PART FIVE: RULINGS AND REACTIONS
I tried to take it easy, resume my normal routines and nurture my health. The respite from my near total preoccupation with my case was very welcome but I knew it wouldn't last. The voix dire with its publication ban had attracted absolutely no publicity and it was like nothing had happened. Friends dropped by and we speculated on various outcomes of my challenges but basically it was limbo time. I retained some hope, particularly on my challenge to the written material definition which covered my more serious charges. If I could win on that and get the search warrant thrown out I might be free. Facing up to a ten year penalty for my writing seemed more bizarre and obscene than any of my stories. I think the last time a Canadian was jailed for his writing was Tim Buck, the Communist Party leader, back in the 1930s. I wasn't sure if that put me in good company or not.
Of course, if convicted I didn't think I would get more than a few months in jail. The judge didn't seem disturbed by my photographs. But my writings? There was Dr. Collins' sight unseen prognosis on the basis of reading some of it that I am untreatable. I could be made out as some sort of dangerous perverted monster and an aggressive attorney general might order tests, order treatment and then if I failed to "respond" to treatment, try to have me designated a dangerous offender and put me away indefinitely. I did not see this as all that far fetched and I could see it as being politically popular. That was freaky to think about. I remembered the case of Robert Noyes, the non violent pedophile teacher, who was so designated on his first conviction. This may have been partly due to the lingering outrage over the deal that serial child killer Clifford Olson had worked out with the prosecution. The crimes were vastly different but the two men were linked in the public mind and the sentences were similar. I was also aware that Britain was bringing in laws where people considered posing a risk, even if they have never been convicted, and pedophiles in particular, could be put away indefinitely by psychiatrists with minimal recourse to the courts. The British are also giving psychiatrists the power to drug kids over their own and their parents' objections. Additionally the British do not have a written charter or bill of rights and judges are selected with more democratic input. I had learned a lot about how psychiatrists think from Dr. Collins and my readings. I knew that if I were sentenced to treatment, like a dissenter in the old Soviet Union, and I did not play along with their games they could label me uncooperative, and therefore at risk to offend. I have few illusions about the new state priesthood of psychiatrists. I wondered what would Dr. Collins, given the chance, have done to me?
I went over the early REPORTS TO CROWN COUNSEL and looked at the police descriptions and interpretations of my writing. They had divided up the BOYABUSE collection of short stories among three investigators. Detective Noreen Wolff at the time, makes many silly factual errors and does not appear to have more than scanned the stories, merely mining them for evidence. She takes irony literaly and misses obvious humour. She appears confused and persistently decontextualizes the material while commenting on matters of artistic merit. Yet at the preliminary hearing she claimed she spent months reading them. In the evidence of the other two, Marc Everitt and of Mary-Louise Causland I found no significant errors. The heart of the evidence given in the particulars is that my stories counsel or advocate illicit sex with children under 18 years. Each of the three people reviewing the stories in BOYABUSE makes this point in their summary of the evidence. They interpret my fiction as advocacy or counselling within the definition of the law.
This is based on the absence of long term adverse effects ascribed to the fictional acts of abuse which is construed as to make such acts acceptable, and thus counsels abuse. This interpretation would seem to have many implications for writing dealing with children and sex. Must fictional adult/child or man-boy sex be portrayed as having at least some negative consequences? [What about the Rind study, is it child pornography?] Is the child pornography legislation in effect attempting to legislate fictional plot lines in the way that the old Hollywood movie code of the 1940's and 50's insisted that good always triumph over evil? In this case harm would have to triumph over benefit. What about detailed autobiographical material recording juvenile sexual experiences with adults that one found rewarding? There would seem to be a big question as to whether fiction or biography can be regarded as a medium of advocacy without creating a lot of other problems. Another point is what about writing about things which are legal in the described jurisdiction but not in Canada. Suppose I describe meeting a twelve year old boy in Madrid or Amsterdam and this is what we had to eat at MacDonald's and this what we did in bed back at my hotel. The communities both real and imaginary that I describe in several of the stories have radically different values from our own. Some are fantasy worlds with bizarre economies and rituals. Their community standards may seem perverse to most Canadians, and not meet the test of their own. On the other hand some stories are set against the traditional values and fears of our own society. Fiction unlike clinical research allows the discussion of acts within social and cultural contexts. Where otherwise potentially disturbing things, such as minor sports injuries, occur within a supportive context such as a team, long term adverse effects are highly unlikely. The widespread condemnation and severe punishment of man/boy sex is part of its context which is why the exposure of illicit affairs can be so damaging to kids. The question of exposure and the reactions of men and boys to it is a topic that has been explored in boylove romances and novels.
But it was so nice to relax and allow my mind to focus on other things. Occasionally I puttered on my case going over the details of my arrest by Detective Waters and how the police entered my apartment. I expected to be challenging the search warrant at another voix dire which would precede my trial proper. But I did very little, the fight was gone out of me although I knew I could psyche myself up when the time came.
On January 16th when I got a call from the court house informing me that the ruling was ready, I was not excited. I put on some better clothes, bought a paper to read on the bus and went down to the courthouse and picked up the ruling. I went to the Hornby Street soup and sandwich shop I had patronized during the voix dire, ordered a coffee and opened the envelope. I quickly scanned the ruling looking for what it had to say about my challenge of the written word provision, s. 163.1 (1) (b). I found it had been upheld and Justice Shaw even quotes a statement of Dr. Collins that written material posed a risk of harm to children. That was the subsection that pertained to the more serious charges of possession for the purposes of distribution. I was disappointed but not surprised. I recalled Ritzker's statement, "They will listen to what you say but they will do what they would do anyway." I continued to read as I drank my coffee. Then I discovered that the simple possession subsection, ss. (4) had been struck down. That was something I thought, my photographs were not an issue, I might even get them back and any potential embarrassment of the boys would be avoided. I remembered my relief when at the preliminary hearing when Detective Waters in reply to one of my questions had said they were unable to identify any of the boys depicted despite showing them to youth services agencies.
I did not realize the profound significance of the ruling immediately. It didn't seem to mean that much for my situation. To use an analogy: How much comfort is it to a man charged with murder to learn that theft charges against him have been dropped? I was still facing the same maximum sentence. My thoughts turned to the possibility of a literary merit defense but my gay literary friends with one exception avoided me and I could expect no help there. I had no idea who I could turn to.
I took my time getting home but as soon as I entered my apartment the phone rang. I forget who it was, probably a request for an interview. The phone kept ringing and I tried to answer questions as best as I could but I had only scanned the ruling and could not say that much about it. When I checked my voice mail I found it was full; 21 messages - three supportive ones from friends and the rest from media requesting interviews. I was overwhelmed. It took me hours, what with new calls, to go through them. I made a list but I could only pick out the numbers to call back on about half the messages as they were repeated so rapidly. I tried to be polite and helpful but some of the media callers were prying and accusative. It was a couple of days before I was able to sit down and read the ruling and then there was much I didn't understand that well. I was of course pleased that I had won something but after the near total lack of interest in my case I was surprised at all the attention. I knew I had made legal history, I had planned, plotted and gone in fighting to have the laws I was charged under struck down. I knew exactly what I wanted to do. I had a clear conscience which enabled me to be honest and consistent in my arguments. Winning was a long shot friends would remind me, but I persisted through ups and downs which I could not share and had to bear alone. I made many mistakes but I was not alone in that. I was the first Canadian without a lawyer to mount a successful Charter challenge. I got a law struck down. I had worked hard for this and I was enjoying some satisfaction. This point was not of much interest to the media however.
Although I have always been somewhat cynical about the media I had little experience with it and I was colossally naive and stupid in dealing with them. When I got a call on my intercom from, I believe, someone from CBC, I said I would think about an interview. He explained that he had his TV crew with him and that it would be awkward for them to come back again. I relented and let them in. Shortly after the interview began the intercom rang again - another TV crew downstairs. I explained that I was busy. That was no problem, they knew the other crew was there, and again I relented. Soon there were half a dozen strangers in my apartment whom I couldn't keep an eye on, some poking around noting my possessions, checking the books on my shelves and looking at the pictures on the walls. Things were out of control and I became apprehensive. It was like when the police came to arrest me. Then one reporter became aggressive, I can't recall who, and demanded to know if I had ever hurt a child. I gave an evasive answer: "I don't know." I don't think anyone can say that they have never hurt a child. Does anyone know of a child that has never experienced hurt? The context however was devastating. Then I noticed the CTV cameraman taking close-ups of family photos on the wall, I was outraged and ordered him to leave. The journalist with him explained that he was only doing his job and promised the close-ups would not be broadcast. I insisted that they both leave anyway. I knew I had blundered by my answer which made me look like some predator, I had been stupid and exposed my family to harrassment and friends who saw the programs told me how bad it looked. I sank into the deepest depression of my life.
I did not however refuse all interviews, I felt I couldn't just back away, and I had some fairly positive telephone interviews with journalists across the country and a couple from the United States. Then Jane Armstrong of the Globe and Mail called and having some, perhaps unfounded, respect for that paper, I agreed to let her come and interview me. She was very pleasant and seemed reasonable and we talked for quite a while but when I read what she had done with the interview I was furious. I learnt that if you give reporters information they may use it imaginatively. I remembered the police warning: Anything you say may be used against you. I began noting the bylines of articles in the press for my education as to who seemed trustworthy and fair. The producer for Ricky Cyr's talk show on CHAD in Montreal phoned me about a radio interview. Over three calls I worked out guidelines with her - a list of possible points and a no personal questions qualification. After a few informational questions Mr. Cyr launched into a series of accusative personal questions, I protested and mentioned the guidelines that had been agreed to but he simply repeated, "People want to know, the people want to know." I blew up and then hung up. I don't know what he made of it.
Personal Harrassment and Curious Callers
Someone started postering the neighbourhood. Some with a bold headline WARNING!! showed a large photo of me and a quote from a national newspaper. Beneath it stated:
Others had a smaller picture and copies of press clippings and letters expressing outrage against the ruling, the legal system and myself. I wrote letters to the Vancouver Sun and Province explaining I had lived in the neighbourhood for over thirty years with no problems, but two weeks later they had not printed them. A TV news crew went around the neighbourhood interviewing people about me. The proprietor of a nearby deli/coffee house, too upscale for my means, was shown a poster and asked if he'd serve me if I came in. Not many merchants allowed the posters on their premises and I only found two, on power poles. Friends tore down a number and brought some to me. A tenant I know brought me several he'd found in the stairwell of my building and offered his support. Beside my picture and a clipping it was noted in felt pen: THIS PERVERT LIVES IN THIS BUILDING.
I began getting threats, and with Justice Shaw receiving a death threat, I decided to report any serious ones. I received my first one over the intercom, "John?... You're not going to be around very long." I phoned the police and they said the statement was ambiguous, he could just mean the building, and took no action.
I had a visit from a man in the neighbourhood who was very sympathetic and supportive and proud to meet me. He told me that there was a man accosting people entering the building with: "Do you know a child pornographer lives here?" We went to check but he was gone. This was Don Ray who soon became a good friend. A woman phoned and said, "I hope you rot in Hell." A man phoned and screamed: "Fucking pedophile!" and hung up. A little girl sounding as if she was being prompted repeated: "You bastard, you bastard" but didn't hang up. I waited for her to say more and tried talk to her but I hung up after twenty seconds. After the second postering a man, I'm not sure if was the same as the first one, phoned and smugly asked, "Did you like the posters John? We're not finished yet." (*69 - 682-9394) Again friends and sympathetic neighbors went around to tear them down but found few.
I represented pedos, I embodied evil, I was the bogeyman, hide your children and teens. I was fodder for journalists, I was there for the righteous to scream at, that was my unchosen role. I had that responsibility, but I had no means to groom myself. One friend advised me to get a good suit and dress respectably. That would have been nice but it would have taken a day to find an appropriate one and probably cost over fifty bucks by time I had it altered. And I'd need new shoes and a tie. Perhaps I should have been seen in trendy boutiques, fancy restaurants, at Canuck's games and culture scenes. Unfortunately I had to price shop, cook, clean and do the laundry, and entertain a stream of visitors.
Not all the calls were abusive. A Christian, a genuine one, not a righteous jesushater, phoned me and we talked for maybe ten minutes. He was sincere and wanted to help me towards salvation. He quoted LUKE 15: 10 "Likewise, I say unto you, there is joy in the presence of the angels of God over one sinner that repenteth", and he suggested I read ROMANS 12 and MATTHEW 5. ROMANS 12 is about conduct, about renewing one's self and serving God, and some good Christian advice about getting along with your fellow man. MATTHEW 5 is Jesus' Sermon on the Mount. I take comfort from Verse 10. A young sounding man phoned and simply blurted: "I support you." Another man phoned and congratulated me but soon wanted to know where he could get some "whatever", implying kiddieporn. I asked him if he had a credit card and suggested he try the Internet but I couldn't suggest any good sites offhand. A cop? I don't know. A worried, but polite man in the neighborhood with two small daughters called. We talked for a few minutes and he expressed relief when I told him my interests related to teenage boys, not little girls.
A week or so after the ruling came down I was politely accosted by a well dressed elderly man near the north end of the Granville Mall. He said, "I know who you are, but I can't remember your name." We only spoke briefly, he just wanted to shake my hand. Another time at a sidewalk pizza slice place on Burrard a young bicycle courier asked me how things were going. He related a gripe he had with certain laws. Anonymous support like this is very comforting and reassuring.
I also got calls from three gerontophiles, men who are sexually attracted to the elderly. They had seen me on TV and I turned them on. A Toronto man in his late twenties phoned about ten times. He told me that when he was thirteen he deliberately befriended a man my age who took him up to his hotel room. He was thrilled. He likes men in their 60s and 70s. With me he mainly wanted me to talk so he could listen to my voice. Another young man who continues to call has similar tales of early teen encounters, and moans "dirty talk" as he masturbates to the sound of my voice. He talks about getting together. None of the gerontophiles were particularly interested in the details of my case but I feel very flattered being a sex object and I wish them well.
After all the publicity and postering following Justice Shaw's ruling I became highly recognizable especially in my own neighborhood. I customarily shopped locally, walked for exercise and used public transit. For several days I felt I was a prisoner in my apartment and only went out in the company of a friend. Friends also shopped for me. One friend gave me a Tilley style hat and when I did go out I wore it, black jeans and a black Vancouver Canucks jacket in contrast to the open shirt, tweed jacket, grey flannels, "pensioners" attire of most media coverage. I shaved my moustache and long sideburns, got my hair cut short, the shortest since my brush cut days of my teens and dyed it. Lady Clairol hair dye does not work on beards anyway. I was complimented on how young I looked. I cautiously resumed my normal routines. One merchant who had been following my case welcomed me back. While I was seemingly unnoticed anyone who watched TV and cared to look would have no difficulty recognizing me. Many did I'm sure.
My mental depression was becoming all consuming, my media blunders and the harrassment left me feeling empty and worthless. I was guilty of hurting people close to me. I was entertaining suicidal thoughts. Then I escaped to Victoria for a couple of days to visit friends. I met with Jim Heller, the lawyer I had consulted informally from time to time and he reassured me, emphasizing my unique legal accomplishment, and urged me to continue the struggle.
The ruling, and perhaps more the attendant publicity, had other effects. Two people who had been close stopped seeing me. One a closeted, suburban businessman, who had provided regular and valuable moral support and kept up my spirits before and during my voir dire, became very apprehensive after my acquittal. He may have been under pressure from a boyfriend, I don't really know, but I felt hurt. It struck me as ironic that just as my decision to plead not guilty lost me support so did my acquittal. The latter however brought me new support, allies and friends.
Foremost among these is Don Ray, a left libertarian anarchist with a strong interest in civil liberties especially as they relate to speech and sexual expression. He has an extensive library on these subjects and a huge file of clippings related to adolescent sexuality and related legal cases. He possesses a keen analytic mind and is familiar with most of the social science and feminist literature and theories in the field. He had previously been active in the prisoners' rights movement and had been a friend of the late Claire Culhane. He had known of me for several years through my letters to the editors in the local dailies and the gay paper which he had collected in his binders. He visited me shortly after my name became prominent in the media and we quickly established a close social and working relationship. We had lived in the same neighborhood for fifteen years but had never met although we knew some people in common. I regret that I did not meet him sooner as he could have been of immense assistance in preparing for the voir dire.
Even with my altered image I couldn't really work. The maintenance, repair and minor carpentry work I occasionally did all involved contact with tenants. While one or two already knew me others might have been bothered so I lost maybe a hundred odd a month from that. I didn't get any money from the interviews. I was poorer than I had been since I was a student in the 1950s. On top of that a friend with a drug problem wracked up a huge long distance bill, debts were not repaid as promised and I couldn't pay my Internet Server and lost my connection. But then friends came through with a few hundred dollars and I got in a small ammount of work.
It took me a while to understand Justice Shaw's ruling. Privacy rights per se were unfamiliar. After reviewing the legislation he discusses the evidence offered by the Crown's expert witnesses particularly Dr. Collins and lists his theories of the harm of child pornography. He then takes the two articles submitted by Dr. Collins, the one by Dr. Marshall and one by Carter and Prensky, and by using quotations from them he shows of the limitations on the conclusions that can be logically drawn. He makes a very careful and logical analysis. He points out that Dr. Marshall's study used "hard core" visual pornography and that Marshall himself admits that "the present findings cannot be construed as relevant to any broader issues concerning pornography in general." My material is not what would be considered hard core nor would much of the material likely to be caught by the law's definitions fall into that category. The other study while purportedly showing a link between pornography and molesting made reference to findings that "mildly erotic stimuli" inhibited aggression while "highly erotic stimuli" increased aggression in labratory experiments. While I don't think either study should be taken seriously they were the evidence available and they inadvertently qualified and to some extent contradicted Dr. Collins' claims. He points out that under cross examination Dr. Collins "was unable to say whether the relieving effect or the inciting effect (of child pornography) was greater". He gives minimal weight to the concept of cognitive distortions. Then however he says that while there is no evidence there ii is reasonable to assume (common sense) that the dessimation of material which counsels or advocates illegal sexual acts with children does pose some risk of harm to children. While Justice Shaw is cautious, he does not reject or doubt any of the Crown's evidence including Dr. Collins', he reveals how little it actually proves. I believe that my wide ranging cross-examination of Crown's expert psychiatric witness made a significant difference in that I was able to expose some of the limitations of his expertise. Shaw lists 9 findings of fact based on the evidence:
1. Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process.
2. Children are abused in the production of filmed or videotaped pornography.
3. "Highly erotic" pornography incites some pedophiles to commit offenses.
4. "Highly erotic" pornography helps some pedophiles relieve pent up sexual tension.
5. It is not possible to say which of the two foregoing effects is the greater.
6. "Mildly erotic" pornography appears to inhibit aggression.
7. Pornography involving children can be a factor in augmenting or reinforcing a pedophile's cognitive distortions.
8. There is no evidence which demonstrates an increase in harm to children as a result of pornography augmenting or reinforcing a pedophile's cognitive distortions.
9. The disemenation of written material which counsels or advocates sexual offenses against children poses some risk of harm to children. Given his minimal value of cognitive distortions this could drastically reduce the definition's scope or application.
He generally accepts the findings in LANGER and McComb's reasoning as he leads up to the final proportionality test in the OAKES test which involves weighing the legislative objectives against the deleterious effects of the legislation. However a Supreme Court decision just prior to the Langer decision modified the proportionality test by saying that it must also measure the salutary effects of the impugned law against its deleterious effects. This was DAGENAIS v. CBC where where a more holistic was allowed. Not only must the legislative objectives of a law be important enough to outweigh its harmful effects, but its harmful effects must be balanced against its beneficial effects. If a law's beneficial effects do not justify the harm it causes then this must be considered. For example, a law requiring that all vehicles entering the country be searched for drugs might have some salutary effects in reducing the amount of drugs entering, but resultant traffic tie-ups might cost many millions and place an onerous burden on many innocent people. The DAGENAIS modification is perhaps similar to a cost and benefit analysis of laws.
The learned trial judge then proceeds "in the present case to consider the proportionality between the deleterious effects and the salutary effects of the prohibition of simple possession of child pornography."
The salutary effects include combating "practices and phenomena which, at least arguably put children at risk." He repeats Dr. Collins' concepts on child pornography but qualifies them with the abscence of evidence in some cases and his findings of fact in the case which are partly inconclusive. He says "There was no evidence which demonstrates any significant increase of danger to children related to cognitive distortions caused by pornography. There is no evidence that `mildly erotic' images are used in the `grooming process'. Only assumption (his own) supports the proposition that materials which advocate or counsel sexual crimes with children have the effect of increasing the occurrence of such crimes." Noting the Carter and Prensky study entered by Dr. Collins he says, "a person who is prone to act out his fantasies will likely do so irrespective of the availability of or exposure to pornography." He sees no evidence of a market link in that making possession a crime will reduce production. He sees the salutary effects of the possession offense as fairly limited.
Turning to the detrimental effects of the possession provision he starts with freedom of expression which he says plays an important role in my case. He says, "The personal belongings of an individual are an expression of that person's essential self. His or her books, diaries, pictures, clothes and other personal things are intertwined with that person's beliefs, opinions, thoughts and conscience." He examines how freedom of expression has been interpreted in several Supreme Court decisions. Some of his references and extracts are given below:
(dealing with the right of people to use the language of their choice) "It is also the the means by which the indiuvidual expresses his or her personal identity and sense of individuality. That the concept of `expression' in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter goes beyond mere content is idicated by the specific protection accorded to `freedom of thought, belief and opinion' in s. 2 and to `freedom of conscience' and `freedom of opinion' in s. 3. That suggests that `freedom of expression' is intended to extend to more than the content of expression in its narrow sense."
R. v. KEEGSTRA "Another component to the rationale underlying s. 2(b) concerns the vital role of free expression as a means of ensuring individuals the ability to gain self-fulfillment by developing and articulating thoughts and ideas as they see fit."
R. v. DYMENT (quoted previously at length and only excerpted here) "privacy is at the heart of liberty in a modern state... Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual." Shaw sees the search of my home and seizure of my materials as relating to an important aspect of privacy.
Shaw examines the prohibitions relating to hate propaganda and points how that the Court in KEEGSTRA only upheld the ban on the wilful promotion of hatred because the prohition expressly excluded "private conversations" which indicated "Parliament's concern not to intrude upon the privacy of the individual." He also points to Justice Sopinka's ruling in BUTLER (which upheld and broadened obscenity laws) where he says: "I would note that the impugned section... has been held by the court not to extend its reach to the private use or viewing of obscene materials." I quote at length the core of his ruling:
On the other two counts, possession "for the purposes of distribution or sale" under s-s (3) related solely to material I had authored, a fact I never denied. It is in the context of this subsection that Justice Shaw examines my challenge. He agrees with the Crown that is justified under s. 1. He does not go into the same detail as his analysis in respect to the simple possession offense but lists some considerations that he finds significant: (I have put them in list form)
Viewed as a whole the ruling is conservative and very astute. Nowhere does Shaw contest Justice McComb's decision in LANGER which was the basis of the Crown's case. He merely applies the precedent established in DAGENAIS to arrive at a different conclusion. He does not rule on the constitutionality of definitions and sections of other parts of s. 163.1. He avoids, deliberately I suspect, defining what "advocates or counsels" might mean. He has no need need to. He only states that it excludes "advocacy by pedophilies to persuade Parliament to change the age of consent laws and other matters of concern to pedophiles." and "information touching on on the wisdom of Parliament's own laws." He carefully hews to the wording in IORFIDA which could be interpreted very narrowly to exclude only material with a clear political purpose. Would this include the NAMBLA Bulletin? Can fiction or fantasy advocate?
On point 7: The pertinent section in IORFIDA, s. 462.2 defines "literature for illicit drug use" in the terms "promote, encourage or advocate". This appears weaker than the terms, "procure, solicit or incite" used in counselling offenses, s. 22. I question McComb's claim that "This takes the prohibition beyond what was already covered in a counselling offense" which Shaw quotes. Also both are stronger than the common meanings of "advocates or counsels" in s. 163.1 (1)(b). The definition in the child pornography laws is broader and would appear to include less obvious and forceful ways of communicating meaning. The Court in IORFIDA ruled that the law was directed at freedom of expression with the objective of restricting debate about drug use. But what was the purpose or intent of prohibiting expression? That ruling briefly mentions that according to parliamentary records "the bills objective was to protect vulnerable children and youth and reduce the influence of organized crime". It also quotes the testimony of the RCMP's director of drug enforcement relating that "it (the drug problem) preys on youth" and that "literature for ilicit drug use" promotes "the actual use of illegal substances." Protecting children was apparently not the focus of the Crown's case as in LANGER and my voir dire. Who can say what effect the testimony of a forensic psychiatrist who treats drug offenders might have had?
I had argued that political advocacy must include a wide range of material to flesh out and develop ideas and make them broadly available to people. If community standards, which were imported into the child pornography laws by Justice McComb, are the reference for judging impugned pornography, then any material affecting, even indirectly, community standards has an aspect of political advocacy. Is the purpose of changing community standards a political purpose?
I would note that had the Crown chosen to charge me under the obscenity laws in s. 163 instead of 163.1 (3), and been able to prove "for the purpose of distribution" of my writing, I would almost certainly have been convicted. (At the time of writing I may yet be.)
The ruling striking down the possession offense shocked and outraged almost everybody. Justice Duncan Shaw himself was subjected to unprecedented public vilification and death threats. There were strident demands that he be removed from the bench. While some journalists noted that he had a reputation for careful decisions there was no attempt to explain the findings and reasoning in the press. The decision was beyond the pale of rational consideration. It was seen as a momentous event. It somehow created an "open season" on children. In my beighbourhood there was apparently a move to have special patrols at the nearby elementary school but I never heard if anything was done. After over thirty years in the neighbourhood my presence was a suddenly a matter of some urgency. I assume the pupils were warned about me and made to feel endangered. B.C. Report reporter Sue Careless said that "pedophilia's path to acceptance is open" as if the ruling heralded some sea change in attitudes. Child pornographers would be flocking to the province like shrewd investors to an underpriced stock.
Neal Hall and Lori Culbert in the Vancouver Sun, January 19th quoted CKNW radio talk show host Peter Warren as saying, "The bonehead should be removed from the bench." On the same day a letter in the National Post refered to Shaw as "a judiciary joker". Kit Krieger, president of the B.C. Teachers Federation, in January 20th Province: "This outrageous ruling must not be allowed to stand." Chuck Cadman, M.P. for Surrey North was quoted in the Victoria Times Colonist of January 17th: "I never thought I'd feel ashamed to say I'm from B.C." He was quoted elsewhere as saying: "This (the ruling) puts us in the company of the child sex brothels in some parts of Asia." Another Reform Party M.P. John Reynolds said in the Vancouver Sun of February 6th: "The decision gives pedophiles the right to abuse children." Kathleen Mahoney of LEAF , described as an expert in child pornography cases claimed in an article by Derek McNaughton in the VANCOUVER SUN of January 27th: "Every time [the porn] is used, that child is injured in its dignity, its reputation, its identity. The harm is multiplied several times. The child is offended against time and time again." Shirish Chotalia, an Edmonton lawyer and northern director of the Alberta Civil Liberties Association was quoted in the Globe and Mail of January 18th: "I think this decision is just wrong and makes people question what the Charter is all about... I hope the decision is appealed and overruled." My misgivings about civil libertarians were confirmed. Political cartoonist Krieger of the Province drew a thumb sucking infant clutching a teddy bear with the heading: OPEN SEASON. Mayes of the Edmonton Journal showed a judge in a movie director's chair shouting "ACTION!" to a "Kiddie Porn Productions" camera crew. An official of Tourism B.C. worried that Vancouver's reputation as a tourist destination was in danger.
I received my share of vilification. A letter in the January 20th Globe and Mail stated: "Robin Sharpe and his ilk are pathetic excuses for human beings who bring further degradation and danger to our society." A letter in the Times-Colonist of the same day asked: "How can this man call himself a grandfather? He could be drooling over pictures of his granddaughter's friends." Another letter mentioned infants as young as 6 months. A twelve year old wrote a letter to the Province on January 19th saying: "This perverted 65 year old man should go see a shrink." As a matter of fact I recently had - Dr. Collins. Another cartoon by Krieger showed a recognizable caricature of myself.
In typical journalistic fashion Justice Shaw's ruling was "mined" for quotes to back up the writer's stance. Neither of the two national newspapers nor the two Vancouver papers attempted an objective analysis of the decision. It was the conclusion not the facts or reasoning that mattered. Surprisingly the most rational editorial and the one that may have come closest to the truth was in The Province.
Peter Ritchie, a prominent Vancouver criminal lawyer said, "Judge Shaw is regarded as a very careful, conservative, analytical judge. He likes to make sure everything is done with a high degree of particularity." A partner in his former firm, Ross Ellison described him as a cautious, by the book kind of man and judge. "Doesn't smoke. Drinks moderately. He would never go through a red light." Ellison said he would be suprised if his ruling was overturned by the Supreme Court. "He hasn't been overturned very much."
After the media circus and my depression I became quite ill suffering from bronchitus and becoming out of breathe from the slightest exertion. Stress and too many cigarettes. I was basically bed ridden for almost a week. I realized with the Crown's appeal that I was way over my head and needed a good lawyer. Feeling better I began talking to the some of the lawyers I had got to know about possible candidates. I spoke to Clayton Ruby and contacted the CCLA in Toronto. I wanted to go ahead with the other charges. I would do that myself, it was my writing and I couldn't see finding a lawyer would who would read and understand it and defend it word by word if necessary. If convicted, as seemed likely, I would cross appeal on my losing challenge to the written word provision. Then I would need alawyer. But I knew I could not be ready to defend myself when the trial resumed on February 1st. With Terry Schultes' cooperation the trial was put off to March 1st. Once again he had to arrange to have his list of witnesses available.
On January 18 three days after Justice Shaw's ruling was handed down Ujjal Dosanjh, the Provincial Attorney General filed a NOTICE OF APPEAL to the B.C. Court of Appeal against my acquittal on the simple possession charges claiming that the trial judge had erred. Ujjal Dosanjh saw it as an urgent matter. He also announced that in future child pornography cases, in order to speed things up, he was prepared to use direct indictment to the B.C. Supreme Court which would deny the accused a preliminary hearing. This would have effectively denied me the opportunity to defend myself. By then reading comments in the press and talking to lawyers I expected an appeal. Dosanjh even announced that he was considering personally arguing my case before the courts to show his commitment. In 1998 he became the first attorney general of B.C. in history to personally argue a case at the Supreme of Canada. This was a case of a man who had murdered his wife after extreme and persistent provocation, and the trial judge taking this into consideration had imposed a lenient sentence. Dosanjh apparantly to appease certain feminists who had expressed outrage at the sentence appealed it to Ottawa. He lost. Lawyers I spoke to felt he had demeaned his position in doing so especially as it was not an important issue. Then on February 2nd the Attorney General made an application for a NOTICE OF MOTION to have his appeal fast tracked. The appeal had originally been scheduled for June when presumably my trial would be over. It is extremely unusual for a trial to be interrupted in order for an appeal to be heard. Dosanjh claimed dire urgency and publicly implied that the children in the province were at risk as a result of the ruling. He claimed that already a dozen cases were on hold because of the ruling. This view of imminent danger was nurtured by the media. A hearing before Chief Justice Alan McEachern was set for February 5.
I was opposed to fast tracking. One thing at a time, I had more than enough to work on getting ready to defend my writing. I didn't want to think about an appeal. I was hoping at my trial to make enough points to make my own appeal of the ruling which upheld the "written material which counsels or advocates" definition of child pornogaphy outside of simple possession. I thought that if the crown appealed one part of the ruling that it might be easier for me to appeal the other. It was a foregone conclusion that the Dosanjh would get his fast tracking but I would present my objections anyway. Dosanjh was also making a request to introduce new evidence at the appeal level, something not normally permitted, especially dealing with a point of law. Thus before it began the appeal was subject to two extraordinary legal circumstances.
At the same time my case became a political cause célèbre when on February 2nd Preston Manning, the Leader of Her Majesty's Loyal Opposition moved in the House of Commons that the notwithstanding clause be used to uphold the existing child pornography laws. The notwithstanding clause, s. 33 of the Charter, allows Canadian legislatures on a majority vote to suspend almost all of the rights and freedoms guaranteed by the Charter including Fundamental Freedoms, Legal Rights, Equality Rights and due process of law among others. The right to vote, if it would mean anything in the absence of other rights, is exempted. The notwithstanding clause allows governments to trash most of the Charter. It was included in the Charter at the insistence of some provinces. A determined legislature can make whatever laws it pleases, but the notwithstanding clause was deliberately made awkward to use in that declarations made pursuant to it shall cease to have effect to have effect after five years. It is like a sunset law in that it expires. It may however be re-enacted. It has only rarely been used most notably by Quebec's National Assembly to give priority to the French language in that province.
Petitions including one with over 100,000 signatures collected by the Canadian Family Action Coalition were submitted to Parliament in support of the existing legislation. One report said a total of 300,000 people signed petitions. This was an impressive show of strength. All opposition parties supported the resolution to invoke the notwithstanding clause and 70 members of the governing Liberal Party signed a petition supporting this. However the government declared it would be considered a vote of confidence (meaning the government could fall and a federal election could be called if they lost the vote) and managed to bring enough of its M.P.s into line to survive by a narrow 143 to 129 vote. An editorial in the February 4th National Post proclaimed: "section 33 is the Charter's most democratic clause. B.C. will become a sizzling vacation spot for child porn connoiseurs long before this case works its way up to the Supreme Court." The law, it said, was merely "struck down due to its technical overreach." We should not expect more from the National Post.
A lawyer refered by the CCLA, Robbie Fleming phoned me and told me he wanted to handle my case at the Crown's appeal. He had not read the ruling but insisted that he would be in charge. I was certainly not interested in another Larry Myers. I felt he was arrogant but I suggested that he attend the Crown's application for fast tracking and discuss things with me over coffee after. He was not interested.
I couldn't find the right courtroom and I was a few minutes late getting to the Crown's fast tracking application. It was already underway. Chief Justice Allan McEachern immediately told me not "to waste my breathe". He did however allow me to make a submission. I noted the unusual circumstances surrounding the fast tracking, argued in favour of waiting until the inflamed passions of the public had a chance to cool down and questioned the use of administrative expediency to justify expediting the appeal. The Crown announced that it wanted to enter new evidence, a very unusual procedure at the appeal level. The new evidence was an affidavit from Inspector Bob Matthews, the head of Project P, Canada's largest anti- porn squad. He is a more polished and probably effective advocate than Detective Waters. He was the other police witness at the 1993 hearings of the Standing Committee. After the hearing was over I was approached by David Butcher who was the counsel for Viktor Schlick who was trying to appeal his conviction on possession of child pornography. I subsequently met Mr. Schlick and we talked about our respective cases which seemed very different. Dr. Collins had also been an expert Crown witness (and practically a prosecutor) at Schlick's trial. I later read the transcript of his testimony in SCHLICK which reveals how deeply moralistic and doctrinaire he is.
The Federal Government through the Attorney General of Canada announced that it was joining the appeal and it soon became clear that there would be a number of intervenors supporting the Crown. I canvassed my growing number of legal contacts for suggestions and met with a few of them. There was now a fair amount of interest in representing me. I spoke to Clayton Ruby, the high profile Toronto criminal lawyer who encouraged me to continue my aggressive course. I also spoke with Frank Addario who had defended Eli Langer's paintings but in a way that didn't help my case. I tried to contact Alan Borovoy, head of the Canadian Civil Liberties Union and someone from his office said they see what they could do, Mr. Fleming, I presume. I knew I had to be very careful in making a decision. I continued checking with my legal contacts who were doing some checking themselves. One firm in the Marine Building had me talk to an unbriefed junior employee. Soon Richard Peck, of Peck and Tammen emerged as first choice.
At our first meeting it was clear that Peck had a genuine concern with the issues involved in my case. We talked extensively about the case and what had happened. Peck is a thoughtful man with a wry sense of humour and more or less a libertarian. His associate Gil McKinnon is a quiet, somewhat older man whom I found difficult to relate to. Peck's assistant, Nikos Harris is a most impressive, keen, sharp minded young man handsome in the manner of Versace fashion models. He became my main contact and we got along well.
On April 8th, 1999 along with Don my libertarian friend, I went to a community forum on the Justice Shaw's child porn ruling held at the Canadian Memorial Centre for Peace, There were about twenty in the audience. The panellists were; Ann Clarke from the Attorney General's Department, Craig Jones for the B.C.Civil Liberties Association, Christine Boyle a professor in the Faculty of Law at UBC and defence counsel with Smart & Williams. All three speakers spoke of child pornography in terms of visual depictions of real children, and repeated the often quoted description of child porn as "a permanent record of the sexual abuse of a child." This phrase is found in the Bagley Report, U.S. Senate reports and perhaps initially in the writings of Catherine McKinnon about Linda Lovelace. It is widely used as an additional reason to condemn kiddieporn. Discussion concentrated on visual material. In contrast to the coverage in the media the meeting was calm, orderly and debate was fairly rational given the speakers' assumptions. I kept quiet and was unnoticed. At the end of the meeting we met Dany Lacombe, a professor of criminology at SFU and the pro-sex feminist author of BLUE POLITICS: Pornography and the Law in the Age of Feminism, a book I discused earlier. She audio taped the meeting as part of her research for an academic article on the social construction of pedophiles where she was using media coverage of my case as an example. We met her again on several occasions and provided her with some material from our files.
Ann Clark gave an interesting exposition of the law's background. She claimed that changes in law driven are driven by technology. She explained that that there were no legislative changes relating to pornography between 1917 and the 1970s because pornographic technology was stable. The laws were adequate to deal with the problem. However two recent technological developments required changes in the law. These were: First, the videocam, which meant that people could make their own porn without having to use professional photography services which could attract attention, facilitated porn making. Secondly, the advent of the Internet created "prosecutorial difficulties". Society must combat this. In this way she defended the law without getting into the principles involved.
Craig Jones, who subsequently became president of the BCLLA, claimed that the law was overbroad. To illustrate this he asked the audience to imagine the most distasteful, morally abhorent examples of child porn and contrast this with obviously innocent material. He played with extremes and did not suggest any distinctions in terms of either practice or principle. He supported Little Sister's challenge and the ruling that returned Eli Langer's art, not mentioning that this was the ruling that had given a powerful judicial seal of approval to the entire law. At the most I believe he is a "vanilla" civil libertarian. He supported, as had the BCCLA, the prohibition of possession because users create demand for production. His remarks indicated that he has no understanding of the non-market nature of Internet. He specifically condemned computer generated porn where no real children are used.(Would it matter for the consumers?), He reasoned that people may not know it isn't real. He used the analogy of a bank teller facing a robber with a toy gun - the teller may believe it is real. I couldn't see how the analogy was pertinent. I wondered if he would also considered it to be a "permanent record of the sexual abuse of a child". He finished his speech by saying, "The core value we (the BCCLA) are trying to protect here is the protection of children. And (that's) really what it comes home to because it's the protection of their innocence. And innocence is such a valuable thing. And that can be seen in a broader context because there are other innocent people that are covered here. And these are the people we want to speak for. Thankyou very much." It all sounded very platitudinous. What did he mean by protecting innocence? Like most users of the term in the context of child pornography he does not define it.
Christine Boyle said the Crown would argue that child porn violates the s.15 rights of children. She saw s. 15, Equality Rights, as a shield against porn abuse. The state protects the most vulnerable groups. She quoted from BUTLER and LANGER. In addition child porn violates the privacy rights of children where real children used. She refers to children being turned into pornography, as if they were transmuted and would never be the same again.
No one had said anything about works of the imagination. No one mentioned causality or questioned the axioms of the child abuse industry. After Craig Jones' banal presentation at the meeting I was surprised to read his thoughtful article in The Advocate, a legal journal relating to my case. In his article he deprecates the type of reasoning he used at the public meeting.
While I suppose it looks good to have an intervenor on our side I have doubts about how useful the BCCLA can be. They fundamentally oppose the decriminalization of possession of child pornography, which is the whole basis of the appeal. They reject the privacy argument. If Mr. John McAlpine sticks to the public position of the BCCLA the Crown can argue, "Why even civil libertarians believe that possession of child pornography should be prohibited." If he doesn't the BCCLA is open to charges of hypocrisy or inconsistency. Isn't this like asking a fox guard the chicken coop?
Is innocence a lack of sexual knowledge or experience? Is he saying that innocence is something that the child loses through involvement in sex or pornography. Are the child or its values, self image or equinimity changed? Has the child become a damaged good? Or treated as such? Is its involvement subjectively harmful or traumatic? Is Jones really saying anything at all or merely mouthing platitudes?
What is innocence? Does it transcend culture? Many Third World kids know about and take part in sex from well before puberty. Have they lost their innocence? What exactly is the innocence that's lost? What quality if any of childhood is destroyed through sexual knowledge and experience, what knowledge? what experiences? Can old people have any innocence to lose?
It was also around this time that I began writing this book. Having lawyers allowed me to relax a bit and to see things with more detatchment. The idea of a book had been in my mind from near the beginning of my troubles. Michael Ritzker had joked about me writing a book as a sort of consolation prize. I had already assembled a considerable ammount of material in preparing my case; an intermitant journal of events and reactions, lengthy letters to lawyers, notes on cases and related articles I had read, a collection of newspaper clippings and photocopied excerpts from books and professional journals, notes I had prepared for the voir dire much of it unused, and various polemical writings I had been inspired to set down. I decided on a candid, up front approach based on my personal involvement. It was much more work than I originally thought especially as I saw the need for more research.
There was actually very little new evidence in Detective Inspector Matthews' affidavit. The message was the urgency of their claim; the possession law was needed in order to gain entry to premises and seek evidence of other offenses involving pornography or sex abuse. Kids are becoming at risk. Matthews is skilled at putting things very immediately with references to local children on the sidewalk and lurking neighbourhood pedos. From the police enforcement point of view there is a compelling case for possession laws. Perhaps more interesting than Matthews' affidavit is his resumé. He is a successful police officer and a crusading activist with impressive credentials. He cultivates the media having given over a thousand interviews and appearing on numerous talk shows. He has given many lectures and pornography presentations mostly within the criminal justice system. He has attended Dr. Peter Collins' training sessions. He was already head of Canada's largest anti-porn unit, Project P and his interest in promoting child pornography laws began well before he was a witness before the Standing Committee. He advised both Chris Axworthy, M.P. for Saskatoon, and John Reimer, M.P. for Kitchener on their own private member's bills for child pornography legislation. This was part of a campaign to persuade the government to bring in legislation. In May 1992 he went to Washington D.C. to discuss child pornography with U.S. Customs and the FBI's Violent Crime Unit. He boasts that four of the five amendments he suggested to Bill C-128 were adopted.
While it is true that the simple possession law helps the police enforce others, in legal terms a law must be justified in its own right, not as an administrative expedient. Peck said there are precedents police by giving them a bigger role, rather than a serious legal move. Peck did not think the appeal court judges would take the new evidence seriously.
I had become aware of a lot of interesting, and I felt useful new social science material through the knowledgable Don Ray. I was able to get a discount senior's library card for the UBC libraries. We spent a few days out there, borrowing books and selecting and copying a number of journal articles dealing with porn and the question of risks to children. Among these was a study of the alledged criminogenic effects of pornography on pedophiles and another was the soon to be highly contentious Rind study. I felt if the Crown could introduce new evidence, why couldn't we. Peck had hired a social science researcher, Chris Nowlin, a recent, social science SFU doctoral graduate who was trying to get his dissertation published at the time. I was anxious to meet him. Mr. Nowlin is one of the most persistently talkative people I have ever met and I was not able to say much of what I wanted. I did get a list of the articles he was interested in and I gave him photocopies of some academic studies I could see being useful including the two mentioned above.
I agreed to try to help Chris Nowlin find one particular study he'd seen on the Internet but couldn't find again. It was, he said, a "phenomenological study" which he thought was important. I didn't know what it meant. I managed to locate the South African university where the study was done and wrote and e-mailed them. The paper, "The Pschological Life of Paedophiles: A Phenomenological Study" in the South African Journal of Psychology by Gavin Ivy and Peta Simpson was based on a tiny atypical sample of only six white child molesters in therapy. From this sample the authors drew sweeping generalizations which contradict almost all other studies. For example they claim that pedophiles do not have sexual or gender preferences. This may simply be due to the fact that their subjects were probably all incest offenders, the authors don't say. The authors set out to disprove "traditional stereotypes of child molesters" which incidently have not been accepted in professional literature for decades. The phenomenalogical methodology used, which is what seemed to interest Nowlin, is merely a trendy technique to rephrase respondents' replies into ideologically correct "insights" or stereotypes. I could not see how this badly flawed piece of research could assist us. Another article he article he selected, "Intimacy deficits, Fear of Intimacy, and loneliness Among Sex Offenders" by Kurt M. Bumby deals exclusively with incarcerated incest offenders. I could not see that it was relevant to anything we wished to establish or refute. The matters it seeks to investigate may be the effect rather than the cause of their incarceration. It bore no relation to porn and incest offenders are least likely of any sex offenders to use porn in any case. Another of his choices delt with prepubescent female victims. I began to doubt if Nowlin knew what he was doing.
The article "Pornography and the paedophile: Is it criminogenic?" in The British Journal ofMedical Psychology by Dennis Howitt, a Senior Lecturer in Social Psychology at Loughborough University in the U.K. looks at the role of pornography and fantasy in the lives of sex offenders. This study is based on the case histories of eleven "fixated" (preferential) criminal pedophiles well into a treatment program. All had a long history of offending. While this sample is too small to be considered representative a case history approach can provide details and insights for interpreting other studies. It gives a series of close-ups as opposed to an overview such as the Rind study.
The authors begin by noting that in general both sexes report having fantasies which have little to do with their real life sexual practices and desires. Fantasy and reality are separate for everybody including pedophiles. They say this is in line with common sense theories, but when it comes to debate on the effects of pornography and legislation it is typically regarded as a precursor of action. They quote the well known feminist slogan, "Pornography is the theory, rape is the practice." Pornography it is claimed, is harmful, and "exposure to pornography makes men commit sex crimes".
They note the lack of research focusing on the relationship between fantasy and offending. Existing studies they note, fail to show a link between the ammount or earliest exposure to pornography and sex crime, or that offenders consume more porn than others or that it is a factor in offending. They conducted long detailed interviews with the men examining the role of pornography in their fantasy and offending. While they had usually experienced abuse as boys they had little exposure to commercial porn. Child pornography was probably not available. Some collected "collateral material" or made their own from ads and catalogues. One liked boys in uniform. Fetish appeared more important than nudity. Only one man was an avid collector of child porn, and Walt Disney movies with young boys. Some of the men had never seen child pornography and most had never used it. For pedophiles they say that there is a vast ammount of material that can serve pedophiliac fantasy. A very interesting finding is that most of the men in their sample did not have orgasms while committing their offenses. And, "Sometimes, the offense may be a means of generating sexual fantasy rather than reducing it. Few of the paedophiles actually reported orgasm while offending. However some would masturbate to fantasy of the offense at a later time." Pity they couldn't have used child porn instead? This possibility stands Dr. Collins' theory that child pornography fuels fantasies and incites sexual assault theory, on its head. Catharsis with a vegeance.
They suggest that child pornography is not an important feature of the lives of pedophiles, consumers are idiosyncratic and there are many legal substitutes. They do not see prohibitions of child pornography as an effective way of reducing sexual assault. The Howitt study published in 1995 did not attract media attention. I wanted Chris Nowlin to read it.
The very contentious Rind study attacked the assumption of harm, the assumption that grievous and almost inevitable harm flows from adult/child sexual contacts. The assumption is the bedrock for much social work and therapeutic practice. The Rind study asks: "For people who have experienced CSA (child sexual abuse), does the experience cause intense psychological harm on a widespread basis for both genders?" A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Examples (Bruce Rind, Department of Psychology, Temple University, Robert Bauserman, Department of Health and Mental Hygiene, State of Maryland and Philip Tromovitch, Graduate School of Education, University of Pennsylvania) was published in the July 1998 issue of the Psychological Bulletin, a journal of the APA, the American Psychological Association.
The Rind study is a meta-analysis. That is, it's a study of previous studies which uses statistical procedures to examine, compare and synthesize their assumptions, criteria, methodology and results. A meta-analysis may rework existing statistics and extract new conclusions. They do not involve primary research but rely on data already there. The authors begin by pointing out that in the psychological literature the term CSA is used to describe "virtually all sexual interactions between children or adolescents and significantly older persons, as well as between same-age children or adolescents when coercion is involved." It often includes non contact acts such as exhibitionism. Researchers often fail to distinguish between "abuse" as harm done to a child or adolescent and "abuse" as a violation of social norms. Wrongfulness is equated with harmfulness. They claim that problems of scientific validity arise when dissimilar events, such as "the repeated rape of a five year old girl by her father, which undoubtedly produces harm" and "the willing involvement of a mature 15 year old boy with an unrelated adult" are both defined as CSA. They say, "the latter may only involve a violation of social norms with no implication of personal harm." "In cases like this the authors say in their paper they say that the use of the term child sexual abuse, "whether by media, legislatures or mental health professionals, conveys the meaning of harm to the individual as opposed to violation of social norms. This in turn reinforces, incorrectly, the notion that the adolescent in such an episode really was harmed psychologically or emotionally. This adolescent is then perceived to be a victim and treated as a victim, which can become a self-fulfilling prophesy in that he will become the victim he is supposed to be." The cases of Gramlick and Jewell illustrate this phenomena. There is considerable debate in the field with some researchers such Dr. David Finkelhor, as mentioned earlier in discussing "consent", who argue in favour of the scientific use of socio-moral based terminology.
The authors took the data from fifty nine college samples found in studies which examined the correlation between CSA and various measures of adjustment. In their overall samples 14 percent of males and 28 percent of females had experienced CSA. Sixteen CSA samples reported their immediate (at the time) reactions to CSA. Thirty seven percent of men and eleven percent of women recalled positive reactions. A third of the men reported negative reactions while almost three quarters of the women did. Boys, according to the studies, are more positive about sex generally, typically feeling excited, happy and mature about their first experience of sexual intercourse while girls often feel afraid, guilty and used. Girls were involved in CSA at an earlier age, were over twice as likely to have been involved in incestuous relations than boys and were almost twice as likely to have experienced force or threat in CSA. Both incest and the use of coercion had significant correlations with adjustment problems. The studies showed pronounced gender differences in relation to ideas and values relating to sex. A few decades ago this finding of gender differences with regard to CSA would have been unremarkable, but now this conflicts with entrenched concepts of gender equality. It is of course true that boys are also sexually abused, and that they are as capable of suffering as girls, but CSA differences are not explained by saying that boys have been conditioned to control their feelings, or some such nurture nostrum. Sex is different for boys. It poses awkward political problems. The authors conclude that willing boys should not be grouped with girls in discussing the effects of CSA.
The study found that frequency, duration and nature of sexual acts had no signicant effect on relationships but willingness and knowledge did. Willingness, meaning freedom to participate or say no, appears strongly tied to positive reactions. Ignorance and a sense of shame about sex are associated with negative reactions. There were findings that family environment is many times more influential on current adjustment than CSA. There was however a correlation with neglect and physical abuse. One study examining children with adjustment problems looked at combinations of abuse, and concluded that maltreatment rather than CSA impacted on adjustment. Verbal abuse was specifically mentioned. It is easy to see how parental verbal abuse, which can directly attack the child's self worth, could be more damaging than a nonfamily person fondling its genitals. By considering a variety of factors and explanations and exposing the unreality of basic assumptions the Rind study was seen as a threat, perhaps more a threat to the child abuse industry than to children. There was actually little new in its findings.
The Rind study first received intense publicity when it was attacked by Laura Schlessinger, a syndicated columnist and the host of America's most popular talk show host know as Dr. Laura. Her Focus on Family slant is strongly critical of the American Library Association and homosexuality. While technical aspects of the Rind study were alledgedly faulted they were clearly secondary. The conclusions were the problem, not so much that they were unsubstantiated or false but that they conveyed the wrong message that sex with children might in some cases be less than an unmitigated evil. They offered comfort to boy lovers in particular who felt vindicated by the findings that willing boys, if not girls, generally viewed their sexual involvement with older people as positive, and that there was scant evidence it led to adjustment problems. NAMBLA had a favourable review on their website.
The problem was the message. Dr. Laura called it "junk science" and refered to Dr. Finkelhor who disputed the conclusions. According to an article by Susanne Hiller in the May 6th, 1999 National Post the study made Dr. Laura sick, it was "non-scientific trash", she feared it "could be used to normalize pedophilia" and, "The point of the article is to allow men to rape male children." A Calgary pediatrician questioned the motives behind the research and said it served as justification for pedophiles. In the U.S. the panic over the article led to intense lobbying by the child abuse industry which has a huge professional and psychic investment in the assumptions. The study was denounced in the U.S. House of Representatives as "the emancipation of pedophiles."
Both houses of Congress waded into into the controversy and passed unanimous resolutions condemning the study. A few abstained. In an article, "Unpopular Psychology" in the February 2000 issue of Lingua Franca Bill Berkowitz reports that in a move unprecedented in its 107 year history the APA wrote an apology to Congress for failing "to evaluate the article based on its potential for misinforming the public policy process." The APA promised in the future to consider not only the scientific merit of articles but also their "social impact". The message was the problem. An independent reevaluation of the article was ordered. Although the APA was only facing the threat of funding cuts one thinks of Galileo recanting before the Church to save his life. This little protested government assault on academic independence is reminiscent of the old Soviet Union, and demonstrates the depth of public hysteria over what is termed pedophilia. No principle, including academic freedom it seems, is too precious to sacrifice in the name of protecting children. Perhaps not since Darwin's ORIGIN OF THE SPECIES with its, "we evolved from apes" implications, has there been such moral outrage over a scientific publication.
I see some interesting parallels between the Rind study and Judge Shaw's decision. Both relied on existing documents for sources, both followed carefully detailed methods, both triggered moral panics and both led to unprecedented votes in their respective parliaments. And of course both challenged assumptions of the child abuse industry.
Getting back to Chris Nowlin. He did not, would not read the studies that Don and I had located and copied for him. I confronted him about his own selections. I told him I could not see their relevance to the case. He dismissed the criticism by saying his "first responsibility is to follow instructions". In his consulting role, it would be reasonable to assume that he would be the one deciding on what materials to use, so it was his own instructions he was saying he must follow. If he wasn't deciding which articles to use then it would have to have been Gil McKinnon. I think this is highly unlikely. To argue that his instructions left him no time to read the journal articles that I gave him stretched reason. I wrote to McKinnon, whom Nowlin was reporting to, that I was seriously concerned about the quality and general drift of the social science articles selected for inclusion in our factum. I said it was not clear just what points they are intended to establish. I also enclosed a brief article for him to look at. When I expressed my concern to Nikos he tried to make excuses for Nowlin. I didn't want Nikos in an awkward situation defending him as I relied on Nikos to pass my concerns along to Peck and McKinnon. I didn't get a reply from McKinnon.
I could only understand Nowlin's attitude as simple arrogance, an intellectual arrogance. I felt he refused to treat me seriously, he wanted me to help him but he didn't want to discuss ideas. Or was the material I suggested to be automatically discounted because of what he deemed me to be? Was it tainted? I wondered if he had some profound but unrecognized moral block? I was told after that Chris Nowlin is not comfortable dealing with matters of sexual behavior and that he has little curiousity or sympathy to do with sexual heresies. The fact that he primarily selected articles dealing with female victims and incest which are only marginally relevant to the issues and testimony of my case may be indicative of his ignorance. That may be his perspective on child abuse. Nor did his articles deal with the relationship between child porn and sex offenses. This was a key point raised by Justice Shaw and it seems shortsighted to ignore it. I was not able to find out on what basis Nowlin selected the articles. I felt he was eroding some distinctions I had established at the voix dire and believed his selections were not particularly helpful to my case.
Some of Chris Nowlin's other work, his analysis of Dr. Collins' testimony in relation to Shaw's ruling for example seemed well done. In his report to McKinnon it is evident that he did a large amount of legal research analysing the Appellant's factum, clinical studies, legal writings and case law albeit from a very narrow legalistic viewpoint. He makes a number of good points some of which found their way into our factum.
I had very little opportunity to to speak with Gil McKinnon during the preparation of the appeal. I provided him with some material and references often dropping off envelopes and letters for him at the desk in the luxurious office tower where his office is located. I am not sure if he welcomed me volunteering material for him to consider. I doubt if McKinnon studied them and it probably didn't matter. The situation was more or less resolved by irrelevancy. Peck didn't think social science evidence would be much of an issue. He didn't think the appeal court judges would be interested. Decisions such as Butler and Langer had said it was inconclusive and that was that. It seems that Peck was right.
Harm, harm, harm. Harm flowing from the mere possession of child pornography was the reoccurring theme of the Appellant's factum. That was the basis of the case against me in all the opposing factums. While harm is clearly apparent in the making of some child pornography, the case for indirect harm is tenuous at best.
I tried to get my lawyers to consider bringing in the catharsis theory beyond the some vague and inconclusive evidence in some of Dr. Collins' statements in the transcript. They basically ignored it although it is clear from his ruling that Justice Shaw gave it some weight. The catharsis concept can also be approached through common sense which is a permissable line of reasoning in judicial proceedings. I advanced the following proposition:
There's a pedophile living down the street from you and you have school age children. Would you prefer that the pedophile had child pornography that he can use for his masturbatory fantasies? ... Or would you prefer he fantasized about your own kids?
In terms of a rational connection direct harm can only be indisputable if evident from the image itself. Otherwise it must conjectured. A basis for abuse or exploitation must be indicated. If an image of a child depicts an illegal or distressful sexual assault, or age inappropriate sexual behavior then it would be clearly abusive. The Appellant takes the view that abuse or exploitation must be assumed in any image meeting the definition. If a court determines that an image is child pornography then the child depicted in the image has been abused. Pornography defines abuse. What does this do to the child who may have innocently posed or simply been there? Now they may need treatment as victims. Child pornography is very subjective and can be many things. It makes more sense to have abuse define pornography. You start with a victim rather than making one. It would require a clearer definition of what abuse is for the subject.
In their factum the Appellant makes a number of economic arguments to justify the prohibition of possession. They refer to "basic market principles" in a situation where it is arguable that economic motivations are extremely weak. For the most part their arguments are ignorant and incredibly naive although they have simplistic appeal. Their factum states: "The demand for child pornography is created by the users." This is a truism. It doesn't even have a deceptive subtlety. This leads them to the profound observation: "if there is no demand there is no market." As a college economics instructor for four years I flunked kids for less. There are three main ways to reduce demand: reduce the number of buyers, reduce buyers' incomes or raise prices and indoctrination. We see attempts at these methods in government policies dealing with drugs, alcohol and tobacco. Society could jail or kill pornography users, tax child pornography or promote it as uncool and bad for people's health. In view of the emphasis on "economics" in the Appellant's factum I suggested that we should counter them with our own economic reasoning. I suggested to Peck, who was already familiar with him, that some quotes or references to Richard Posner, a respected American conservative judicial philosopher might be appropriate to embellish the arguments below. I had recently read his book, SEX AND REASON where he applies economic concepts to legal issues.
The Appellant claims that "the trial judge drew conclusions which are at odds with basic market principles and said that he erred when he stated: "there is no evidence that the production of child pornography will be significantly reduced if simple possession is made a crime." They quote an early child pornography decision where a market was simply assumed. However, "basic market principles" do not apply to the Internet, by far the major source of child pornography today. Viewing/downloading or possessing is free with no marginal cost involved. Posters/uploaders or distributors do not get paid although others may express their appreciation, or condemnation. Posters motivations are primarily altruistic, egotistic and sometimes messianic. There is no market in the traditional sense in which "basic market principles" can operate. Production only relates to possession where men produce for themselves. Production, as I have argued before, is more related to the difficulties and risks of acquiring child pornography by other means than to whether or not possession is an offense. I said that with the current abundance of child pornography there is little incentive for men to involve more children in its production. Using common sense it is reasonable to argue that prohibiting possession encourages production rather than discouraging it.
Even in the pre-nternet days of the Fraser Committee when some semblence of markets still survived the idea that sanctions against possession would attack the market, reduce incentives and act as some deterrent to production was questionable. It was the very success of the measures that crippled commercial production and markets (at the end of the 1970s) combined with effective sting operations that stimulated widespread, small scale amateur production. It was precisely the stifling of the market that increased new production, along with the number of children involved. This was the situation the committee faced. Amateur porn produced by pedophiles and youth lovers who have strong non economic motivations may be affected by harsh penalties aimed at production and circulation but not to possession. Even in the heyday of commercial kiddieporn in the 1970s much of the actual photography was amateur.
In late March we went to court to watch potential intervenors make their applications before Madame Justice Southin in the B.C. Court of Appeal. Intervenors are supposed to provide legally drafted arguments with a special point of view or perspective. The Canadian Police Association speaking also for CAVEAT and others claimed possession laws were necessary for police work. Possession in the Internet era cannot, they said, be separated from distribution and making. And their lawyer reminded the court that the police worked hard to get this law enacted in the first place. The court was also reminded that Collins's testimony is only the "tip of the iceberg". He made it sound like bread and butter issue. All applicants were granted intervenors' status except for the politically active Sexual Assault Centre of Edmonton. Their lawyer claimed they represented the rights of children depicted in child pornography. The successful intervenors included: Canadian Police Association, Beyond Borders/ECPAT, Focus on Families/Evangelical Fellowship of Canada and the BCCLA. The intervenors time would be limited to fifteen minutes each. The Attorney General of Ontario would also submitted a factum. The opposing factums had much in common and many of the arguments were necessarily tied to the OAKES test. I emphasize their distinguishing features.
Their factum also spoke for their political allies CAVEAT (Canadians against Violence Everywhere, Advocating Its Termination) and CRCVC (Canadian Resource Centre for Victims of Crime). I thought their presentation was weak and repetitive. They relied on Inspector Matthews' affidavit to argue that with the Internet possession, making and distributing are closely related and can no longer be treated as separate things. The CPA emphasized the practical usefulness of s.163.1 (4) in investigating distributing offenses. Matthews is more skilled with words than Detective Waters' whose testimony they quote extensively repeating her concerns about NAMBLA and the Mike Diana comic, Boiled Angel. Dr. Collins' testimony is mined for supporting evidence. The factum on several occasions speaks of child porn as analagous to drugs on several occasions. The GRAMLICK and JEWELL cases are seen as triumphs of the child pornography laws. For scientific evidence the police factum relies on discredited laboratory experiments by Donnerstein and Malmuth to show a correlation between porn and harm. Donnerstein in his book THE QUESTION OF PORNOGRAPHY strongly criticizes the use of his work for law reform purposes such as the criminalizing of pornography. Things like "slasher movies" are far more dangerous he says. [For a critigue of study methodology see William A. Fisher, "The Emperor Has No Clothes" in REGULATING SEX, an anthology of comments on the Bagley & Fraser reports, SFU, 1986. Also BLUE POLITICS by Dany Lacombe.]
The Attorney General of Canada's factum argued from the Fraser, Badgley and other previously mentioned reports. BUTLER and LANGER, are quoted extensively and they use ROSS to suggest parallels between hate literature and child pornography. The factum relies heavily on the testimony of Dr. Collins to justify the need for and provide a rationale for the law. In common with most intervenors they claimed that the trial judge erred by not giving sufficient weight to the protection of children. They brought up "Canada's International Obligations" under the U.N. Convention on the Rights of the Child, various congresses and summits, and Interpol.
The Evangelical Fellowship of Canada's factum argued against the importance of hypotheticals, the real purpose of the legislation was to protect children from pedophiles. It is an argument of faith from the heart. As they have done in other cases they argued that the preamble to the Charter: "Whereas Canada is founded on principles that recognize the supremacy of God and the rule of law", embodies certain shared values that should be applied to fill in gaps and indicate fundamental values. [Justice Southin said the preamble has no weight in law.] They would use the preamble, with its "supremacy of God", as a general morality test for legislation.
Beyond Borders and ECPAT who are mainly identified with crusading against child prostitution in the Third World wanted the court to consider the international repercussions of trafficking in child pornography particularly on the Internet. Their factum stresses Canada's international obligations and comes very close to saying that any "international obligations" that Canada undertakes can override any rights and freedoms of its citizens. Following their logic it would appear that our federal government need only to sign a reciprocal agreement with Singapore so that we too can outlaw the Jehovah Witnesses.
Or consider petunias. Suppose certain clinicians have theorized that petunias are criminogenic. Some people even conjecture that petunias are part of an elaborate oppressive cultural construction that justifies the degradation of vulnerable groups in society. Newspaper reports on academic articles detailing laboratory experiments involving first year college students clearly indicate a correlation between massive exposure to petunias and anti-social behavior. Victims are obviously involved and society turns to those claiming to speak for the victims of petunias. Concerned citizens including the loved ones of victims and a few recovered survivors are convinced that punishment of the guilty will protect vulnerable groups, provide needed closure and satisfy retributive justice. The police demonstrating their own concern for society's victims call for new laws including making simple possession of petunias an offense. Unfortunately it is difficult to make rational and persuasive arguments to support the need for prohibition, and any law attempting to do so might be found unconstitutional. However all is not lost. A responsive and resourceful government signs a treaty with Paraguay to ban petunias in their respective countries and create a joint agency to suppress international trafficking in petunias. The government points to its international obligations under the authority of article 17(c) of the Canada-Paraguay Petunia Control Convention and experiences no difficulties in enacting the Petunia Control Act with the unanimous support of Parliament. Canadians have reason to be proud of their participation in the international community. The new laws are soon vindicated by a large number of convictions which demonstrates how serious the petunia menace had become. Such reasoning is more potentially dangerous than preposterous.
Their factum submits that prohibiting possession of child pornography is a specific obligation that Canada undertook when it signed the United Nations' Convention on the Rights of the Child. They are able to point to Supreme Court decisions including KEEGSTRA where Canada's international obligations were weighed. They would use international conventions much as the evangelicals would use the preamble - as a substitute for the notwithstanding clause.
The BCCLA was the only intervenor on my side and I was a bit apprehensive about their support. It's a difficult issue for those desiring to avoid opprobium. After a few platitudes their factum rejects the libertarian position of freedom of possession and argues for a much narrower definition of prohibited material. They are not going to question any assumptions of harm, or look at it other than through the lens of precedents and expert testimony. They are concerned about the abuse of real children and virtual ones who might be real. They would allow possession of products of the imagination. They use a number of hypotheticals and discuss the question of 14 to 17 year olds who can legally engage in sex but its depiction is prohibited. The problem is overbreadth and it's curable, maybe just "reading down" the law.
My Counsel's Factum March 12th, 1999.
Although our factum was meticulous I was disappointed with its narrowness. It excluded, I thought, a great deal of useful argument. The Crown and the intervenors in their factums had used a variety of assumptions and arguments which I felt could be effectively countered with ordinary reasoning. I felt on the basis of the transcript that we could point out inconsistencies in the testimony of the Crown's two expert witnesses, particularly Dr. Collins's. I thought his arrogant prognosis of me in his letter of November 3rd, 1998 to Prosecutor Schultes that was entered as evidence: "I have never examined John Robin Sharpe, therefore I cannot offer a diagnosis. Based on my review of the material, however, in my professional opinion he would likely be extremely difficult, if not impossible to treat given the extent of his cognative distortions thereby placing him at high risk of reoffending." That should be brought to the Court's attention. I am not an offender, I have never been charged or even warned. Dr. Collins was already assuming I needed treatment.
In terms of hypotheticals I suggested one that I had prepared for the voix dire which delt with ss. (1)(b), advocating sexual offenses against children: Let us say an Aboriginal argues that his tribe should recreate the berdache custom in his tribe. The berdache or two spirited people were often men of influence and shamans. A contemporary Aboriginal sees problems of broken homes, child abuse, adultery, jealousy and abusive husbands among his people. He believes that Native society is disintegrating. He has studied traditional Aboriginal culture and believes that it may offer solutions to contemporary problems. He believes that the berdache were an important part of the cohesion of traditional culture. Among other things the berdache helped educate youth in a number of things including sex so that when boys became interested in girls they would not be so clumsy sexually as many boys are today in Canada. They also provided a sexual outlet for adolescent boys which helped protect girls from unwanted attention. This latter function of the Berdache would inevitably include "sexual activity with a person under eighteen years that would be an offense under this Act". He might even argue that the berdache custom would be a good thing for the whole country.
The theories of our clinicians and police would have us reinterpret the berdache and their contacts with boys in terms of "offenders", "abuse" and "victims" so that no cultural understanding of the custom would be possible. Newspeak does just that. It forestalls ungood thought. I said that the berdache advocacy has no artistic merit, it has no medical or scientific purpose, and unless it is interpreted very broadly, no educational purpose. It is political advocacy. My hypothetical required some ethnographic understanding but I had good academic sources available. In another situation I asked how intimately can we discuss the Japanese samurai tradition which commonly included man-adolescent sexual bonds? And what do we do with all those sonnets and Arabic poems extolling the love of boys? There is a wealth of positive historical and ethnographic material, particularly about what is loosely called man-boy love or intergenerational relations, which challenges conventional morality and community standards. The cultural anthropology section of the UBC Library is full of it. It can serve as porn and lead one to look at one's own culture differently.
All the opposing factums stressed the harm that might flow from mere possession of child pornography. This was presented as a common sense proposition utilizing the Collins' theories. It pre-empted the field making common sense arguments against harm difficult. To overcome this I suggested that instead of looking at harm flowing from possession, we should in a common sense manner look at the potential harm of an effective prohibition, in other words, of a scarcity of child pornography. The picture I submit is quite different. Let us assume that child porn is much more risky to obtain and even possess due to strict laws and vigorous, effective, proactive law enforcement measures. Let us even assume that child pornography can somehow be purged from the Internet. The situation would, I submit, be similar to the situation in early 1980's after overseas sources were eliminated and before the Internet became a factor. This is the situation that the Badgley Report described and which is still relied upon by several of the intervenors as authoritive. Child porn was difficult to find and very risky to acquire due to extensive sting operations. What could we reasonably expect if we could again achieve effective prohibition? What were consequences for children? I would suggest that once again we would get an exponential increase in the number of children involved through self made materials even if the total ammount of child pornography including copies of images were drasticly reduced. Video camcorders, digital cameras and computer technology make porn easy and cheap to produce. Would men see using willing street kids as less risky than answering some advertisement which might be a sting?
Obviously fewer men who wanted to would possess child pornography. Some men would have their collections seized and be fined or jailed. They would certainly be more careful in the future but would this experience make the men more or less likely to offend in the future, and if so, would they behave more desperately out of fear? Other men out of fear would discard or destroy their collections. Would being deprived of porn, or simply fresh porn make these men more likely to assault children, perhaps as a basis for subsequent fantasies as some studies suggest? As a substitute for porn? Would the suppression of child pornography lead it to acquire mystical, semi-magical properties, an ultimate taboo which could make it more dangerous for children and society? Indeed it may already have through demonization. I felt that a reverse approach would allow the construction of common sense harm arguments to counter those of the Crown and its allies.
Another argument I used at the voir dire and suggested to my counsel was that the right to possess allows the citizen, the activist and the politician an objective basis for assessing other questions, laws and arrangements relating to child porn. Selections from police collections tend to unrepresentative and misleading and are used in an inflamatory manner.
My counsel did not comment on any of these suggestions perhaps because they implied that possession of child pornography might be less than an unmitigated evil, a position which they felt was morally and legally untenable. And if harm is axiomatically assumed they are useless anyway.
Almost all the other factums used market arguments to justify the offense of possession often basing their arguments on the obsolete information in the FRASER and BADGLEY reports. At the voir dire I had tried to point out that a normal, supply and demand type market doesn't exist with homemade porn and the Internet. Only the CPA factum acknowledged this as part of their claim that possession could no longer be distinguised from distribution and making. I wanted my lawyers to argue that market logic, the suppression of demand through possession laws, was no longer a significant rationale. Justice Shaw had already cast doubt on the connection.
The factum and the later oral submissions make much of the law's invasion of privacy. However by not questioning the line that the form of possession in question was of low value they, in effect, denied the possession right much substance in my case. Their privacy arguments despite the rhetoric were reduced to privacy for privacy's sake. I did however note that some of the privacy arguments in the factum could be used to challenge Canada's drug possession laws and that the Charter might be the only way to end this holocaust.
As for remedies, judicial measures to resolve conflicts in law, my lawyers considered the idea of reading in "publicly" before the phrase "counsels or advocates". While an improvement I thought it too restrictive. I reminded them of my interest in ss. (1)(b) in relation S. (3), possession for the purposes charges. I suggested as one remedy that "advocates" be severed from the definition with "counsels" being given a meaning similar to s. 22. My counsel was not interested.
The factum's single minded emphasis on overbreath made it awkward for them to advance other arguments. Their thinking was cacooned within the artificial realities of constitution law, the Shaw ruling and the social constructions of Dr. Collins' theories. It was an abstract exercise into which ordinary observations, common sense and non legalistic explanations had little place.
In March an accused child pornographer in Alberta by the name of Vallee attempted to challenge the possession law using my case as a precedent. I do not know anything about the evidence and arguments in his case, but the Alberta court was not bound by the ruling on my case and upheld the law. A few cheered, like the score was now even, but we knew the decision was unimportant in B.C. This was the case where Stockwell Day wrote a letter to the editor condemning Vallee's lawyer, Lorn Godda and was successfully sued.
I had my only meeting with Gil McKinnon shortly before the Appeal Court hearings. We met in a glass jewelbox interview room overlooking West Georgia Street in the opulent two storey suite where he has is office. I answered his questions and communicated my concerns about the direction the case was going. There were several areas which we did not get around to and he scheduled another meeting, which he subsequently cancelled.
B.C. COURT OF APPEAL April 26th, 1999
The Appeal was held before Chief Justice Allan McEachern, Madam Justice Mary Southin and Madam Justice Ann Rowles.
I had allowed my hair to grow back and return to its natural light gray by the time of the appeal, and again dressed like the poor pensioner I am in my best tweed jacket and flannels. Don, who perhaps alone of my friends was not concerned about media exposure at my side, accompanied me. It made things a lot easier and more pleasant. The appeal merited a large courtroom along an upper terrace and attracted good crowds. Each intervenor brought a cohort of supporters. Detective Waters showed up when the evangelicals made their oral submissions. I was recognized and pointed out. A woman who had come from Winnipeg to be at the Beyond Borders submission spoke with me. I mentioned some of the points I had made in my brief to the Standing Committee when they were consideriong Bill C-27, legislation designed to apply extra-territorially to Canadians purchasing sex from underage prostitutes overseas. She seemed earnest and pleasant but she was quoted later in the media demeaning me, perhaps it's a necessary formality for some.
The Canadian Police Association lawyer, Timothy Danson was, I thought weak, it was like the association was lobbying for more police powers. The police were emphatic that they needed the law to get a foot in the door. John Gordon for the Attorney General was devoutly more effective. He was methodical and conceded nothing. I could not hear what his assistant Kate Ker said. While there may be something valiant about a person with a voice impediment being a lawyer there is also a problem if a an accused cannot understand what is being said. I would note in this context that oral arguments made in the Court of Appeal are not recorded so unless one hears what is said, it is not possible to find out after. The reason I was given was that the Appeal Court bases its decisions on the evidence from the court below. New evidence is not customarily allowed and oral submissions are merely "invitations to consider". In my case however new evidence, Detective Inspector Matthews' affidavit entered by CPA, was accepted by the Court of Appeal.
McKinnon was quite impressive the first time he spoke. His victory at the Supreme Court of Canada in an aboriginal sentencing case had just came out. There was maybe a dozen reporters and cameramen trying to ambush me when I left the court house. We bantered at them and I disdained their questions.
John McAlpine's oral submission for the BCCLA was weak. He did not sound convincing; it was as if he was pushing his libertarianism beyond its limits. It reminded me of Frederick March's performance as the near senile William Jennings Bryan in "Inherit the Wind", a famous old movie about the Scopes' "monkey" trial in the 1920s where Bryan successfully defended creationism against the teaching of evolution. McAlpine was advancing the BCCLA as arbiters, not defenders of expression. I had expected very little from them anyway.
At noon break that day Don and I, unimpressed with the previous day's pricey lunch at the court house restaurant, headed towards the north entrance of the vast, glass enclosed, plaza like terrace on the west side of the court house. Outside we could see at least two camera crews and reporters so we turned towards the south entrance. Two burly cameramen and their handlers entered and dashed past us to wait outside the south entrance. (They are not allowed to film inside.) We reversed our direction again and the cameramen lugging their heavy equipment dashed past us again. I briefly thought of going back to the south entrance again, it seemed like a fun game, but I was hungry. The cameramen, sweating from their exertions were right there as we exited. They walked backward in front of me with their lenses often less than a foot from my face as we crossed the large outdoor terrace. It was annoying but apparently legal. I unsuccessfully tried to steer the cameramen into trash receptacles and railings. Don held his hands in front of their lenses and comicly acted up bringing protests from their handlers, Terry Milewski of CBC and an asian woman from Global TV. I became impolite because of their invasive tactics. The gross unshaven gorilla like Global TV cameraman called me: "the scum of the Earth". I protested to his handler. They finally gave way when we came to steps leading down to a lower terrace. We both snacked for five dollars at the soup and sandwich shop.
McKinnon spoke again on the second day but less effectively, at times he seemed unsure and was repetitive. There were points that I was led to believe would be made in oral arguments that never were. Peck used the "recording of one's own thoughts" argument well. In their oral submissions they did not attempt to refute the arguments of the Crown and it's allies, this was in the factum. They stressed overbreadth repeatedly emphasizing hypothetical examples involving 14 to 17 year olds, a bit of overkill I thought. I believe the idea originated with Nikos Harris, at least he was the first to lay it on me. It is clever, and as one of several examples it might have been useful, but as a principal prop for my case I thought it was rather peripheral.
It wasn't until I heard McKinnon's oral presentation in the Court of Appeal hearing that I realized that they had backed down on the principle that the possession of all expressive materials should be legal. They only wanted to defend products of the imagination. I was stunned. That was the core of my victory at the voix dire. It never occurred to me that they would consider such a thing. I had just assumed they would argue for freedom of possession period. I had trusted them. Peck had told me that the Crown wanted to limit the appeal to s. 2 b, freedom of expression considerations. Peck wanted the appeal to consider s. 7, privacy rights too. I agreed. Peck refered to Semayne's case which in 1604 set out the basis in common law for the right to privacy: "That the house of everyone is to him as his castle and fortress, as well as his defense against injury and violence, as for his repose..." It is from this case that we derive the expression, "a man's home is his castle".
The concession was in the factum, their defense was limited to products of the imagination, images of youths 14 to 17 engaged in legal sexual activities in the hands of the participants, and in circumstances where simple possession does not create a risk that children will be sexually abused or exploited, or what they termed Category B materials. This concession was by far the most important decision they made in the case and Peck never discussed it with me. I feel that he was professionally derilect in not making this clear to me. It was in the factum and I had read the factum but I had assumed it was a conditional point, something to fall back on, I never dreamt that they would scrap the basic freedom of possession and privacy arguments we had talked about. I knew the BCCLA was taking this approach but I had concentrated on the Appellant's and intervenor's factums, I was not watching my back. They had decided to limit their legal attack on the law to simple overbreadth of the possession offense. I was disappointed and depressed, I was not pleased with the performance of my legal team but perhaps I was expecting too much.
My counsel had decided to second guess the Supreme Court and the politicians and appoint themselves as the arbiters of what should be child pornography for the purpose of simple possession. It was like my lawyers were arguing that the trial judge went too far in acquitting me. I felt betrayed. I almost regreted that I had gone to so much effort to challenge the law. The case was not just about me and I felt that I would have been far better off to have pled guilty at first opportunity and everything would have been over and largely forgotten.
They were proposing a category A and category B classification. I did remember discussing different types and degrees of child pornography. I even prepared samples of various naturist, erotic and clearly obscene material that I found on the Internet in order to give them an idea of what was out there. We discussed various aspects of images. We even speculating on a two tier classification if the law was to be rewritten. Suggestions for changes are a common procedure in constitutional cases. Afterwards I felt that by advancing the idea of categories my lawyers were basically abandonning the privacy argument. Privacy? Why certainly! Now if you will just let the police examine your personal possessions we will check to make sure that they're in a category protected by your privacy rights. Categories implicitly supported the Crown's contention that s. 7 arguments be scrapped. Their Category A would still allow search warrants and in no way restrict the state's ability to invade people's privacy. That principle, the one big thing that Shaw's ruling gave hope to, was unceremoniously trashed. At the hearing Robert Matas of the Globe & Mail noticed my dismay and questioned me about it during the lunch break. Tactically I had to deny any rift but he picked up on the retreat from total freedom of possession in his column next day. Again I was depressed and angry.
I was furious and phoned my lawyers in the morning. Nikos Harris answered. I vociferously castigated him: You have abandonned principle. You have postulated an untenable mishmash. It is a compromise begging further compromise. You are arguing for a dog's breakfast. I had made it clear to them from the start that I was not particularly concerned about any legal penalties I might suffer. Things had gone well beyond that. My honour and my ego saw their position as a sellout, an unnecessary and dangerous sellout. They had suggested a compromise where I felt none was needed. They were being arbiters like the BCCLA. They invited nit picking which everyone would feel entitled to contribute to, promising endless work for lawyers. My Lawyers were supporting a precedent that could be applied to all other forms of offensive expressive materials. What little freedom of possession that was left after the assaults on liberty by BUTLER and KEEGSTRA was now vulnerable to attack. McKinnon and Peck's libertarian oratory was all show, it made their protestations against the police arguments of convenience an exercise in pure hypocrisy. I was upset and furious.
Of course I had to blame myself for not being more careful, for not clearly understanding our own factum. I had become complacent and lazy. But even if I had protested beforehand, I do not think they would have backed down. Failure to condemn "the worst" as they could define it in a legal context was just too much. Unlike me they had to defend their righteousness. I believe that they should have made the retreat clear to me. To understand their retreat, which I felt was a blunder, I point to the toxic nature kiddieporn in our society. McKinnon and Peck may have felt innerly, and also on some professional, social or moral grounds, that they could not go all the way to absolute freedom of possession including "the worst", as did Justice Shaw. They had to keep some distance from the imagined reality of child pornography. I did not think it was stupidity.
We met later that day and talked things over. I repeated my points in a cooler manner. I do not recall Gil McKinnon being there and from that time forward I never had a conversation with him. Peck argued in terms of realpolitik, it was what they saw as an attainable goal. They were trying to second guess the Supreme Court. Peck felt that there simply had to be a possession law covering the worst stuff like violence and twelve year olds fucking. Peck wasn't quite that blunt and I realized that prohibiting anything less could expose him to moral accusations of condoning such material. This fear was given substance by a case in Alberta where a provincial cabinet minister, Stockwell Day had implied that a lawyer defending a man accused of child pornography sympathized with pedophilia because he had his client plead not guilty. I could see Dosanjh being tempted by the idea. As for the possession of the worst examples of child pornography there are other laws dealing with the evidence of a crime that already cover most of this, although not neccessarily twelve year olds fucking in all situations. I had come to distrust realpolitik by then. I repeated my arguing from principle argument. Peck agreed that when the question went to the Supreme Court, as they anticipated, that they would change the factum to read that "If" there had to be some sort of possession law that it should be limited to sexually explicit material involving real children. The problem as I see it is that lawyers have an overriding loyalty to the legal system. I suppose they have no choice. It was the same problem I had with Michael Ritzker. Peck simply believed their compromise stood a better chance of being accepted by the court than an unqualified defense of freedom of possession. Realpolitik, see what I mean?
I wanted to dismiss my counsel, I felt betrayed, and I felt that the cause of freedom of expression in Canada had been betrayed. I discussed the idea with a few supporters but I could see no way out. Finding new lawyers to take over at this stage was a daunting prospect. I decided to at least wait until the Appeal Court decision came down. I was disillusioned, my priorities shifted and my book, this book became my main concern. I would continue my generally amicable relations with my lawyers.
May 20, 1999. LOSS OF FRIENDS
When you're involved in and identified with an unpopular cause, and in the public's mind child pornography is perhaps the most extreme example, you can be expected to be abandonned by many of those closest to you. Most practise a gradual withdrawal, often unnoticable at first. Excuses are heard. Some no doubt experience ethical quandries but succumb to the myriad social and cultural pressures to adopt correct moral stances. There is no real point in trying to argue with them or confront them. They will grant you your points and go on to make excuses, and if you expose these they only get embarrassed which helps no one. Unfortunately it is not just phoney and casual friends that you lose but close and substantial ones too. Some make pathetic apologies. The demands of other friends, wives, young friends, clients etc. must be respected. I am sure it was painful for some of them too.
Many are afraid. It is an act of courage for some people I know to be seen in my company, such is the fearful impact of current popular, pedophobic hysteria. Many asume my phone is monitored if not tapped. Some paranoid individuals, with nothing I would consider worth hiding in their closets have cut off all contact. But then it is not all that unreasonable to fear even if one is not guilty of any summary or indictable offense. Others including some who I count as friends, I must never use my own telephone to contact. It is chilling. Friends have hidden or destroyed my books which the prosecutor cleared and returned to me. However the same books were seized by the police from another friend on one of their fishing warrants. I have deleted files and references in my records, unneccessarily I hope, to play it safe and allay peoples' concerns. Tales about the lives of dissidents behind the Iron Curtain with their codes and secretiveness seem contemporary and real. Many Canadians, certainly among my acquaintances, seem to accept the possibility of zealous police intruding into their private lives with fatalistic resignation. Nobody really criticizes the cause of their fear. I feel sorry for them but I cannot apologize. I have not however suffered from lack of moral support or company and people have gone out of their way to defend me.
It is easier and probably more rewarding to confront strangers, people who really believe you are some sort of monster. They often don't know how to react to simple statements about the obvious and arguments which confound their preconceptions. Most will not listen, they merely want to express their contempt and be gone like the husky, hairy young man who came up to me in a gay bar and blurted, "I hope you rot in Hell." I asked him to sit down and talk but he turned away and hurried towards an exit. Occasionally others make muted comments on the street, "You creep" or "Pedophile!" when you have no chance to confront them.
The Appeal Court rulings did not take long. Peck had thought that Justice Southin would probably rule in our favour and that Chief Justice McEachern would almost certainly side with the Crown. He was right. I went with Don and my lawyers to the courtroom to hear it. It was over in a couple of minutes. We were of course delighted by the two to one decision in our favour. I was surprised. Although this victory was very important we knew that it would be appealed to the Supreme Court. The reasons given however would be significant.
Honourable Madam Justice Mary Southin
Justice Southin unequivocally supported freedom of possession. She is critical of the fast tracking of the appeal saying that the trial should have been completed so that both challenges could have been delt with. She comments on Justice Shaw's ruling which "generated a great deal of outrage in the media... What, in their ignorance, they conjured up in their minds was the spectre of a judge giving judicial approval to sexual exploitation of the prepubescent... contrary to the will of Parliament."
She notes the contradiction that (1)(b) does not prohibit the advocacy itself but the possession of materials that advocate, and this cannot be a reasonable limit in terms of s. 1. In effect one could speak publicly what one cannot record privately. She reviews prohibitions in other laws including s. 22. "Counsel" in this section does not address encouraging criminal sexual activity generally, propaganda for illicit acts as does (1)(b) in the context of ss. (4).
After reviewing Shaw's findings and reasoning, and the testimony of the Crown's expert witnesses she observes: "As I understand, Dr. Collins goes beyond factual issues into into issues of morality, and issues said to be of `fact' but which may be issues of opinion... To believe that a child could not only not be harmed by premature sexual contact, but take pleasure in it, seems to me an absurdity, and, therefore a cognitive distortion." She points out the morality of his statements.
Dr. Collins' equation of morality with psychiatric science is clearly evident at several places in the transcript. It colours his entire testimony and I wonder that my counsel did not bring this to the attention of the Court. On the "grooming" theory she points out that it applies to a 20 yr. old using the KAMA SUTRA to seduce a 17 year old. As for child pornography "fuelling sexual fantasies" as per the Marshall study she points out that Collins' statements would implicate all kinds of pornography. P. 51. She picks up McAlpine's 14 to 17 argument. p. 56. "social science" "are more a matter of opinion than fact." She notes how Bill-128 changed. She refutes the evangelicals use of preamble. p. 67. She notes that no other Canadian legislation (with a WW1 exception) ever made possession of expressive materials a crime. She points out that material advocating genocide or that is seditious is legal to possess. She notes some of the things that have done in the name of the greater good and says: "Even if the possession of material which advocates or counsels crime may lead to the inference that the possessor has had bad thoughts and thence to the conclusion that he might or even will commit the crime thus advocated, it is not within our political ethic to make the possession itself a crime. It is this notion which goes deep in our history which is at the root of the requirement that proof of treason requires proof of an overt act. I conclude, therefore, that legislation which makes simple possession of expressive materials a crime can never be a reasonable limit in a free and democratic society. Such legislation bears the hallmark of tyranny."
Any prohibition would require the most compelling evidence of necessity. I agree wholeheartedly, I just wish my counsel did. Justice Southin concludes: "I am saying that some other way than making simple possession of this sort of material ought to be found to attack it." The section she says has "an air of unreality". She decides that ss. (4) fails the proportionality test and she dismisses the appeal. Madam Justice Southin seems to have a relatively libertarian outlook. She also relates her points not just to case law and the documents before the Court but draws on history and common observations about the world.
Honourable Madam Justice Ann Rowles
Justice Rowles agrees the appeal should be dismissed. She looks at "need to protect children" as expressed in government reports and UN conventions. She recognizes a potential for indirect harm from possessing child pornography and does not think that the nature of the expression restricted is close to "core" values. I had wanted the phrased issue in terms of the "right to masturbate" rather than the vague term "self fulfilment". She discounts the usefulness of social science evidence but seems to assume the logic of market arguments.
There is a rational connection between the means and the objectives, overbreadth is the question, it is what the challenge hinges on she implies. She refers to the concession which tended to limit our arguments to overbreadth, tying one hand behind our backs. The concession undermined the privacy argument. She examines "The concept of overbreadth and accepts the use of reasonable hypothetical examples to illustrate overbreadth which she defines as "the unintended reach and potential effect of such a provision." She notes that the Respondent doesn't claim overbreadth of s. (2) & (3), only (4). She notes our use of the term "continuum" which she exploits. Stigmatization by the "use of (the) evocative and clearly emotive phrase `child pornography'" is a factor in assessing overbreadth. She defines "The inclusion of written material is particularly troublesome in the context of possession, where thoughts are not shared". She speaks of the "profound violation of freedom of expression and privacy which results from making the private possession of works of a person's own imagination a criminal offense. She points out that the Canadian definition of child pornography is broader than the U.S. and most other countries. She develops a series of hypotheticals demonstrating the law's overbreadth. She is strongly opposed to the state ever regulating a person's private recorded thoughts.
The defenses in ss. (6) don't apply to hypotheticals she gave. The defenses do not protect a wide range of unintended materials. She lists other legislation that also protects children and does not think the additional protection due to (4) is that great. Using DAGENAIS as did Shaw she decides that "the salutary effects of s. 163.1(4) are insufficient to outweigh its manifest detrimental effects." Madam Justice Rowles is much more cacooned in the universe of the law and her decision is thick with legal and governmental references. She is however incisive and her examples are convincing.
The Honourable Chief Justice Allan McEachern
The Chief Justice upheld the appeal. He says he will attempt to explain his decision in the plainest possible language. In his factum he avoids lengthy quotes from well known decisions, he gives the counterarguments as he sees them and gives his reasoning which is written as common sense. He states the case is different because with the concession the question is one of overbreadth not freedom to possess as it was at the voir dire. McEachern stresses the importance of Matthews' affidavit and claims that the possession offense is "an essential police tool." He articulates the "underlying question" of the case: "The underlying question of this appeal is whether the simple poissession of child pornography (as defined) that may have been created without abusing children and which may never be published or sold creates a sufficient risk of harm to children that it should be an offense for anyone to possess such material, for any purpose or for no purpose at all." This phrasing was subsequently accept as defining the case by all parties. He is shrewd.
He reminds the Court of the salacious nature of the evidence: Flogging Fun and Fortitude and photos of nude boys displaying their genitals. And, he adds, a product of the imagination, a sketch of a nude boy probably under 14 with an erect penis. He does not think that s. 7 dealing with "liberty" in my case adds anything not already protected under s. 2. When the question of distinctions such as hard core or highly erotic arose in Shaw's ruling McEachern claims that such distinctions "are not necessarily relevant or useful for analysing definitions." The characteristics are only relevant to the extent that they define the material as child pornography or something else. He feels that Shaw ignored the market. McEachern says simple possession creates a market, he claims that profits from distribution and sale would be greatly reduced.
He assumes "the fact that the prohibition against possession reduces the abuse of children involved in making child pornography". I don't know whether he is simply ignorant or just using the economic arguments for effect. He reviews Shaw's weighing of the detrimental and salutary effects of the possession offense says that he concentrated on the possessor's perspective rather than the protection of children. The inadequate weight given to the protection of children was a legal error. He rejects the claims of overbreadth. He dismisses the rush and last minute amendments because Parliament decided, during the debate, that these amendments were necessary. During what debate? I ask. In dealing with the overbreadth hypotheticals advanced, Justice McEachern resorts to enhancing cognitive distortions and possible escape of material as justifications for even self authored material.
He conceives of dangers in the most improbable circumstances, not reasonable apprehensions of harm but the remotest possibility of harm. Child pornography as defined is highly toxic. On the same logic axes should be banned to prevent murders. He sees important distinctions between private thoughts and recorded thoughts. He argues that given my counsel's concession that proportionality is a question of the definition of child pornography. He stresses the low value of porn and that privacy is hardly threatened. Any real (conceivable) risk of harm to children is enough to tip the scales in favour of the legislation. He does admit that there is a remote possibility that "extremely few persons" could possess child pornography without any intention of harming children. Presumably then an overwhelming majority of those who possess it intend to harm children. He would allow the allow the appeal and send me back to trial. Chief Justice McEachern conscientiously defends the law as is and I believe sincerely. He explores hypotheitical situations. Any real, or it would seem any conceivable, risk of harm is all that is needed to justify the law. His arguments depend on pushing emotional buttons.
The Appeal Court decision was a victory, although a further appeal to the Supreme Court of Canada was inevitable. I no longer thought of dumping my laywers, I couldn't argue with success, and I didn't see any options. I felt like a passenger on a plane that had taken off who couldn't very well head for an exit. My case seemed to be out of my hands, I had clearly lost any control. I did argue with Peck that Justice Southin had closed the gate, her decision permitted us to take a clear stand on freedom of possession. He promised to modify the stand in our Supreme Court factum, so that IF there had to be a possession law it should be limited to their Category A classification. This molified me but I had lost my enthusiasm and I became more interested in working on my book than the case. I continued to pass on ideas and information and reviews of material, and the factums when they arrived, but their course seemed narrowly and rigidly set. I began to wonder if I wasn't interferring in my own case again.
I again began getting threats right after the rulings came down. The second was a very explicit death threat, "You fucking pedo, I'm going to kill you." I star 69ed and got a local number. Two police constables came and took a report and said they would get back to me. I bought a little suction cup mike so I could connect my rotary phone to my tape recorder to record any threats. It was never needed. Then at the end of May I was assaulted in the lobby of my building. I was returning from the corner store mid afternoon and unlocked the front door of my building. I held it open to let out two men, one carrying a small blond girl about three. The man carrying the girl recognized me, I was the "Fucking pervert". He handed the child to his companion and went for me. "Are you still living here?" He shoved me repeatedly until I was against the wall in the lobby. "You better get out of this building." I try to calm him, I suggested we talk. He said he'd seen me bringing prostitutes in the back. He's said he'd seen the rubbers (condoms) lying around. He grabbed me around the throat, not trying to choke me and threatened, "If I see you so much as look at my daughter I'm going to kill you." Seeking assistance I headed for the managers office nearby. However the elevator door was open and he shoved me inside. As soon as I got into my apartment I phoned 911 to report the incident to the police and phoned the managers office. The man apparently lived in the building but I could not find out who he was and didn't see him again. Two different constables came and took my report about an hour later. They said they would get back to me but never did. I left messages but got no replies.
It seemed from the man's comments that he thought I was involved with prostitutes and little girls. Perhaps he had not read the basic facts which were prominently in the media. I wondered if he connected me with little girls through Suzette Meyers' three day special on child pornography. In early June a crude scrawled note was pushed under my apartment door: KILL ALL DIDDLERS. Again I dialed 911. An officer came to take my report. I gave him a copy of my statement about the previous incident which he said he would put in the other constable's mail. He seemed a reasonable person but said I had to be aware that people get upset and advised me to relocate and get an unlisted number, essentially to go into hiding. I tried to explain why I couldn't and didn't want to. Relocation would be an act of timidity and could be seen as an admission of shame if not guilt.
Despite the assault I felt secure in my building. There were people in the large building who had expressed support and could perhaps provide assistance or refuge in an emergency. I am sure others didn't like having me around. A couple with a small boy in a neighbouring apartment, apparently fearful, reputedly asked welfare for money so they could move away from me. But I had no absolutely no problems with other tenants although I kept a lower profile to give less opportunity. The building managers were supportive. After another incident which I reported a constable warned me not to try playing one police officer against another. He also said he would get back to me but like the others he didn't. I became depressed again. I only went swimming in the pool when I had someone with me. In late June a man with two brown labs started screaming at me in front of the Arbutus Buy-Low: "You fucking piece of shit". He wouldn't talk and just kept screaming the same thing and threatened to sic his dogs on me. I walked away and didn't bother reporting it. After more threatening calls where *69 didn't work I phoned the telephone company to get a trace. They told me I needed three calls before they would tell me the number assuming they all have the same source. The threats were starting to get to me but then I couldn't afford to take them very seriously without impairing my peace of mind and normal routines. It seemed clear that the police were not taking them seriously anyway. I guess I was not a priority "to serve and protect".
Sometimes incidents were more amusing than threatening. In mid July I was waiting at a bus stop when I overheard two youths talking: "Hey that's the kiddieporn king. Pretty wild eh? John Robin Sharpe." I nodded. They did not get on the bus. Another time near the derilict Woodwards building a man in his forties congratulated me for standing up to the government and mentioned he'd spent many years in the Kingston Penetentiary for murder.
In July I managed to get a bit of renovation work. It was only a few hundred dollars but it made an enormous difference, I was able to pay my bills, get back on the Internet, have my computer monitor repaired and buy a better printer for it. I also started to look for a publisher for my book and sent out inquiries. The two large eastern companies recommended to me weren't interested and I heard I was regarded as "radioactive" in the business. A small West Coast publisher expressed some interest but let me know they were already very busy. Despite the book's very Canadian content I enquired about the possibity of an American publisher. It was discouraging, I was told it might help if I could find some well known personality to write an introduction. I also decided I wanted to go to Ottawa to hear the submissions before the Supreme Court. I was under no legal obligation to attend but I was curious and felt I should be there, I had a few supporters and old friends in the East whom I wanted to see, and it would contribute to my book. I didn't want to go through another media circus but it was unavoidable and didn't mean much in the long run anyway. Initially a supporter who'd had his near new car confiscated by Canada Customs over a magazine alledgedly depicting underage girls offered to pay for my trip. However his health failed and he soon financial problems of his own.
In late September I was asked by Tom Snyder to take part in the Small Press Action Network, SPAN forum at SFU's downtown Harbour Centre on "Pushing Boundaries, the Law and Censorship". I was officially there as representing Kalayaan Publications, the label I use for my poetry and other small books that I have put out over the last ten years. There five other small publishers: Michael Cormer of Insomniac Press who published PAUL'S STORY, a fictionalized account of Paul Bernardo, Don Larsen who puts out Cannabis Culture, a gloosy Vancouver pro pot magazine widely distributed in Canada, Ninja of the zine Infiltrator, Janine Fuller of Little Sister's Bookstore and Teresa Dulce, a stripper who puts out a small professional magazine for sex trade workers.
I was the most controversial and spoke last, a deliberate move by Tom Snyder who chaired the meeting. I counted just under 50 in the audience which was double the media reports. Three camera crews were there but left fairly early. They were only interested in obtaining video clips, not what was being said. The press had reported protests about me appearing on the panel and false statements that I was receiving a government grant were given headlines but there was no coverage of anything said at the meeting itself. Three people from the audience spoke against me. One man about my age in a track suit spoke of hate and how he and his buddies in the bar talked about knives, presumably to castrate me. A youth stating he was 19 said he couldn't imagine what it would have been like to have been photographed nude when he was eleven. I would likely have faced more protesters but that evening most of the regulars were at the Vancouver Public Library protesting the rightist Free Speech League meeting where Doug Collins and Doug Christie were speaking.
At the meeting Don Larsen said that the police sometimes seize his magazines from stores despite the ruling in IORFIDA which, because the Crown never appealed it, technically applies only in Ontario. While challenging seizures under s. 242.2 in other provinces would almost cerainly succeed in court, this would be very costly, and in effect allows the police to harrass his distributors. Similarly the decisions in my case applied only in B.C. until the Supreme Court ruled and people were convicted of possession in other provinces.
In mid October we received the Appellant's factum for the Supreme Court hearing and I discussed it with Peck and Nikos Harris. It is awkward working from decisions where you have to assume as proven things you know are false simply because some judge has accepted them as fact. A reporter for the gay press (Pink Triangle press) wanted access to the Crown's supplementary books which contained a selection of my photos. These were unrepresentative, badly photocopied and were among the least artistic except of course for the naughty one. I can say naughty because I know the circumstances of taking it and the conservation I had with the two boys at the time. I said to Peck that it would be better to let the reporter see all the original photos in the exhibit if he was going to be commenting on the exhibits in my case. I spoke to the reporter after and his article was reasonable. I read and made written comments on the various factums for myself and my counsel. There was little very interesting or new in any of them including our own. The Appeal Court was a preliminary skirmish. I was not optimistic. I speculated that there might be some changes and that I'd walk, but I was disappointed and disillusioned about the direction my case has taken since my lawyers' basic concession.
I was also very broke again, and had to cut back on my modest lifestyle staying home and drinking less. I suffered from lethargy for months until I was prescribed a medication to control it. And then a new friend gave me money for a ticket to Ottawa and I bought one immediately and over time other friends contributed more. I read, tried to relax and work on my book. Fortunately I do not celebrate Christmas or things would have been worse. My health was a problem but I was able to get down to Gastown for an hour or so to hear the Dayglo Abortions bring in the new millenium.