisfying sexual desire, can lay no claim to the status of religious rituals or acts of conscience." Again quoting from BIG M DRUG MART he says that 2(a) protection does not extend to acts that harm others. He claims "Dr. Collins has provided compelling evidence that the activities prohibited by the child pornography provisions pose a serious risk of harm to children. By virtue of that risk of harm, they are outside the protection of s. 2(a)." Consequently there is no need to proceed with a section 1 analysis. There was no oral argument in respect to section 2(a) at this point in the voir dire.
The prosecutor's whole argument, in effect, is dependent on Dr. Collins' claim, which he was unable to substantiate in any over all sense, that the possession of child pornography incites pedophiles to sexually assault children. The opinion of clinicians based on self reporting offender studies and anecdotal evidence is the backbone of the presumption of harm.
I began my summary by discussing the exhibits I had entered starting with the NAMBLA Bulletin. I mentioned Detective Waters' (then Wolff) persistent advocacy before the Standing Committee and that this newsletter had been Parliament's principal target of the written material provision. In reply to a point raised by the Court I explained that it was the touchstone of the prohibition of the written word and that this was why I entered the copies, despite advice to the contrary by two lawyers I had consulted. One of them, Michael Ritzker had told me that ethically he couldn't do that because it was child pornography. The Court inquired: "You mean possession of something for the purpose of a defence in a court action is an offence itself?" I explained that that was the opinion I got and that it was one reason why I was defending myself. The Judge said that he had some difficulty with that proposition: "If something is germane to a defence... I can't see how it can possibly be suppressed. That doesn't make sense to me. It's quite contrary to our open court system." He said however, that since I had not been charged with the NAMBLA Bulletin he did not have to rule on whether it constituted child pornography. I stated that the newsletter's content was political, that they lobby, give news favourable to their cause that is not readily available from other sources, and provide a forum for discussion of issues related to man/boy relationships. It is similar to many other special interest newsletters. I further stated that prohibition of such material "violates the freedom of all Canadians in that it denies them information upon which they can form their own opinions and express themselves." In this sense the prohibition is doubly restrictive. How can issues be debated if one side is prevented from presenting it views? I quoted from Re George Rideout, a decision of the Supreme Court of Newfoundland:
I argued that while the NAMBLA Bulletin is mainly written by and for boylovers who have always existed everywhere it provides insight into the concerns, thinking and behaviour of boylovers which may enable others to understand them better. I submitted that: "it's not a question of men reading NAMBLA being inspired to have sex with boys, but one of men who have a erotic interest in boys discovering NAMBLA and the political, cultural and ethical context it provides." I pointed out that men who lack contact with others of similar interests may become moral isolates and perhaps pursue their interests with less responsibility. I claimed that NAMBLA provides a moderating ethical context for men attracted to boys, serves the public good and helps to protect children. I briefly reviewed some of the contents that I discussed earlier. I also reviewed the article "Men Loving Boys Loving Men" in FLAUNTING IT!, the book DARES TO SPEAK and the Netherlands Sex Law. While I originally entered the latter as an example of possible absurdity of a literal interpretation of the written word provision I also suggested it as less restrictive means of achieving the protection of children. The Dutch pursue a child centred approach, empowering children over 12 and their parents rather than pro-actively employing the offender/abuse/victim paradigm that we do.
I spoke to the curriculum vitae of Dr. Collins who is thoroughly immersed in the criminal justice system. I suggested this gave him a narrow police outlook and implied that he is not an independent professional witness.
I then turned to the two volume study by Edward Brongersma. I had been upset by Dr. Collins dismissal of him as a "convicted pedophile" and became emotional for the only time at the voir dire defending him. He was a friend and we corresponded regularly. I received my last letter from him in April on the day he died at 87. I briefly reviewed his career as one of Holland's most distinguished jurists. I explained that he had been imprisoned for sexual contact with a sixteen year old boy under an archaic law, which later in 1971 as chairman of their Senate Judiciary Committee, he helped repeal. In 1975 shortly before his retirement Queen Wilhemenia knighted him with the Order of the Dutch Lion. I explained that LOVING BOYS was a pioneering study, perhaps more encyclopedic than scientific that he was able to put together with his enormous number of contacts and correspondence facilitated by his fluency in all major western European languages. I discussed other books I had entered and explained the problems I had with WITCH HUNT FOILED which I discussed earlier.
I went over some of the problems and what I saw as weaknesses in Dr. Collins' testimony. I felt he was sincere if devious. (I would have been be less charitable if I had read his testimony in SCHLICK) I said: "He is, I think, basically a believer. I felt that he sometimes reinterpreted questions, that he had difficulty seeing things outside his narrow psychiatric world view, but he is a practical man who fixes, treats deviant men or at least tries. I felt, however, he did keep punctuating his testimony with moral platitudes about the evil of child sex and I felt there was a confusion of psychiatric theories and moralities... To him, these matters are a moral imperative. To him, it is common sense." I said that he treats fundamental challenges to his psychiatric and moral premises as cognitive distortions and that these therefore endanger children. He contemptuously labels rather than tries to refute scholars with contending viewpoints and disparages the journals that print their articles. On easy questions he dissembled becoming expansive, on hard questions he retreated into his narrow professional expertise, or simply didn't know. On core questions he was consistently dogmatic. Where adult/child sex came to the attention of the criminal justice system he was insistent that it was the sexual activity itself not its exposure that harmed the child. To say otherwise would reflect adversely on the system. I reviewed his awkward answers when questioned about the "tidal wave" increase in child pornography and any corresponding increase in child sexual assault.
Returning to the question of cognitive distortions I mentioned that when I had asked Dr. Collins if pedophiles could put forth their views, he had said that he wasn't sure because he equated some of them with hate crime. And he had said that pedophiles are criminals and if they meet and form groups around their common interests, such as NAMBLA they are ipso facto organized crime. I asked if street kids meet and make plans to deal in drugs if that was organized crime. I brought up the catharsis or substitute theory of pornography. I wanted to place more emphasis on it, the Court had indicated some interest in it, but I didn't have good sources to back it up. Later, through a new friend I was introduced to some impressive research that substantiated this theory. While I agreed that the grooming theory made some sense with little children I pointed out that the high profile cases in Vancouver, and the "London Porn Ring" all involved adolescent boys. I suggested that if a pedophile interested in adolescent boys had in his possession both X-rated adult porn and child pornography that he would likely use the former to arouse and seduce boys and use the latter as an aid to his masturbation. In such a case, in order to protect children, it would make more sense to deny him his adult porn and leave him with his child porn so he can be happy masturbating instead of looking for boys. I said that therapists with their faith in victim/offender theories often cause a lot of trouble as it leads them to seek out sexual abuse as a cause. I said I was thinking of "the recovered memory or false memory syndrome dealing mainly with women who have reason to be unhappy with their lives, and therapists begin counselling them, using various forms of psychotherapy, and they had in... their minds, the therapist, you know, sexual abuse causing problems. Some of this goes back to Freud. But as a result of this paradigm and the therapists belief in it, you had hundreds of men who were convicted, mostly fathers as a result of therapists who, while they thought they were uncovering real memories, were implanting false memories." I was getting off track and the Court let me know.
I moved on to GRAMLICK and JEWELL and brought up the question of the social context I had discussed earlier. I said that the boys' motives may have been quite diverse and complex, and the fact that boys turn to such men is a reflection of the failure of families and the social welfare system to meet their needs. I claimed that the trial judge had been unrealistic to treat such factors as the defendants' age, generosity, concern over the boys' needs and problems, and the duration of the relationships as aggravating factors. I said that if the concern arose out of or parallel to the sex related activities, a more likely situation, then it should be considered mitigating. Similarly casual long term relationships which are more likely to involve a lot more than sex should be considered mitigating. Unfortunately the nature all adult/child sexual relationships have been generalized from father/daughter incest. It is fairly obvious that where a man repeatedly has sex with his daughter over a period of years it is a greater offence than if a man, feeling rejected and perhaps drunk, crawls into his daughter's bed on one occasion. But if a boy voluntarily comes back again and again and has sex with a man is that aggravating? Again I was getting off track.
Freedom of Conscience
Next I began dealing with my freedom of conscience, 2(a) Charter challenge to the simple possession offence under ss. (4). This developed in an unexpected way which was crucial for my acquittal. I pointed out that LANGER was a challenge based on freedom of expression and that the judge ruled that on the basis of expert testimony that Parliament's objectives were sufficiently important to override freedom of expression including simple possession. I submitted that simple possession has nothing to with freedom of expression. I claimed that simple possession is a matter of conscience and that the Langer decision never mentions it. I stated:
I quoted definitions of freedom of conscience from two cases and dictionaries. In R. v. VIDEOFLICKS, a Sunday observance law case it was defined as:
WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY which I customarily use, in words similar to the OXFORD ENGLISH DICTIONARY, defines it as:
"These are the definitions I could find. And freedom of conscience, as far as I can tell, has not been defined with legal clarity to any great extent. Now I want to discuss what freedom of conscience is. And I see conscience as having levels that, at the core, is the proper reality of the person and his mind, his inner sense, thoughts and feelings. This is what is not externally apparent to anyone else...
Then there is a personal level of conscience. And that is beyond, and that includes the private and personal possessions that define a person to his or her self. These are things of value to the self without display, sharing or disposal. And this is where religion becomes a matter of conscience.
And then beyond the inner and personal, there is the public where the conscience becomes manifest. You will find a reference to this in VIDEOFLICKS. At this point the conscience manifests itself, declaring itself publicly through symbols, attire, customs and rites. This is the expression of conscience which shows identity, allegiance, orientation. Others may observe and form impressions, stereotypes and draw conclusions.
Only where things are seen as intimidating or hateful, where they in themselves broadcast a threatening meaning, and in effect become an exercise of freedom of expression, as well as an expression of conscience, are they regulated. I mean if we have a bunch of people wearing SS uniforms and parading in front of a synagogue we start to get a bit concerned. And that is what I see as conscience. And freedom of conscience is the foundation of freedom of expression, that it lies beneath freedom of expression.
Freedom of expression begins when a person tries to enlighten, educate, persuade or directly influence others - when one tries to convey meaning in a deliberate sense. And expression itself has levels. Now the basic level of expression is invitational - where the other meets in private to receive the meaning. A person in his own home where others visit, for example. Short of conspiracy or violence or abuse the law does not intrude at that level.
Beyond the invitational level of expression there is the broadcasting of meaning, from promotion, advocacy, counselling, proselytizing. At this level the law begins to get involved in regulating expression. Obscenity laws are an example. And then beyond this again are demonstrations of protest and power which are regulated, and extreme expression - violence which is prohibited.
I would like to talk a bit more about freedom of conscience. I said it was the foundation of freedom of expression because without it, freedom of expression is incomplete and may be illusory. What is the use of freedom of expression if you have nothing to say? If you cannot independently explore ideas, concepts, alternative explanations or lifestyles then freedom of expression can have no personal foundation. We can simply defer to a political party or editorial writers. Freedom of conscience is to know yourself, and it is the right to form, declare and possibly share your ideas and values. It is essential to the full exercise of freedom of expression." I referred to the definition in WEBSTER'S DICTIONARY given above emphasizing "innermost thought or sense, knowledge of the inner self". I believed my possession had caused no harm, I felt I had done no wrong.
"I feel that at a minimum, in a free and democratic society, people must be free to record their thoughts about culture and society and to share them privately with those who are interested. I'm not talking about conspiring to commit crimes or incite crime. Conspiring is not fantasizing or speculating. Inciting is not reasoned argument, advocacy or the promotion of what some might deem cognitive distortions. The latter is simply a pejorative clinical name for sexual heresies. What I mean is possessing the things that gives meaning to one's life. And for some people that includes what others may define as child pornography."
I also said that there were practical reasons for allowing private possession. How can community standards exist in a vacuum, or in a situation where the police are the sole arbiters? "allowing possession is essential to having fair laws prohibiting the selling of things like pornography because then we know what we are prohibiting the making and distribution of... in effect, freedom of possession supports the legitimacy of community standards."
I went on to say that possession of child pornography must be separated from misuse. Unlike Dr. Collins who claimed that even its use as a masturbation aid was wrong I would define misuse as necessarily involving others. For him, the healthiness of masturbation did not lie in the physiology relief it provided but was a question of the fantasies that accompany it. I again alluded to the concept of catharsis which I put in the context of whether or not children are safer if a neighbourhood pedophile has an ample supply of child pornography. I claimed that people have a right to masturbate and that for some, meaning people without appropriate partners, it may be very important to them. "For some men," I said, "sex fantasy with children may be necessary for successful masturbation... To deny pornography can deny some people the opportunity to masturbate and its benefits to their health, certainly their mental health and probably their physical health." While it is probably a myth some men believe that semen shouldn't be allowed to accumulate in their bodies.
Then I raised a question: "the Charter protects conscience and religion. And the fact that it is protected implies that what is protected might otherwise be denied or prohibited. I mean what exactly is it protecting that might otherwise be vulnerable? It does not specifically or only protect what people may think about God, races, good or evil, sex (all of) which may not be capable of external control... conscience must be more than that."
I concluded this portion: "Freedom of conscience includes the right to say who and what you are, how you see the world and what you believe. It's freedom to be an individual, to be who you are. And I said before, it subsumes private, personal acts that are part of that being, such as prayers, meditation, exercise and solitary sexual gratification. While regulation of these activities may be appropriate where others are involved, I believe that no intervention can be warranted in the case of solitary activities. I mean, aside from Dr. Collins and his colleagues, do we really care what is going on in people's minds when they masturbate? ... Is fantasy control an appropriate subject for state intervention?"
The afternoon break was called and the Court stated: "I say this to both you and Mr. Schultes. Listening to your submission, and even before listening to your submission, I have been giving a great deal of thought to the concept of privacy that appears in many Charter cases. I think it would be helpful if I were to be instructed by counsel, or you, Mr. Sharpe as well if you can, on the bases upon which the privacy freedoms are built. You are certainly aiming right now at an element of privacy in human existence. I think it would be very helpful to have that explored." He went on to say that he now wanted to hear an oral submission on the 2(a) argument which he previously felt was not necessary. I realized that something was happening but was unsure as to what but it seemed hopeful. I had not investigated the question of privacy rights which are covered under section 8. of the Charter: "Everyone has the right to be secure against unreasonable search or seizure". The court announced we would be late starting the next day which he expected would complete the voir dire.
To support my claim that the written word provision was directed at political expression I mentioned that NAMBLA's mission statement had been read into Hansard (given earlier) and that a Standing Committee member, Mr. Derek Lee had said in Parliament that the provision was to specifically target advocacy. I repeat his statement:
My purpose in referring to NAMBLA's mission statement and Mr. Lee's remarks was to show that the intent of the legislation was clearly to limit debate of a political nature which is an impermissible legislative objective. I claimed that political advocacy is "an absolute freedom and right". I juxtaposed the statements made in Parliament with a quote from Madam Justice L'Heureux-Dubé in the case of THE COMMITTEE FOR THE COMMONWEALTH OF CANADA:
I then discussed the meaning of the phrase "advocates or counsels". While their meanings are similar I suggested that "advocates" relates to the broadcasting of meaning while "counsels" relates to specific audiences. I used the examples: "I advocate buying B.C. products", and "I may smoke myself, but I counsel young people not to". Either can mean as little as "recommend" or "favour". They do not have the strong meaning that the term "wilfully promotes" has in s. 319 (2) of the hate propaganda laws, nor are they equivalent to "counsel" in s. 22 dealing with a person counselling an offence where the term is specifically defined to include "procure, solicit or incite". The section relates to a person counselling another on committing a specific offence, not crime in general. "For example, to say, `Robbing banks is good for the economy' is acceptable speech although it's probably untrue. To counsel someone likely to take advantage of the information that a specific bank has a certain weakness in its security is not acceptable, perhaps especially if it's true." The ordinary meanings of "advocates" and "counsels" are extremely broad. I said: "there is a rich literature extolling man/boy affairs from many different times and parts of the world. It would not be difficult to find dozens of examples on the shelves of the Vancouver Public Library... The written word provision, I submit, is about denying people access to ideas. And it's unfortunate that a narrow ideology nurtured by clinicians, promoted by anti-porn feminists has convinced officialdom that it's all about protecting children, and the way to protect children is to make certain social constructions cognitive distortions, a form of dangerous heresy." I also said that if the written word provision were upheld that it should be interpreted in such a way as to exclude political material such as the NAMBLA Bulletin.
I brought up R. v. POPERT the pre-Charter case where the article, "Men Loving Boys Loving Men" in Body Politic, which clearly "advocated" pedophilia and which had been acquitted after a series of trials. I had come across the decision on the Internet and felt it would bolster my freedom of expression arguments. Unfortunately I bungled badly, I was disorganized and submitted an earlier losing decision which was later successfully appealed. The Court noted this. I made a desperate search in the Courthouse Library during a break but I could not find the final decision.
On the last day Judge Shaw had other commitments and the proceedings didn't begin until after 4:PM. Mr. Schultes who had consistently underestimated the time required was anxious to wrap things up. I was becoming exhausted, the stress was enormous and I having difficulty sleeping and smoking heavily, my health was deteriorating. I also wanted the voir dire to be over but I had so much more I wanted to say.
I knew I had to attack LANGER. I had not expected that it would be so important to the Crown's case. I claimed that LANGER was flawed in both fact finding and language and that it was muddied by reliance on the questionable theories advanced by the clinicians. I repeated the arguments I gave earlier about incorporating violence into the term abuse so that the meaning becomes corrupted. Justice McCombs had spoken of depictions of real children as involving "direct violence" without regard to the nature of what was depicted. I could not understand how a judge could make such an absurd claim. It would mean that a photographic depiction of an affectionate but illicit sex act involving children becomes inherently violent. This is tending towards Orwellian Newspeak. To illustrate the harm that arises from this abuse of language in the social sciences I talked about the masturbation hysteria which lasted well over a century and led thousands of boys and young men to commit suicide with millions more becoming victims of troubling neuroses. I pointed out: "Masturbation used to be labelled `self abuse'. This pejorative definition made the subject very difficult to discuss rationally. The terminology had a chilling effect. This suppression, and the prudery it fed, while ostensibly for the protection of children, tragically had the opposite effect. Are we so naive today that we believe that suppressing investigation and debate about adolescent sexuality somehow protects children? The use of words which pre-empt conclusions make it difficult for people to express certain ideas, perhaps even form them. Newspeak is the abuse of language, and language is at the heart of law. As I said before, "if language becomes corrupt, then the law itself is endangered." I suggested as regards violence that you look at what is supposedly abuse and then decide if it is violent or not, rather than assume it is violent because it is defined as abuse.
The low value of the right infringed, possession of child pornography, was part of the Crown's case. The low value of the right infringed had been a factor in several other constitutional cases such as KEEGSTRA, BUTLER and LANGER, but no one had really questioned it. In defending myself I felt I had an advantage in that a lawyer cannot say that he or she supports Holocaust denial or possession of child pornography. Their professional self image prevents them from directly and forcefully arguing for such generally despised values. They can only give abstract legal weight to them. But regardless: "How do we determine the value of a right denied? I would contend that if a measure denies people a right, then it should be based on its worth to those who consume that right, to those who use that right. If someone were to ask me how important is my right to go to church, I would say not very because I don't go to church anyway... Now if you ask the same question to a churchgoer, that right would be very important to that person. ... it's consumers who bear the cost of deprivation. And if we are looking at child pornography, we're looking at certain men without partners, and we might want to keep them that way," I emphasized, "and we're looking at old men who use it as a form of self therapy. And in the lives of these people, it may be quite important, their access to pornography for them may be on a par with another person's value on the right to attend church."
I pointed what I felt were weaknesses in the Langer decision: "nowhere is 2(a) mentioned, that the whole issue of freedom of conscience was not even considered." I said that in criminalizing possession "there is a great leap based on weak and largely questionable evidence" and the "linkage between child pornography and harm to children is tied to the three part theory of child pornography advanced by the clinicians. Now I've tried to cast doubt on that theory using the reasoning and resources of an educated layman. I also contest certain findings of fact, for example, the uncritical acceptance of police testimony which was basically opinion". I said that the police took the opportunity of the trial to make a presentation and... get a ruling on material that was not really part of the trial. And no one was there to defend the written word per se. No one was at that trial to defend advocacy... It was about visual material and the whole defence was organized around the fact that it was visual material." The other evidence was uncontested. This is obvious in Justice McComb's decision where he described this evidence in police terminology. NAMBLA "panders", it contains "pseudo-intellectual editorializing" and so on. Did he study the material?
I submitted some rough notes reviewing and analysing Collins' three part theory of child pornography. I posed a series of questions. In terms of "fuelling fantasies": "I suggested two questions that we should ask if you're looking at the probable effects of reducing the availability and use of child porn; first will fewer children be involved in sexual activity with adults? And this is a question of balancing off the incitement to offend versus using porn as a substitute for offending. The second, will the sexual and related activity be more abusive, violent or traumatizing? We would look at the nature of the activity and the context within which it occurs." I noted that the "famous English parliamentarian and philosopher, Edmund Burke, once said something to the effect that the unintended consequences of laws are often greater than the intended ones." I was intending to go over the history of anti-child porn measures that I had discussed earlier and show how the crackdown at the end of the 1970s had provided incentives for people to make their own child porn and led to many more children being involved in production. I was however introducing new evidence, and as I had not entered the sources when I should have, it was only hearsay anyway. There were several occasions when I would have benefited from some elementary legal advice on matters such as on entering evidence. I was also becoming increasingly disorganized, losing track of references and being repetitive. The stress was getting to me and I was becoming emotionally and intellectually drained.
I then examined the concept of child pornography reinforcing "cognitive distortions". I suggested that this could operate in two ways. One is through illustration or examples of explicit adult/child sexual activity which could tend to make such activity seem acceptable to men. This happens. This would include what has traditionally been considered as obscene or pornographic. The other is through information which may rationalize, justify, advocate or celebrate such activity. This would include scientific and historical works, poetry, fiction or essays which might ethically and intellectually predispose adults to engage in sex with children. This second way in which cognitive distortions may be reinforced, which was the one that Dr. Collins in his testimony weighed against, is the more powerful and influential, and serves political ends whether or not it has political intent. And I noted that holding these supposed cognitive distortions was a right of conscience.
Turning to the use of child pornography in grooming I repeated my arguments that only for very young or prepubertal children would child pornography have any advantage over X-rated adult porn. I granted that the use of child pornography in grooming does occur but I suspect that it's rare. While I do not believe that showing kids any kind of porn in order to seduce them is ethical, I would venture that for adolescent boys. material that would sexually arouse them is far more effective than trying to implant "cognitive distortions" in them by showing actual child pornography.
Dealing with the harm to real children involved in production I accept the Crown's contention that harm or exploitation must be inherent in the depiction. This is determined on the basis of the definitions in the law. There is a problem that on one side of a line a photo or video is porn, and therefore harmful, while on the other it is not. A fine and arbitrary line may separate the heinous from the innocent. The law provides for no distinctions, and while courts may make distinctions based on the material in hand, my readings of case law suggest that often they do not. In most criminal law cases the existence of a crime is usually quite clear; either a robbery occurred or it did not, either a person was killed or was not. With non violent sex crimes and pornography the situation is frequently murky with many nuances possible. There is the added factor in pornography that harm is not necessarily or even primarily viewed in relation to a victim but to community standards of tolerance.
I said that harm to children involved in production can be looked at in several ways: "First harm can be based on activity... And we can go all the way from saying nude, a provocative or coy nude, through to a solitary child masturbating. Then we can get two or more children touching, embracing, kissing, through to sexually explicit activity with or among children into sex with adults, up to rape and extreme violence." It would seem that the degree of harm would relate to what activity was depicted even if harm derived from the recording of it. I couldn't say much about the question of age or gender but for sexually mature children, those over 16 say, I feel harm is less likely. Some European countries allow 16 year olds to work in porn. Another consideration is that of expression or attitude. Mr. Schultes, when asked by the Court if he would take into account in determining sexual purpose, "the look on a boy's face, the type of pose, provocative look, that sort of thing?" the prosecutor replied that they would be crucial. Would a photo of a cheerful, perhaps even eager looking boy, showing no signs of distress more likely be deemed pornographic than a boy in an identical pose who looked uncomfortable and resentful? I mentioned how Justice McComb in LANGER had interpreted the unhappy expressions of the children in the paintings as evidence that the works were not child pornography. A question is whether definitions should be based on evidential harm to child participants, or on harm to community standards, which may be contradictory. I said that the definition ss. (1)(a)ii allows considerable latitude to the police, as testimony of the expert witnesses indicates, and that because of the opprobrium attached to child pornography most people would be reluctant to challenge their deemings even if their material was marginal. I had suggested that any postures, movements and expressions that would not be suggestive with clothes on should not be covered by the subsection. As an example I suggested that a teenager's typical lounging position, which may make the genitals prominent, should be considered natural. Beyond this I said that there are depictions of common, age appropriate play and self exploration which borders explicit sexual activity. The book, SHOW ME found not be obscene in 1972 depicted as much and more. I concluded by asking if the pictures in my possession posed "a realistic risk of harm to children."
I also made arguments that the child pornography provisions infringed on my right to freedom of association and equality rights but I had done very little to prepare, they were subsidiary and were not significant at the voir dire. I had also intended to bring up the defence of "public good" but I only mentioned it in passing.
I discussed the question of lesser measures which related to the minimal impairment test in OAKES. Were the extreme legal measures really warranted? I should have evoked a "tidal wave" on the Internet. I explained that I explored the Internet and investigated sites appealing to men who like boys. And I explained as well as I could how newsgroups worked with people posting images, requests, comments, polemics and flames. I submitted that most, but not all of the thousands of images I viewed were harmless. As I discussed earlier there are some pretty ugly images. Most boy newsgroups try to maintain a standard of acceptability and there are online wars over content with the violators being attacked. They have their own standards, I explained: "These vigilante members, they protest, they send flames, they condemn, they report people to the newsgroups servers, and they inform the police about unwelcome postings. And from what I could gather this has some effect because in a case where a newsgroup is getting what I would call hard core child porn where this explicit sexual activity, these newsgroups may be shutdown and, in fact, are. So this provides them with a motivation for self-policing. And I think official nurturing of self-policing on the Internet, for example, and not just the Internet, is probably the most effective way to control sources of the worst child pornography." This approach I said, poses a problem: "A problem for some, a moral problem. It would involve protecting the more benign forms of child pornography and this might not be acceptable to some people. But the alternative is heavy investment in the criminal justice system and measures on the Internet which might have ominous implications for other interests and freedoms that fall within its ambit. And we already have and are using technology at the consumer or receiver end which filter the material coming in."
I finished my summary with references to the pioneering nature of the two provisions of the law I was challenging: For the first time simple possession of expressive material was made a criminal offence and for the first time written advocacy was prohibited. I was starting to think of the latter as the cognitive distortion law. I claimed that they were radical and largely unprecedented in their extension of state power. Except for Ian Waddell, who rather plaintively mentioned civil liberties at one point, Parliament ignored the question of the public's rights and freedoms.
I would have liked to go on, there were points I hadn't covered, but I was ill, burnt out and exhausted. The Court was prepared to allow me more time although he seemed reluctant to do so. I would have to stretch things out and then go through another night of hectic rethinking, rewriting and reorganizing my arguments. I wanted this phase over, I wanted the closure, I wanted to rest. Another day was not practical. I wasn't very satisfied with my performance in the summary but I was glad it was over.
Prosecutor Terry Schultes began his reply or rebuttal. I only became aware of the structure of the voir dire as it unfolded. He said he would address freedom of conscience, the Court's inquiry about privacy rights under the Charter and my "so-called safety valve theory" about child pornography.
Freedom of Conscience
Mr. Schultes began by defining freedom of religion and conscience as "freedom from the state coercing an individual to engage in, or refrain from, otherwise harmful acts in the name of a belief, religious or conscience, that is held by a larger group." He stated that freedom of conscience did not protect harmful acts, in which he would include possession of child pornography. Public safety is at issue. And I would have to, in effect, show that my possession of child pornography was "based on a sincerely held belief, based on my conscience." I had not claimed that, I don't think porn is more than entertainment, sexual arousal and relief. Except for the material I created, I had never "collected" anything that might be "kiddieporn" until I started preparing my defence, so I can't claim that it means all that much to me. Schultes says that the interpretation of freedom of conscience must be limited because otherwise it would be "a limitless excuse for avoiding all unwanted legal obligations." That was a valid point. He again quotes from BIG M DRUG MART.
On the matter of privacy Mr. Schultes opened his submission by saying: "The courts have, in my submission, protected the privacy rights of individuals in the context of intrusions by the government into a zone or sphere of privacy rather than prohibitions of material, possession of material." Drugs came to my mind. The whole question of Charter privacy rights was unfamiliar to me. What I had seen as my rights under the freedom of conscience guarantees under s. 2(a), the Court saw as privacy considerations under s. 8. I knew nothing of the cases under this section and had no legal arguments to contribute. I have chosen therefore to give an abridged version of the transcript of Mr. Schultes' arguments and the points raised by the Court. There were sometimes spirited exchanges. References were made to several decisions including DYMENT, a case dealing with impaired driving and the taking of blood samples, HUNTER and THOMPSON, a case dealing with an office search and BIG M DRUG MART. I have not identified the particular references which are available in the transcript. References are shown in quotation marks.
MR. SCHULTES: "From the earliest stages of Charter interpretation, this Court has made it clear that the rights it guarantees must be interpreted generously, and not in a narrow or legalistic fashion…. That case dealt specifically with s. 8. It underlined that a major, though not necessarily only purpose of the constitution protection against unreasonable search and seizure under s. 8, is the protection of the privacy of the individual…. "The foregoing approach (generous interpretation) is all together fitting for a constitutional document enshrined at the time when Westin tells us society has come to realize that privacy is at the heart of liberty in a modern state: see Alan F. Westin, PRIVACY AND FREEDOM. Grounded in man's physical and moral autonomy privacy is essential for the well-being of the individual." "Claims to privacy must, of course, be balanced against other societal needs, and in particular law enforcement, and that is what s. 8 is intended to achieve… "This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from `unreasonable' search and seizure, or positively as an entitlement to a `reasonable' expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement…. The first challenge then, is to find some means of identifying those situations where we should be most alert to privacy considerations."
THE COURT: (referring back to the prosecutor's reference beginning, "The foregoing approach...") Does that follow what Mr. Sharpe is saying? A pedophile in the privacy of his own home may wish to use certain kinds of child pornography to please himself. He put it on the basis of freedom of conscience. I've been listening to that through the years as the right to privacy. And isn't that what we're concerned about in this case? How far should the state reach into the pedophile's home, or to anyone else's home, to seize their personal possessions which are part of their very essence of living, and which brings us back to that balancing problem of basically how much harm is there needed to overcome that very fundamental right of privacy. Is that how you see the case as well?
MR. SCHULTES: Exactly, and what I was going to say about this, and I will say it because I think it responds directly to Your Lordship's question is that the privacy right has entirely been dealt with under s. 8 because that's the most appropriate place to characterize unreasonable intrusions by the state. And my submission is that it's only symbolically in Mr. Sharpe's rhetorical presentation that that's occurring. Possession of contraband, for example possession of a narcotic is not. The criminalization of the possession of has no privacy aspect.
THE COURT: There's no privacy aspect... Well I follow what you're getting at, and a person does not have the right to commit murder in the privacy of his own home. The state's going to reach into the home. And in the balancing process, weighing privacy against the public's interest that murder not be committed it's no contest. But at some point it becomes a contest. (Schultes agrees to all the above) And that's, as I follow the substance of what Mr. Sharpe was getting at, there's certain aspects of this law that put that into contest. For example, the nude child. Yes there are certain arguments that can be made for not even taking that child's photograph, but those arguments don't carry anywhere near the weight of the argument against subjecting a child to a sexual situation, and photographing that child in a sexual situation. They're different levels of importance. Now when we get down to what a person does in one's own home, and we've got down to the point where an ordinary citizen cannot possess a photograph of a nude boy which photograph has been taken for a sexual purposes, now we're into a weighing process there which I don't think occurred in the Langer case. The right of privacy was never addressed in LANGER, if I'm correct."
MR. SCHULTES: That's correct... I'm saying that the privacy interests, the way in which privacy per se is defined in the Charter and interpreted has to do with the state's ability to enter that zone. And that's what I am saying, My Lord, is that possession offences are fundamentally different. They attract Charter attention in many ways, but this is designed to say that the possession of this material is harmful, and we have all that evidence.
THE COURT: But if I follow you correctly you're distinguishing this case from the s. 8 cases under which the concept of privacy has come into full bloom. (Schultes agrees) But here we are dealing with a situation where someone can walk into Mr. Sharpe's home and take his collection of nude boy photographs and other things too. Well the validity of the mandate to go into his home doesn't arise in this case but the fact that the authorities can get a warrant to go into his home is part of the overall picture. I can't ignore that. That says the Crown has the right to walk into his home? (Schultes agrees) And if the Crown has that right, is that not an intrusion into his privacy which in the circumstances requires the court to weigh which value should be given the greater weight? And that's why I'm concerned about your distinction that the privacy right cases arise under s. 8. My reaction to that well, so what, the Charter protects privacy and we're into that with a vengeance here.
MR. SCHULTES: Well for this reason My Lord. You're quite correct to say that a search issue can and will arise, but the ability of the state to search, under HUNTER and THOMPSON and everything else, is based on a credibly based belief that there exists material which would afford evidence of a criminal offence. If this is harmful, and (he seems to say illegal to possess), then search is thereby reasonable.
THE COURT: Oh, I follow exactly what you are saying. And I don't doubt that proposition. But in order to get to that proposition of the charge of possession of a nude photograph of a boy for a sexual purpose is a crime I have to, it seems to me, weigh that in the context of the full implications. And the full implications include the law as it is now written being the police can walk into his home and arrest him and seize the photographs.
MR. SCHULTES: (agreeing to all of the above). And you have to be satisfied on the basis of the material that the fact that a child is depicted in a sexual way, nude, that the fact that if someone has this material encourages other people, and that he will use it for all the ways that Dr. Collins says some pedophiles use them, that the Crown's fundamental assessment is that they are parallel in harm and...
THE COURT: (after a digression about "the unfortunate exchange in cross-examination about the child in the bathtub" by the prosecutor) ... taken for a sexual purpose.
MR. SCHULTES: Well, I'll say as candidly as I can, yes the law is interfering -- Parliament is preventing the private use of by persons with an interest in this material.
THE COURT: Yes, and here we come back to my assessment, amongst other things, of Dr. Collins evidence. And the material he has provided. (Schultes agreeing) I'm left, I think, with an overall unenviable problem here, but it's mine.
"My Safety Valve Theory"
MR. SCHULTES: The one particularly significant thing was Mr. Sharpe's spin, if I may put it that way, on the release theory or the safety valve theory, the idea that in some cases the material that is used by pedophiles in a way which releases sexual tension and thereby prevents offending, and his characterization of that was based on his exchange with Dr. Collins. (I also felt that the catharsis concept was rather ordinary common sense) And as Dr. Collins said in his evidence that in some cases people may fantasize and masturbate, but others will fantasize, masturbate and offend. And the difficulty is the answer to Your Lordship's question, is knowing which ones are going to do that. There isn't any evidence available that would suggest that there is some social benefit to the pedophile having his material in substitution for a real child, but what we have is some strong, and I submit compelling evidence, that some pedophiles use the material in a way that harms children... And the big point is to say that there's no evidence that the catharsis through masturbation goes on to necessarily prevent offending. So in my submission, it doesn't substitute, or it doesn't in any way supplant the very strong opinion of Dr. Collins accepted in LANGER.
THE COURT: What is the compelling weight then, if he says in some cases it can help and in other cases it can harm. Where's the compelling case that that makes out?
MR. SCHULTES: Well, it's never been said in LANGER or here that all pedophiles do anything.
THE COURT: I've got that point. You've got a group of pedophiles. And some of them use sexually explicit material to masturbate? In some there will be a catharsis effect. In some there will be an inciting effect. (Schultes agreeing) All right. Now, you seem to choose to look at the inciting aspect of it, and say there it is, there's the harm, let's run with it. What I'm concerned about is that you've got something that runs in two directions... And we've got an expert witness, Dr. Collins, who is unable so far as I can tell, to shed any light on which side of that weighed more. Because let's put it this way, suppose you got a group of 100. And it incites two to go seek out a child and abuse that child. And it prevents 12 from doing that, they're relieved another way, do you say then that the proscription of possession is justified?
MR. SCHULTES: I'm going to say yes and I want to explain that the contest here is very important. You've got to refer to Dr. Collins' portrait of the difficulty of obtaining -- well, pedophilia is a diagnosis primarily of self disclosure and we know that he knows about pedophiles he knows who have been caught. (A rather inconclusive discussion ensued with the prosecutor claiming that Parliament had a reasonable basis for prohibiting possession, and he refers again to Mr. Justice McComb in LANGER. That concluded his rebuttal.)
THE COURT: (turning to me) There were new decisions brought to my attention by Mr. Schultes. I don't know if you have any comment on them and whether you wish to say anything more? I think you must be reasonably satisfied that whatever point you're trying to make that I, whether I agree with you or not, that I grasp your point.
MR. SHARPE: Well My Lord, I think Mr. Schultes did a good job. I would point out that there is currently a concern about airbags because they kill children when cars are in accidents. But I haven't much more to say here Your Lordship.
THE COURT: Is your point that airbags kill children, but they save a lot of children too?
MR. SHARPE: Yes.
That was the end of the voir dire. The Court announced that we would adjourn until February Ist, 1999, and that he would endeavour to hand down a written ruling before then I knew I'd made some points, maybe a few good ones, but my general feeling was that my performance had been a series of failures, missed opportunities and omissions following one after another. But I knew I couldn't have found a lawyer to do what I attempted. I felt that I had done the right thing, taken the right tack, but hadn't done it very well. My only consolation was that Prosecutor Schultes had not seemed convincing, relying doggedly on the Langer decision and Dr. Collins' insubstantial and dogmatic testimony. There were even times when I almost felt that Mr. Schultes was on my side but this was probably due to his commitment to fairness and justice rather than any innate sympathy for me or my cause. It was also encouraging to have one friend or another sitting in court for part of most days. On the last a friend of many years whom I had met in his teens was the only spectator there at the end. It was late, after 7:30, we went out for falafels on the Granville Mall and then walked down to a coffee house in "Little Amsterdam" by Victory Square to play backgammon and smoke a joint. I really needed it.