R. vs. Sharpe Personal Account

This book is about my child pornography charges under Canada’s broad and restrictive laws. It is written from the viewpoint of the defendant, the view from below. It is my perspective and interpretation of what happened, it incorporates my values and ideas and what I see the law meaning for broader social and legal questions.

PART ONE: INTRODUCTION

SWEARING AND PORN

I never saw any porn as a child but there was a girl in my grade two class who would pull down her panties for a nickel and let boys take a look. I only got a dime a week allowance which didn’t go far even then, and besides I knew it was bad and it made me feel virtuous not to take her up on the deal. However, I heard a lot of swearing from other boys which was also bad, sometimes very bad. I never swore despite being taunted to do so. The boys who did swear sometimes got nasty spankings at home and strapped in class. I was a good boy then, I was sure I was morally superior to other boys, and I never got spanked or strapped. However I could not see how words could be all that bad, certainly not as bad as a painful strapping which left little boys crying. The punishment seemed unjust, far in excess of the ancient "eye for an eye" rule which I was taught in Sunday school was something that good Christians rejected. Jesus was a hero. And when beginning about grade 3 boys returned to their seats after strappings with smirks on their faces and no tears in their eyes they became heroes too. However despite the schoolyard chant, "Sticks and stones may break my bones but words will never hurt me." swear words and obscenities seemed to have some magic quality. I thought they must be very powerful if adults beat kids for using them. I began thinking obscenities and swear words and mouthing them to myself silently. I admired those boys who had the courage to swear out loud although I don’t think I ever swore aloud until I was in junior high. It was liberating.

Adults were using beatings to send the message that swearing was wrong. My immature mind consistently failed to receive the intended message. The message I received was that adults were unfair and cruel. I saw punishment for swearing, my prototype of a "victimless crime", as revenge. It was beating someone for an insult or because you didn’t like what they say. I was a very scared kid and fear often guided my words and acts. I didn’t believe in hitting. I tried to be a pacifist. I even tried not fighting back but it didn’t work.

Forbidden words and challenging authority held a fascination for me as a child. I became clever with words and, as they say nowadays, I pushed envelopes. I was a smart alec albeit a cautious one. I would see how far I could go with teachers by deliberately but plausibly misinterpreting their words to make them look foolish or by asking them questions which I suspected they could not answer or which would lead them into contradictions. I was careful to do this in a seemingly naive way which made it difficult for teachers to do much about it in front of the class. Rarely did I get my comeuppance and it earned me some status amongst my peers. I had heard about dirty pictures but there was no Playboy or Penthouse then, just Vargas pin-up girls in scanty swimwear. It wasn’t until high school that I managed to look at my first real porn, a rather innocuous French postcard showing a naked lady standing beside a potted palm. By then my staunch moralistic outlook had been eroded by the exigencies of puberty, I was disappointed and felt sure they could do better. Then when I was in my early twenties a buddy on the green chain at the plywood plant let me read his smuggled Olympia Press editions of FANNY HILL and JUSTINE. I was thrilled and inspired to write my first letter to the editor which advocated public hangings and floggings of juvenile delinquents for the benefit of Victoria’s tourist trade. Today’s editors I’ve discovered do not appreciate gross satires. I became convinced that censorship was wrong and that people should never be punished for ideas and words. As I say in one of my books, "The taboo against swearing plants the seed of censorship in the mind of the child - Ain’t that fuckin’ right?" Kids should learn to swear, and learn when it is appropriate to do so. And kids should have access to porn so that it does not become mystified and the problems that leads to. It is no accident that many rapists and cruel child sex offenders had little exposure to porn as kids.

ZERO TOLERANCE

Zero tolerance embraces hysteria, caters to our most vindictive urges, turns lack of understanding of what is not to be tolerated into a virtue, rewards deception, conspiracy and cunning, and ultimately undermines law. Zero tolerance is the principle of inquisitions, pogroms, and officially sanctioned persecution.

I try to be a free thinker and think the unthinkable, question the unquestionable and have the courage to say what I believe. It’s not easy. I do not believe in taboos or absolute prohibitions. Taboos result in automatic, often involuntary reactions to certain words, ideas, symbols and objects. A century ago respectable women were expected to faint on hearing certain indecencies and no doubt some did. Some witch doctors perfected curse making to the point where the victim would die as a result. Blushing is a minor example of a physiological reaction to psychological stimulation. Creating taboos, making things unthinkable is what zero tolerance policies are about. Zero tolerance demands gut reactions and blind compliance not reasoned response. For kids it may be the "yucky" factor. Zero tolerance feeds superstition and hysteria. It means thinking with the blood not the brain. With zero tolerance there are no distinctions so you don’t have to think or use your judgement. For some that’s the nice thing about it.

I also believe in saying unsaid things, if only because no one else is. I was inspired in this in my youth by Colin Cameron, a CCF M.P. In a speech in the early 50s he said that if he in Parliament could support unpopular ideas, then any citizen was freer to support the same or similarly unpopular ideas. I try to use this principle as a poetic ethic but it sometimes offends others’ sensibilities. One should be free to say anything one might think. Censorship, self or otherwise, should be regarded as something to be challenged. One thing my case has done is to free me from constraints. Although I am a Canadian, and try to be a responsible citizen, I am not, or at least no longer, beholden to some community striving for respectability and all that implies for being honest and candid. My case has also given me the opportunity to speak out through this book and say things that no one else can outside of very limited and largely private audiences. And unlike academics and most others I don’t have to worry about rocking the boat because I’ve already been tossed overboard. Because of my situation I feel I have a responsibility to consider and defend the perspective of the pornographer and consumer, although I certainly don’t usually think of myself that way. It’s a valuable point of view but one seldom expressed. Who else in Canada could or dare? We are a reticent freedom fearing people. Pornography with willing participants records celebrations of sexuality. This is also why I chose to defend the generic pedophile rather than my own particular niche in the scheme of things.

I stumbled into the situation I’m in. I was careless. I am not a paranoid person but the lack of precaution has led me into the hell I have been through with the charges I face. A more paranoid or simply cautious person would have avoided all the trouble I have had to deal with. It is almost a truism that it’s the stupid offenders who get caught. I’m a case in point. Yet I have no strong regrets that I have lived my life as I have. I have lent money foolishly, I have extended trust unnecessarily, I have been ripped off many times, but to have been much more suspicious and cautious in my life would have denied me of some of the most satisfying and richest experiences of my life. The experience despite its stress and disappointments has given me satisfaction, confidence and wisdom.

CHILD PORN

I am repeatedly asked just where I stand on the question of child pornography. First I believe that pornography generally is a valuable form of expression for some people, including a growing number of women. The feminist focus on pornography has promoted the product amongst women and women have dominated the serious debate. So far the anti-male/sex feminists have been dominant, and boys are treated as little women - more victims. But there are pro-sex & porn feminists who love men, other women and sometimes "minors", who are exploring paths of empowerment and understanding. People, mainly males value their porn. The demands of modern life, prolonged education, both parents working, competitive stress and political correctness all favour more reliance on masturbation. Porn is about the right to masturbate, it helps inspire sexual fantasy. These fantasies serve needs that often cannot be met, or not appropriately obtained in reality. The other concerns about porn are fearful speculation. These speculations and theories however create a fearful context that is unhealthy. Pornography is not something that people should feel ashamed about.

As for depictions of children I see nothing wrong in photography that portrays the sexual nature of children and youth. I do not believe that the protection of children means denying their nature. They do however need protection from assaults on their integrity, the invasion of their privacy and the fury of the morally righteous. Respect, empathy and informed ethics rather than moral proscriptions should guide people’s behaviour. Protection of children should begin with the needs and capabilities of children. They need to be informed and empowered and protected from assaults. As with anyone else the surreptitious recording of children’s private acts and behaviour is an invasion of their privacy. Publication of material created as a private endeavour can be a devastating invasion of privacy. Exploiting children’s naiveté by recording them in situations that expose them to possible adverse consequences is fraud. These are all acts, and along with force and coercion they are clearly criminal and warrant prosecution. In terms of what is defined as pornography, privacy is a major consideration. The problem that many people have with defending the privacy of others is that, unavoidably, they must defend it without regard to or even knowledge of the content of that privacy. Privacy is indivisible. Unlike defending freedom of expression it is not possible to defend some content but not other. As with adults the privacy of children may also contain things they want kept private. And privacy, including keeping secrets if they want to, is as important for them and their integrity as anyone else. In terms of expression in some situations this can apply to both the photographer and the subject or model. Boy soldiers showing off their Kalashniknovs and boys showing off their erections have something in common. Both may be proud and want their picture taken. With boys not supposed to be either violent or sexual, many question the appropriateness of depictions of them displaying either guns or penises. Do we judge the boys? Under what conditions do we judge the photographer?

The use that a person may make of something they possess should only be of public interest when it leads to or threatens assaults on others. Unless there are real concerns specific to a particular case I support no legislative restrictions on what porn or other expressive material that people can possess and share privately with others. This possession is not an act and I would include recreational drugs, hate propaganda and whatever else may interest people. This is a question of privacy and conscience. All such prohibitions deny or limit people’s opportunity for self identity, self expression and self exploration. They are attempts at thought control at a very intimate level backed by the immense resources of the criminal justice system. This is quite different from advertizing, evangelizing, and state and corporate propaganda which also try to direct our thinking. While the intended purpose of prohibiting possession is to prevent "undesirable" behaviour and results, the connections are speculative and often at odds with reality as measured. In terms of pornography any prohibitions should be limited to making and distributing material that involves coercion or abuse in its production which in many cases would arguably depict a crime in itself. An extreme but rare example of child pornography would be the Bernardo tapes. However, prohibitions should include any photographic depictions of invasive or clearly age inappropriate sexual activity or which involve assaults on a person’s privacy.

THE PRICE OF LAWS

People tend to think that the law is cost free beyond the costs of enforcement which is seen as saving money in the long run. They fail to understand that the more people that are criminalized the more crime you will have. We tend to think that the high number of young, especially Black Americans in jail is a result of high crime rates. The opposite is more likely to be true. When prison and other correctional procedures become part of common experiences of many youth communities, just like high school is for others, people attitudes change and crime is normalized. Most late adolescent and adult crime is spawned by the criminal justice system. The massive and lengthy incarceration of young American men, and to lesser extent Canadians, will have an enormous impact down the road. In some American urban areas at any time over half the young Black males are under some form of legal duress; awaiting trial, often in custody, in jail, on supervised release or probation. Many go through what we call inhuman experiences. The scale of their involvement far exceeds that of the Viet Nam War and the impact on American values and culture is likely to be no less. While it may inspire a few brilliant novels here and there it will mainly augment a resentful and growing underclass.

In Canada if we were to look into it objectively we would find that a significant proportion of our lower welfare class, the people discouraged from any energetic participation in the economy are there as a result of our drug law enforcement. The actual drugs may not have helped these people but the disruption to personal lives, families and jobs inflicted on them through charges, trials, incarceration, stigmatization, criminal records and travel restrictions have done more harm in the long run. The underground economy, illicit activities and the squalor of welfare existence become more attractive. It may be all very "just" in the sense that Thomas Jefferson has been described as a "just slave owner". Only the inflation fighting, family wrecking monetary policies of the Bank of Canada have done more to bolster our underclass. This is becoming recognized. While I do not believe that the numbers are substantial yet, ill considered, not just poorly drafted, child sex and pornography laws can easily can ruin many lives unnecessarily and drive men to the margins of society. Stigmatization is likely to be particularly acute. In the United States the correctional population of various sex offenders is becoming an important contribution to the criminal justice industry.

SEXUAL ATTRACTION TO YOUTH

I prefer the term pederasty for cultural and historical reasons. There is also the term ephebophilia which refers to an attraction towards boys who have entered puberty. While it is a more precise term it is not widely used or understood. I also accept and use the term boylove which is favoured by many pederasts or boylovers. The term pedophilia, originally a clinical term referring to an attraction to prepubescent children of either sex, has become debased and pejorative through popular usage. It is often used as a synonym for child molesters, although this usage is incorrect on two counts in that pedophiles may not engage in sex with children and most people who do are not in fact pedophiles. In the popular media pedophilia may refer to any adult/minor sexual activity particularly if boys are involved. The term’s use is awkward to avoid however and I use it frequently. Sexual attraction to boys is distinct from what is called homosexuality although it often overlaps with it. The current "gay" type of homosexuality is often an inverse type of heterosexuality in that it mimics the latter.

The attraction to boys or boylove is a sexual orientation which has traditionally been accommodated in most cultures. It has seldom been an exclusive or formalized category. Extensive ethnographic and historical evidence substantiate this. For example in much of the Muslim world man/boy affairs are tolerated while man/man or "gay" relationships are strongly condemned. Rape, whether of boys or women, as everywhere else is culturally proscribed. Yet today in Canada which prides itself on tolerance, boylovers are not afforded the legal protection provided for other sexual orientations and various other minorities. Boylovers may be called criminals, child molesters, perverts and worse and they have no recourse. They cannot openly defend themselves in public. Simply promoting their ideas and theories supportive of their interests became a crime under the written material provisions of Canada’s child pornography laws. Boylovers are victims of popular prejudice fed by the police, media, government and activist groups. Boylove is not a recognized sexual orientation and very few think it should be.

Psychiatric theory, the media and the courts insist on viewing all man/boy relationships as exploitive with the man in the position of power and the boy as a helpless innocent victim. According to legal and therapeutic theories all adult/child sexual activity is based on the father/daughter incest model. All relationships are forced into a predator/victim paradigm. Theory rather than reality defines harm. Where a man is in a position of authority over the boy this is frequently true and can be harmful. Naively and ignorance on the part of the boy can make things worse. One man I met through my case related the story of when he was in a Catholic boarding school. He was not abused by the priests but some were. The other boys had a good idea of what was happening as they were sexually active among themselves. They were jealous of the boys who were invited to the priests’ rooms because they received more attention and affection and were assigned easier chores. Favouritism is another problem where men abuse their authority over boys.

Most boys who become sexually involved with men outside of the family and custodial institutions are not naive. A review of the major child pornography trials tends to confirm this. Boys have and often use their considerable negotiating powers. Typically in man/boy relationships the sex happens early on, often on the initial encounter. The affection, trust, generosity, meeting parents, helping with education etc. come later. Sex, or the possibility of sex is the boy’s bait to get the man interested in him and his welfare. Most boys seldom allow men to take sex for granted, partly for reasons of pride and partly because of the power and control it gives them. Sex empowers them. Liaisons with men provides boys with alternatives to uncongenial and often abusive families or dependency upon uncaring official care providers. For marginalized boys sex, and the men who like boys, enable youths to survive and often prosper as the men provide useful social connections and job opportunities not usually available to boys of their humble backgrounds. The broad appeal of youth, including their sexuality to many men can be seen, in a Darwinian sense, as an evolutionary adaptation that contributes to the nurture and survival of humanity and its culture. The "benefactor" in Horatio Alger’s stories is a literary example.

It is my belief that the often powerful attraction that many men have for boys is as natural and constructive an orientation as heterosexuality and homosexuality. It serves the survival and nurture of the young, the stability of society and the enrichment of culture. (Much less is known about the sexually charged relationships between women and girls and they are capable of speaking for themselves ) All three (or four) sexual orientations contribute to the survival and welfare of the human race and are part of Nature’s or God’s plan. I outlined my basic understanding of the role of boylove in my poem God’s Plan [PIPS, Politically Incorrect Poems & Songs]. Many men feel an attraction to adolescent and younger boys. This is often a very intense and powerful feeling. This attraction, this love including its sexual component, serves the nurture, socialization and education of youth. As in other relationships among unrelated individuals sex is a glue which helps bind them. Traditionally boylovers have provided a safety net for boys without resources. The boys may be roamers, street/mall kids and disaffected youth usually lacking skills and direction. The sexual component should be seen positively. A man can satisfy much of a boy’s curiosity about sex and perhaps some his needs, and hopefully teach him a few things as well. Males don’t have sex because they love someone, but are likely to love those they have sex with. With the decline in employment opportunities and apprenticeship for young people boys who feel they cannot live at home, and are unwilling to turn to institutions which claim to serve their needs, have few fewer options than in the past. They may find the material and psychological support they require in a relationship with an older male.

AGEISM

To a great extent the boylove response of men is age triggered as I am sure nature intended. It makes sense. Many, probably most boy or youth lovers are attracted to boys within a certain age range with little sexual interest in those much older or younger. Those who are attracted to prepubertal children are true pedophiles although the term has come to be used loosely and applied to men who like teenage boys although frequently not to men who like young girls. Others, technically ephebophiles, prefer adolescent boys capable of greater sexual response. Many boylovers prefer boys at the peak of their sex drive in their mid teens. Various theories attempt to explain age preferences or what is often called the age of attraction. For some men an attraction to boys is not incompatible with an attraction to women and successful marriages. In some cases "boys" may include young men up to thirty. Age differences between partners, common in heterosexual affairs may be even more pronounced in same sex relationships. As in all relationships with a sexual component personality is a critical factor. Just as straight men are not attracted to all women so boylovers are not attracted to all boys. Man/boy relationships like others usually involve shared non sexual interests with the sexual component usually more important for the man than the boy. Boylovers are frequently criticized for the fact that they often lose interest in the boy when he reaches a certain level of maturity. This is true and some men are cruel when they terminate relationships. However it is also true that many relationships originally based on sexual attraction evolve into long term friendships. This limited age range for sexual attraction is a good thing for boys as they develop rapidly and go through stages with changing interests. It serves to protect boys from long term involvements which may be inappropriate for their development. It would not be healthy if the man in the relationship were to cling to a boy indefinitely. A promiscuous ethic rather than a monogamous one protects each partner from burdensome commitments. Typically boys become more interested in girls in their late teens and they are more likely to end sexual relationships than the man. There is a parallel in mother love. The intense preoccupation and maternal gratification many women experience with infants and young children change as the child grows up. The early kind of love ceases to be appropriate at later stages and we are aware of the kinds of problems children may suffer if this doesn’t happen.

Unfortunately many boylovers are sick men, suffering from paranoia, neuroses, feelings of guilt, depression, alcoholism, drug dependency and low self esteem. These are typical afflictions of those who feel they are persecuted. Suicide is not uncommon just as it is in minorities when persecution erupts, as amongst the Jews in Nazi Germany. Such men are often prone to poor judgement and may become emotionally burdensome for the boys they associate with. The strong, frequently hysterical condemnation and heavy legal sanctions they face contributes to this situation and most dangerously can cause men fearing exposure to panic. The difficulties boylovers face in communicating with each other and providing mutual support increase the risk. They may become moral isolates. On the positive side in recent years a number of forums, chat sites and support groups have developed on the Internet. They provide a moral and ethical context. The community they provide to isolated men may substantially reduce their criminal behaviour. How else can we explain the exponential increase in the availability of child pornography without any corresponding increase in sex abuse. The logical alternative is that access to child pornography does not increase harm. If we accept that child pornography may increase risks then why can we not accept that in some cases it reduces risks? Is it not a question of which is greater if we are concerned about it inciting men? Would being caught between righteous beliefs of right and wrong, and genuine protection for real children, be the ultimate dilemma?

PEDOPHOBIA

The pedophobia, the moral panic/outrage espoused by police and activist groups and directed against boylovers, victimizes boys too. The worst cases are where boys involved are made to see themselves as victims, often subject to therapy they neither want nor need. Where boys are pressured and crack, or get conned by the seductive arguments of police and therapists, they may feel they’ve betrayed others, including other boys. Their self esteem, and values of loyalty and honour are threatened. This can be far more damaging to them psychologically than any harm they may have suffered from sex with men. It is a denial of their moral autonomy. Sometimes boys freak out, occasionally they commit suicide or try. The proverbial pedo will of course be blamed. The harm of exposure extends to boys who were around but not involved sexually but likely knew what was going on. They too may be questioned and embarrassed in front of peers and family. The police want to have strong cases. Where strong mutual attachments were part of the relationship the boy may feel somehow responsible and become depressed. Harsh consequences for the man may aggravate this situation. Occasionally there are reports of boys committing suicide or attempting it after a relationship is exposed. Almost everyone will automatically blame it on the abuse the poor boy suffered at the hands of the man. The more sophisticated common sense understanding of a few decades ago has succumbed to the shrill propaganda of clinicians and so called activists. Former informal solutions emphasizing the needs of the child involved have been superseded by offender centred laws and policies. Children suffer from society’s zeal to blame and punish offenders. This harm can be aggravated by the idea that harsh penalties brings closure. This can only make sense where the presumed victim feels truly victimized and revenge is seen as therapeutic. This is not to deny that in the past some serious offenders were able to escape the consequences of their behaviour and offend again.

Moral panic measures do work in some ways. The timid of all varieties can indulge in noble hypocrisies and maintain their liberal standing. Men become scared and more cautious, and have less sexual contact with boys, assuming that’s what severe penalties are supposed to do. Scenes are probably more covert, contact more furtive, with less public socialization. Men are also less likely to come on to boys because they fear that boys are more likely to be freaked out during the current moral panic. To that extent, which is all some people seem to care about, the laws work. On the other hand, if having sex with a man was seen by boys as merely naughty, rather than a moral outrage as heavy penalties imply, boys wouldn’t be forced to take any such contact so seriously with the danger of traumatization. There is a trade-off. Moral outrage with fewer boys involved sexually with men but with more damaging consequences likely for the them, especially if the police and courts get involved. Or, more boys involved with generally lesser risks and consequences. The nature of man/boy relationships vary as widely as any others, and like others they may be abusive. Those involving mutual respect and affection are much less likely to come to attention of authorities.

A great deal of pedophobia is based on the theory that man/boy sex will turn boys gay, something many ignorant parents fear. This fear is not only misplaced but dangerous. Parental fears have been implicated in boys’ suicides. At a more common level a few years ago I knew a 17 year old boy who told me his father had worried that he was gay. When he was twelve he was sent to an Edmonton clinic for testosterone hormone therapy in an attempt to make him more masculine and cure him. With his long thick sideburns, a result of the therapy, he was never asked for ID at the gay bar where I would see him with his older lover. Unfortunately sexual orientation is seen as a choice, especially by those in proselytizing churches, similar to the choices involved in what church you attend or what political party you support. Gays are seen as proselytizing youth to recruit them into their lifestyle. Believers in doctrine see their "enemies" as doctrinaire.

THE COST OF PEDOPHOBIA

Pedophobia is rampant in society. Much of the antagonism formerly directed towards gay men generally, now socially and politically inappropriate, has been refocused on youth lovers. This explains why the emphasis in both moral propaganda and law enforcement is directed principally at man/boy relationships rather than man/girl relationships which are probably far more common. Only in the matters of incest and underage prostitution is there much attention paid to relationships involving young girls.

This pedophobia has substantial social costs. It has chilled all non family relations between men and boys. Not just ordinary social relationships but others such as volunteer work and coaching are likely to attract suspicion. It discourages men from working with boys and youths. Men who still pursue these avocations are likely to curtail any informal socialization which leads to less satisfying experiences for both men and boys. Organizations like Big Brothers are unable to find enough volunteers and we see big ads in bus shelters of cute sad boys pleading for an older buddy. The ads themselves which show a man sympathetically regarding a prepubescent boy are enough to scare men off. The proportion of men teaching children especially in the primary and elementary grades is declining leaving children with few male role models. Men are becoming afraid of any physical contact with children, including their own. Studies have shown that a lack of close physical contact with caregivers in childhood correlates with later violent behaviour. An interesting brief item in the press [Globe and Mail July 28th, 1999] reported that "In Britain Scout groups are closing at the rate of four a week, even though an estimated 80,000 boys are waiting to join... The problem is a shortage of adult volunteers." A Scout spokesperson is quoted as saying, "If a man says I want to work with young boys, people jump to one conclusion. This is an issue we are trying to overcome." This is a price of pedophobia. A Vancouver doctor, Dr. Gordon Neufield, wrote an interesting article [VANCOUVER SUN June 2, 1997] where he claims that kids have become "peer oriented" to the exclusion of parents, teachers and adults. He says this correlates with juvenile delinquency and behaviour problems. While he sees it as a recent baby boomer phenomena; absent parent, impersonal day care and TV, the recent increase in pedophobia could also be a factor. He mentions the decline in bonding with teachers and points to the movie, Dead Poets Society, a very positive portrayal of student/teacher bonding.

Pedophobia is helping to create a new generation gap based not on differing values as in the 1960s but on fear. There is very good reason for men to fear and that includes all men who deal with boys at a personal level. Reduced socialization impedes the transfer of values, knowledge and common sense between generations. Elders have less of a moderating influence on the behaviour of the young. This makes for less continuity in society and fewer inhibitions against extreme, often violent, behaviour. Is this one reason for the perceived increase in the viciousness of youth violence? It would be interesting to know how well the boys involved in the recent series of school shootings were integrated socially with non related adults. It may be that incidents like these are more a consequence of pedophobia than any violence in the media. Greater intermingling of youths and adults make for a more stable society. Problems also occur where generation gaps have resulted from aggressive public schooling programs which raise literacy and expectations. In Sinhalese Sri Lanka this contributed to a bloody youth revolt which only ended with the systematic slaughter of tens of thousands of teenagers and young men by the government in 1988-89. (The ongoing murderous ethnic conflict between the independence minded Tamils and the Sinhalese majority which has caught world attention is a separate question.) Familiarity also allows people to see those in other generations as individuals. It reduces the need for both kids and adults to "objectify" each other, sexually or otherwise. Socialization also encourages the development of intimate relations which may also be affectionate and/or sexual. Is this a real problem?

Invasive background checks, mandatory reporting laws and codes of conduct are no more likely to deter potential molesters than other candidates. They offer false security at the expense of the welfare of both men and boys. Advocates and social commentators are fond of using the "If only one child..." argument which neglects the costs of such postures and ignores the sordid history of the child saving movement over the last two centuries whenever it has stepped beyond child perceived abuse. The cost of pedophobia for society as a whole is enormous. It profoundly affects a wide range of intergenerational activities. But what are the benefits? We speak of protecting children and youths but where are the benefits?

It isn’t only men desiring sexual contact with boys that suffer, all must be careful to avoid mere suspicions which can impair the quality and satisfaction of their relationships. And all men are potentially vulnerable and open to rip offs and blackmail by kids who threaten to accuse them of improper behaviour. Similarly all boys become open to the stigmatization of suspicion by their peers and others if they have established a close relationship with a man. Even being associated with a man charged with sex crime involving children can cause adult imaginations to run wild. When William Bennest the Burnaby school principal was arrested on child pornography charges a team of trauma counsellors was dispatched to the school. This may have assuaged parental concerns but did it help the children? The kids perhaps wisely provided them with little employment. How many students at the school were subject to suspicion even assuming it is true that none were sexually involved with him? The police stated there was no evidence that he had.

Pedophobia is divisive. In addition some men with normal heterosexual interests, who’ve never previously thought about it, may become sexually involved with a boy. The erotic appeal of boys extends far beyond those who could in any way be described as youth lovers. The history of boys in art attests to this. This attractiveness is also in a Darwinian sense part of their survival assets. It compensates boys for their lack of knowledge, skills and brawn and gives them perhaps the only advantage and negotiating power they have. Those men open to or seeking sex with boys may be either responsible or irresponsible, ethical or unethical in pursuing their interests. One exceedingly promiscuous Australian boylover recorded affairs with over 2000 different adolescent boys. Hundreds of contacts are not all that uncommon. While the sex may not have been always welcome it is difficult to believe that all these boys were deterred from reporting their "abuse" because of fear. Perhaps it was a sense of responsibility and honour? Or maybe the sex was no big deal for them? Shouldn’t that be the case? Repression, I believe, leads to preoccupation. My own teens would have happier if I hadn’t been thinking about sex so much, but I had no one to even talk about it.

Acute pedophobia where the pedo is demonized and what he does made seem horrendous hurts kids. When a counsellor emphasizes to the child that it is not his fault, that he or she is not to blame, implying that someone is, she is also reinforcing the seriousness of whatever happened. "Nobody has the right to touch you where ever." The placement of a child in therapy is demeaning, to do it routinely, as a matter of procedure especially by a professional who is protecting herself from possible accusations that she failed to act appropriately in some situations is irresponsible. As long as responsibility is defined in relation to bureaucratic procedures rather than the welfare of the child, painful situations are bound to arise. It is the conceit of the system that it has a monopoly on good intentions and truth, and that any fundamental critics are opposed to its objectives. The protection of children is held to justify unprecedented limits on freedom of expression and invasions of privacy. The only beneficiaries of pedophobia are therapists and youth services who find the market for their services expanded.

Pedophobia is only one of several youth alienating influences young people face. Anti-racist, anti-sexist, anti-drug and anti-violence propaganda, and the political correctness craze are other examples. They should dropped from school curricula with material exploring the meaning of consideration, courtesy, fair play and fighting, and the fundamentals of law, logic and reasoning substituted in their place.

We say children are "innocent" but can adults be "innocent"? And what is it anyway if it doesn’t just mean ignorance? Society seems to go through an endless series of hysterias and moral panics. With modern organizational and propaganda techniques, many subsidized and legitimized by well meaning governments these panics are likely to get worse. The current panic about kids and sex started in the 1970s but go they go back at least two centuries to the invention of the anti-masturbation craze that crippled untold thousands of young people.

While this book is about my case it is also about the moral crusade against child pornography. Given the strong emotions and vested interests the subject of child pornography and the "pedophile" are, as others have pointed out, are difficult to discuss rationally even at an academic level. Objective considerations are overridden by fears. It is often a question of who makes a claim, not what is claimed, or what the claim implies about what the claim implies for other things. Increasingly people are led to distrust their own experience and judgement and defer to experts. The experts are often stakeholders in certain selfish interests and beliefs. This has led to a mania of trying to correct problems by a continuous stream of new laws. Legislation and indoctrination are seen as the fix. Old concerns are reinterpreted so that existing laws which may cover the situation are ignored. Crises are manufactured or exploited for political ends.

Common law evolved to deal with real problems. While church law, and state protection law may have been concerned with what people thought, criminal law generally dealt with actions which harmed people’s physical security, integrity or property. Offences clearly related to harm that victims experienced. Under the influence of psychiatrists, therapists, moralists and self serving bureaucrats including the police, conjectural and thought crimes have proliferated, and as these cannot be empirically validated there is no limit on what can be prohibited.

 

PART TWO: GETTING WET

DOUBLY STUPID - MY FIRST BUST

I arrived in a chilly April Amsterdam from tropical Sri Lanka and soon had a miserable cold. I was almost broke and stayed at a cheap hostel where I could prepare my own food. It took over a week to find a budget ticket to Vancouver (via SeaTac) and to borrow the money to pay for it. In the meantime I explored the free sights of the city especially the Centrum old town and the bookstores.

I could easily have discarded the disk copies of my BOYABUSE stories that I had not got around to giving away as I had planned. While the blanks had only cost me about a dollar each my frugality and the inconvenience of getting more made up led me to keep them. I knew the stories were very likely illegal according to Canadian child pornography laws but I wasn't worried. I was more concerned about ten photos of two nude blond boys in their late teens, gay lovers at the time, hugging, kissing and hamming it up for the camera. I hardly considered them porn but figured any non artistic nudity could be dangerous. These I slipped into one of my many folders of tourist photos. I also had various longhand notes on foolscap; journals, impressions and rudimentary essays and stories I had worked on.

I should make it clear that I was incredibly stupid. Not only did I not discard the disks and photos but there were minute but detectable traces of some fine Amsterdam marijuana in a pocket of a carry bag. When a sniffer dog at SeaTac International Airport became frisky I was taken aside and while U.S. Customs was not concerned about the pot they went through my luggage meticulously discovering the ten photos, the disks and various notes. I was profoundly fearful and felt about an inch high. After I was held for a couple of hours they surprisingly returned everything except the film taken from my cameras and I was released. Even more stupidly I again did not discard the photos and disks which were of little value to me. The notes, the only things of real value to me, I could have mailed to addresses in Vancouver. 'If only' haunted me for weeks. But I was so relieved to be free, deluding myself that my material was not of real interest to the authorities, and impaired with a bad cold which is no real excuse, that I simply caught a Greyhound bus to Vancouver. If stupidity were a capital offence I should be dead.

Possession of this material was not illegal under U.S. law and U.S. Customs viewing me as a Canadian problem had simply contacted their Canadian counterparts who were waiting for me at the Douglas Border Crossing. Canada Customs went through my luggage and found what they were looking for. The disgusted expression on the face of the Customs officer reading the longhand notes for some of my bizarre stories brought home to me the moral outrage attached to child pornography. I faced the horrible stigma of being labelled a child pornographer. I was the lowest of the low. An RCMP Officer, Constable MacDonald took me to the Surrey station. I was processed but not questioned, in fact I never was. I was released very early next morning with a promise to appear in Surrey Court.

RETAINING LARRY MYERS

I was scared and knew I needed a lawyer, a good one. Aside from having paid a hundred dollar consultation fee when I was fired from my teaching job I had never dealt with lawyers. The child pornography law was still new having been proclaimed less than two years earlier. I was vaguely aware of the criticisms that had been made of the laws at the time they were enacted. One knowledgeable acquaintance opined that the law was probably vulnerable to a constitutional challenge. I was referred to Larry Myers a fairly well known and respected criminal lawyer. Mr. Myers greatly impressed me on first meeting. He can be charming. His build and feisty attitude struck me as very similar to that of Tommy Douglas, one of the few politicians I have admired. He described himself as a libertarian and a defender of free expression. To drive home his point he said he was opposed to Canada's anti-hate legislation even though he himself was a Jew. He was also handling another child pornography case so he was familiar with the new law. He said we'd be like a team. What more could I hope for? a gutsy, libertarian Jew with experience in kiddieporn cases. I felt I could place my trust in him. Other people I spoke to thought highly of him, the only sour note came from a female acquaintance who knows some legal secretaries. It was not what she said that made me wary but the way she said it: "Larry Myers wants to be a judge."

From the beginning I suggested to Mr. Myers the possibility of a constitutional challenge. He seemed to consider the idea. I attended a couple of cursory court appearances on my own out in Surrey and a date for a further appearance where I expected charges to be laid was set for July 18th, 1995. This was however set aside and Mr. Myers told me I wouldn't have to attend. I confirmed this myself with a call to the courthouse. In themonths after my bust which was not reported in the media life was normal, I did some carpentry work for people I knew, I went to my pub, I wrote some poetry and thought about my case. I did not have much contact with my lawyer and nothing seemed to be happening. I did not know at the time that this delay was because the police investigation was being turned over to Detective Noreen Wolff of CLEU, the Co-ordinated Law Enforcement Unit and head of the Vancouver kiddieporn squad. She married soon after becoming Noreen Waters. In this book I generally use the name she had at the time of the incidents mentioned. I tend to think of her as the Wolflady as she is sometimes referred to by her colleagues. She plays a major role in this book. She had crusaded vigorously for the new child pornography laws especially the prohibition of written materials. It may have been because of the large amount writing involved that she wanted to take over my case.

EARLY REACTIONS AND QUALMS

I had to think over my moral and ethical positions. I was charged with what was widely perceived as a heinous crime. Why this was so I attributed to the general irrational hysteria about kids and sex in our society. Certainly pornography could be part of the abuse of young naive children especially if deceit or coercion were involved. Pictures of children being abused are disturbing, but pictures of playful adolescents?Were my writings a threat to children, adolescent boys in this case? I know most people would find the tales shocking, disgusting and highly offensive but would anyone tempted to act out harmfully as a result of misinterpreting my BOYABUSE stories? I certainly did not think so although I am aware that works of great moral authority such as the BIBLE have had that unfortunate effect. I thought about it, I reread and analyzed my writing as disinterestedly as I could. I wrote a synopsis of each story which I passed on to Larry Myers. I wrote a statement about my writing where I tried to be completely candid and also passed it on. The stories contain much that would be considered obscene and abusive but they were my stories and I felt they had literary merit. I was most interested in getting back my correspondence, my address books and the hundreds of tourist photos I had taken which I could not see as relevant to the case. My lawyer's advice was to not bother the prosecution, "to let sleeping dogs lie".

I feel that for most of my life deference to convention, opinion and people around me have stifled my creative abilities and what I can contribute to society. I believe that moralizing, and greed are the source of all evil and that righteousness kills more surely than speed. The dark side of religions, ideologies and cultures is the enforcement of moral assumptions. The body counts amassed by Christianity, imperialism, Communism, all of them founded on moral precepts are appalling. The legacy of suffering left by Hitler and Stalin pale beside that of Moses.

MY MARIJUANA GROW OPERATION

Lawyers are expensive. Myers got $2500 up front mostly contributed by friends but I could see that the case would cost me tens of thousands of dollars, sums well beyond the resources of my friends and myself. There was no way I could earn that with my hands doing handyman and renovation work and besides I had health problems. Every time I did more than a couple of days labour my carpal tunnel syndrome would return and either my neck or my knees or both would be affected by osteoarthritis. I also have emphysema from forty years smoking and although I didn't find out until later I have hepatitis C,probably from blood transfusions when I had cancer in the early 1970s and I am diabetic. I simply cannot do any hard physical work for any length of time, I collapse if I do. I had however had some experience helping set up indoor marijuana growing operations and taking care of them. This seemed ideal. I have always regarded growing and dealing in marijuana as an honest and honourable, if not technically legal vocation. Satisfying people's real needs directly I believe is superior to attempting the same in some convoluted government or corporate bureaucracy. Do taxpayers or shareholders really want all the costly hype the public is subjected to? I also had fond memories of my first time back in the early 70s when with others I grew fifteen pounds of leaf that would be unmarketable today. My apartment is a compact 450 square feet. I acquired two mother plants of an outdoor strain and set up a cloning operation in my 25 square foot bedroom closet. It cost me well over two thousand to set it up and a lot of labour. I set up three tiers of trays under fluorescent lights for the clones. I invested in a small 250 watt metal halide light for the mother plants but I had hopes of making over ten thousand dollars when the crop was harvested in the fall, enough to keep my lawyer happy I hoped.

I do not, and have never had much respect for what I see as stupid, malicious or capricious laws. Laws must earn respect. One of my perverse childhood delights was consuming margarine when it was banned in Canada. Someone had smuggled it across the border. Another one affecting me was a change in the City of Victoria's rooming house by-law circa 1950 when regulations prohibiting wash basins in housekeepingrooms was abruptly changed to require them. It was however our drug laws, their counterproductivity and the social devastation they wreak, that in the late 1960s convinced me that the political/legislative system is capable of making monstrous and absurd laws, typically passed without substantial debate. In 1967 I lobbied parliamentarians against making LSD illegal and in 1969 I made a lengthy submission to the LeDain Commission advocating the legalization of so called recreational drugs. For many years I always carried in my wallet, "possessed", one illegal drug or another as a matter of principle. The child pornography laws struck me as not deserving of support or automatic compliance. People who obey laws unquestioningly are the heralds of tyranny.

I also do not have much respect for politicians. When I was young I was politically idealistic and active. I was attracted to the romance of the Winnipeg General Strike, the Depression era struggles in Western Canada and the early CCF. My final disillusionment with party politics came in the late 1960s as friends and neighbours in Kitsilano started falling victim to the narcs. I tried to explain to my political friends what the drug laws were doing but most didn't seem to understand what I was talking about, it wasn't a political issue for them. The few politicians I have known were probably a cut above the average and prospered without corruption that I know of. Politicians have less freedom of expression than practically anyone else in Canada, it doesn't mix well with power. Probably their desire to express independent or unpopular ideas is minimal anyway. They are happily prisoners of public opinion increasingly represented by the media, party discipline and commitments to special interests. My view of politicians is more in line with Dan Piraro's 1995 Bizarro cartoon showing two old timers in their rocking chairs where one says:"Any person who is willing to go through what it takes to get elected is clearly UNFIT to hold office."

It is because of the constraints of party loyalty andre-election that our worst laws, like our drug laws tend to get enacted unanimously with no real debate. Members of Parliament are not free, or do not feel they are to express themselves candidly on non controversial but morally charged topics. One parliamentarian as much as admitted it during what was supposedly a debate on the child pornography bill.

I had to think about it. I was accused of a crime held to be among the most repugnant imaginable. I had no doubt that many if not most people believed I had robbed children of childhood and murdered their souls. The innocence of children would be reflected in my guilt. But then I realized I had done nothing to be ashamed of. I am not claiming any great rectitude but I have remained connected with the scenes of my past and I am confident of the estimation of those who've known me including many I met long ago in their teens. If I had been confronted by an honest victim I doubt if I would have fought.

COMPLACENCY

Very little happened for about a year and I assumed that maybe they weren't going to bother with me. I became complacent. After all the ten photos of the two blond boys did not depict any explicit sex or even arousal and theywere arguably over eighteen at the time. Both were still friends and we joked about all the trouble their pictures had caused. They regretted that they would probably never see them. And my writing, for the most part BOYABUSE: Flogging, Fun and Fortitude - A collection of Kiddiekink Classics, a series of erotic boy stories that I had written with no commercial market in mind might have been thought too literary. When I was detained by US Customs they removed the film from my two cameras. They contained tourist pictures and I wanted them back. I twice wrote to US Customs asking for them but got no reply. However they informed the police here that one roll was blank and the other had mostly scenic shots. (I only found out after the trial.)

Back in the early 80s a seventeen year old hustler had been my roommate for several weeks until he wanted his girl friend to move in too. They both hooked on the same leafy corner in the West End of Vancouver. He wanted some pictures of himself and I took a few roles of him in my apartment and at Wreck Beach in various arty and comic nude poses and made up two albums, one for him and one for myself. After I started travelling I lost contact with him but about a dozen years later through a mutual acquaintance I found out he wanted copies of his pictures as he had lost the album I made for him. I agreed to make up copies for him and took out of storage the suitcase containing all my nude photography which I had not seen for several years. I have never purchased or collected child pornography but I valued the nude boy pictures, mostly young Filipinos that I had taken over the years. Boys in their natural state are the most beautiful of God's creatures. Only a very few of these pictures could be considered clearly pornographic and these were only taken at the boy's insistence. My seized collection is proof of this. The suitcase was on top of the dresser in my bedroom. I also had a few bound hardcopies of my BOYABUSE stories and other stories including some I had submitted for publication to gay magazines on my bookshelves. At this point disaster struck.

THE SECOND BUST

It was on May 13th, 1996 at 7:55AM according to the police REPORT TO CROWN COUNSEL that Detective Noreen Waters accompanied by Sergeant Smith and Constable Hynes knocked insistently at my door. I was asleep. I grabbed a T-shirt to cover my nakedness and unsuspectingly answered the door. It was the police! They had come to arrest me. Once I had opened the door a few a few inches to speak to them the police pushed their way in and started milling around my living room. I was in a quandary. If I had been dressed I could have said, "Let's go." but I wasn't. I was concerned about my cloning operation which they would discover if they came into the bedroom where my clothes were. I managed to put on some clothes and was unsure if the light in the closet was noticed. Detective Noreen Waters whom I had never met or heard of previously told me that my writings were, "the sickest stuff I've ever read."

I was handcuffed and taken outside. A paddy wagon arrived and I was taken to 222 Main Street, booked, fingerprinted and placed in lockup with a few others. My glasses were taken from me (I might cut myself by breaking the lenses) but we were allowed nothing to read anyway. The only entertainment was a Granville Mall preacher roaming the corridor who railed on about salvation. I was released on recognizance about 5:PM with a promise to appear later. When I got back to my apartment the police were still there going through my possessions and taking photographs. I was not allowed in and spent the night at a friend's.

When I returned next day my bedroom was a shambles, things dumped everywhere. The dresser whose lower drawer had contained the ballast for the grow light looked as if it had been violently picked up and tossed on the bed chipping it and gouging the wall behind. My clothes were strewn about. My computer, monitor and keyboard were gone, the latter two suggesting either ignorance or maliciousness. Only the old dot matrix printer remained. All my power bars and extension cords had been cut into short lengths to prevent reuse. The grow equipment was either gone or smashed. My library had been culled of anything that might relate to adolescent sexuality including books by Sir Richard Burton, the Nineteenth Century explorer, Stan Persky's BUDDIES and Dennis Pilon's poetry. They somehow missed a copy of GAYME, a glossy American gay magazine that is on Canada Custom's Index. Twenty large albums of my social and travel photography appeared undisturbed. If they had examined them thoroughly they would have found a few a few pictures of a naked infant gathering firewood at a wilderness beach and playing with his mother, and a nude teenage boy standing demurely in a forest pool as in a Maxwell Parrish painting. I was thankful for that. A friend came over to help me clean up the mess.

After each of my arrests an INFORMATION or REPORT TO CROWN COUNSEL was prepared by the police. I did not see a copy of the REPORT TO CROWN COUNSEL relating to my first bust until after my second bust. It was dated a week before, May 7, 1996. If I had known about it I would have probably taken a few simple precautions. The last dated document, August 10th, 1995, in this INFORMATION is a letter sent to Detective Wolff by Dr. Jean Hlady of the Child Protection Service Unit of the B.C. Children's Hospital which was nine months earlier. Aside from the minutiae of events, often recorded to the exact minute, the documents were reviews of the materials seized from me at the border. Of the three boys in the nude photos it was Dr. Hlady's expert opinion that at least two were under eighteen. Based to a large extent on pubic hair they were placed in Tanner Stage-3, which has a normal range of from 12.5 to 17 years. The writing was reviewed by Detective Wolff who also commented on my notes and correspondence, Marc Everitt of the Film Classification Branch and Mary-Louise McCausland, Director of Film Classification (and censorship) for the province. They concluded that the stories advocated sex with persons under eighteen. Mary-Louise Causland states it most clearly, (page 33) "These stories convey, through a sense of the narrator's satisfaction, that the sexually violent acts being carried out both against the children and by the children are pleasurable, satisfying and beneficial for all involved. It is this theme, and the fact that the abuse of children is presented in all three cases (Timothy and the Terrorist, The Rites at Port Dar Lan: Part One & Tijuana Whip Fight) as being non traumatic, that led me to determine that these works of fiction counsel adult sex with children and are therefore child pornography as defined by Section 163.1 of the Criminal Code." That lack of trauma in fiction may define it as pornography suggests that a graphic depiction of violent rape might not be pornography while a loving encounter would. This determination is not far fetched and is backed Judge McComb's decision in the well known LANGER case. McClausland claimed that the stories she reviewed were "the cruellest pieces of writing I have ever read." None of the reviewers could see any artistic merit.

The second REPORT TO CROWN COUNSEL which I received in late July is more complex. It describes the details of my arrest and the subsequent search warrants. A fairly detailed but poorly organized analysis of my correspondence, musings and scraps of writing is included. In particular the letters I exchanged with the late Edward Brongersma were examined. Even a letter I had sent to my lawyer was discussed. I thought this was a breach of lawyer/client confidence but Myers didn't think anything of it. A large collection of seized newspaper clippings was listed and each article described. This is considered "collateral material".Quotations from my letters, both sent and received were used extensively and repetitiously. The purpose was to show that I had circulated and discussed my writings and offered them to people who might be interested in bizarre boy erotica. That and the multiple copies of BOYABUSE, mostly on disks, was to be the basis of their possession for the purpose of distribution charges. Another purpose I suspect from the selections they quote from my letters and musings in the Report was to present me as an extremely perverse and potentially dangerous pedophile. Fictional excerpts were assumed to be diaries and humour and irony are ignored or taken seriously. Even the material that Detective Waters said she reviewed over six months shows a profound lack of a basic comprehension of what she read.

One novella I wrote is a litany of abuse. THE MOON EYED BEGGAR'S TALE is the story of a Filipino boy Jun, whose family is driven from their hamlet as part of a counterinsurgency campaign and put in a concentration camp where half of the children including his two younger sisters die as well as his mother, a boy who is horribly disfigured and blinded in one eye while stealing food in the camp, a boy who is dumped by his relatives in a downtown Manila park and told not to return home and who finds a place for himself on the street, scavenging and begging. He and other boys including some prostitutes who hang around a particular plaza are beaten and robbed by the police and exploited by cynical child savers. It is a litany of non sexual abuse. There is also some sex when Jun and another barely pubescent boy masturbate together while sniffing solvent. Jun envies the boy hustlers who make lots of money but his one opportunity to emulate them fails. Detective Wolff described the novella only in terms of sex.

AFTERMATH

After my second bust my charges became public knowledge and Ihad to make a couple of court appearances. My lawyer, Larry Myers was anxious to avoid publicity and changed court times and dates, anything to keep the volume down. On one occasion TV crews went down to the Main Street courthouse to catch the newsworthy significance of a brief appearance. On the late news that night I saw clips of the disappointed camera crews filming each other at my no show with voiceover decrying sneaky tricks of lawyers and proclaiming the public's right to know. The media complained about this infringement of their freedom of expression to Attorney General, Ujjal Donsanjh who expressed concern that justice be seen to be done. I appreciated Myers' efforts although I knew it was only a temporary reprieve. After my second bust I feared being evicted from my apartment. In my worried state of mind the fact that I had presented no grounds for evictions was irrelevant. Everyday I checked the list for messages and parcels by the elevators for my suite number. At the end of the month I expected a termination notice. Nothing, I was so relieved. But it was a while before I again began feeling secure. The management has been very reasonable and even supportive.

My second bust affected me worse than the first. How can I, "a nice guy" I feel, describe how I felt? There was the horror and the weight of being publicly despised, the stupidity and sickening lamenting of all the "only ifs", the embarrassment of friends and perhaps the perceived endangerment of some. The Thing as I called it became a preoccupation, a worry and a source of insomnia. Ego fantasies were stimulated by the "need" to explain myself. I wallowed and composed speeches for imaginary and unreal audiences and courtrooms. The Thing however was exciting and gave meaning to my life in poignant ways. A corny saying I used to use, "If I can't be famous, I'll settle for notorious." haunted me as self fulfilling. I later wrote a poem about it called Notoriety. The emasculation of my intellectual life, my WordPerfect world of ideas, poems, stories, essays and correspondence that sustained me for hours a day left me feeling empty. I felt naked knowing that much of my private life was being scrutinized by prying, zealous police officers imagining the worse and seeking to expand their case. I wanted to be outraged. I had to master the Thing.

It was around this time that I was interviewed by a person peripheral to both the gay and art scenes who may have had some exotic skeleton in his closet. It was in June just when I had made public my decision to fight for my writing at least. I had known and respected him for a few years. He was interested in my case and well informed and I began turning towards him for support. He provided me with some interesting ideas, articles and web sites to look at. With a friend of his he made a long video interview where he asked many hard questions. It lasted over two hours and at least two beers each. I answered questions, discussed some of my feelings, recited a story from BOYABUSE and spouted off my ideas about my case. It was challenging and fun, uninhibited recollections as we emptied our bottles. He originally planned to do a series, maybe three as the case progressed and there new things to talk about. I was enormously encouraged. But as several months went by and things had changed it was never time yet. It was some time before I pushed him about it, already having my suspicions, that he told me he didn't want to do any more interviews. He was feeling the chill; he probably had friends trying to give him good personal and business advice. I was toxic. And I was bitterly disappointed, I felt abandoned by the person I could talk to most intimately about my case. But that was the last time I let myself get hurt. After that I accepted the loss and drifting away of even close friends as a cost of what I was doing. I found myself outside the gay literary circle that I hadn't got too far into in the first place. Some of them may have read BOYABUSE and found it too corrosive for their stomachs. I only missed a couple of them. Yet I could see that I didn't need to lose these people. If I had quietly pled guilty at the start things would have returned to normal fairly soon. Naughty pictures and writing indeed! It was pleading not guilty, and attracting attention that was the problem. Some of them had boasted of fifteen year old boyfriends, but They were gay. I respect that. I would get realpolitik advice like this: "They're not going to let you get away with it. You'll end up with a heavier sentence if you raise a stink." If it were known that enough people think that way it would be so. Such faith in cynicism. Some old friends became closer and I met new people because of my case. My social life remained rich.

I wanted my writing back, that was my priority and I made this very clear to Larry Myers. I felt I had to be loyal to my writing. I did not want to repudiate my writing by pleading guilty to the written material charges. He kept talking about keeping me out of jail which I told him wasn't my priority. I was already labelled as some sort of monstrous pervert in the media and my fickle friends, mostly the "gay community" types were starting to drift away. But prison was a fearsome prospect, I would not be arriving as some sort of hero like a bank robber or a cop killer. I read Roger Caron's GO BOY and Gregory Bell's BIRDSONG, two fascinating accounts of Canadian prison life by inmates. I have known a few ex-cons and am aware of the despised status and dangers that so called diddlers face in jail. I was also aware that plea bargaining and demonstrations of remorse, for what in my case I was not sure, was no guarantee of leniency. The early Gramlick and Jewell cases where two men videoed consenting adolescent stroll boys in hot action and received maximum sentences were evidence of this. My honour and self respect were more important than whatever consequences I might face in jail including coercive therapy based on junk science. I did not worry so much about the photos, very few of which were clearly pornographic. I was quite prepared to have a jury look at them and compare them to the fare used by the police in their anti-kiddieporn promotion work.

THE WILLIAM BENNEST CASE

Around this time the William Bennest case erupted. Bennest was a popular Burnaby elementary school principal involved in the gay scene who liked adolescent boys. For his own private enjoyment he videoed young hustlers from the stroll. While it was never suggested that he had sex with any of the school's pupils he was very fond of one twelve year old student and took "fashion" videos of him wearing clothes he purchased for him. A hustler he had known for a few years who may also have helped procure other boys went to the police. One story is that he was concerned because Bennest wanted ever younger boys, another is that he was jealous. The media, public and parents were outraged that such a man should be associating with young children and he had to go into hiding to avoid harassment. I saw him on television news dashing from a car into the courthouse with a jacket pulled over his face. It was a powerful image and I swore that I would never behave in such a self degrading way. I had some idea how he felt and wanted to offer him support. I wrote him twice and talked to him on the phone. However he seemed a beaten man and only wanted to get things over with and start a new life. Perhaps because of his contributions to the Gay Pride Parade and other community activities he received some editorial support from XTRA West, the Vancouver gay newspaper. He avoided jail but lost his career and savings.

POT CHARGES , EMP AND COMMUNITY SERVICE

As a result of the raid I was charged with possession for the purposes and cultivation of marijuana. It was nothing to be ashamed of. I decided to plead guilty as I wanted to get the matter out of the way and there was no other practical option. Larry Myers arranged a deal whereby I was sentenced to thirty days and seventy five community service hours. I was satisfied with this. Later I discovered that making surprise, delayed arrests was a standard police practice in pornography cases in order to gain additional evidence. I wondered if my lawyer should have known this and warned me but he may simply have been unaware.

I only spend a day and a half in the Vancouver Remand Centre, enough to get a glimpse of the tedious, regimented life of jail before being placed on EMP, the Electronic Monitoring Program. A black box was attached to my telephone and I had to wear a bracelet around an ankle which I was told would sound an alarm at the EMP headquarters downtown if I went more than a certain unspecified distance from my telephone. Initially I was only allowed out of my apartment for two hours a day, from 10 to 12:AM for shopping and other necessary purposes. I could have visitors but was not allowed to drink or do drugs which was no problem. The lack of exercise was my main frustration which I overcame by taking long walks on my shopping excursions and rearranging furniture to make a pacing route the length of my apartment. They made two unannounced visits to my place to check up on me. On the second occasion they accused me of being absent at a time when I was supposed to be home but later decided their equipment must have been faulty. Towards the end I arranged four hours a day work doing maintenance and repairs at a friend's rooming house and could be absent for six hours a day. After twenty days I was released from EMP.

I did my community service hours at an East Cordova Street drop in centre where I encountered some of the least fortunate people in Vancouver. Having personally known many people with serious drug, alcohol, family and mental problems I found the atmosphere almost congenial. I liked the guy who ran the place and gladly did minor repairs, mopped floors and cleared tables. Other "workers" including one who drove a luxury car found being part of a free labour supply not of their own choosing more difficult.I had read somewhere that under Stalin they consciously used the judicial system to replenish the gulags and I wondered if community service sentencing was linked to the labour needs of the various agencies. However from my own experience and that of others it seems you're lucky if you can keep yourself busy.

After my second bust I began providing Larry Myers with all the material I had or could find that I thought might be helpful. I made up a synopsis of my BOYABUSE and other stories to help him understand them. I also began asking him questions about the law and how it was applied in different situations. By early June I had firmly made up my mind to plead not guilty. I could not repudiate my writings which a guilty plea would imply. I told Myers so in clear terms. I became interested in the Eli Langer case and considered an "artistic merit" defence. But who could I get to testify that BOYABUSE was great writing, certainly no one with a literary reputation, or even without. I indulged in fanciful arguments pointing out irony and wit. I resolved to accept whatever penalties that would come my way. I was told by an ex-inmate that a certain regional jail had a good woodworking shop where I could my hobby of furniture making.

Myers was most concerned about my photos, these would damn me he claimed. I made up and gave him a list to the best of my recall of the nude photographs seized. He never indicated that he had taken the trouble to actually look at them which he could have easily arranged and I doubt if he ever did. I didn't get much in the way of answers but he assured me things were going well. I kept insisting that he try to get back the written material that I was not being charged with. I read the child pornography clipping file at the VPL and came across a case where non pornographic videos were ordered seized and destroyed. Latter I would find that in the theory that Dr. Collins espoused they were "collateral materials". Myers still held that the other material would be returned if it wasn't pornographic.

AMBUSHED AT MY DOOR

Around that time a woman knocked at my door and introduced herself as Suzette Meyers of UTV, now Global TV. As I watch very little television I did not recognize her. She asked if she could interview me and I declined explaining that I did not yet know what charges I faced and suggested she contact me after my appearance the coming Thursday. She thanked me and left. I didn't think much of it at the time, I didn't even wonder why she hadn't phoned first. Later in mid October I received a phone call from a Gerald Higgins who said he had seen me on television the day before and had taped most of the program. UTV News Anchorperson Suzette Meyers was hosting a three day special on child pornography with me as a central figure. I was flabbergasted. I had been surreptitiously videoed at my door with a hidden camera. The request for an interview had simply been a ruse to get some clips of me that they could edit for use in the special. Higgins offered to get me a copy if I paid for it, I agreed to.

Soon afterward a friend phoned me with the same information and said he would tape the subsequent episodes of the three day special. I appeared variously edited in all three segments which were shown at least twice a day on UTV including the family news hour and rebroadcast on CHEK TV and other affiliates. In the first segment of the special they show my well known landmark building, Ms. Myers walking down the corridor, a close up of the number on my apartment door so viewers could be absolutely certain of my exact address, and a brief clip of me at the door. By the angle, the hidden camera would have been the sports bag she carried.

Suzette Meyers warns her viewers that they may see material that is not suitable for even older children and which may be "extremely difficult for most adults." We are told that this is the first time that the Vancouver Police have made their collection available on TV. This is so the public knows "what child pornography really is". Detective Waters, described only as an undercover officer and with her face never clearly depicted, shows Suzette Meyers and the camera photographs from the police kiddieporn collection. Meyers bravely confides she saw the collection before the yellow Hasti-Note tabs were placed over the genitals. What we are to see is not mine but they suggest it gives you the idea. Detective Waters points to pictures of prepubescent girls being urinated by unidentifiable males. While the children's' genitals were covered with little skirt like tabs their faces were not, and anyone knowing some of the children would recognize them. The pictures she claims were only downloaded from the Internet recently so the images could be recent. I do not think Detective Waters saw the pictures as images of real children but only as examples of child pornography, an evil. As porn you protect the public's sense of decency by covering the genitals, not the children's privacy by covering their faces. At the voir dire she mistakenly insisted the opposite, that the faces not the genitals of the girls were covered. So much for protecting children! On the first day of the special I am placed next to a segment on the sordid Belgian child murders much in the news at the time. Another time I am implicitly linked to someone else's porn. Detective Waters introduces her favourite piece of alleged kiddieporn, the comic "BOILED ANGEL" involving cartoons of non human creatures doing gross things by Florida zine artist Mike Diana. A friend whose seen it tells me it's satire. I later found that this comic is part of her standard child pornography presentation that she has given many times. Anchorperson Meyers added her shocked moral slant to the detectives presentation. The two women talked about a case where porn was sent through the mails and Waters brought out a large envelope with a 1972 postmark, 24 years old. The three day special was anti-porn propaganda disguised as investigative journalism.

I was irate over the program, it had caused my family pain. I took the tapes to Larry Myers who had an associate view them. He didn't think I had a case for suing the producers. Needless to say Ms. Meyers did not seek an interview after the charges were made known but she did win a prestigious award for her journalism that year. My resolve to fight the charges became stronger. I also received a "sick puppy" phone call, the first of several abusive calls. There was however no mention of my case in the press.

Gerald Higgins told me he had been convicted of possessing child pornography a year earlier. The charges related to North American Boy Love Association, NAMBLA, publications he subscribed to which are legal and easily available in the United States. He was caught in a sting operation and claimed that his mail was opened and his phone tapped for several months. His arresting officer was also Detective Waters whom he referred to as General Wolf. He regretted not having fought the charges. He felt his lawyer, a Mr. Hughs who caters to a gay clientele, could have done more. However, being a professional who deals with the public he was anxious to avoid publicity and his case was successfully kept out of the papers. He received two years probation.

Some of my gay friends and acquaintances panicked after the UTV special hiding or destroying the most innocuous pictures and purging their computer hard drives. At their request I purged references to them although the police had their names among the hundred or so in my computer address file. As a precaution I had kept the list diluted with dozens of people I hardly knew. I felt they were being overly paranoid but I didn't argue. Little Sisters Bookstore took my poetry books and MANILAMANIC journals off their shelves to avoid harassment by the media and the police. Several people told me, "Don't use your phone to contact me, use a pay phone if you have to." As it cost me a quarter I began to think of them as my "two bit" friends. And if I can't use my own phone to contact someone, I'm not likely to call them casually and friendships wither. Paranoia was rampant. While privately almost everybody was sympathetic and supportive I no longer felt welcome at places and events I normally attended. I was becoming a pariah.

SENTENCING DECISIONS

Larry Myers lent me a copy of the SENTENCING BOOK OF AUTHORITIES file his firm had put together for the Richard West case. This book gave the reasons and decisions of the sentencing judges in seven child pornography cases in Canada up to that time. They gave me a fascinating and often frightening insight into the thinking of judges. I was shocked by the profound social ignorance combined with moral zeal that I found in some decisions. I suspect that in giving me this material to read Myers hoped that I would see what I was up against and be persuaded to go along with his plan for me to plead guilty and make some sort of deal. The men had all pled guilty and some got harsh sentences. What would they do to someone who showed no sign of remorse and who not only pleads not guilty but wants to fight the law. I don't know if that was what, if anything was intended but it seemed a reasonable conclusion to draw. Plea bargaining seemed to the only thing Myers was eager to discuss. The sentencing book had the opposite effect. I was morally outraged by what I read and became more determined than ever to fight our pernicious child pornography laws.

R. v. GRAMLICK AND JEWELL and the Reconstruction of Reality

The only case I want to discuss in any depth are the related cases of Gary Arthur Gramlick and Edward Thomas Jewell. See the sentencing decisions in Appendix "XX". It was the first big child pornography case beginning less than two months after the law was proclaimed on August 1st, 1993. I remember reading about it in the press at the time and later being morally outraged at the severity of the sentences, 10 and 15 years. These cases were at the centre of the widely publicized "London Kiddieporn Ring" scandal in southern Ontario which led to dozens of arrests and 45 guilty pleas when the city's street kid hustling scene was exposed after enormous police pressure. Despite it being called a kiddieporn ring Gramlick and Jewell were the only men who were charged with pornography. The only evident ring was the boy hustlers.

The two men who were friends were charged with making videos of adolescent and older boys engaged in sex with each other and sometimes with men. Most of the boys in the videos were known to hustle. According to all accounts there was no violence and all sexual activity depicted was consensual. The videos came to the attention of the police when a young fisherman inadvertently recovered a number of these amateur videos from a river where Gramlick had tried to dispose of them. The fisherman's mother contacted the local Ontario Provincial Police detachment in Lucan who were not interested. However the City of London police led by their ambitious Chief Julian Fantino were. The police took stills from the videos and after showing them around to social workers, teachers and other kids and with the help of one seventeen year old in particular they were able to identify twenty of the twenty three boys appearing in the videos. Jewell, who also had an old conviction for sex with boys, and other men appeared in some of the fifty seven sex videos. He and Gramlick were soon arrested and charged under the new laws prohibiting the making and possession of child pornography. Through the pictures and leads they helped produce the police were able to question hundreds of men boys and men about things the law defines as sexual assault. Gay men felt that they were being unfairly targeted. It became a major scandal. Gramlick and Jewell both made early guilty pleas and were in custody with no application for bail from the time of their arrests until sentencing almost four months later. Jewell anyway seems a bit of a sleaze in that he used a hidden camera to record various sexual activities. This was a violation of trust and the fundamental concept of consent. He exposed these boys to unforeseeable consequences that they had no chance to consider beforehand as actually happened when the videos fell into the hands of the police. Jewell also showed adult pornographic videos to the boys presumably to arouse as well as entertain them.

Both men co-operated with the police by helping to identify the boys in the videos. The court in both cases considered this betrayal of their young friends as a mitigating factor. The fact that they were both in custody continuously, probably scared and at least feeling they were under duress may explain this less than honourable behaviour. As a personal comment I would say that if I had to spend an extended time in jail that I too would have probably pled guilty. And I certainly wouldn't be writing this book.

The Videos

Neither the prosecutor nor the judge actually viewed the offending videos probably as a result of the eagerness of the defence to avoid additional publicity. Although there was no violence and the activity depicted was consensual some homicide detectives who did view the videos of the boys masturbating and having sex described it as the worst experience of their lives, it was morally disgusting and made them sick to their stomachs. Presumably they found them worse than murder. Given that almost all boys masturbate and many engage in sex this judgement seems curious at least. I wonder how they would react to viewing the Bernardo-Homolka sex torture videos? I suspect that there was an element of advocacy in their opinions. The head of the sexual abuse unit at the London Children's Aid Society Maureen Reid, who probably didn't view them either, felt that the videos were abusive because the children being under eighteen could not consent and because it did not fit in with how they saw sexuality. "I mean, young children, when we see them in sexual ways, it really is counter to how we view children." This may make sense with prepubertal children, young children, but horny adolescent boys? She also felt that it was abusive because it was coerced and non-consensual because of differences in age. This assumption that age differences create an insurmountable power differential in sexual matters is perhaps the principal pillar of contemporary, feminist influenced clinical and psychiatric theories about adolescent sexuality. Ms. Reid saw the boys' activities as a breeding ground for future sex offenders and was worried that few of the children were receiving therapy in which she expressed faith.

The Boys

In her decision Judge Deborah Livingstone described the boys involved as "street smart", having "little or no supervision or guidance at home, particularly from adult males." (presumably fatherless). Some were "mentally challenged" and "None has a stable or comfortable home environment." Their families were described elsewhere as dysfunctional. "All boys, therefore, were acutely vulnerable to exploitation and predatory behaviour." We usually think of streetsmart as meaning that boys are aware and better able to deal with situations they encounter, in other words as less vulnerable than others who may be ignorant, "innocent" or naive. The judge's use of vulnerable in the context implicitly accepts a social work perspective of the boys as disadvantaged and therefore weak and needy. The boys must be seen as victims of the men and it is the duty of the court to impose this construction of reality on all involved. According to her vulnerability is not a question of a particular person in a particular context but their potential willingness to engage in illicit sexual acts which may be a question of personal values. It is unlikely that the boys in question saw themselves as vulnerable and they certainly didn't see themselves as victims. This was a big problem for the authorities and their theory. The boys may have welcomed the mens' interest in them and were open to the propositions made by the defendants. They are old enough to say "no". It is not a question of the accused preying on vulnerable boys. The situation as described Livingstone herself sounds like a much more mutual relationship. To a great extent the boys most likely to be involved with men such as the defendant are those least likely to be harmed by the association because it represented little new to them and they probably already rejected many of society's norms. The fact that boys from stable comfortable families are less likely to become involved in the street hustling scene is not because they are less vulnerable but because of the greater opportunities they have.

The court unquestioningly accepted the social construction of reality provided by the experts which probably agreed with its own perceptions. The boys involved were street kids. By street kids I mean boys and girls who do not have stable homes and who spend much of their time on the street and who use street connections for social and material purposes. Through operating a group home for troubled teenagers with my wife at the time, through having teenage foster sons, through my everyday life and my interest in boys I have known literally dozens of street kids over the last thirty years. I have also known and known of boy centred scenes similar to those that were maintained by the accused. Some more predatory men create elaborate "chicken traps" with things like video games, pinball machines, pool tables, fancy entertainment centres, hot tubs and saunas to attract boys. Some boys have complained to me and warned their friends that after porn, pot and booze they would wake up with the host fellating them. Other men I have heard ofhave yachts and take teenage boys on cruises up Howe Sound and Indian Arm and ply them with liquor and cocaine. This is irresponsible and highly unethical behaviour.

But these are not typical situations, most are more like the accused in this case without the videos. Street kids and other adolescent boys who have little adult male support, and who often have no homes where they can chill out with their friends, frequently end up associating with gay men and youth lovers. Few others would accept them as regular visitors. Think about it, who else would? Are straight men or families going to allow unrelated adolescents to hang around their home? They are a handful to say the least. About the only other people who might accept them are those engaged in certain criminal activities where juveniles can be of practical use to them. Many if not most of these boys have been involved with the law or children's services. Many have been through sexually charged custodial institutions. Facilities provided for street kids like drop in centres offer limited group privacy for socialization and some have added motives such as evangelizing. Boys are more likely to feel comfortable in the home of a youth lover where they can be themselves and express themselves freely. The boys may be offered snacks and drinks, and possibly drugs, or they may be grateful for a place where they can smoke their own. The homes of youth lovers often become hangouts and they may become privy to the boys' thoughts and affairs that parents and social workers know nothing about. Some men function as ad hoc social workers themselves or try to find jobs for their young friends.

Street boys often develop a circuit of youth lovers that they visit. They may meet new people and often go to sport events, concerts and on camping trips and other excursions with their adult friends. The sexual interests of the man is usually clear from the start as reputations get around. Peers monitor and moderate their own affairs. Some boys may get involved in sexual liaisons with the man, perhaps several men, but other boys may not. Strong, asymmetrical but mutually satisfying affairs are happen. Lovers' quarrels provide drama and entertainment. Sex is inevitably to some extent currency, but it is not prostitution given the complex relationships that develop. Courts as in this case often choose not to make the distinction. If you entertain a woman and have sex with her does that make her a prostitute?

Street kids have their own way of looking at things and usually have little desire to reform as it is put to them. Street life is a phase for most and they go on to more ordinary lives. Just as they take what they need and want from the agencies serving them and generally reject the rest so they tend to do the same with the men they meet. Rip-offs are frequent and the men are not in a goodposition to complain. That boys willingly turn to such men is in large part a reflection on the failure of families and the social welfare system to meet their perceived needs. And it is the failure of youth services which both inspires and justifies their crusade against the "pedos" who they believe lure away their kids.

The London Porn Ring "snarl" as someone called it was unique in that the boys involved were extensively interviewed at the time. Joseph Couture, a London journalist gained their confidence and taped many hours of interviews and conversations with the boys and a few parents. These were part of a series of investigative reports produced by Max Allen on CBC Radio's IDEAS program entitled the "Trials of London" which covered the huge police crackdown that flowed from the discovery of Gramlick's and Jewell's videos. He interviewed child welfare officials, lawyers and other men charged. Several boys, all of them eager to tell their side, were heard from. They talked openly about themselves and what went on and provide insight into their scenes including those of the accused. One boy talks about how he was thrown out of home when his parents found out he was gay. The boys had sex with each other but then one might get a girl friend and stop. As for the men what they experienced was not abuse, they emphatically did not see themselves as victims and those who did testify against the men felt they were manipulated and did it under pressure. Their greatest fear was that their parents, peers and classmates would find out which explains some of their co-operation with the police. Max Allen describes the boys: "almost all were sexually active teenagers having sex for fun and profit." He says, "They found, usually with each other's help, gay men who would give them money and clothes, and sometimes a place to stay." It seems very straightforward although some people may disapprove. Allen raises an interesting point when he suggests that we take the boys at face value and asks, "If so, how much force can be applied (to change them)?"

Victims & Therapy

The ostensible intent of our child pornography laws is the protection of children. Child pornography is considered a heinous crime and the children who participate in it are seen as victims. The popular image of child pornography promoted by child advocates and police activists is one of little children forced to engage in sex, where the abuse is obvious from the depiction. The little girls being urinated on that Detective Waters showed the viewers on Suzette Meyers' program is a good example. Few would dispute that such pornography is repugnant or that the children were victimized. However under the law depictions of the rape of seven year olds is equivalent to those of the consensual acts of seventeen year olds. In GRAMLICK and JEWELL two questions arise: Were the boys children in terms of their sexual capacity, desire and sense of autonomy? and were the boys victims of the men in any sense meaningful to themselves? The boys did not think so. Social workers were "distressed" because the boys did not see themselves as victims and comply with their theories. One boy on the Couture tapes criticized this thinking from his own values, "And you can't be a victim unless you're forced into something." I have already mentioned the remarks of Maureen Reid, the head of the sexual abuse unit. Then there are the comments of Alan Leschied, director of Young Offender Services for the London Family Court Clinic who described the boys thus: "We see them as victims; they see themselves as perhaps nurtured and cared for in a way that's perhaps better than they've experienced prior to this." Boys cannot speak for themselves, their claim to autonomy is denied; the reality constructed in court by witnesses and experts, and judge's preconceptions permits no deviation from the role of victim. The question of being victimized seems more an ideological struggle than anything to do with protecting children, or at least adolescent boys. In the physical sciences if valid data does not conform to theory then the theory is questioned. If this happens in the world of psychiatric/social work theories it seems that the data is blamed. It was the reluctance of the boys to see themselves as victims that caused much of their problems.

If the Gramlick and Jewell cases were about protecting children as defined by law then the actions of the police and social services appear in stark contrast to this aim. While the police did not want to arrest boys as that would contradict the line that they were victims that did not stop them from threatening to do so in order to get their co-operation. Nor did it stop them or the social welfare officials from victimizing the boys far beyond anything they experienced with the men. Exposure to the approbation and homophobia of the community was the boys greatest fear and the police used this to their advantage. Telling the parents was an effective threat and the police often told them anyway on the pretext of getting the boys help. The boys were manipulated; they were told they needed they had to see psychiatrists, that they needed therapy. They were told that for being victims of "paid sex" they might get up to $25,000 under the Ontario's Criminal Injuries Compensation Act. One boy complained to Couture that he talked with a family services counsellor who told him that what he said was confidential. Later the counsellor reveals his confidences in court. When he angrily complained to her she told him she was compelled by the court, something she knew was very likely from the beginning. This calculated use of betrayal is of course quite legal and may in fact be required under mandatory reporting laws intended to protect children. As a victim a person has no honour and deserves no respect.

Boys pressured, tricked and bribed into therapy, informing on peers and testifying against their adult friends, are robbed of something more precious than any postulated innocence. They are robbed of their sense of honour and loyalty, their self respect and integrity. This is profoundly more abusive and destructive of self worth than anything boys are likely to experience in bed with men. Honour and loyalty however are not psychiatric terms, they are not in the lexicon of social workers and do not adapt themselves to victimological theories. Police, social workers and therapists who see the betrayal of old associates as the first step to recovery wreak havoc on young lives. If boys break down or kill themselves there's usually some handy "pervert" to blame. Some end up like Winston Smith in the Chestnut Tree Café at the conclusion of 1984. It may well be that some officials see man/boy sex as such an unmitigated evil that any means, any deceit, any betrayal becomes justified.

Therapy is both promise and punishment and is used as both bribe and threat. One boy interviewed had already been subjected to four years of therapy for sex play with a peer at age nine and was anxious to avoid more. Some may need and benefit from it but for dissenters it can be cruel. A few may gain more insights about the therapy itself than themselves.

The matter of payment is another is another aggravating factor. Judge Livingstone castigating Gramlick speaks of "The lure of quick cash, cigarettes, and other enticements made the activities you requested 'just a business transaction' to use the words of one of the boys..." The boys "were victimized by being paid with cash and other enticements". This additional victimization is a dubious assumption from the perspective of the boys. Perhaps the boy she quoted above was simply being candid, but even if he wasn't he may well have chosen to answer that way particularly to state authorities. That answer would help counter any suggestion that he was gay, if that was a concern of his. If he did have some affection for the accused, regarding him as "a kind friend", this being an aggravating factor in the words of Judge Livingstone, then it was also his best answer. Most likely the boys saw the men as useful and generous friends, had sex with them anyway, and for extra payment performed in videos. From both the decision and media accounts I subsequently read and heard, the boys were more interested in defending the accused than condemning them.

The London social service officials also displayed contempt for the boys by submitting unwelcome Victim Impact Information statements on their behalf. Not only were they designated as victims involuntarily but they were not allowed to speak for themselves. As the IDEAS program tapes demonstrate some of the boys were quite articulate. They were denied the opportunity to describe how their defined abuse had affected them. To me, denying kids or anyone the right, call it freedom of expression, to speak for themselves in court of law is a profound violation of civil liberties. It may be disguised as protection. It is the moral equivalent of falsifying confessions. It demonstrates the lengths that officials will go to enforce their perceptions of reality on the courts, which eagerly accepted it in these cases. Livingstone said, "The victim impact information provided suggests continuing, perhaps lifelong, trauma." There was no evidence aside from the theoretical fabrications of experts. And anyway, if they were traumatized what evidence is there that the men, not the boys' families, not the environment and abuse in group homes and correctional facilities were responsible. Do we expect youth lovers to be held responsible for all the sins of those who may have previously may have abused or mistreated the boys? Like anyone else boys will tend to move from a more abusive situation to a lesser one.

The Men

After their arrests the men were co-operative. The moral outrage in the community, hyped by the police, media and social welfare system, may partly explain why they did not apply for bail and remained in custody. They were probably a lot more scared than the boys. Like the boys they revealed too much to the police and counsellors for their own good, and also like the boys they probably believed in the idea of professional confidentiality. Gramlick did not help himself, he was weak and stupid. He blabbed, he foolishly revealed some his sexual fantasies. This was a mistake given the current judicial acceptance of clinical psychiatric theory as the judge's words later show. Gramlick said he was raped as a child which reinforced the prosecution's reasoning. For desperate defendants being abused as a child is replacing being drunk at the time as a generic rationalisation of many offences.

Sentencing

Given the facts and the law it was clear that Gramlick and Jewell were guilty, and they so pled. In sentencing the accused the judge has to consider a number of principles and factors. The judge states that, "a denunciatory sentence that reflects society's revulsion" is required. It would appear that the absence of the victims' revulsion makes the offence more heinous. It may be interpreted as evidence of the offender's control over the victims and his deviousness, thereby making the crime worse. Mitigating factors are those that would indicate a lesser sentence while aggravating factors suggest a more severe sentence. It is revealing how Judge Livingstone viewed these. In Gramlick's case the only mitigating factors she mentions are; that no violence or threats of violence were involved, that he pled guilty at an early stage, that he had been in custody since his arrest and that he had co-operated with the police in identifying the boys. This passive response didn't seem to help him very much if at all. I wonder if these "victims" would agree with the latter? I see it as a betrayal of the boys although they probably could have been identified anyway.

The aggravating factors she lists include; the fact that making the videos was a deliberate and planned activity that continued over a number of years and involved twelve young men, that his age and generosity led many of his victims to regard him as a kind friend possibly putting him in a position of authority, that he knew some of the boys' families and was aware of their financial, academic and social difficulties and that he had fantasies where he "raped these boys mentally". If as stated the activities took place over a number of years and with the same boys it should not be surprising that some boys regarded the accused as a friend. In the common male pattern of "sex first - love later" friendship and affection frequently follow sexual contact. Sex bonds people. This makes the judge's claim that the relationships were totally or primarily exploitive seem improbable. As for generosity in Jewell's case it hardly seems that treating some boys to expensive entertainment such as the trip to Disneyworld in Florida was a payment necessary for him to pursue his interest in sex with boys and making videos. Rather it would seem to demonstrate the depth of his non sexual involvement with boys, and perhaps his own weakness in resisting their appeals. It is difficult to see how the fact that Gramlick knew the boys' families and was aware of their difficulties was an aggravating factor. This argument would only have relevance if it were shown that Gramlick got to know the boys' families and problems in order to make sex videos of (or have sex with) the boys. But if the defendant's concern for the needs and problems of the boys arose out of the sex related activities or parallel with them then I would think it should be a mitigating factor. If a man also has real affection for a boy is that aggravating? As for fantasies, are people responsible for what they imagine? Judge Livingstone also suggests that because the boys were "vulnerable" that this is an aggravating factor, but really, would the offence be less serious if the boys were from comfortable stable families? I doubt it. I would think the more experienced and willing, perhaps even eager the boys, the more mitigating the situation. The valid argument that a person's prior sexual history is not a mitigating factor in rape does not apply in consensual or willingly undertaken sex. I have seen first hand the anguish that a prostitute went through after she was raped. But the boys in this case were hardly raped. The abolition of the legal term rape means that everything from unwanted sexual comments toviolent physically injurious rapes become merely varying forms of sexual assault. While this may have pleased the sensibilities of certain feminists it obscures the reality of situations.

The judge goes out of her way to twist every possible aspect of the relationships into an aggravating factor to condemn the defendants. Even the defendants' intelligence and maturity is considered as aggravating. Every gesture of a friendly, generous or solicitous nature towards the boys' welfare and concerns is interpreted as a part a devious scheme solely directed at satisfying their lusts. Judge Livingstone's words sound more prosecutorial than judicial. The fact that the demonization of the accused is often at the expense of the boys' autonomy and self respect is ignored. One could argue that boys need to learn how to protect themselves and their honour not just from abuse and assaults but also from the depredations of the criminal justice system and the behaviourial experts it employs. This takes courage and fortitude. They need to be even more streetsmart.

VictimTheory

Getting putative victims to acknowledge their victimhood is essential to maintain the validity of victimological theories. This is shown by the extremes the police, social workers and therapists were prepared to go to get the boys to accept victim status. Emotional pressure, deceit, threats and bribes were all used to make the boys conform to their theories. Just as killing Jews or homosexuals may pragmatically reinforce and validate racial and sexual theories, so the breaking of boys' sense of loyalty reinforces and validates victimological theories. Boys attempting to keep their honour and self respect intact would be put down as being in denial in this procrustean approach. In the process the boys were objectified and degraded. The neglect and denial of the boys' personal desire and wishes, needs and context are evidence of their objectification. They were degraded because they were used by the officials in the system for their own professional ends. Victimological theory accomplishes what anti-porn advocates claim that porn does. It dehumanises people.

The metaphor of "sending messages" is a favourite of those who advocate harsh penalties including judges. Somehow it is assumed that the intent of the message sent is identical with the meaning of the one received. But what message do harsher penalties send to those who engage or are tempted to engage in prohibited activities? It is true that some, the more timid and less aggressive potential offenders may be dissuaded. Harsher penalties are an escalation of social conflict and lead to violence, murders and more resources and "glamour" for the police. The adjustments to more restrictive laws and harsher penalties favour organized crime, corruption of our police and justice industry, and the use of weapons. We have seen this happen in the case of drugs where the police, courts and corrections, as well as the legal profession are as dependent on our drug laws as any junkie is on heroin. With high taxes we know we can create a similar situation with respect to cigarettes and smuggling. A few centuries ago during a crime hysteria much like the present one hanging was introduced by the "Reform Party" minded of the day for crimes such as theft and robbery. While some would be robbers may have been discouraged others took the logical step of eliminating witnesses to their crime. As a result murders increased. Because of a "tough on crime" attitude it was centuries, and thousands of unnecessary murders and executions later before the penalties were "softened". Eventually juries and judges often refused to convict despite overwhelming evidence of guilt. The popular theory promoted by politicians, the media and advocate/activist groups is that harsher penalties, with a dollop of "education" will solve problems of crime. It is seen as a sign of moral weakness to acknowledge that the severity of penalties feed back into the type and nature of crimes committed.

We are creating a similar situation in Canada today with respect to child pornography. Before the Bernardo/Homolka cases children involved in producing pornography had not been known to have been murdered as a result. In fact in many cases, especially typical cases where teen aged boys were videoed the alleged victims had no complaints and some felt more victimized by the judicial process. Teen porn usually involves willing if not eager participants and they resent police interference. As in teen prostitution the situation can be more accurately described as a conspiracy of supposed victims and alleged offenders against the police and the justice industry than as simple case of exploitation. The theory of predators using child porn to entice children into sex and porn making that has been repeated again and again by anti-porn advocates has little relevance in reality. Severe penalties for child pornography are a recipe for dead children. Consider the situation of a man, perhaps a frightened, paranoid man who fears that the child he has videoed will expose him. He might see himself as having to choose between either eliminating the child or being sentenced to a lengthy prison term. A politician facing the decision of either supporting a flawed law which he believes will have adverse effects, maybe the opposite to those intended, or being defeated in the next election, is in a similar position. We know how they act in such situations.

And what about the alleged victim? One of boys whom Couture interviewed along with his mother was depressed because he thought he caused a man to be jailed, a heavy responsibility for anybody. What is a boy whose older friend is jailed most likely to feel, especially if he was leaned on to testify - happy or suicidal? And if as in a few cases he does kill himself, who is to blame? Laws designed to protect moral sensibilities and women lead to dead prostitutes. What can we expect of laws to protect moral sensibilities and children? All the concern about child witnesses is based on the assumption that it is the defendant, his presence, his cross examination that the child must be protected from. Testifying in court can be very difficult for anyone, but there's no evidence it's harder for adolescents than adults.

The sentences but not the decisions in Gramlick and Jewell were appealed. The Ontario Court of Appeal reduced the totality of the sentences to five and seven years respectively largely on the reasoning that consecutive sentences for some offences should be subsumed under others and therefore be concurrent. For example the offence of counselling touching for a sexual purpose was part of the offence of making child pornography. The Appeal Court generally agreed with the gross simplifications of the lower court. Justice Finlayson speaking for the court stated that child pornography "increasingly menaces our young people and threatens our values as a society." He described the appellants as men "who prey on young persons, boys in this case, for no other purpose than their own sexual gratification." He also cited the case of Eli Langer's paintings, discussed later where the judge parroted what I call the Collins' Theory of child pornography which later became a factor at my own voir dire. Like Judge Livingston the appeals court twisted every possible fact against the men. The simple fact that some boys had sex with and were videoed by both men was interpreted by the Appeal Court as the men sharing the boys as if the boys had no say in the matter. They were simply passed around. Any capacity for autonomy on the part of the boys is again denied. They are victims pure and simple.

One thing that was held against Jewell on the basis of a Millhaven Institution Assessment of Sexual Behaviour was that he still saw the victims "as freely consenting persons." This sounds like a thought crime and Judge Finlayson said it indicated a "lack of true remorse". His failure to believe in victimological theories, a belief his alleged victims also rejected, didn't help him. Psychiatric theories of child sexual abuse as I found out later have no tolerance for competing interpretations. Perhaps Jewell needed more brainwashing.

PORN HARM

The making of child pornography is not without risks to boys. Obviously where young or naive children are persuaded into unwanted or inappropriate activities they may well suffer from them or when they realize their nature. For streetsmart and sexually active boys the greatest risk they take is their potential exposure to the censure, prejudice and ridicule of society, and the resulting shame, embarrassment and social and material losses that could result from the material falling into the wrong hands, those of the police in particular. That men might become aroused by their recorded images and masturbate would probably be taken as flattering in the present cases. The danger lies in the pornographer and other possessors not acting responsibly by discretely controlling circulation. It is true that deprived boys can be very anxious to please someone who pays them personal attention but whose fault is that? It is true that they could get themselves into situations that freak them out and harm their development. Even assuming that Jewell's video porn hints and the prospect of material rewards could leave such a boy with a dangerous lack of self worth the pornographer could still be more, or less, harmful depending on his judgement and how he went about producing his porn. If there are to be child pornographers they should be responsible and careful. In a case like this I believe that the actual harm done by the accused to particular victims, if any should be strongly factored into the sentence. No attempt was made. For veteran performers it is difficult to show that any incremental occurred. The harm in the Gramlick and Jewell cases really got underway after the police got hold of the tapes, perhaps this lapse is what the accused should be punished for.

For some boys making porn might be fun and some even make their own as in the McGowan case. Not long before the child pornography laws came into effect Matthew McGowan who was 19 and two 14 year old boys decided to make sex videos of themselves with some thought to commercial returns. Several copies were sold including one to a John Young who was one of the first convicted under the new child pornography laws of possessing and distributing boy sex videos and who received a two year sentence despite his age, poor health and the fact it was his first offence. This led to the three boys all of whom were Toronto street hustlers. McGowan and one of the 14 year olds were lovers. The young ages of the makers coupled with McGowan's close relationship with one of younger ones presented an awkward legal problem for the Crown. Theory demanded a victim and this was resolved by charging McGowan and his lover with making obscenity under s. 163, which covers all pornography, with the other youngster being portrayed as a victim, a role he tried to resist. McGowan was temporarily unavailable but his young lover was held in custody for 60 days before trial. He was sentenced in juvenile court to time served plus one day. The other boy, as his victim's role demanded, was placed in treatment from whence he soon fled. When McGowan later showed up to face his preliminary hearing in adult court Judge Bovard dismissed the charges against him. This astonishing decision probably arose because the judge actually took the time to view the videos with police commentary. In his decision the judge describes the videos in some detail mentioning masturbation, fellatio, anilingus, caressing, kissing, hugging, light spanking, inhaling poppers, playing with knives, condoms and anal intercourse. It sounds like a tour de force. It was playful, consensual sex with the boys laughing, talking, joking and smiling throughout. It didn't seem like the boys were degrading and dehumanizing themselves, more like having fun, and the audio was even played on radio. Bovard held that at 14 years the boys were not clearly children according to the Criminal Code at the time of making the video. Then taking the Butler decision in a very literal way that obscenity excludes "explicit sex without violence, that is neither degrading nor dehumanizing" he decided that the videos were not obscene, and while of dubious taste they presented no significant risk of harm. The judge made a common sense decision on a realistic appraisal of the facts. I would like to hope that the boy who served 61 days for what turned out not be criminal was given at least an apology if not compensation for his incarceration. A respect for the details of justice on the part of the courts might cause many youngsters to rethink their contempt for the law. (We cannot expect justice for those falsely made victims.) In the Gramlick and Jewell case the videos were not viewed by the court and we were left with the evaluations of homicide detectives who claimed they made them sick to their stomachs.

I have known a number of boys who have performed in sex videos both here and in the Third World. A few of them have performed in both sex videos and child prostitution/pornography docudrama exposés. I have described instances in my books on the Philippines. These are not kids who can easily be made to do things they don't want. Some like posing and showing off. In law and popular perception "pornographic" photos and videos are seen as entirely the work of the maker with the child subject being merely a victim and as such having no autonomy or creative input. This is of course nonsense but it's the operative paradigm. R.v.McGOWAN exposed its inadequacy. But it has limits in man-made as well as kid-made material. Some models have imagination and flair like to show off for the camera going through a gamut of expressions and poses including coy and sexy ones. Why shouldn't they? Must one censor the model?, or destroy the dangerous negatives as soon as one can? The "sexual purpose" intrinsic to an image may be what child model intended. The boys who hustle and make videos have no more use for porn showing little kids getting fucked than anyone else. In fact they may have a better understanding of the problems involved. However as adolescents into sex with a positive attitude they don't mind posing for pictures or making videos as long as it doesn't get them into trouble. It would be extremely difficult if not impossible to convince them that what they do is really so evil, that it defines them as sick and in need of therapy. Labelling men as predators and what they do as abuse and themselves as victims does not help boys. Repentance through accepting the role of victim, like admitting you're a sinner, and redemption if not salvation through embracing therapy are fundamental assaults on the integrity of kids. Like everyone else boys mainly assess things in the here and now, the people and the ethics of real situations, and judge and act accordingly. The boys do not lack moral standards and are ready to condemn those who violate theirs. By the accounts quoted in the Couture interviews the boys knew what they were doing. They were against coercion and rape. From their own perspective they believed they were old enough to engage in sex and for money if they wanted to, although they thought little kids, probably meaning prepubertal, were not.

The social constructions of religions, psychiatrists, social workers, legislators and jurists are frequently remote from the reality participants experience and relate to. They are fantasy lands with only dependent, mechanical and honourless roles for youth. The boys are placed in an awkward and possibly dangerous situation by these constructions. Only by playing the unwelcome role of the victim, and in many cases that of a rat informing on others, are the boys offered salvation. The problem for boys like these and other despised groups is to bring the reality of their experience and situations into the consciousness of legislators and jurists. The fact that they are labelled victims reinforces the low esteem in which hustlers and street kids generally are held, it is merely a device to deny them their own voice. Defence lawyers should strive to bring before the courts the ambience and expectations of the scene within which the alleged child sexual or pornographic abuse occurred. They should also insist in typical cases involving consensual activities that all or large typical parts of the impugned pornography be shown and discussed in court. The details of what the pornography depicts, the expressions and attitudes of the participants is something that should not be left to imaginations titillated by talk shows and outraged by media reports of child rapists. Is it impossible for defence lawyers to challenge hysterical assumptions?, cannot porn be demystified and exposed it to rational consideration as in McGOWAN? How does it compare to "the worst", the Bernardo-Homulka tapes for example?The media can help but typically a media investigator talks to the police and some social workers, is introduced to few token kids, gets some visuals, and then produces a predictable moralistic piece of journalism which lamentably is as close as most adults ever get to street life.

Can any reasonable person interpret the events flowing from the prosecution of Gramlick And Jewell as serving to protect children when so many children, as defined by law, suffered in ways meaningful to them? It is a modern version of the old saw of beating children for their own good. Are we supposed to believe that somehow Canadian children are better off despite the pain inflicted on the few in some cases? A price was paid by both men and boys, and their families. What did that price pay for? What did it buy and for whom? Max Allan said it was about "ruined lives". Was that all that the whole "snarl", as he benignly called it, produce?

REACTIONS

While the local press and national media eagerly exploited the scandal giving prominence and praise to Chief Julian Fantino not everyone went along with the official interpretation of the cases. Aside from the IDEAS programs there were critical articles in the Globe and Mail by Henry Hess and Gerald Hannon. In addition London had a large well established gay community centre, HALO, the Homophile Association of London. The local gay community spokesmen saw it as a witch hunt which it clearly was. However their concern was that police actions were discriminatory in that they targeted man/boy commercial sex and while ignoring the more prevalent man/girl commercial sex. This was true in that no charges were laid in respect to underage female prostitution during the period. But HALO spokesmen, being imbued with politically correct, equality ideology, basically felt that straights should be prosecuted with equal vigour. Misery loves company? As late as 1998 Richard Hudler of HALO wrote in XTRA West (October 15th) that this was his "whole argument". I replied that he blindly accepted the premises of fascism. Of course part of the problem is that gays cannot speak up for boys without having their motives questioned and being labelled as "pedos". The motives of psychiatrists and social workers are never questioned however. Nor are they held accountable for any harm they cause children.

R. v. STROEMPL

George Stroempl was a 68 year old retired civil servant caught in a kiddieporn magazine sting operated by American police. He was divorced and presumably used pornography in the absence of a partner. There was no suggestion that he had anything to do with young girls. A report by the psychiatrist, R. Langevin found him to be of low risk for criminal sexual behaviour but nevertheless recommended treatment abetting his incarceration. Stroempl had led an unblemished life and the case is notable for the lack of any aggravating factors. The trial judge had sentenced him to eighteen months in prison. The Ontario Court of Appeal reduced it to ten months. The sentences in GRAMLICK and JEWELL were cited. The Appeal Court ruling quoted another judge referring to a clinical theory of child pornography in support of a significant jail term where there are no aggravating circumstances. This clinical theory was an important factor at my voir dire. R. v. STROEMPL is the case that prosecutors, stressing the principle of denunciation, use to show that even simple possession of child pornography is such a heinous crime that it merits jail. This principle implies both a catharsis for the outraged and a model of sensibility for others. In the manner of 'sending messages' harsh penalties define the severity of the crime to the public who might not otherwise recognize harm. How else would some of us know that the offence so bad? Historically harsh penalties have been used to convince populations that seemingly victimless crimes are indeed horrendous. The persecution of heresy by orthodoxies or anti-state activities by the Soviets come to mind. Drug law is a contemporary example although now penalties are being ameliorated as they appear neither effective nor warranted in the minds of many people.

Not all judges in Myers' SENTENCING BOOK OF AUTHORITIES were maliciously vindictive. Judge E.J. Cronin in Vancouver Provincial Court was as reasonable as could be expected in R. v. MARR and R. v. HIGGINS and certainly B.C. Provincial Court Judge Saunders in R. v. LOGAN bent over backwards to get the defendant to plead not guilty and challenge the law. None of these simple possession offenders received jail sentences. Nevertheless after reading these sentencing decisions and related media reports my personal fears were as great as ever but my respect for our child pornography laws and the way they are enforced were at a new low.

I sent Larry Myers a nine page letter containing my critical reviews of the sentencing decisions although some ideas were not as developed as given above. I also raised a number of questions pertaining to judicial practice and the law. I explained some of the radical views I expressed in correspondence and notes some of which had been noted in the REPORT TO CROWN COUNSEL. I began trying to show up flaws in fact and reasoning used by advocates, the media and the courts. By late July I was complaining to him that he was ignoring the questions I was raising. I kept pushing him, preparing notes and background material I thought was relevant. A friend of mine whose place was searched in a fishing expedition connected with the William Bennest case had two of my chap books seized as child pornography, other copies of the same books had already been returned to me by the prosecutor. I kept working on my case despite the lack of encouragement. I began reading about pornography, I read government reports, academic reviews, surprisingly conflicting feminist interpretations, historical accounts and studies in scientific journals. Work kept up my spirits and for a while I was as preoccupied with my case as I was with sex during my celibate teens.

THE SENTENCING OF RICHARD WEST (July 24th 1996.)

I began having my first serious doubts about the capacity and resourcefulness of Larry Myers when I attended the sentencing of Richard West who was also charged with possession, production and distribution of child pornography, videos of boys from boystown stroll. This was the case Myers had mentioned when I first met him. I wanted to attend for the experience and to see my lawyer in action. At the Main Street Courthouse I ran into a young man I knew fairly well. He was there for an appearance on some petty charges and he borrowed quarters to phone his lawyer who hadn't shown up. He knew and liked Rick West, in fact he had performed in some of his sex videos a few years earlier. The boy wondered if he was in the video compilation they had played for the judge. He was concerned about being recognized. I had no way of knowing. When his own case got put over once again he came up to the courtroom half way through the proceedings.

The hearing was held before the Honourable Judge K.J. Libby. The judge seemed to take himself and his job very seriously and for a while I was even optimistic. West, dressed for court in a dark blue suit appeared almost catatonic. He was in a deep state of depression. My young friend didn't even recognize him at first. Larry Myers got off to a bad start when he caused a delay because he was unprepared on a possible point of appeal based on the way the search of his apartment was handled. A short adjournment was called while advice was sought on the question of whether the guilty plea would affect a future challenge of the search warrant. It would not.

What had happened was that Wayne Williams of CBC-TV, acting on his own as a cop, had set up Richard West for a sting operation. William's crew first filmed him as the police busted him at a postal station where he was picking up some mail. Subsequently, co-operating with the police his crew followed them into West's apartment over his objections when it was raided. On appeal the search warrant was quashed overturning the conviction. Myers deserves credit for this.

What struck me most about the situation was the miserable condition of the accused. Myers introduced letters of support from family and friends of West and a report from a mental health expert who had examined the defendant. The prosecutor looked at the report briefly and questioned some point which Judge Libby seemed to pick up on. Myers was not able to overcome doubts raised by the prosecutor with the result that the judge did not feel it necessary to go into the accused's condition in giving his decision. I had to wonder why the expert was not there in person? He could have clarified any questions raised and his physical presence would have made it much more difficult for the judge to ignore the accused's obviously pathetic mental state. It seems to me that testimony regarding the mental condition of the accused, his depression and suicidal tendencies, was potentially the most important factor in achieving a lenient sentence. This opportunity was allowed to slip by. The judge sentenced West to five years imprisonment. I was appalled by the severity of the sentence. So was the boy sitting beside me who was one of the supposed "victims" and he nudged me to show that he agreed with Myers when he said there were no victims.

I was upset, I asked Myers after why he didn't make a more vigorous submission, why he didn't have the expert there in person. He replied that he too was surprised by the sentence but that West was "a private kind of guy" implying that his client didn't want his obvious condition discussed in court. The fact that he was doing the case under legal aid which I discovered later may have been a factor as expert witnesses are expensive.

Judge Libby's sentencing decision which I read later is one of the most indulgently righteous judicial statements I have ever encountered. He began, "I suppose it's not very often that as a sentencing judge, one is able to feel moral indignation about an offence." Later, revelling in ignorance he said, "I don't think it is necessary to get into or dwell upon why young people who are legally children sell their bodies, whether they be males or females. That's way beyond the scope of anything that you or I, or any of us have any understanding of." My young friend sitting beside me could have given him some simple and logical, albeit unwelcome reasons, as could most people who do not insulate themselves from life on the street. In reference to the morality squad he boasts, "bring me a case I can get morally indignant about and I'll give you the kind of sentence you think is appropriate." Judge Libby goes on to praise a Vancouver Island police officer who breached his oath of office to protest the decision in Vern Logan's child pornography case. He commends the CBC for reacting in a "responsible communal fashion." He refers to the Gramlick and Jewell appeal to justify incarceration. The sentence was to send a message to the community that West's conduct is unacceptable.

BREAK WITH MYERS

I was coming to realize how completely one track Larry Myers' thinking was. He was frustrating to deal with. He would not answer my questions or address my concerns. Soothe and reassure seemed to be his operating principle and he didn't appreciate me getting involved in my case. He probably saw it as interference. Time after time I raised legal questions and precedents which I thought might be relevant to my case and help me in my own research and understanding. Possibly he still had hopes I would come around to his way of thinking. I realized that nothing that I was doing was relevant because it was simply a case of getting the best deal.

By late January I was ready to ditch Myers. Then he told me over the phone that he had been talking to the Prosecutor, Peter Gulbransen and that in exchange for a guilty plea I would only be charged with possession of my photos. I would not be facing jail time and I would be getting back everything I was not being charged with. It sounded pretty good and I was ready to swallow my pride and buy it. Two days later I went down to Myers' office and he phoned the prosecutor in my presence. To my surprise I found out that I was still being charged for my writing and that the prosecutor wanted six months jail time. I told Myers I wouldn't consider those terms. Thinking of my writing I mentioned an Ontario case, R. v. JOHN YOUNG that he had given me to read where upon conviction previously returned material was ordered seized and destroyed. When I pressed Myers about getting back my stuff that was not deemed to be pornography he started shouting at me. His ploy with the prosecutor, if that is what it was, may have been to establish some benchmark penalty which he could later improve on, probably in terms of jail time, that would persuade me to make a deal. I cannot believe that the prosecutor would have made such an about face.

I was getting too many excuses and evasions from my lawyer. He asked me to phone him around noon one day as he was going to try to clarify some points with the prosecutor. I call at 12:10 and am asked to wait as he is on another line. I wait maybe a minute or two and then I am told he is going out. I explain that I am going out too. The receptionist presumably confers with Myers and tells me she doesn't know when he will back but to phone back later. On occasions when I do speak to him on the phone he insists on dominating conservation and then breaks them off as another call or something urgent has come up. Pestering him was not my intent. The pattern was too consistent to be coincidence.

Soon after I decided that our relationship was unworkable and terminated it. He had done his job as he saw it impervious to my wishes. He had provided some useful services but that had cost my friends and me over $10,000 with taxes. Larry Myers may be a good lawyer but he appeared to be sloppy, basically a fancy dancer, deal maker. I didn't think that was good enough for my case. He never replied to my requests for advice or explained legal points I raised. He even told me that did not read all my letters where I raised these points. It was like he had everything figured his way and resented me interfering in my case. But ever since his pathetic submission to the sentencing of Richard West, I had been concerned about his dedication and competence. He does not listen and should never be a judge.

While I knew I needed a good lawyer who would aggressively pursue my case I didn't know how to go about finding one or even where to turn for advice. I even composed an advertisement outlining my case and the constitutional possibilities. For the first time I entertained the idea of defending myself if I could find a good legal and courtroom advisor. It was around this time I saw Peter Leask, the high profile criminal lawyer who was handling William Bennest's case. He listened interestedly but warned me that he charged $3500 a day which represented about four months income for me. I learnt a few things and thanked him for his time.

THE LAW

The Gramlick and Jewell cases and the dozens that flowed from them demonstrate the problems of offender centred laws and proactive enforcement. They were "show trials" like Moscow.

Obviously I see the law and its enforcement, as well as the court, at fault in these cases. However abuse exists, it exists at the individual level and is experienced by child participants involved. The making of porn can harm the participants. The law should respond to attempt to deal with abusive situations. Laws dealing with sex between children and older people to effectively target problem situations must be reactive. They must respond to the needs of children, not political agendas and popular pressures. The emphasis should be on the welfare of children not arresting, condemning and sentencing of offenders. A perusal of the media shows the latter to be the main focus. Pro-active crusades such as in London, Ontario simply cause a lot of unnecessary suffering for both men and boys and do nothing to reduce instances of real abuse perceived as such by real victims. Where men and adolescents choose to conspire against the law society should be concerned about abusive situations not technical offences.

The law of course works at a very elementary level through fear. Where it is backed by public hysteria or moral panic as in the case man/boy sex the fear can be so great as to persuade the innocent to plead guilty. This is not the case with man/girl sex, police backed "shame the johns" campaigns notwithstanding. Police activism is leading them into a role not unlike that of the religious police in Iran and Saudi Arabia. They see themselves as guardians of morality, a force in society. Project Guardian was an expression of their new self appointed role.

Our concern for the sexuality of youth has one source in the traditional patriarchal structure of the family where children were regarded as chattels and an unmarried daughter's virginity was a family asset. The sex lives of unmarried sons was of relatively little account as defloration and pregnancy were not factors. This is one area where feminists have got things right. Liberation ideology and the pill have eroded this concern but the so called double standard made sense.

READINGS

After reading the sentencing decisions I wanted to know how reality came to be reconstructed in such an unreal way. Where did these perceptions and assumptions about relationships between men and boys come from? I got me interested in the background of the law and spent a lot of time at the Vancouver Public Library. I browsed various government studies and reports. I looked at the THE FRASER REPORT - THE SPECIAL COMMITTEE ON PORNOGRAPHY AND PROSTITUTION, 1983. In respect to pornography this report emphasized women's right to equality rather than immoral content. While accepting the radical feminist contention that all porn harms women they proposed that only extremely harmful porn involving violence and children be proscribed. Other porn should be regulated. There was understandable concern about children being exposed to violent porn. The committee relied on police, scientists and academics most of whom had a vested interest in regulating porn. Sex workers and their clients, anti-censorship feminists and of course porn consumers were ignored.

I then read the BADGLEY REPORT: Sexual Offences Against Children, 1984, which unlike the FRASER REPORT, dealt specifically with children including prostitution and pornography although these were not central to the report. The government appointed committee included judges, professors and social welfare officials. Research was undertaken on legal matters, social science studies and a National Population Survey was conducted. Letters from individuals affected by or concerned about child sexual abuse and briefs from professional and interested groups were solicited. In the letters few victims or those knowing them adopted a punitive approach towards offenders and very few commented of either juvenile prostitution or child pornography. The professional associations and the committee favoured more punitive approaches and treatment. The committee saw as its goal rather unrealistically I thought as, "to eradicate it (child porn) from the Canadian market entirely." They found that almost all child pornography was imported and that there was no significant evidence of commercial production in Canada. The imported material was almost entirely kiddieporn magazines, photos and commercially made super 8mm. films. The principal external sources had dried up at the time as a result of international measures in the late 1970s. The committee defined child pornography in terms of photographic depictions of actual children, under eighteen involving explicit sexual conduct including lewd touching and exhibition. Other material would be covered by the existing obscenity laws. They were not attacking "the legitimate expression of ideas but rather a form of criminal conduct". The Badgley Report despite its ideological biases was written at a time, 1984 before psychiatric theories had achieved near total hegemony in the field. The committee had no difficulty agreeing on legal sanctions for making, importing, distributing and selling child pornography but were sharply divided over prohibiting simple possession.

The committee was also concerned about the exposure of children to pornography including men's magazines like Penthouse. Existing research showed no evidence of harm but the available studies were inadequate and there were basic problems including ethical ones in conducting research with children. In a study commissioned by the Department of Justice for the committee the authors claimed that research was in disarray with acute problems of definitions, interpretations, biases and methodology and give examples of inconsistent and perverse results. They also describe studies showing positive aspects of pornography. The National Population Survey questions were however only directed at harm precluding any results showing positive effects. This one sided approach is standard procedure in almost all such studies. This bias would be evident to respondents and it is not surprising that while only 6% of people interviewed had experienced unwanted exposure to pornography and, nearly half had purchased some, most believed that pornography had a negative impact on social and personal values. There was a widespread perception that exposure to it was harmful to children and youth. Accounts provided in the survey and by police showed that pornography was used in connection with sexual assaults. The committee recommended that research be undertaken to determine long term effects of pornography on children. The committee recommended that access to porn be restricted to those over sixteen.

The effect of porn on kids is difficult to assess because it depends on the situation. In extremely sex repressive communities like parts of Ireland where even married couples avoid nudity any porn might disturb children. This is not a logical argument to keep it restricted in such places. What are the effects of the sexual repression to begin with? In Canada outside sheltered enclaves about the only kids who are going to be shocked by corner store porn are those who are profoundly ignorant of sex suggesting a lack of free peer association or irresponsible parents. The increasing availability of porn has probably had little effect as this tends to demystify porn. It may be more important to ensure that kids have a good supply of porn so they can be choosey than to go to any great lengths to deny them any. When porn was rare as when I was young it acquired mystical properties. I remember reading several incomprehensible and boring books because they were banned in Canada. Mind you I picked up a lot of interesting ideas. When pornography is common kids get bored and picky. Most kids can probably find some if they want to. Porn only retains some magic due to its moral condemnation by radical feminists and religious conservatives who in B.C. are no longer limited to Christian fundamentalists. I believe a country with positive attitudes towards sex has much less to fear from pornography than a repressive one. An abundant and diverse supply of porn encourages healthy positive attitudes towards sex. Having been a moralistic loner until my teens I would probably have happier and less sex obsessed when young if porn had been part of my environment. The concern over kids exposure to porn was more related the perceptions of parents than any palpable harm to kids. Kids did not have any say. Like many things to do with children the concern was more for the perceived rights of parents than the welfare of kids.

U.S. SENATE HEARINGS

At the same time as the Fraser and Badgley reports were being prepared the American Senate was investigating child pornography and pedophilia. The Meese Commission was set up by President Ronald Reagan in large part because an earlier commission in 1970 had failed to provide justification for more restrictive pornography laws which many of his supporters were demanding. In the HEARINGS BEFORE THE PERMANENT SUBCOMMITTEE ON GOVERNMENT AFFAIRS U.S. SENATE 1994 child pornography is defined: "Child pornography constitutes a permanent record of a child's sexual exploitation and the harm and the humiliation to the child are exacerbated by the circulation, distribution of such materials." (page 101) One interesting bit of testimony that was well received by the subcommittee was that of a group calling itself the Defence for Children International - USA (page 25). Their spokesman Kenneth J. Herrmann Jr. Professor Dept. Social Work, Suny College of Brockport said: "First, whatever action taken must contain a strong and uncompromising sense of moral outrage. This moral outrage must form the foundation of all intervention, and must take into account the inextricable linking of all forms of sexual exploitation of children." Now moral outrage as a reaction is often understandable but as a recommendation it sounds like a plea for irrationality. I have been morally outraged on a number of occasions such as when I heard of the original sentences of Gramlick and Jewell. I have seen some child pornography of the eight year old being forcibly raped variety that I find that morally outrageous. But moral outrage as a policy recommendation is absurd. However a calculated moral outrage seems to be behind much of the zeal for ever more inclusive definitions of child pornography and more extreme penalties.

Around this time I also started looking at more general books on pornography. I needed to educate myself to obtain a broader perspective. What is Pornography? How is it seen by others? As something that has been around for a few millenniums a fair amount has been written about it. I was surprised by how much has been written about porn by Canadians authors. Feminists in particular provided interesting insights. I had ignorantly assumed that feminists were the most vocal opponents of pornography, but I discovered that many were articulate supporters of pornography and strongly opposed to censorship. Freedom of expression is not a gender issue.

One of the most interesting was XXX: A WOMAN'S RIGHT TO PORNOGRAPHY by Wendy McElroy, a Canadian feminist who unlike almost all other writers on the subject actually went out and investigated the porn industry talking to participants and getting their input. The comments and opinions of women who perform in pornographic productions are practically the opposite of what anti-porn activists would have you believe. Their main concern is the prejudice against the industry and the lack of basic respect they have in society. The industry is not without problems and McElroy makes some practical suggestions to improve it and the welfare of those who perform. She also gives a good historical account of the anti-porn movement going back to the Nineteenth Century covering American Comstockery and the social purity movement and their relationship to the feminism of the day. Her critique of the theories of contemporary radical feminists is devastating.

Dany Lacombe, another Canadian feminist who teaches at Simon Fraser University reviews the recent history of the anti-porn movement in Canada in her book, BLUE POLITICS: Pornography and the Law in the Age of Feminism. She discusses Ontario's well known Project "P" headed by Inspector Bob Matthews that was created in 1965 and which has acted as a lobby group and fuelled the anti-porn movement. She provides a critical review of the 1983 FRASER REPORT and outlines the history of subsequent legislative attempts to deal with pornography. She explains how the Butler decision served as a substitute for new porn laws.

BAD ATTITUDE/S ON TRIAL: PORNOGRAPHY, FEMINISM & THE BUTLER DECISION by Brenda Cossman, Shannon Bell, Lise Gotell & Becki L. Ross. They look at the trial and conviction of Glad Day Books in Toronto which was charged with selling Bad Attitude an American lesbian erotic fiction magazine. This was the first big trial following the Butler decision which ironically had been about protecting women. They are critical of their sister feminists especially those connected with LEAF who were so influential in the Butler decision.

I only include one Canadian pro-censorship feminist source as these arguments are widely known and dominate the media, government reports and the pronouncements of most activists concerned with issue. UNDRESSING THE CANADIAN STATE - The Politics of Pornography from Hicklin to Butler, by Kirsten Johnson, a radical feminist. She believes that the government has not done enough and calls for more anti porn measures. While her book is extremely narrow ideologically it gives a clear statement of pro-censorship feminist (LEAF, Legal Educational and Activism Fund) doctrines: Porn is the practice of sex discrimination. Porn is hate propaganda. It distorts concepts of sexuality and equality. It is political and works against accepted political goals. It harms society. Secondly, porn assaults female credibility, it degrades women as a class, and thirdly it harms the participants. LEAF, the Legal Education and Action Fund believes the law has been lax with mainstream hetero porn of the corner store variety. Her analysis of the Butler decision is interesting although it didn't go far enough.

Two more general books by male Canadian academics are PORNOGRAPHY - THE OTHER SIDE by F.M. Christensen, a University of Alberta professor and THE JAGUAR AND THE ANTEATER by Bernard Arcand, a Quebec anthropology professor which won an award for the author. Christensen claims that, "Anti pornography campaigns are morally evil", a position he supports with rational arguments. He discusses intergenerational sex in anthropological and ethnographic contexts and says that photographic porn is only of interest to children where they are sheltered from real sex. I found that Arcand's historical perspective and often brilliant analysis helped me sharpen my thinking.

Some non Canadian books that I found interesting include; NUDES, PRUDES AND ATTITUDES by Avedon Carol which refers to some interesting research on sex offenders and pornography and tackles all the basic anti-porn arguments, BOUND AND GAGGED: Pornography and the Politics of Fantasy in America by Laura Kipnis, CHILD PORNOGRAPHY by Shirley O'Brien of the University of Arizona which takes a crusading anti-porn position but is somewhat more definitive and honest than more recent pro-censorship works, and GIRLS LEAN BACK EVERYWHERE - The Law of Obscenity and the Assault on Genius by Edward de Grazia who refers to Paul Bender, one time clerk to U.S. Justice Felix Frankfurter, who advocated repeal of all laws regulating access to sexually oriented material by both adults and children.

These and other books I read helped me realize that the subject of pornography is complex with many different aspects and arguments only a few of which enter into public debate in Canada. The ideas expressed are in sharp contrast to the narrow analyses and interpretations found in government reports such as the FRASER REPORT and the BADGLEY REPORT.

THE RITZKER INTERLUDE

I met Michael Ritzker in February at the Surrey Court House where he was serving as duty counsel. He is a modest, good looking man with wavy dark hair and a slightly dishevelled lawyer's look about him. I had a minor question to ask about my appearance there and got talking to him. He gave me a welcome lift back to Vancouver where I explained my lawyerless situation and we arranged a meeting at his modest Victory Square office. He had taken an elective in moral philosophy at university and we discussed the morality of acts. He's a bit of an intellectual and interested in German culture. I found him to be open and frank, and helpful in explaining how the law worked. He loves law. He stressed the necessity of taking the high moral ground. I liked him, he seemed to be a man of integrity. He is a devoted family man which I joked was the next best thing to being a woman as far the nature of my charges was concerned. I was not troubled by his lack of a high profile. I told him I wanted to fight the charges and that I thought there were constitutional aspects. He listened, he was interested in the written material provision, ss. (1)b which prohibits advocacy. He was willing to take my case on legal aid but explained that any challenge meant a lot of preparation and would require more money than legal aid, which is based on per diem rates, would provide. A challenge would be something for later and I applied for and received legal aid.

In early March I watched Michael Ritzker defend a man charged with assault causing bodily harm and while he was not successful I gained confidence in his ability. I was spending a fair amount of time at the Courthouse Library and I sat in on several other trials to get a better understanding of how they worked.

One thing I wanted changed was my bail conditions which aside from reporting requirements prohibited me from any contact with persons under eighteen. This was no problem with children, mostly younger kids that I knew through their parents. They all wrote the necessary letter and Michael Ritzker helped me get me get specific exemptions for ten kids. I had wanted this for some time. Teenagers that I knew independently were a different matter. A seventeen year old boy is hardly likely to ask his parents for a letter to allow him to associate with a presumed pedophile. The condition was onerous. I always like to have a direct window into the thinking and concerns of young people so that I have something by which to assess the statements and claims of advocates, psychiatrists, social workers, the police, politicians and columnists about youth which appear so frequently in the media. Real kids are a valuable reality check. I tried to get a judge to change it to under fourteen, a common condition for those with sexual assault convictions. The judge was adamant and gave a short spiel about protecting children. I knew a number of older teenagers some whom I encountered on my normal social rounds and others who visited me. I did not want to be found in violation of the under eighteen requirement but I felt it was highly presumptuous and violated my sense of self worth. It attacked my freedom of association and that of others. I had been labelled and prejudged. I explained the bail condition to all the boys I knew and left contact up to them. They would have to phone first if they wanted to visit and I would never contact them. With few exceptions I did not know their addresses or phone numbers anyway. There had been little about me in the media for some time and the boys did not take the news very seriously. A young friend joked, "Well I'm nineteen now." They thought it was absurd and would tease me, "You? You dangerous?"

The bail conditions did put a damper on things reducing contact with boys and generally limiting it to visits as neither of us wanted to be seen together in public. I also became increasingly focused on preparing for my trial which took almost all my concentration leaving less time and energy for visitors. They generally stopped visiting following the intense publicity and massive public outrage that erupted after my acquittal on the possession charges. I had suddenly become Canada's number one pariah and any association with me could expose them to the contempt of their peers if it were known.

HOW THE LAW WAS MADE

"A wise man once said that if you like sausages or law, you should never watch either one being made." (quoted from "A bad law on pornography" by Daniel Lyon, G&M June 22, 1993.)

By this time I had a good idea of how our child pornography laws were used and interpreted, and from my reading and research I had developed my own critique. I had also come across criticisms made in the press at the time of their enactment. But how did this pernicious legislation come into being in the first place? In early April I decided to investigate and with the assistance of the helpful staff at the Courthouse Library I photocopied both the hearings of the Standing Committee on Justice and the Solicitor General and the Parliamentary Debates leading to the passage of Bill C-128 in June 1993. At twenty five cents a page this was an expensive proposition for me. However on detailed study this material proved to be real eye opener.

The Standing Committee on Justice and the Solicitor General had been looking into legislative proposals regarding pornography, including child pornography for a number of years. There had been problems with reaching consensus and these measures withered. There was however considerable pressure to bring in new laws particularly laws dealing with child pornography which had been recommended by the 1984 BADGLEY REPORT which investigated child prostitution and pornography. Then in 1992 the Supreme Court came down with the Butler decision. By essentially rewriting the existing obscenity laws through reinterpretation, much to the relief of the politicians, the Court not only delighted the mainstream radical feminists but it appeased the family values conservatives. And while for the first time the Butler decision provided some specific legal protection for children there was considerable pressure to do more.

Standing Committee on Justice hearings: Hotel Vancouver, Weds. January 20th, 1993.

Detective Noreen Wolff was the first to testify. She had previously been in touch with Tom Wappel, the Liberal Justice Critic and informed him about the NAMBLA Bulletin which she had recently discovered. She was invited to testify and immediately brought up the subject of the North American Boy Love Association or NAMBLA. She had talked to a lot of vice cops in the U.S. and they had told her all about NAMBLA. She passed this information on. The big problem with their newsletter, the NAMBLA Bulletin, was that it wasn't obscene. It didn't show photos of frontal nudity and the writing was pretty tame, but it was a manual for child sexual abuse. The American police couldn't do all that much about it because of the protection given to freedom of speech under their First Amendment. According to Detective Wolff the NAMBLA Bulletin "advocated" sex between men and boys, it glorified man-boy sex and it was intimately connected with child sex abusers. She recited a series of cases where NAMBLA members were allegedly involved in child sex and pornography. A number of the cases she mentions in 1993 appear to be the same ones which NAMBLA was exonerated in a report of the U.S. Senate Permanent Subcommittee on Investigations in 1986. (reported in Gay Community News Vol. 14, No. 10 September 21-27 1986) The report was in large part based on the investigations of undercover agents who had infiltrated NAMBLA. They had tried to set up NAMBLA members to back up their contention that the organization was a centre for child prostitution and pornography. In one case they falsely implicated NAMBLA in a child abduction case not unlike the unsolved Michael Dunahee case in Victoria. This is discussed in more detail later. The U.S. Senate report stated, "Such sting operations have become so popular with police that several investigators told the subcommittee that they had corresponded with suspected pedophiles for weeks only to later discover they were writing to other undercover police officers." Detective Wolff mentions approvingly a man in the U.S. who was re-arrested for speaking out in favour of NAMBLA in violation of release conditions. She said NAMBLA was trying to get a foothold in Canada and that nine copies were seized from a Vancouver bookstore. She claims that the people who subscribe to the NAMBLA Bulletin are "the type of people who are going to molest children." She repeatedly mentioned that such material led to child sex abuse, which often resulted in homicides. When asked if the police had seized any NAMBLA publications when they arrested pedophiles she didn't know of any cases. However she tells the committee about a pedophile she met as an undercover agent and who presumably has given her insight into them. Detective Wolff first became aware of the NAMBLA Bulletin through an outspoken old man named Max Hans Reymer. He was once a cameraman with the NFB, was a retired gemologist and had been married for 27 years. He was proud of being a member of MENSA.

Max Reymer discovered the NAMBLA Bulletin at Spartacus Books on Hastings Street opposite Victory Square. One of their volunteers had seen a few issues in San Francisco and believed that NAMBLA had a legitimate point of view. The philosophy of the people running Spartacus tends towards left libertarianism and that there should be no limits on discussion and debate. They knew it would be controversial but decided to sell the NAMBLA Bulletin anyway. They ordered nine copies for the store anda small ad was placed in ANGLES, a gay Vancouver monthly. These sold out in a few days. After a few issues Canada Customs started seizing them at the border. In their appeal to Canada Custom head office in Ottawa, which was rejected, the store pointed out that the newsletter was not obscene, and was in fact a newsletter with articles, reviews, editorials and internal political debate. One of the customers who'd seen the ad was Max Reymer who became friends with the staff. Perhaps it was the revelation of seeing things he had long thought about in reasoned print, but anyway he became a believer in NAMBLA's cause. He read some of the encyclopedic writings of Edward Brongersma, a Dutch jurist, politician, scholar and boylover. He took out a subscription for himself to be delivered to his own address. He was advised that this might be unwise but Reymer was confident of his rights. Detective Wolff knew him at this time and may have thought that the Bulletin corrupted him further, which to her was proof of NAMBLA's evil influence.

In a strange way Max Reymer and Detective Wolff were sociable for a while. As a gemologist Max Reymer had an interest in security and a generally positive attitude towards the police. I don't know how they met but she would periodically drop by his place. He, perhaps in an attempt to dispel hysterical, irrational ideas about boylove and educate her gave her books to read including some of Brongersma's voluminous writings. He may also have been playing some sort of game with her. He showed her copies of the NAMBLA Bulletin to which he subscribed. To Noreen Wolff it was outrageous, as she saw it NAMBLA advocated and would lead to the sexual abuse of boys. She is quoted in the PROVINCE, December 13th, 1992: "It's textbook for pedophiles. It tells them how to seduce children and not get caught." NAMBLA not only advocated criminal behaviour and but it tried to justify it with intellectualizations. To her NAMBLA may have seemed more threatening than the vilest of visual child pornography. Max Reymer who stoutly defended NAMBLA became a dangerous old man. Detective Wolff called him in for a lengthy interrogations but laid no charges, although she said she would pray for him. She began dogging him. She told the Vancouver Aquatic Centre which he used that he was a pedophile. She told the UBC photo lab which he used that he was a child pornographer. She called on his apartment neighbours warning them about the dangerous pedophile. She informed social workers. She made a Vietnamese family return a bicycle he had bought for their son. Reymer was forced to leave his apartment and he moved into a social housing project for the elderly. She then charged him with kidnapping a fourteen year old boy, a regular visitor after he had been seen entering his apartment with the boy. This was simple harassment on her part and the charges were soon dropped for lack of any evidence. She then charged him with sexually assaulting the three year old son of a prostitute he babysat while the mother worked. After over two years he was brought to trial and acquitted. While Max Reymer clearly liked and enjoyed the company of boys he had never been convicted and the two cases pressed against him both lacked evidence. After the two acquittals Max Reymer realized that Detective Wolff would not leave him alone and he left town. Even today Detective Waters uses him to illustrate her knowledge and understanding of pedophiles. He has been called her pet pedo. She referred to him twice although not by name, at my voix dire for this purpose.

As part of her campaign against NAMBLA she gave members of the Standing Committee copies of the Bulletin to read, but judging by the questions they asked her about it few had looked at it. One, thinking the newsletter must be an underground magazine asked her if she knew where it was published and if they knew who was involved. This information is on the masthead. Asked what is known about the organization she refers to Time Magazine and the Geraldo Show as sources of public information and research. She tells the committee that NAMBLA offers free subscriptions to prisoners in the U.S. and one committee member becomes very concerned that it might show up in Canadian prisons. Her message is that NAMBLA promotes sexual abuse. But there is a problem. It's not obscene, it's not pornography "because the pictures themselves are not pornographic". The police cannot legally seize the newsletter and may have to return any that they do. Therefore it is necessary to prohibit advocacy, the written word. To her it is as simple as that. If Customs doesn't stop the Bulletin at the border there's not much the police can do. They are doing the best they can with the existing laws, but they are helpless, held back by the lack of laws prohibiting possession of "advocacy" material. We can almost feel sorry for the police. But Detective Wolff is too professional and probably too reserved to make an emotional pitch. She does not dwell on suffering and victims. Having now dealt with her over a period of years I see her as a crusading warrior, an advocate and an activist, and an extremely successful one at that. Her zeal is evident when she mentions how her department sent NAMBLA a letter threatening legal action against them about which she says, "How we can do that from here I don't know, but the feeling was that we were going to try to do that if we found there were more in Canada." Except when she was answering questions her testimony focused almost exclusively on NAMBLA and the need to prohibit written advocacy of sex with children. Hers is a practical, get the job done, police approach. She is an experienced presenter. By the end of her testimony she had mentioned NAMBLA forty six times. The committee members were eating out of her hand.

The other Vancouver witness was Monica Rainey, Executive Director of Citizens Against Child Exploitation. She spoke for the child reconstructed as a victim. Her victims were quite young and mostly girls. She brought a teddy bear with her to represent the children who cannot speak for themselves. She said that the previous year they took 5000 teddy bears to the steps of the legislature in Victoria which supposedly represented only ten percent of the province's child sexual abuse victims. Her recommendations dealt with sex offender registries, community notification, minimum sentences and treatment. Several times she referred to Dr. William Marshall, who treats sex offenders at the Kingston Penitentiary. She was mainly addressing other issues and did not mention child pornography.

Standing Committee on Justice hearings: Ottawa, April 27th

The Standing Committee on Justice held hearings on child pornography again in Ottawa on April 27th, 1999. The morning witnesses were: Rix Rodgers, Chief Executive Officer, and Patricia Sibbald, Director of Professional Services, Institute for the Prevention of Child Abuse, and Professor Nick Bala of the Faculty of Law, Queens University in Kingston, Ontario. The university in conjunction with the nearby Kingston Penitentiary is a centre of research on sex offenders under the leadership of Dr. William Marshall the well known psychiatrist. He along with Dr. Howard Barbaree and Dr. Peter Collins have been involved in treatment programs for many years. Both Rodgers and Bala have reputations for supporting more restrictive sexual laws. In 1990 Rix Rodgers as special advisor on child abuse to the Minister of National Health and Welfare had recommended new child porn laws. He was concerned about pornography where adults dress as children and believes that novels depicting sex between adults and children should be classed as child pornography. Patricia Sibbald speaks of recovered memories and uncritically accepts satanic ritual child abuse claims. Recovered memory claims are now widely discredited as many have been shown to have been unconsciously implanted by well meaning therapists and dozens of wrongly convicted people have been released. A series of over a hundred ritual satanic abuse daycare cases that erupted largely in Christian communities in the 1980s have generally suffered a similar fate. The well known Martensville, Saskatchewan case was a later although typical example. There was already much criticism of both phenomena at the time of the hearings and it is surprising that a presumably well informed person like Patricia Sibbald should take them seriously enough to offer them as evidence to a government committee.

Both Rodgers and Bala speak highly of Dr. William Marshall who has done research on sex offenders and pornography. Rodgers describes him, "Professor Bill Marshall one of the major authorities in the country." Bala says, "I would certainly defer to Professor Marshall... He's certainly one of the world's leading experts." M.P. Tom Wappel, a family values Liberal who does most of the talking for the committee, wants to invite Marshall before the committee.

In the afternoon The Honourable Pierre Blais, Minister of Justice and Attorney General of Canada appeared along with two department officials, Carolina Gilibertini and Hilary McCormack. The minister is a bit vague and talks about the BADGLEY REPORT and "surgical intervention... addressing child pornography". Tom Wappel, the most vocal member championing prohibition of possession and the written word brings up the question of NAMBLAand reads part of its mission statement from a copy of its newsletter to justify its prohibition: "We work to organize support for boys and men who have or desire consensual sexual and emotional relationships and to educate society on their positive value." He claims "the whole magazine is an intellectual attempt to justify pedophilia." He wants a law prohibiting it. Blais doesn't have "a straight answer" but they are looking into it.

Standing Committee on Justice hearings: April 28th

The next day the committee heard from Detective Staff Sergeant Robert Matthews, of Project P, Canada's largest anti-pornography squad. He asks, "What is child pornography? Child pornography is the permanent record of a child involved in either sexual posesor sexual acts. The result is that the child is scarred for life." This is a sweeping statement that has no scientific substantiation. He shows the committee "Lolita" magazines showing prepubescent girls engaged in sex which he claims are legal to possess. He claims that when he makes presentations to the "normal Canadian public... (those in) the audience are absolutely horrified when they find out that we do not have a law in place to prohibit possession of this form of obscenity." His presentation focuses on the need for simple possession laws. He makes two arguments for possession laws; "it will allow police to seize material that is currently being used by pedophiles to seduce children, and it will also remove the permanent record of children who have previously been sexually exploited." Later he uses the foot in the door argument that possession laws through search warrants would enable the police to investigate other offences. He mentions that there are problems with enforcing laws against distribution as collectors of child pornography commonly trade material but not sell it. Matthews says he has a large collection of child pornography and he uses it for lobbying and his educational purposes - hardly removing it from circulation. Detective Wolff also has a large collection which she even uses on family hour TV specials, again hardly removing it. Canada Customs, Matthews informs the members, intercepts "approximately 332 pieces of child pornography and incest material each year." He says that the Americans treat child pornography very seriously and backs up his call for heavy sentences by referring to American law which incidentally does not cover much of the material he wants included. With respect to NAMBLA he also complains about the problem of the pictures and writing not being obscene. He advises the use of pediatricians to determine ages. He says that child pornography is different from other forms because it directly links to sexual abuse. He boasts about how they had stopped the importation of You Are Not Alone, an award winning 1980 Danish movie about a boys' boarding school revolt which also involved some early adolescent crushes. I saw it at a film festival in Vancouver; there's a bit of nudity, a few funny parts and it gets quite emotional towards the end. Matthews claims that the would be importer was "in a very high position of trust in the community" and lived right beside a public school. And the man tries to import child pornography again. Matthews repeats his fact that the man is in a very high position of trust. I suppose he is known in Toronto but I have no idea. He could just be a big shot art film buff as far as I can tell. Matthews puts his appeal for possession laws at a personal level. "Nothing would make me more upset than to have to give back many, many hours of child pornography... simply because we don't have laws for possession." He tells a story about a clever child pornography distributor who got away because there was no possession law. He suggests attractive targets for the possession law, bad individuals, possibly higher ups. Matthews spins a pragmatic, romantic but narrow vision of possession laws that make good police sense. It is a law to delight a law enforcer.

Standing Committee on Justice hearings: May 10th Ottawa.

Matthews is welcomed and discusses Project P. He discusses porn as a neighbourhood issue with children seeing pornographic photos and videos of their peers. This is a highly unlikely scenario but it fits in with his folksy approach. Pornography must include more than just explicit sex and his preference is for an additional definition which include nudes where genitals are depicted. It's the act of possession that does the harm because of how porn is used; child pornography is a tool used to seduce children. He promotes the grooming theory. He is not concerned about innocent family material but he offers no distinctions. He emphasizes the foot in the door advantages of adding importing and possession offences. Matthews is keen to see the written word added to the definition of child pornography. He is most concerned about disgusting and sick stories on the Internet which can be found by children. He gives the committee members copies of a story called Vicky about a six year old little girl and outlines a plot where she is pimped by her mother. He tells the committee this is what they are after. He only discusses NAMBLA briefly deferring to Detective Wolff.

Noreen Wolff has an aversion to flying but child pornography is such an important issue she says that for the first time in ten years she took a plane. Pleasantries over she gets straight to the point, NAMBLA is not included. She describes a man-boy comic book Cherubino which sounds like those underground Batman comics of the 1970s where Batman and Robin have sex in between battling criminals. These comics she claims are used to break down the child's defences. She shows them a hardcore gay teen video, probably one from a European country where 16 is the legal age for pornography, that was seized by Customs. She mentions that it was destined for someone who has daily contact with children. Importing and possession laws are required. She continues, mentioning NAMBLA twenty seven times before she's done.

Monica Rainey in her second appearance mentions NAMBLA in her opening remarks and recommends that it be banned. She has begun receiving calls from adult survivors of child pornographic sex. She tells the committee that there are child porno rings in Canada where children are bought and sold. One adult survivor has told her that she had her life threatened when she tried to lay charges. There is a conspiracy to cover it up involving politicians, doctors, lawyers, school administrators and police, all tied to the child porno rings. Ms. Rainey says the police can't lay charges because they have destroyed the medical and school records. I suspect that this fantastic tale which she obviously believes may be a recovered memory case which often involve accusations levelled at evil men in high places. If so it brings the witness' gullibility and credibility into question. Ms. Rainey ends, "I implore you to pass this bill without further delay."

The question period is friendly with all speakers supporting stronger laws. Mr. Fee praises the witnesses. Wolff mentions that the BCCLA is studying an issue of the NAMBLA Bulletin she sent them and she quotes them as saying that when it comes to children they have to look at freedom of expression a different way. As I found out the BCCLA as an arbiter of community acceptability and couldn't afford to support even possession of the newsletter, at least not after Detective Wolff had defined it for the public. The public did have not the right to access information and viewpoints often nowhere else available in popular print. And somehow children would be protected.

Matthews reassures the committee that things in museums would be left alone, ruling in effect that they would be protected. He presumed for the benefit of the committee and his recommendations that police, prosecutors and courts wouldn't interfere with the arts and culture. A few months later he later he would eagerly testify for the prosecution at the forfeiture hearing for Eli Langer's paintings that had been seized at a public gallery in Toronto. Matthews argues that literate and verbal depictions of sexual acts should be prohibited because of "the thousands of stories that are on computers and that sort of thing." Detective Wolff makes a curious comparison. Section 22 of the Criminal Code makes it an offence to counsel a criminal act and she justifies the inclusion of the written material advocating sex with children on the basis that it could already be an offence. Ms. Rainey contributes, "It has often been said that sexual assault of a child is murder of the soul, so in many ways I would call it murder, because of the long term damage it does and because our children really have no means of protecting themselves." Her victimologically reconstructed child bears little resemblance to the adolescent boys encountered in actual cases like Bennest, West, Gramlick and Jewell. She again calls for the prohibition of written advocacy.

When asked if there are child pornography rings in Canada, Wolff replies that it has to do with Martensville, a Christian community just north of Saskatoon, where Canada's most notorious satanic ritual abuse case occurred. Among the nine arrested were several police officers who were colleagues of the rookie investigating officer Claudia Bryden. Marjaleena Repo, a freelance Saskatoon writer and researcher, wrote in the July 28th, 1992 Globe and Mail an article entitled "Fairytales of abuse" that exposed the shortcomings of the investigation and pointed to the collapse of similar cases elsewhere. When pressed by committee member Ian Waddell about porn being involved in the Martensville case as there was no mention of it in the press Wolff assures the committee that she has inside information. She tells them that quite a bit of pornography was produced there proving it's being made in Canada. Her contact may have been the zealous Christian, Constable Claudia Bryden who instigated the investigation. The fact that Wolff was wrong is not the main point, what matters is that she unquestioningly accepted the hearsay of her police contacts as she did with NAMBLA. The Martensville daycare abuse case, like dozens of similar ones throughout the Western English speaking world, collapsed with charges being dropped and convictions overturned. Some parents, perhaps believing their children and not what the police and their social work allies were implying refused to allow them to be interviewed perhaps inviting suspicion that they were obstructing justice. However thirty children were interviewed and fifteen of them alleged abuse. The children were pressured by repeated suggestion to disclose things that never occurred. Think of the impact from the child's point of view of being encouraged to invent, lie and falsely accuse. They are psychologically rewarded for "correct" answers and punished for "wrong" answers. This has been documented in Martensville and many of the hundred odd other cases in the decade long epidemic of satanic ritual abuse cases. For those children who succumbed to the pressures they were subjected to, the effect is likely to be greater than if they if they had actually experienced the fairytale nightmare that was constructed from the outrageously flawed interrogations. They are truly victims, they lost their sense of truth and integrity. I have to admire the courage and honesty of the other kids who stood up to the repeated questionings by the authorities and kept their integrity intact. Perhaps they were lucky enough to have parents who taught them to respect the truth and who indeed respected their children as persons. However in the literature of victimology these kids are the ones who lack "the courage to speak up".

As far as "children" are concerned what happened in Martensville is similar to what happened in London. In both cases kids were pressured to disclose, in one case it involved things that didn't happen and in the other things that probably did but which the kids would have preferred not to disclose. Both cases involved assaults by zealous police and social workers on young people's sense of honour and loyalty. In both any sexual abuse was overshadowed by the authorized abuse of officials. To pressure kids, even very young ones, on matters that concern their personal integrity interferes with their development of moral autonomy. Of course some people, such as those calling for raising the age consent, may believe that youth are incapable of any.

As a result of the interviews sixteen people were charged with a total of sixty offences. According to a report by David Roberts in the July 17th, 1995 Globe and Mail the children after repeated interrogations came up with stories that they were cut with knives, forced to have sex with up to forty adults as well as with dogs and flying bats. They had to eat eyeballs and mixtures of "poop" and raw fish shaped like Easter bunnies. Their parents also forced them to watch the neighbour's baby being skinned, buried, dug up, roasted and eaten. Some children told tales of being whipped, raped, confined to cages, penetrated with axe handles and thrown naked into freezers. This was taken seriously by the Crown, after all "children don't lie". Like the other cases it was induced by zealous, self-deluded officials and the improper leading interrogation of small children who were psychologically rewarded for disclosing abuse. The media did its part with sensationalized coverage. There was no child pornography, no bodies and no missing children despite elaborate and expensive searches. A sad footnote to this case is that children persuaded that they were sexually abused suffer the same symptoms and trauma as those who actually were. There are studies to back this up. In this case the abuse the children were led to disclose was particularly horrendous. It raises the question of whether it is the response to sexual abuse or the abuse itself that causes the most harm. We should not forget the trauma that the falsely accused and implicated adults were put through. While all but one have subsequently been cleared people lost their homes cars and the community remains bitterly divided. The officials responsible for eliciting false information are seldom if ever punished or held accountable.

M.P. Ian Waddell the only committee member to press a civil liberties perspective and to defend the arts mentions that in Europe statues of Peter Pan depict him nude. Wolff haughtily replies. "That's Europe. We're not in Europe; we're in Canada."

The next witness was Jack Gray, President of the Writers Guild of Canada, which represents scriptwriters for film and television, rather than authors of books who speak through the Writers' Union of Canada. Gray argues at some length about creativity and freedom of expression. He mentions gender awareness, cultural balance, cultural appropriation and political correctness as threats to freedom of expression. He says that some of his colleagues feel that the bill is being rushed through for "politically opportunistic reasons". He points out, as had Allan Borovoy of the Canadian Civil Liberties Union earlier, that the essence of problems the bill addresses is already covered in the Criminal Code.

This was however before the offence of simple possession was extended beyond sexually explicit materials or the written material definition was added to Bill C-128. While these measures had been advocated by the police witnesses, supported by others, presumably discussed in camera by the committee and mentioned in the House of Commons, they were not in the bill prepared by the Justice Department. With less than a week left major changes seemed unlikely and it was only the persistent efforts of Mr. Wappel that pushed them through. But these were the final bill's two radical, pioneering extensions of state power into personal privacy and freedom to convey meaning, which is what expression is in legal jargon. They set unprecedented precedents which I discuss later.

Gray claims that the bill is dangerously imprecise and overbroad. It prohibits things which impinge on a creators ability to portray reality as they see it. He says that sexual activity involving persons under 18 is common although he acknowledges that it may not be acceptable to many. He points out the chilling effect the law could have. He describes the personal and legal costs of people having to defend their works, or "just the very thought of it", as discouraging creativity. He also notes the enormous costs of a television drama and says producers can't afford this kind of risk. He is alarmed at the rush and warns that if they add print, "thenyou'll have everybody up to the table again, the writers' union and all the groups." This did not of course happen probably as the uproar which followed the GRAMLICK and JEWELL discouraged people from sticking their necks out.

The Chairman has a hard time listening to Gray's testimony. "I did try to keep an open mind... but I found myself getting rather heated as you were talking." He thinks the witness is "raising a spectre that in my mind does not exist." He hopes that Gray heard the three previous presentations and lectures him on the responsibilities of elected representatives "to protect the weaker and disadvantage elements in our society." Tom Wappel the Liberal Party Justice Critic had a similar problem, "I also have difficulty keeping an open mind on your position." He implies that even if Mr. Gray's points are valid that he would still support the bill. Wappel makes his assumptions and position very clear. "I say that the sexual exploitation of children is so serious that the very existence of our society as we know it is threatened... I simply do not ever wish to be a part of Canadian society at any time during my lifetime where it becomes acceptable for an adult to have sexual relations with a child, no matter how defined." Wappel doesn't want kids to have sex period; he continues, "We can talk about age, we can talk about 18, but if we talk about 18, if children are adults at 18, we can't have the cake and eat it too. We can't have the Young Offenders' Act treating people as children until they are 18 and yet letting them have sex at 14. If they are capable of having sex why can't they vote? If they are capable of having sex why can't they drive? If they are capable of having sex, why can't they drink?" Who is going to allow kids to have sex? Who decides if they are capable? Presumably not the kids themselves. If he was concerned about kids being capable of having sex he should have directed his attention to the age of puberty, not consent, perhaps demanding mandatory, universal chemical castration of kids until their eighteenth birthdays. To him it seems any celebration of adolescent sexuality is wrong.

Gray is condescending and tries to assuage the members during questioning and they in turn reassure him that culture is not being threatened. They also believe in freedom of expression. Chairman Horner claiming to speak for others tells Gray that some of his ideas are not acceptable. He sees the problem of creativity in terms of, "if the minds are so creative that, rather than creating something pornographic, they could create something else?" However when the question of print arises the Chairman Bob Horner boasts that he was instrumental in putting a bill through the last Parliament prohibiting pro-drug literature, such as High Times magazine, over the objections of the Writers' Guild (it was actually the Writers' Union). (This provision was later stuck down as unconstitutional in IORFIDA v. McINTYRE.) Gray's frustration and the disdain of some members is clear in the reading. Later Gray, remarks favourably, "a wise precaution", that the bill, unlike one put forward in 1986, does not include the written word. He offers that the guild would be happy to outline their concerns about written material but hadn't been asked. The chairman bluntly tells him, "You're having it right now, sir." Gray says in effect he isn't prepared.

A question arises as to why the committee chose to hear from these three witnesses twice. There were other police officers who are involved with the sexual abuse of children who might have different perspectives and without such a blatant self interest in the legislation as the porn squad heads.

House of Commons debates: May 11th, 1993.

Mr. Chris Axworthy the NDP member for Saskatoon-Clark's Crossing moved that his own private member's bill on child pornography, Bill C-396, be read a second time. He failed to get the unanimous support of the House which meant it would be talked out and die. His bill which had widespread support included a new crime, that of possessing child pornography. The Parliamentary Secretary to the Minister of Justice, Mr. Rob Nicholson who strongly supports the idea of new laws prohibiting child pornography, mentions the guidelines provided by the Butler Decision and states that the government is going to introduce legislation very soon and asks for patience. Mr. Tom Wappel, the Liberal Party Justice Critic and member for Scarborough West, stresses that possession of child pornography for personal use is not currently a crime, "Something most people would not believe". He complains that NAMBLA is perfectly legal. He states, "Every child depicted is a Standing victim for life. They are scarred forever..."

Committee on Justice hearings: May 12th, 1993.

Dr. William Marshall from the Sexual Behaviour Clinic in Kingston, Ontario testified. He was not speaking specifically about child pornography. The chairman introduced him as "Our distinguished witness... who really needs no introduction." Dr. Marshall mentions his more than twenty years treating sex offenders in prisons all over the world and in clinics. He is an advocate of imprisonment and favours compulsory treatment pointing out that ninety per cent of the offenders in his program "volunteer... simply because of the contingencies they face if they don't." I thought this sounded rather like involuntary volunteering, something that comes up later. He candidly states that prison sentences are necessary to get offenders into treatment. He opposes the abolition of parole for sex offenders because that would reduce the leverage they have over prisoners in treating and controlling them. He is also opposed to offenders being designated as dangerous offenders at the time of sentencing. He laments that some offenders who he feels should have been so designated were not. Showing great confidence in his treatment he says that this decision should be made on the basis of how well they respond to treatment in jail. In effect he wants that decision to be determined by psychiatrists like himself, not judges. This would provide him with even greater leverage over inmates. It would however work to the extreme disadvantage of the wrongly convicted such as those convicted inrecovered memory and satanic abuse cases. The proportion of wrongly convicted is probably higher among sex offenders than any other inmate group. The sentences served by sex offenders would presumably depend on their co-operation and response to treatment not the nature of their offences. The New Labour government in England has enacted such policies where power is delegated to experts. As someone who has read about Marshall's techniques, and who has been informed sight unseen by one of his psychiatric colleagues, Dr. Collins that sight unseen I would be difficult to treat, I find his proposal ominous.

Marshall is an obviously intelligent and in some ways a thoughtful man but with an overriding faith in the merits of treatment which he claims reduces recidivism by 20 per cent. However given the resourcefulness of many of many offenders in carrot and stick situations and the factthat they choose what to learn from treatment any claims must be qualified. There was an interesting article in the November 25th, 1999 National Post. A Dr. Michael Seto and Dr. Howard Barbaree, Dr. Collins' boss and colleague of Dr. Marshall report that imprisoned sex offenders who are co-operative in group therapy and who apparently learn to empathize with victims are more likely to reoffend. Many of these were psychopathic. This makes sense as learning to empathize could be very useful to a determined offender. In the same article there is reference to study showing that treated psychopaths are more likely to reoffend that untreated ones.

This could be directly related to the useful insights acquired in therapy. Now when these findings are set beside Dr. William Marshall's testimony that response to treatment should be determinative in the disposition of offenders we may have reason to question his professional wisdom. In victimological theory a victim is a victim, a willing worldly teenage boy is as much a victim as an eight year old who is traumatically raped. And the man in each case is equally an offender. The treatment is the same in each case. Now if the offender who had consensual sex with the boy does not feel guilty then he may be deemed to be in denial and therefore be deemed a greater risk than the offender who raped the eight year old and who expresses some contrition. This is the kind of situation that the moral assumptions and moral theories of psychiatry create. While it may be something that is welcomed by pedophobes it does not auger well for real victims.

Dr. Marshall is also a self promoter. He regards himself as a pioneer in treatment and claims to be devoted to the cause of treating sex offenders despite the fact there is not a lot of money in it. I wonder however if he does not make more testifying as an expert witness? He refers to his good friend and sometimes collaborator Gene Abel, a researcher in Atlanta who interviewed 153 homosexual pedophiles and found they assaulted an average of 150 little boys each. These were from difficult cases referred to him but the figure of 150 is not unrealistic. Marshall notes that less than 50 per cent of the men who molest other people's children are true pedophiles in the sense of preferring children as sex partners. The others are men who assault children opportunistically when suitable adult partners are not available. The latter may be over represented in offender samples as they tend to be more violent and probably less empathic thus calling attention to their behaviour.

House of Commons debates: June 3rd, 1993.

With less than two weeks left before the end of Parliament the Conservative government tabled Bill C-128, an act to amend the Criminal Code and the Customs Tariff. Rob Nicholson states. "The purpose of a law specifically addressing child pornography is to deal with the sexual exploitation of children and to make a statement regarding the inappropriate use and portrayal of children in media and art which have sexual aspects." People in the arts and media might feel that the law was directed at them. The provision prohibiting of possession of sexually explicit material is specifically directed at the home made pornography of pedophiles which may be traded but not sold.

George S. Rideout, M.P. for Moncton sees some problems, "Pornography is difficult to define and difficult to legislate so that it is not struck down once the courts start to have their effect." He nevertheless supports the offence of possession.

Ian Waddell the NDP Justice Critic and member from Port Moody - Coquitlam suggests the government may be "doing this for a little bit window dressing and for a future election campaign." his party supports the bill because it is a serious matter that has to be addressed. He says he has some concerns because he is basically a civil libertarian and worries especially "about freedom of the press and of the print." He reminds the House of what a former Minister of Justice had said. "'Let us have inclusive justice'. Inclusive Justice means that people from all sides come in and discuss the bill, we have a good hearing and then we will get the best bill possible. Then it will hold up in the courts and will not be thrown out as unconstitutional." He then makes a rather remarkable statement for a politician in a democratic country with a tradition of free speech. "I want to strongly draw it to the attention of the House, and it might take a little bit of courage to do it at this time, that there is a civil liberties angle to this." He goes on to say, "We have to be careful not to restrict people's right of disseminating information, no matter how much we dislike the information or what people are saying or arguing." He is talking about the written word not images. He specifically states that written material should not be included in the law. The bill was given second reading and referred to the Standing Committee.

Standing Committee on Justice hearings: June 8th, 1993.

Don Pigaroff for the Justice Department explains the draft Bill C-128 prepared by his department and says that the government has expressed no intention of making any amendments. Possession is a specific offence but only applies to explicit sexual activity. Written material would be covered under the existing obscenity laws (s. 163.) which as a result of the Butler decision makes specific reference to the use of children. Tom Wappel complains that there is no possession offence under obscenity laws, which means people could legally possess obscene stories involving children and the NAMBLA Bulletin. Wappel who completely dominates the session begins what can only be described as an interrogation of the officials. He brings out a copy of the NAMBLA Bulletin and quotes a news story from it: "Thanks in large part to a carefully crafted defence of the Bulletin by a pedophile activist in Quebec, the Justice Minister rejected the push to censor. The seven page defence was photocopied and distributed within the Department of Justice." Wappel demands to know what they know about this defence. Ms. Lieff says she's seen the article, Wappel had sent a copy of the newsletter to the department, but she says that the comments in the article are inaccurate. Wappel is not happy with her answer, "I am asking you a specific question. Are you aware of any written defence of the Bulletin circulated within the Department of Justice?" He asks Pigaroff the same question. Neither know anything of a defence of the NAMBLA Bulletin. Wappel wants to know if anyone put pressure on the Department to not include written material. He makes a further quote from NAMBLA's newsletter: "Pressure also came from within the gay community - Toronto's gay paper XTRA published a long article on the Justice Committee's hearing entitled, 'Justice Committee Studies Man-Boy Love'." It is almost as if Wappel believes there is some sort of conspiracy on the part of pedos and gays which the Justice Department officials are covering up. He is also implicitly questioning citizens right to lobby the government.

I was later able to confirm that a brief from a Quebec pedophile activist had in fact been submitted to and circulated within the Department of Justice. It may be that Pigaroff and Lieff were unaware of it, or they may have been reluctant to admit it in face of Tom Wappel's wrath.

Standing Committee on Justice: June 15th, 1993.

The final Bill C-128 hearings of the Standing Committee were on the morning of the day the bill received third reading in Parliament. The witnesses were: Allan Borovoy from the Canadian Civil Liberties Association; Dan MacDonald, President of the ACTRA Performers Guild; Sandra MacDonald President of the Canadian Film and Television Production Association; Dan Lyon from the National Association of Canadian Film & Video Distributors and from the Canadian Broadcasting Corporation; Daniel J. Henry, senior legal counsel, Jim Burt, Creative Head, Movies and Mini-Series, and Gerald A. Flaherty. Q.C. Vice Present dealing with legal matters. The media people were all primarily concerned about the visual arts. Two representatives of the Department of Justice, Don Piagoff, General Counsel, and Elissa Lieff, Senior Counsel both of the Criminal Law section testified. In addition the Parliamentary Secretary to the Minister of Justice, Rob Nicholson appeared.

Allan Borovoy, Chief Counsel appeared for the Canadian Civil Liberties Association. He begins by conceding that he wouldn't be appearing if the bill only covered of images of real children engaged in explicit sexual activities. Such "material is repugnant and there is a strong arguments for making it unlawful". He is not there to defend anything remotely repugnant. His concern is with marginal situations and he cleverly asks who cares if two adults play underaged Romeo and Juliet? Borovoy is concerned about overbreadth and lists examples from movies, plays and television programs that could be affected by the proposed definitions. He also gives examples from the past where officials have acted perhaps foolishly in making seizures and laying charges. He believes the new law is largely redundant and claims the existing obscenity laws cover the important areas. He only expresses concern about possession being an offence in the context of an art gallery. Simple, private possession by collectors and consumers he ignores. He does not challenge any of the victimological assumptions and theories of the police and child advocates. He never tries to see things from the kids' perspectives. Borovoy's concern is totally elitist, he is there to protect the interests of culture, artists and maybe intellectuals. While he may not have known about the determination of some members to add written material he nevertheless does not mention it. Internally, either out of fear or righteous indignation the CCLA had decided that they could not defend NAMBLA which left them with little they could say about free speech. Borovoy's testimony as a civil liberties critic did more to legitimize the bill than raise any fundamental questions about it.

Sandra MacDonald representing distributors was the most enlightened about the implications of the legislation. She is concerned about the popular genre of coming of age films. under the bill she says that the award winning Boys of St. Vincent miniseries could result in the program makers facing ten years in jail. Such subjects will be avoided in the future. She notes "the bill contains unprecedented restrictions on fundamental freedoms". There was no prior consultation with the legal community or affected parties. She concludes by saying, "This legislation, if passed, cannot possibly escape Charter challenge." and suggests that it be withdrawn so its issues can be examined more fully. Dan MacDonald representing 8000 members of ACTRA wants definitions tied to existing definitions in 163. (8), the obscenity provisions of the Criminal Code which have been clarified by the courts. He also wants definitions limited to "realistic" depictions.

Dan Lyon of CBC complains about the haste and lack of consultation including the bar associations. He says that when Bill C-54 was being considered he had tried to argue with Justice Department officials and they told him he should be in jail because the company he worked for distributed the movie Porky's. I believe that this is an accurate reflection of the mentality of the Justice Department bureaucracy. Lyon provides examples of a number of films that could be caught by the bill and says 10,000 video distributors could be at risk. Gerald Flaherty is mainly concerned that the bill would have a chilling effect on the creation of "completely legitimate non-pornographic artistic and creative works." Daniel Henry points out that "artistic merit" which is offered as a defence, may take some time to be recognized. He prefers the term "artistic purpose". A lawyer later pointed out to me that an amateur copying a master's painting which had artistic merit (like the Picasso poster in my bathroom) could be convicted because his copy did not have artistic merit. Henry would prefer to stay with existing, understood legal terms like "undue exploitation" and "dominant characteristic" rather than the new ones proposed. In other words stick with the Butler decision definitions. He claims that CBC has done good job depicting teenage sexuality and sexual abuse of children. Degrassi Junior high he says was effective in talking about AIDS to kids. He discusses a number of dramas that could be effected and claims artists need to understand and depict reality. As a result of some programs that would be affected the KIDS HELP LINE, 1-880 number got children phoning and reporting abuse. Kids who'd been abused at Mount Cashel felt Boys of St. Vincent validated their claims. The chairman counters that they have petitions and letters saying we have to do something.

Tom Wappel wants to know what he means when they say CBC doesn't engage in child pornography. A seemingly animated exchange occurs between Wappel and Mr. MacDonald about what is porn and what is a child. MacDonald accepts under eighteen. Wappel wants to know why the Boys of St Vincent had to be so graphic. MacDonald replies that it is the job of the actor to tell the truth not to prevaricate. Mr. Burt adds, " boys say to me, 'Thank God you did that because nobody believes us...'" In terms of preventing abuse the bill is counterproductive. He also thinks they should within the existing definitions of s. 163. Committee member Mr. MacLellan doesn't think the CBC is going to have problem. He had previously commented, it's not clear how seriously, that there were some people in the CBC he would like to see in jail, although he admits that it does have a meaningful role in the country. Discounting any chilling effect he says, "Frankly, the media of this country have too much moxie, and too many guts to roll over and change their perception of what they think they should be doing on the basis of an act they feel might put limitations on their activity." If he was wrong he would buy Mr. Burt dinner. I wonder if this presumption of courage is misplaced. More likely perhaps CBC journalists would see the law as another opportunity for sensationalistic coverage as did Wayne Williams in his excursion into police work in the West case. None of these last minute witnesses made a strong case for excluding the written word from the definition of child pornography, they were all in visual media. Nor did any of them say much about making possession an offence, they were there to represent creators concerned about the limitations on what they could make. No one mentioned the significance of simple possession, certainly not Borovoy who viewed things from the viewpoint of the producers, bona fide intelligentsia, he ignores the consumers and participants and any rights they might think they have. The radical extension of state power into the conscience and privacy of individuals was either not recognized or ignored. Or perhaps he didn't know it was being included.

The committee seemed to regard this testimony more as a challenge to their good intentions than as rational advice. It seems obvious that the committee had already made up their minds and regarded the calling in these last minute witnesses without time for preparation as a formality.

After the witnesses leave according to the minutes the committee spends ten minutes in camera. They meet with the Justice Department officials after. Don Piragroff explains how his department has drafted the simple possession offence into the bill so that it does not conflict with the obscenity laws. Ms. Elissa Lieff makes a technical point about where an accused believed a person was over 18 wouldn't apply "to written material in terms of NAMBLA." This suggests that their newsletter was being explicitly targeted by the committee. The possession offence is discussed in terms of wording only. Afterwards the committee went through the bill section by section making changes. Douglas Fee moved the amendment adding written material.

What is perhaps more significant is what was not presented or discussed before the committee. There was nothing first hand, all the testimony was from those with interests to promote like the police or to defend like the media. There were no actual victims, only ideologically reconstructed ones. No makers or consumers of child pornography testified nor would they have been welcome. I would not have been welcome. Nor would underage hustlers like those in GRAMLICK and JEWELL who like the extra bucks from performing in front of someone's videocam been welcome. Monica Rainey spoke for them. There was nothing about the reality of porn making and those involved. This can of course range from the horrendously violent and cruel tapes made by Bernardo and Homulka to the casual, consensual, and even conspiratorial sex videos in the cases like GRAMLICK and WEST. Boys know what they're doing even when they're facing need or temptation and they are capable of rationalizing on that basis. The criminal justice system should only get involved if that's what the boys want. Boys get the conflicting messages of "grow up" and "stay innocent, remain a child." They have to decide for themselves. Confident, worldly, curious, and autonomous boys have a great advantage in life. Any prohibitions or penalties relating to the affairs of boys and men should relate to the harm done in the particular cases. Excuse me, I am "advocating" again.

Adding the second visual definition, "depiction, for a sexual purpose, of a sexual organ or anal region" was even more ill-conceived than adding the written word. I believe this definition was an attempt to prohibit any depiction of children's genitals out side of certain limited contexts. Nobody wanted to be seen as tackling legitimate artists or works in galleries and museums. At the time my apartment was searched I had a large Picasso poster, "Les Deux Freres" showing a nude twelve tear old boy carrying a smaller child on his back. Interestingly the police did not touch it although similar material by unknown artists was seized. As for nudes it would seem almost certain that Wolff and Matthews had come across coffee table books and glossy magazines such as the French Jeune et Naturelle which feature prepubescent and adolescent boys and girls in beach, wilderness and nudist rec centre scenes. It's the kind of material that pedophiles amongst others enjoy and collect so they had to prohibit it. The reasoning may have been that the more material the law can prohibit including naturalistic nudes, the better. Make it a tough law and make the penalties severe. In the possession of alleged pedophiles they may have anticipated that this material could be deemed child pornography despite its technical and artistic qualities thus denying it to them. They may also have thought that it was generally wrong or abusive to photograph naked children and therefore nudity should be included. In adding this definition at the last minute the committee avoided predictable objections from the arts community. As I will show later this definition became a child abusing, family wrecking tool in the hands of zealous police, welfare officials and courts.

The child pornography law was specifically intended to target pedophiles who clinically, according to Dr. William Marshall, make up well under half of non-family child molesters. Including incest offenders pedophiles comprise approximately one third of all offenders. It may be however that pedophiles are less likely to come to attention of the criminal justice system. This point never came up after his testimony. Perhaps the committee reasoned that at least they were getting at some of the of the child molesters with the law. Or are pedophiles feared beyond other child molesters? The emphasis in the media and the popular mind is on pedophiles yet neither Paul Bernardo nor Clifford Olson are pedophiles. Possibly it is because people fear that pedophiles will corrupt children, such as turning young boys gay, not merely sexually assault them.

Less than two months after the law was proclaimed the Police in London Ontario would be hauling men and boys off to jail. Not long after in Toronto three gay youths, two fourteen and one nineteen were charged with making child pornography for videoing their sexual activities. This led to protests that the law was being used to target youth sex. Tom Wappel might have found this appropriate.

House of Commons debates: June 15th, 1993.

In the afternoon June 15th, only hours after the committee heard the last witnesses and made last minute amendments Bill C-128 received third and final reading. Parliament was in a self congratulatory mood. John Reimer of Kitchener is delighted to be the first to speak. He regurgitates the standard police theories of child pornography and relates the tale of Reverend Charles Dobson's well known interview with the re-born again Ted Bundy shortly before his execution. The brutal serial killer's, porn made me do it confession, earned him some sympathy and made him a respected authority in anti-porn circles. Other parliamentarians speak as if they are intimately familiar with the harm caused by child pornography, and of course it's grown from a five million to ten billion dollar business. This latter claim is of course a preposterous lie typical of those propagated by anti-porn activists. The Secretary to the Minister of Justice praises the department's officials and Monica Rainey. He finds NAMBLA disgusting, and ignorantly equating it with the ephemeral Quebec pedophile activist, he has this to say, "I say to that organization: 'This is one bad day for you because we put in that legislation and it is directed specifically at publications like yours so that it is in the Criminal Code and the people who enforce the laws of this country can take action. We are zeroing in on publications like yours'" Coming from the Parliamentary Secretary I mistakenly assumed that this statement was a statement of the intent of Parliament. It cost me almost seventy dollars to find out otherwise. One NDP member assures Parliament that free speech is not an absolute right and that maybe the child pornography laws could serve as a model for future adult porn laws. Canadians can be proud.

Tom Wappel is honoured to speak and tells how he was alerted to NAMBLA by Detective Wolff and repeats much of her presentation for the benefit of the House. The omission of the written material was a serious flaw in the bill and he boasts, "I was instrumental in having that provision included..." He praises Matthews. Wappel whose photo appeared in the NAMBLA Bulletin at the time is proud. "What is NAMBLA and what are its aims? The following are direct quotes taken from the editorial page of the NAMBLA Bulletin. In my view it is critically important that we read them into the record to understand what the bill (C-128) and the amendments which were worked out in committee do, and why.

"It says: 'We work to organize support for boys and men who have or desire consensual sexual and emotional relationships and to educate society on their positive nature. We speak out against the oppression endured by boys and men who love each other and support the right of all people to consensual intergenerational relationships.'

"It continues: 'NAMBLA condemns sexual abuse and all forms of coercion, but we insist there is a distinction between coercive and consensual sex. Laws that focus only on the age of participants fail to capture the distinction for they ignore the quality of the relationship. Differences in age do not preclude mutual loving interaction between persons any more that differences in race or class.'

Quoting Sergeant Bob Matthews of Project P. he says, "'Any publication that advocates adults having sex with children should be banned from this country.' I say amen to that, and we discussed it."

George H. Rideout of Moncton, a committee member discusses the addition of the written word. He says it was the stories and messages with explicit details and language available on the Internet that shocked some members into including the written word. He was not sure however that this was constitutional: "My concern is that by adding the written word we may find ourselves vulnerable to a Charter challenge. I guess that in these circumstances one says: 'Do we not do something for fear of a Charter challenge or do we do something and then see what takes place afterward.'... If it does not pass the test then we will try to correct it later on." He laments the haste and the fact that they were not able to properly consider the comments of the media people and wishes the committee could have done a better job.

Derek Lee, of Scarborough-Rouge River, another committee member tends to dismiss the concerns of the media witnesses. He strongly supports the inclusion of the written word and denigrates some who do not agree. He boasts. "In fact some people in Canadian society over the last few months basically dared Parliament. Their little group (NAMBLA), relying on their interpretation of the Canadian Charter of Rights and Freedoms dared Parliament dared Parliament and the Canadian people to try and infringe upon their right to advocate the sexual abuse of children, the sexual plundering of our youth. We were up to the challenge." I assume the group that dared to dissent is the same one that Don Pigaroff and Elissa Lief didn't know anything about.

There is of course no debate of substance on Bill C-128. Many members of Parliament may feel they have glimpsed the trauma that child porn must inflict on children. They know in their hearts and think with their blood. They have seen the police presentations with their selected examples which represents what they want to go after. They have adopted unquestioningly the concepts advanced by the police and child advocate witnesses.

The hearings of the Standing Committee and debates in HANSARD relating to the passage of Bill C-128 are compelling evidence that Canadians need protection from ignorant, capricious and overzealous politicians. I do not know to what extent other legislation is considered in such an arrogant and prejudicial manner. Written submissions were made but we hear nothing of their contents. Who determines who gets to testify and when? The congenial welcome of Dr. Marshall and the police witnesses contrasts with the hostile and angry treatment of Mr. Gray representing script writers. The last minute changes which kept the last minute witnesses in the dark seems more like deliberate deceit than some internal necessity. Parliament has a responsibility to see that its committees follow basic rules of fairness and democratic procedures. Citizens need recourse when Parliament behind its formal veneer has acted with undisguised expediency and reckless abandon. The Divine Right of Parliament, as strenuously promoted by columnists such as Andrew Coyne and Ian Hunter can be as abusive of the freedom and privacy of citizens as the Divine Right of Kings ever was.

PARTING WITH RITZKER

I, like many Canadians, first heard of NAMBLA as a result of the reportage of Noreen Wolff's testimony before the Standing Committee. However I didn't get a chance to examine the NAMBLA Bulletin until about a week before my first bust when I was in Amsterdam where it is openly sold. I browsed about a dozen issues and could hardly see how it as could constitute a threat to children, but then I don't see them, at least adolescents as particularly vulnerable or gullible. I subsequently wrote to Nambla explaining my case and they sent me three sample issues. I also tried to order a copy of PAIDIKA, The Journal of Paedophilia, a European magazine with a more academic slant than the Bulletin. The editor, Joseph Geraci refused because he was advised that to do so would be in violation of Canadian child pornography laws, which was true. I got my $18 money order back. I could see that in defending myself and my writings I would also have to defend the NAMBLA Bulletin, the publication so clearly targeted by the law.

Around this time the Human Rights Tribunal's inquisition of Doug Collins, a WW2 hero and newspaper columnist was in the news. His lawyer argued that free speech is not something that can be balanced against other rights, it is a means by which other rights can be balanced. I liked that. To argue otherwise would be to claim that things can better be weighed if we discard the scales. Supreme Court Justice and judicial activist John Sopinka who had written the Butler decision was in Edmonton campaigning for the concept of "reasonable" free speech and more child pornography laws to deal with the Internet. A retired military officer in Ontario got fifteen months for possessing Internet child porn. I began passing on to Ritzker a large amount of relevant material that I downloaded off the Internet and excerpts and my own commentaries on articles, books and cases I read. I became ever more convinced of the need to tackle the law head on. He may have felt a bit overwhelmed. I suggested to Ritzker that we enter copies of the NAMBLA Bulletin as exhibits for the defence to demonstrate the overbreadth of the law. He looked at a copy but he did not like the idea and possible risks of submitting illegal material. Men had been jailed for merely possessing it.

I continued to push my lawyer, we had to get a fairly substantial sum together to afford a constitutional challenge although I wanted to stay with legal aid as long as we could. In late October I arranged a for us to meet at a downtown club with an old friend of mine, one of the very few wealthy people I know. He is a successful businessman among other things, a one time idealist who now prides himself on his realpolitik. My friend was impressed with Ritzker. We discussed my case and I expressed my intention to plead not guilty to all charges including those for possession of photographs. My lawyer said I was being too rigid and my friend agreed. Ritzker argued that I should plead guilty to the photographs to show the court that we are prepared to go halfway, and that this would lead to more sympathetic treatment. It sounded like fishing for a plea bargain. I could understand that from talking to other lawyers who were freaked out about child pornography he felt an uncompromising approach was hopeless but I felt he blew it. Nothing came of the meeting or a subsequent one with my friend whom I no longer see and conclude that he has little sympathy for my cause. Ritzker felt I was offering myself as a sacrificial lamb needlessly. I resolved to work harder at educating him.

I wrote Michael Ritzker instructing him to proceed on the basis of not guilty pleas. I included a bit of doggerel, Lamb I Am that came to me at the time:

If you want to say I am/ a sacrificial lamb

then let it be/ Mr. Lawyerly

My instructions/ follow my deductions

and my plan to be/ free in my mind

and help others find/ ways to be free like me

I was certainly not optimistic. When I got together with him for the last time we had a good talk. He acknowledged the absurdity as well as the majesty of the law. But he was overwhelmed by the certainty of failure and said he could not ethically be my "pilot" on my Icarian voyage into the Sun. His concept of his duty was to serve me in his best professional way and in my case he admitted that didn't go much beyond damage control. I felt he was overawed by the law and lacked legal imagination. I dismissed him but we departed amicably. I already suspected that I would end up defending myself. He knew my determination and the direction I wanted to take and brought up the possibility. He advised me on what to study but warned me that while the courts will listen to what I say they will do what they would do anyway. Not very encouraging. The best advice he gave me was, "Law is simple and words mean what they say." He provided me with the names of a couple of law professors who might be interested and mentioned a third lawyer, Manual Azevedo, a protege of Harry Rankin. Subsequently I consulted Ritzker over the phone several times and he proved helpful.

SHOPPING FOR A LAWYER

After parting ways with Michael Ritzker I began looking for another lawyer. By then I had a fairly well developed basic plan that I wanted them to follow although I was open to alternatives. The law professors Ritzker mentioned were either not interested or unavailable. One friend suggested a female Chilliwack lawyer, I rather liked the idea of a woman representing me, but she simply informed me that she did not take "skinner" cases.I also saw Nathan Ganapathi again, he was a friend of a friend and interested in constitutional issues. He shared some of my misgivings about what measures ostensibly designed to protect children were doing to kids. He was the only lawyer I talked to who gave me positive feedback on my plan. If I had been able to come by the $25,000 retainer he insisted on I might well have employed him.

I seriously considered Manuel Azevedo. He had been involved in the Gustaffsen Lake cases, the biggest trial involving Aboriginal issues in the province's history. I liked his Old Left credentials. He struck me as tough minded and incisive and the question of money did not seem so threatening. My reservations centred on his ignorance concerning alternative sexualities, he was not, for example, aware that there were gay newspapers in Vancouver. I suspect that this was because he grew up in the Azores, isolated Atlantic islands that are part of Portugal. The task of educating him in Canadian sexual politics would be enormous. I could not see him defending my stories, etc. Jonathon Waddington impressed me but $30,000 for the preliminary hearing was increasingly remote. But then the highest mountain within the province is named after an ancestor of his. I began to realize that I could not afford a legal warrior to carry out my plan. It would require $50,000 to $100,000 to hire a good lawyer to challenge the law. It was a burden I could not ask friends to bear should they be willing. The new prosecutor Terry Schultes was concerned that I was still unrepresented, I don't think he liked the idea of me defending myself.

I did find a lawyer whom I would have liked as counsel. Through friends I met Jim Heller a Victoria lawyer and musician. I got to know him when he was in Vancouver defending, unsuccessfully it turned out, a man accused of murder. I sat in on the trial a few times. He is an informal, down to earth man and I found him to be intelligently curious, imaginative and gutsy.

At his funky flat cum office in Victoria's Chinatown I explained my plan of attack. He was interested but admitted he was not familiar with constitutional law and would have to spend a lot of time studying it. He said he would consider doing it on legal aid if they would pay his transportation and out of town costs which he estimated as around $400 a day. I went back to legal aid and asked them if they would pay for him on that basis. The worker refused my request saying that they would only consider paying transportation costs where suitable counsel could not be retained locally. This was certainly not the case in Vancouver. I appealed the ruling but got nowhere. A federal program for funding constitutional challenges was not for my kind of minority and may have expired. It was used for the equality rights issues of respectable minorities and women, not heretical expression. Jim Heller quite reasonably said he could not afford to take my case on that basis. We considered other ways to pay his additional costs but this presented ethical problems and where would the money come from anyway? I continued to seek his advice and encouragement through my preliminary hearing and voir dire.

I approached Victor Svacek who was representing a man facing similar charges. I talked with him several times and met and offered encouragement to his worried client. I also approached Joseph Arvay, the Victoria lawyer who represented Little Sister's Bookstore in their challenge to Canada Customs and has a reputation for defending freedom of expression. Ironically when I met him he was acting as a Crown Prosecutor trying to stifle a challenge to the provincial election spending laws based on freedom of expression arguments. I explained my case but he not interested.

While my focus was on the constitutionality of the laws I wanted to be prepared for an "artistic merit" defence if necessary. I felt I needed to enhance my reputation as a writer, something I had not been concerned about previously. By this time the gay writers' group I'd been part of had stopped meeting and the gay literary magazine, the Sodomite Invasion Review had folded. Detective Waters' seizure and refusal to give me a duplicate of my only disked copy of my novel PETER'S PATH frustrated my intent to publish it. I would have still faced distribution problems. I also had a new collection of poetry, RECENT ACCULATIONS & APPROPRIATED VOICES or RAAV almost finished and while the police had the latest version on my hard drive I still had most of it on a back up disk that survived. I included some new poems tomake up for those lost. With the help of a friend's contributions I had a young graffiti artist produce a cover design and had about 240 copies printed up. I dedicated the book to those I see as Canada's contemporary folk heroes, those who liberate and enrich our lives in the face of media and state harassment; hookers, hustlers, strippers, traffickers and taggers. Genuine folk heroes are always in conflict with elitist and mainstream values. Friends distributed a few dozen and I sent off about thirty as samples and for review as I've done with my other publications. I didn't expect much response. I also sent a couple of copies to XTRA West, Vancouver's bi-weekly gay newspaper which had reviewed one of my earlier books. The Editor, Garreth Kirkby left a phone message telling me not to send them any more of my poetry and that he had no intention of covering my trial. He confirmed it when I later spoke to him. I was persona non grata with the official gay community but I was still surprised at his attitude in view of his qualified editorial support for William Bennest. I placed ten copies in Little Sister's and a few in two small bookstores. Little Sister's which is involved in its own constitutional challenge felt it advisable to take my works off their shelves to avoid media and police harassment after only two copies of RAAV had sold. One of these was purchased by an American visitor with whom I have established regular and rewarding correspondence. I was finding it difficult to organize any kind of literary merit defence. It was my former gay literary friends more than anyone else who were anxious to disassociate themselves from me. I thought of them as a bunch of pathetic wimps. I would have somehow to find qualified people to read and evaluate the artistic merit of my bizarre BOYABUSE stories. This would not be easy. Except for close, long time personal friends I was feeling isolated as others drifted away.

PRELIMINARY HEARING

Some time before my preliminary hearing I realized that I might have to defend myself. I had already the developed the basic plan for challenging the law which I would later use at the voix dire. I had seen TV clips of William Bennest, the Burnaby elementary school principal charged with child pornography, dashing from a car into the courthouse with a jacket held over his face. I resolved to never behave in such a self demeaning manner. I also remembered the spectacle of a near catatonic Richard West at his sentencing on child pornography charges. I had done nothing I was ashamed of and I was not going to act as if I had. Let people think what they may. I normally walk proudly anyway. I can remember when I was a small child just starting school and I was a full head above most others, a regular beanpole, and I used to walk hunched over to compensate for my embarrassing tallness. My older brother, a much braver person than I was then, told me to walk with my head up and shoulders back. I consciously worked on my posture. In recent years I have found that with my emphysema good posture also makes breathing easier. I knew that if I defended myself that my bearing and health would be important.

Before my preliminary hearing I had a brief pre trial conference before Judge Field where I discussed arrangements with the prosecutor. Terry Schultes who had experience in cases involving constitutional issues had recently replaced Peter Gulbranson with whom Myers had tried to make a sweet deal. Schultes is a short, tidy man who approaches his job in a business like manner. He was genuinely concerned about my lack of a lawyer and offered to put off the hearing until I had retained counsel. After my unsuccessful shopping efforts I had doubts about finding suitable counsel and agreed to proceed as scheduled. I entertained the idea that somehow after the preliminary hearing and my not guilty pleas that it might be easier to find someone I had confidence in to represent me. Schultes seemed to be a very decent fellow and except for some frustrating delays in providing disclosure, which I suspect were due to Detective Waters's zealotry, I never had occasion to doubt his behaviour or integrity during my trial.

The purpose of a preliminary hearing is to decide if there is sufficient evidence to proceed to trial. Defendants have the right to waive the hearing and proceed directly to trial on a guilty plea. I certainly had no doubt about there being sufficient evidence. They do however provide an opportunity to explore the Crown's case, raise legal points, and in my case gain some practical courtroom experience. My preliminary hearing began on February 11th, 1998 in Surrey Provincial Court before Judge R.D. Miller two years and ten months after my first bust. The Crown was proceeding by way of indictment which gave me the right to select the method of trial. I elected trial in Supreme Court before a judge and jury. Given the widespread hysteria about child pornography which made the charges seem particularly odious I was repeatedly asked why I chose a jury trial. I believe no one else had. The answer is simple: My readings of ignorant and righteously indignant sentencing decisions in other child pornography cases led me to think that I could hardly do worse and I could always convert to trial by judge alone but not the opposite. I saw more opportunities to present the personal aspects of my case with a jury.

The Crown called six witnesses. The first was Detective Noreen Waters, the head of the CLEU's pornography portfolio, essentially the kiddieporn squad, the investigation officer, the exhibits officer and the officer who arrested me. At the time she had served with the Vancouver Police Department for twenty two years and had very extensive credentials in the field of investigating child pornography. She became involved in my case three weeks after my first bust and took custody of the exhibits two months after. A copy of her curriculum vitae entered at the subsequent voix dire is attached as Appendix "XX". Detective Waters is a tall slim haughty blond woman in her forties. I found her in my several dealings to be icily reserved and completely humourless. She made her more than professional dislike for me clear on first meeting. She seems to take her job very seriously and gave her testimony as a presentation. Mr. Schultes made a meticulous and often tedious direct examination of the witness. Detective waters replied in minute detail relating the course of her investigation often giving the exact date and minute of such things as turning over an exhibit for analysis by a colleague. I failed to see any point to the minutiae. During her examination she entered 101 exhibits, everything from books and computer disks to my will and one page scraps of scribblings and gave brief descriptions of each. Much of this was to establish facts my residence, my possession and authorship of various exhibits, something which I had already told the prosecutor I had no intention of denying.

Prosecutor Schultes led Detective Waters through the events of May 13th, the day she arrested me and obtained a search warrant. According to her she was advised over the phone by Constable MacDonald of the Surrey RCMP that there was a warrant in effect in Surrey for my arrest on child pornography charges and he asked her to assist in executing the warrant. A copy was faxed. Along with Detective Don Smith and Constable Brian Hynes she arrived at my apartment at 7:55AM. Her description of the event basically corresponds to my earlier description of it. She noted my furniture and a large framed photograph on my living room wall of me handing out joints at a marijuana legalization rally a couple of years previously. The picture had appeared on the front page of the VANCOUVER SUN. She seized a copy of LIFE ON THE CORNER: THE MOON EYED BEGGAR'S TALE, a novella I had recently published. She also seized a computer disk of my novel PETER'S PATH which I had written in 1986. I'd recently had the original typed copy scanned and processed with an optical character recognition program in order to facilitate editing and formatting. This I had done at considered expense and time in case I needed it as part of a literary merit defence at my trial. It was the only digitalized copy I had and I could not afford the two hundred dollars to have the original rescanned. This took maybe twenty minutes.

Continuing her testimony Detective Waters related how she had a police computer technician print out a hard copy of the novel, maybe two hundred pages by her estimate, and she then reviewed it. She also reviewed LIFE ON THE CORNER: THE MOON EYED BEGGAR'S TALE, some forty pages and came to the conclusion that both advocated sexual activity with persons under eighteen and thus constituted child pornography. (Neither was deemed to be child pornography by the Crown and both were subsequently returned.) Detective Waters then prepared a nineteen page INFORMATION TO OBTAIN A SEARCH WARRANT, took it to a justice of the peace and obtained a search warrant. The INFORMATION included two and a half pages quoting Dr. Peter Ian Collins thoughts about pedophiles and collectors of child pornography. He is apparently her guru on such matters. By 2:00PM, a mere six hours after knocking at my door, Detective Waters along with Sergeant Smith, a Detective Harrower and Canada Customs Regional Intelligence Officer, Peter Lee entered my apartment with a search warrant. Detective Waters had an extremely busy day.

I began my cross examination of Detective Waters in mid afternoon. Two things had struck me about her testimony. One was that she seemed to have no comprehension of what she read confusing different stories and the characters within them and making errors of fact. It seemed that in reviewing written material Noreen Waters' mind operates somewhat like a computer word search program. It picks out acts and ages but nothing in the way of plot or context. She doesn't comprehend what she reads. This might be excusable in terms of the material seized during my arrest and reviewed for the purposes of a search warrant a few hours later but not for material she claimed to have spent six months studying. I suspect that she may have a moral block examining material she finds offensive.

I was not very pleased with my cross examination of Detective Waters the first day although it could have been worse. I saw the need for a lawyer's know how and skills. I phoned Jim Heller in Victoria and he gave some impromptu coaching which proved helpful. The next day when Detective Waters resumed the stand she first explained that she had been confused about my books and that she had been thinking about MANILAMANIC when I had questioned her before about LIFE ON THE CORNER which was used as evidence to obtain the search warrant. I had asked her on Wednesday if she understood the story, how did the boy become blinded and deformed. All she remembered was that it was about boys and sex. Boys, sex and sadomasochistic acts seemed to be all she remembered about any of my writing. She had said she had reviewed LIFE ON THE CORNER six months to a year prior to my arrest when in fact it had only been picked up from the printer a couple of weeks before. She said the police had received a complaint about LIFE ON THE CORNER and had purchased a copy (of MANILAMANIC in fact) at Little Sister's Bookstore.

She also corrected herself on the question of how long it took her to review the material. On Wednesday I had asked her about the delay from my original arrest in April 1995 to my second arrest in May 1996. In reply she mentioned that it took six months for her to look over the material. On Thursday she said the six months included both seizures. This did not however seem to explain the delay.

Using ideas I had picked up from Jim Heller I asked her about my arrest. I asked her if they had discussed my arrest before they arrived. She replied that they considered the safety of the arrest. I asked her about the time, early in the morning when people are often asleep. She replied that it was a time when people were likely at home. I asked why three officers were needed. She replied to ensure the safety of the arrest. They can't be too careful and it would give them a chance to seize "plain sight" evidence. She admitted they swarmed into my living room but they did not "mill around the room" as I had suggested. I explained that I just wanted to get dressed without a bunch of people snooping around. Judge Miller reminded me my job was to ask questions. If the police had only been interested in arresting me they could have waited at the door until I put some clothes on. When I asked her this she replied, and I quote from the transcript of the preliminary hearing, "We're concerned that you might go into your suite and possibly get a weapon. And so, once you're told you're under arrest, then we make sure you're secure and that it's for our security as well as your own." I questioned this, "So, you suspected I might be armed?" She replied, "We didn't know and for our safety, and as well for securing evidence, we make sure that you're not going to go in and do something that might cause us to..." I jumped on that, if they had only come to arrest me what evidence were they expecting? Detective Waters replied: "In normal cases, that's the reason. It is for safety reasons or somebody might run in and do something that, if we were going to arrest you, if there were evidence. At that time we weren't looking for evidence. We were looking to arrest you safely and to transport you from there to the jail." I did not believe she was very forthcoming but I couldn't tie her down.

Finally I asked her why she didn't summons me or phone me and ask me to turn myself in at her convenience. She replied that they had to go out and arrest me in order to have a bail condition placed on me prohibiting contact with children under eighteen. She stated: "We didn't... a summons wasn't issued, for the fact we wanted conditions put on, of no contact with children, and not to be in areas where children would frequent. So, we needed you to be arrested and then released, on those conditions." That was the only reason she gave. This served to affirm her belief that porn and abuse are linked. But if she was so concerned about me molesting children why did she not seek to have me arrested months earlier? I told Mr. Schultes after that I would be challenging the basis of the search warrant. During breaks I paced the corridor outside the courtroom strutting proudly to work off physical energy and to convey my attitude.

The next two Crown witnesses were Russ Erickson, a systems analyst for Computer Services with CLEU and Inspector Donald Robinson of the Customs Excise and Taxation Division of Revenue Canada. Both gave straightforward testimony and aside from finding out that over 221 photos had been seized at the border I had no questions. After that Constable David John MacDonald of the Surrey RCMP who arrested me at the Douglas Border crossing and took me to the Surrey Pre Trial Centre testified. He had me fingerprinted and photographed and was the original investigating officer in my case before Detective Wolff, nowDetective Waters, took over. Under the prosecutor's direct examination he started off very soldierly fashion but soon seemed somewhat confused referring to his notes frequently some of which he couldn't find. When the prosecutor asked why he requested a warrant for my arrest Constable MacDonald replied in part, "given that he was no longer -- or, pardon me, that he -- I could not confirm as to whether he was living in or where he was living, so I felt that a -- a warrant would be the most appropriate response." Asked if any other considerations applied he continued that he also felt a warrant rather than a summons was appropriate because knew me to be an international traveller and I could flee. He said he contacted Detective Wolff and requested her to execute the warrant. He could not remember the date but according to Detective Waters it would have been early on the morning she arrested me.

In cross examination I asked Constable McDonald why he did not look in the telephone book. He replied, "I -- Your Honour -- quite frankly, Your Honour, I never looked in the phone book." When I asked him if he did not find phone books reliable he conceded, "They are an aid to an investigation, Your Honour. That is correct." He admitted that the possibility of me fleeing was the reason he asked Detective Waters to execute the warrant, that and the fact he could not confirm my address. As for fleeing at that time he had my passport in his possession, unless he'd already passed it on to Detective Waters. I forgot to ask him about the summons I was told to expect in July 1995. Given her early involvement and Robinson's seeming disorganization I wondered if Waters didn't request the case be turned over to her. The constable struck me as a weak witness, maybe a man with problems.

Mary-Louise Causland, Director of Film Classification, Ministry of the Attorney General who had previously submitted a report deeming some of the seized written material to be child pornography was unable to appear. The last Crown witness was Dr. Lois Jean Hlady, Paediatrician, Director, Child Protection Service Unit, B.C. Children's Hospital. She testified as an expert witness giving her opinion about the ages of children based on their physical appearance in photographs. The judge questioned the need for her testimony. I had read her report which gave her estimates of the ages of the boys in my photos based on Tanner stages which correspond to different stages of sexual development. These were devised by James Mourilyan Tanner an English doctor. I consulted her sources at the Woodward Library at UBC. Tanner has written extensively on adolescent development. Photos in his book illustrate the physical, genital and pubic hair characteristics of the five stages from prepubertal to mature, approximately eighteen years. I photocopied excerpts showing various naked children at different stages. Under direct examination Dr. Hlady claimed to have examined at least 20,000 children including 2000 victims of physical and sexual abuse. Under cross examination briefly mentioning the two recent high profile video porn cases, Richard West and William Bennest, in Vancouver I asked if she had treated any of the teenage boy victims. She said she had not and that sexually abused teenage boys are seen by male staff although she has seen some physically abused teenaged boys. She mostly deals with young female victims. I asked her if she had heard of Dr. John Money of Johns Hopkins University and Hospital, a hormone researcher, sexologist and widely read author. Surprisingly she had not. Judge Miller noted that she had not given any evidence that she had examined children and compared that to known ages. He said, "It doesn't look like an area of expertise to me."

Judge Miller was reasonable and at times helpful but was quick to step in when I strayed beyond the purpose of the preliminary hearing by such things as offering my own testimony. I had a lot to learn. I was able with Prosecutor Schultes co-operation to get the trial moved to Vancouver where most of my charges were laid. It suited him as it was more convenient for most of his witnesses. It made an immense difference to me both in terms of personal safety and convenience. It would be a short bus ride or fifteen minute walk as opposed to two hours by bus, Skytrain, bus and a ten minute walk. It would have made defending myself impossible. It was only later that I discovered that Larry Myers had waived the Vancouver charges to Surrey on the promise of a guilty plea. I was not asked. He may have seen it as a damage control measure with less publicity than in Vancouver.

The preliminary hearing was subject to a publication ban and aside from a friend who drove out there a couple of times hardly anyone aside from court officials were present. There was however a large heavy set man with a shaved head and moustache who took notes. He approached me cordially and introduced himself as Leo Knight, an investigative journalist who wrote for THE PROVINCE. I had never seen his byline but then I seldom read that rag as I thought of it although it does have the best comics and bridge column. One day he gave me a lift back to Vancouver for which I was grateful as public transit takes so long. He said he was writing a feature article relating to my case. We talked in a general way and I agreed to meet him later at a 4th Avenue coffee house. He said that he had covered the William Bennest case and claimed that some behind the scenes deals had been made to get Bennest a light sentence. At our meeting I made my sentiments about the child pornography laws clear and explained how they and other laws supposed intended to protect children often had the opposite effect. He said he would like to meet some young hustlers to get their points of view. I lent him a copy of my most recent book of poetry, RAAV, which he promised to return, and said I would make enquiries. I told him he should pay them at least the minimum they would expect for their services, forty dollars. He thought that was a fair price for interviews. I contacted two boys, both over eighteen, that I knew socially and gave them his phone number. He interviewed both of them but the boys reported that he only gave them ten dollars and coffee. I was only able to get through to Mr. Knight once after that. I asked him about the interviews. He excused himself by saying that the money had to come out of his own pocket and despite again promising to return the book he never did. I found out that he writes crime columns for the North Shore News, and other local papers including the Southeast Asia East Post. Leo Knight is an ex-cop and has an in with them. As for the Bennest case he writes that the police were the victims. The Crown, the prosecutors and the judges were the villains for making secret deals. The police who conducted the investigation, on the other hand, are "the only people who can claim the high moral ground in this case." He writes as if he never took off his badge. Subsequently in 1999 one of his columns led to a law suit which contributed to the closure of the Post which on the whole was a very good paper.

PART THREE: STALKING THE LAW

MY SEARCH FOR ALLIES

Around the beginning of 1998 when I had worked out my basic constitutional arguments I realized how alone I was. I occasionally talked to Michael Ritzker and Jim Heller whom I saw in a voix dire about similar fact evidence in a murder trial. But they were not familiar with things I wanted to know. I read a lot, case law became interesting, I was motivated, but I felt I was walking in blind. I felt a need for allies who could offer me support, advice and guidance. I discovered freedom of expression and anti-censorship sites on the Net which gave me ideas. For example on one of them I found the case, McINTYRE v. IORFIDA where a provision banning drug advocacy literature was struck down. I saw interesting parallels for my own plan to attack the written word provisions of the child pornography laws. In my search for allies I logically, I thought, turned to the Canadian libertarian establishment.

In January I wrote PEN Canada, an organization championing freedom of the press worldwide, explaining my situation and legal case, providing samples of my writing and asking them for advice and assistance. I got no reply and wrote them again in April and August to keep them up to date and provide additional information. I mentioned the scholarly writings which had been seized from me and deemed pornography on the basis of advocacy. Nothing, not a word. I initiated a correspondence with Max Allen of the CBC radio program IDEAS which had broadcast programs highly critical of the London kiddieporn ring "snarl" as he described it. I did not hear the program. I received one reply where he promised to send me tapes of the programs and some other relevant material which never arrived. Subsequent letters went unanswered. I later corresponded briefly with David Jones of Electronic Frontier Canada, a group particularly concerned about Internet censorship, but this too lapsed. I was most disappointed with the response I got from the B.C. Civil Liberties Association. Two years earlier I asked the BCCLA about their position on child pornography as I had come across a reference in the Standing Committee hearings that they were preparing a position paper. Eventually I received a letter from their Executive Director John Westwood which, after some libertarian platitudes, stated very clearly that their position was that it should a criminal offence to even possess NAMBLA-like material. I wondered afterwards if BCCLA might more accurately stand for the B.C. Censorship Legitimization Association.

I also tried to establish communication with NAMBLA, the North American Man-Boy Love Association, but they were apparently disorganized, relying on part time volunteers, and no one ever knew of previous letters I sent. They did send me gratis copies of three issues which I later entered as exhibits at the voix dire. A subsequent brief e-mail exchange ended with several unanswered messages. I was never able to establish any ongoing communication or telephone contact. I joked that maybe NAMBLA didn't want to be associated with me. Months later after Judge Shaw's ruling came out I got a congratulatory e-mail and I heard that they reported it in the Bulletin. They also published my memorium to Edward Brongersma, "A Visit With the Doctor" in a previous issue. I never saw it but a friend gave me a photocopied clipping.

After reading Allan Borovoy's testimony before the Standing Committee I did not bother to contact the Canadian Civil Liberties Association. I did attempt to interest the British Columbia Civil Liberties Association. However the BCCLA, unlike its American counterparts who unequivocally defend freedom of expression of the most unpopular ideas, sees itself as an arbiter of what expression should be permitted, it is merely a more "liberal" arbiter than most others. When it comes to questions that mix "children" and "sex" the BCCLA is only marginally distinguishable from the position of human rights activists. There is an awkward incompatibility between human rights and civil liberties, between "freedom from" and "freedom to", or as I found out reading constitutional law between equality rights and expression rights. Typically in law they are pitted against each. It may be argued that in a stereotypically Canadian way our libertarian establishment seeks to arrange compromises. Compromise itself becomes a goal even where compromise is neither necessary, practical nor desirable. It is like the way parents often force compromises on their squabbling children when right and wrong are clear. Of course when it comes to protecting children there can be no compromise.

I was also disturbed that Craig Jones, the new president of the BCCLA has a long record as a pedo basher. When the now defunct gay monthly, Angles ran a few personal ads in 1994 from men seeking contact with boys under 18 but of legal age Jones wrote some the most inflammatory, prejudiced and righteously indulgent letters to ever appear in that paper. The ads themselves were legal. Jones incredulously claimed the ads promoted incest. The ads were "damaging and hurtful to all victims of sexual abuse." He certainly doesn't like being challenged or contradicted. "I am sick of having editors' self-serving response thrown in my face every time I write, or read other letters, regarding this situation. Their feeble accusation that we would infringe upon the rights of young people to experience consensual physical contact is ludicrous and manufactured solely in their misguided minds." He's not a man to debate a point. Despite his intolerance, arrogance and hyper correct pronouncements he managed to make a name as a civil libertarian in the APEC protest controversy. This was a highly successful political manoeuvre which embarrassed the federal government but involved no substantial issues of freedom of expression as such despite the pretence. The message of the protesters was well known to every Canadian who bothered to follow the news. The message was already known to the intended recipients, President Suharto and his cronies, they just didn't want the embarrassment of having it flaunted in their faces. The only freedom of expression issue was the right to display well known symbols and messages at a specific place for a very limited time. It was at best very marginal to Canadians' freedom to express any non violent content, anywhere and at all times. The civil liberties associations do a good job of defending the interests of the arts communities and respectable protesters in situations like APEC with its students, academics, cops under stress overreacting and an oppressive foreign dictator. So some of the protesters got pepper sprayed, roughed up and arrested, so what. It's not a big deal. I got peppered sprayed, albeit not in the face at the Stanley Cup "riot" on Robson Street. I was taunting the police at the time, just for fun. I wrote a long heroic style poem about the "riot" in RAAV which I dedicated to Ryan Michael Berntt the guy who got a rubber bullet in the head. I don't recall the BCCLA being involved.

My search for allies was disappointing although I got a few interesting tips. I was toxic and I suppose no one in any establishment wanted be associated with a pilotless, foolhardy old man on his Icarian journey into the Sun. After a while I forgot about allies and stumbled along on my own.

Money has the biggest personal problem I have faced. I have no assets, not even a car. I had a small Canada Pension from my four years as a college teacher and was on social assistance at the time of my second bust. I supplemented this with little, under the table handyman jobs as opportunities and my health permitted. Fortunately I am a frugal person with fairly simple tastes which allows me live comfortably. My recent travels had been financed in large part by the repayment of an old debt. At the beginning before there was much publicity I raised about $10,000 for legal fees much of it from one old friend who is a strong supporter of freedom of expression, but unsympathetic with my lifestyle. From the beginning I independently investigated questions relating to my charges. I wanted to know my situation better. This involved significant costs beyond the matter of legal fees and took up a lot of my time, energy and concentration. I continued to do small jobs but this was exhausting and my osteoarthritis and carpal tunnel syndrome returned requiring medication and physiotherapy. Once I collapsed and spent a week mostly in bed.

I tried to get legal aid to help me but I found that a person defending themselves cannot get any assistance from them whatsoever. When I wanted to purchase a copy of the transcript of my preliminary hearing, a rather basic document in my case, I was emphatically told no. I don't think legal aid should be primarily regarded as a service to poor defendants although certainly some do benefit from it. It could more accurately be called lawyers' aid, despite their complaints about its inadequacy, as they are the ones who get the money. It is a way of subsidizing the law profession under the guise of helping needy defendants. While it is not the intent of legal aid to encourage guilty pleas I believe it does. Even defendants believing themselves not guilty, or having a potentially good defence can be taken in by the blandishments of a guilty plea. Legal aid lawyers (and others) are known to promote guilty pleas in arguable cases as a mitigating factor with the promise of lenient treatment. Part of the difficulty is that legal aid payments are based on courtroom time and while they may be roughly fair in most cases they are inadequate where a large amount of preparation is needed to mount an effective defence. This was true in my case. Essentially legal aid helps smooth the processing of the accused through the system by offering them the solace, often the false solace, of having a "lawyer" to help them. I have observed how it functions in courtrooms and spoken to a number of people who feel it did not help them. It is a tranquillizer. It serves as a calming measure and helps control resentful defendants. Legal aid lawyers in criminal cases function more as social workers than as advocates. Part of their job is to help those convicted take their punishment with less protest. Legal aid lawyers often find themselves in hypocritical situations where ostensibly they are helping their "client" but really serving the criminal justice system. Righteous taxpayers should have no complaints.

Awe of Law and the OAKES Test

Soon after I got involved in legal research I began to develop an interest in the law itself. My principal attitude towards it had been one of contempt. I was influenced by all the stupid petty laws I had come across. I always found those old, It's the Law columns both amusing and frightening. In city planning I had become very critical of the regulatory methods my profession espoused. Planning was often the relentless application of principles and standards by supposedly enlightened professionals who treated the realities people faced as a nuisance. I saw the ugly and monotonous residential projects not as a result of greedy developers but of the rigidity of zoning and other regulations where arbitrary standards left little choice. My joy at the defeat of "central planning" in my profession was soon replaced by a distrust of the "participatory democracy" that followed it. Decisions became increasingly political with appeasing vocal and persistent groups overriding consideration of broader community interests. Planners were now to be advocates of nimbyism. I used to joke that the purity of single family zones had become more important than the virginity of daughters. But more than anything else my contempt for laws was fuelled by the absurdity of our drug laws and the minor holocaust they were inflicting on Canadians. Hundreds of thousands of my countrymen were suffering to appease the moral sensibilities of the righteous and serve the interests of the anti-drug industry. Politicians across the board saw the law as too dangerous to challenge. I had no faith in law although in emergencies it could be called upon. People should be guided by ethical principles and consideration and respect for others and take care of themselves as best they can.

My awe of law peaked as I got into studying Charter cases, mostly relating to freedom of expression and conscience issues. Here in the Canadian Charter of Rights and Freedoms was a device whereby anyone, even someone of very limited means like myself, could fight back against flawed and pernicious laws. Pretty amazing, isn't it? Without the Charter only the powerful and the organized lobbyists could hope to challenge laws. I saw the child pornography laws, particularly the sections I was charged under as altogether bad law. Under the Charter my charges gave me the right to put the law on trial. The issues were broad and important. The law was pioneering two bold extensions of state power and my freedom fearing countrymen barely made a whimper of protest. No respectable Canadian would defend the paraphilic masturbator or argue for youth's freedom of sexual expression. With practically no support I submitted my Notice of Constitutional Question, something any Canadian charged under a dubious law should think about.

As for presenting my case I saw little future in nit picking or trying to make a special case. I decided on a bold approach - What I defended had to be something, clear, consistent and defined. I could not choose to defend some wishy washy half way concept which might happen to coincide with my personal beliefs. It is hard to make a case for halfway measures or already compromised principles. Compromise simply invites further compromise. It had to be freedom to advocate pedophilia, or any other sexual heresy period. If we can't even debate things what kind of free and democratic society are we? And the written word provision very clearly and specifically prohibited that. The odd friend began to support my resolve which encouraged me greatly. I generalized and tried to avoid what might seem trite exceptions. I did not particularly want or care if my personal beliefs and values were central. I would if necessary be a generic pedophile, that would be my unapologetic role.

I felt I had to do it. I put up a note in large letters on my kitchen wall saying, I PROMISE MYSELF TO DO MY VERY BEST. It was a bit tacky I confess, but it helped. I couldn't see anyone else trying and I thought I had little to lose. It was a question of ego and honour. The strain was immense. I worked as hard as I could to prepare for the voix dire not knowing how long until the actual trial. My first priority was my health, I had to favour myself. I walked for exercise. I paced. I paced from beside the toilet through the living room to the far end of the bedroom. I moved furniture slightly. Twelve to fourteen steps. Head up, arms swinging bouncing with slight swivels to get around the ends of my sofa. I ate well and rested when tired. I was focused, a monomaniac of sorts. I thought about my case continually, I would get out of bed at night to write things down. I had no idea how the trial would proceed. I thought, speculated, wrote. I approached it as a writer not a speaker. My fascination with the law helped me explore the ramifications of my case.

I began investigating the law with a pragmatic focus on my case. However I soon developed a fascination with it. I discovered it was a universe all to itself. It strives to be a formal, simplified and artificial replication of reality, in a pure form free from personal prejudice and popular pressures. It abstracts reality. It is a space as in a state of mind. It is a drama with stylized roles and rules played behind a curtain that insulates it from political and popular pressures. I could glimpse the majesty that Michael Ritzker felt. I could see the whole concept of law, the rule of law as one of man's greatest intellectual inventions, on a par with mathematics and music. Anyway, it seemed to be a good place to deal with such abhorrent subjects as child pornography. I would try to stay behind the curtain in a world of statutes, interpretations and precedent. The court tries to discover reality through formal procedures, and rules so that it may be aloof from the clamouring "realities" outside. The court abstracts reality in order to deal with it "justly".

I discovered the Oakes test which was a revelation for me at the time. The Oakes test is the most important procedure for determining the constitutionality of laws. Back in the mid 1980s David Edwin Oakes was charged with possessing for the purpose of distribution some quantities of hashish, that pleasant and potent co-product of marijuana. At that time under a section of the Narcotic Control Act anyone convicted of simple possession then had to prove on the balance of probabilities that he did not possess the drug for the purpose of trafficking. Oakes challenged the constitutionality of the section as it constituted "reverse onus" which meant that instead of the Crown having to prove him guilty he had to prove himself innocent. This violated the presumption of innocence which is a fundamental principle of common law now entrenched as s. 11(d) of the Charter: You are innocent until proven guilty. The section clearly violated the presumption of innocence and the question was whether or not this violation could be demonstrably justified in a free and democratic society. After a series of trials much like my own the Supreme Court of Canada ruled that the section of the Narcotic Control Act could not be justified and struck it down. In making their decision the Court set out a series of questions and steps that can be used to determine whether or not a law is constitutional. The Oakes test organized and formalized a number of long held basic principles of law. It is not the only test of laws' constitutionality.

If for example a law is so vague that people cannot understand just what is prohibited, such as a law against "unhealthy practices", it may be struck down on this ground. Vagueness would not be a problem with a law prohibiting tobacco or margarine. The law must have a "pressing and substantial" purpose. For this it is only necessary for Parliament to act as if the problem addressed were "pressing or substantial", there is no need for any evidence to demonstrate how serious it is. Then the means used, the specific law must be proportional to the objectives which has several aspects. It must have a "rational connection" to the problem addressed. The connection does not have to be demonstrated, almost any appeal to conventional wisdom will suffice. The law must also impair freedom as little as possible which is to say that Parliament can't use a sledgehammer to kill a fly. And finally there must be proportionality between the deleterious and salutary effects of the law. This takes into account the value of the freedom infringed and the presumed benefits, in my case the protection of children. Evaluations are subjective and speculative and the court often presumes to speak for others. The Oakes test is a magnificent legal tool. But if the evidence is slanted or unbalanced, the testimony is self serving, ignorant and prejudiced, and the court relies on tenuous theories, unfortunate decisions can result.

The law is also like a game when you start using it, as I found myself doing. I would equate it to backgammon, my favourite game. It combines luck, the seeing of opportunities, risk taking and strategy. I played backgammon regularly almost the whole time I worked on my case. It was not only a welcome distraction but also an intellectual discipline. Without a certain calculated audacity I feel I would not have done as well. I didn't do things very well but I did things no one else was trying to.

FREE SPEECH CASES

"People got so many rights these days that nobody's got any freedom left." James Peter Thurston quoted in RRSP.

I remember my elation when I came across IORFIDA v. McINTYRE on an Internet freedom of expression site. It was the kind of precedent I was looking for with what I saw as some very close parallels between this case and mine in respect to written materials. The law was aimed in particular at High Times magazine and it was intended to protect children and young people. The decision striking down "literature" was unusually unambiguous and unequivocal in affirming free expression. It dealt with the question of political advocacy in relation to the use of prohibited recreational drugs.

Another case I saw as important to my own was R. V. POPERT. This was a pre-charter case which was only resolved months before the Charter was proclaimed. In 1978 the Toronto gay paper, THE BODY POLITIC published an article by Gerald Hannon entitled "Men Loving Boys Loving Men" which according to Canadian Case Digests "described and advocated homosexual relationships between men and young boys." Ken Popert and other members of Pink Triangle Press, the publishers of THE BODY POLITIC, were charged with using the mails for transmitting indecent, immoral or scurrilous material contrary to s. 164 of the Code. There were a series of trials and appeals over three years with the original acquittal eventually upheld by the Ontario Court of Appeal. The case is notable by current standards for the absence of any mention of freedom of expression. In common law everything everything is permissible except that which is specifically prohibited by statute. If it's not illegal then it's legal. Essentially the material was not found to be "indecent" in terms of s.164 and in the circumstances could not be "immoral". Appeal court judge Thomas Mercer did however state, "It is perfectly legal to advocate what in itself would be unacceptable to most Canadians." The article which advocates pederasty or pedophilia was within the pre-Charter limits of expression. It was subsequently republished in Flaunting It! an anthology of gay writing. As far as I know no one has been charged with possession or distribution of "Men Loving Boys Loving Men". Are we to assume that this widely read article has left a trail of abused children in its wake? There is little to distinguish the content of this article from that found in the NAMBLA Buletin and it would be difficult to draw a legislative line between the two.

IORFIDA v. McINTYRE

Umberto Iorfida was president of NORML, the National Organization for the Reform of Marijuana Laws in Canada. On the information of a carded member informer his residence was raided and material promoting the use and legalization of marijuana was seized. This 1994 Ontario Court case dealt with s. 462.2 (enacted in 1988). The section states: "Everyone who knowingly imports into Canada, exports from Canada, manufactures, promotes or sells instruments or literature for illicit drug use is guilty of an offence". I would note that the word "promotes" is stronger than the words "advocates or counsels" in the child pornography laws. This law originated as a private member's bill, C-264, put forward by Bob Horner, M.P. for Mississaga North who was also Chairman of the Standing Committee on Justice at the time the child pornography laws were drafted. From the minutes of the Standing Committee and speeches in Parliament, which were accepted as evidence, "the bill's objective was to protect vulnerable children and youth and to reduce the influence of organized crime who distribute illicit drugs." It was the type of law that no election respecting politician could vote against. It was estimated that there were approximately 500 head shops selling drug paraphernalia and literature at the time. (All ceased operation after Bill C-264 was passed.) Some parliamentarians doubted the constitutionality of the law at the time and one member was concerned that it was over broad and could apply to works by writers such as Edgar Allen Poe, Sir Arthur Conan Doyle, Lewis Carrol, William Burroughs and Michael Ondaatje.

At the trial Mr. Les Fowlie, retired chief librarian of the Toronto Public Library said he believed that a number of books currently carried would be covered and that the law would have a chilling effect on future acquisitions. He also saw it as leading writers to censor themselves. He commented that in respect to children, "that it is important to allow them to read both fact and fiction so that they can separate truth from falsehood." The judge noted arguments that literature describing and expressing the religious practices of various minority faith communities is also stifled by the law: "Drug using religious movements such as the Rastafarians of Jamaica, and various groups of Aboriginal peoples, cannot describe their religious experiences without potential prosecution for promoting the use of illicit drugs." A similar argument can be made with respect to the written material definition in the child pornography laws. In her decision Judge MacDonald said that the purpose of the law was to restrict free expression and aimed at censorship of content. "It is... to restrict the content of speech by singling out particular meanings that are not to be conveyed." The law failed the Oakes test and was fatally overbroad particularly in view of the lack of defences. But isn't the very idea of defences, in effect excuses for exercising free expression, questionable in itself?

R. v. KEEGSTRA

James Keegstra was a popular anti-Semitic high school teacher in Eckville, Alberta who taught his students his "truth" about Jews and marked accordingly. He was charged with wilfully promoting hatred under section 319(2), the anti-hate propaganda law. His defence was that the law was unconstitutional because it violated the freedom of expression guarantees of the CHARTER. While the majority of the Supreme Court agreed that hate propaganda is not analogous to violence and is thus entitled to protection, prohibition could be justified on the basis of harm to minority groups and their equality and multicultural rights. The majority decision said, "There are two types of injury caused by hate propaganda;" direct harm and its "influence upon society at large". Hate propaganda like any other may also attract new recruits and facilitate freedom of association. The court made a curious and I believe an ominous comment, "Even if the message of hate propaganda is outwardly rejected, the premise of racial or inferiority upon which the premise is based may persist in the recipient's mind as an idea that holds some truth." This sounds like ideas somehow sneaking through, perhaps subliminally. If "subliminal" messages are considered an appropriate target of legislation then almost any attempt at thought control could be justified. Citizens cannot be trusted to assess information and their judgement is degraded. The court's argument could even be twisted into a case against juries. Are the premises they speak of, "cognitive distortions"? The Court's statement that even if the message "is outwardly rejected" suggests that disclaimers be ignored. What if one says, "I don't believe this myself but did you hear (hate message)?" If disclaimers are to be disclaimed how can one communicate information. Or, is "no" not to mean "no"? or not enough? Must certain ideas only be conveyed in the context of condemning them? Does failure to condemn become a criminal offence as well as an epithet of post modern literary criticism? The majority linked the protection of equality rights to the suppression of expression rights. They also used our international treaty obligations to add weight to restrictions on freedom of expression. They assume it is self evident that our democratic society is vulnerable to and threatened by hate messages much as men are seen to be vulnerable to porn. The majority even claimed, "Hate propaganda legislation and trials of (hate propagandists) are means by which the values beneficial to a free and democratic society are publicized." There is a "show trial" benefit to the legislation it seems. Stalin used the same technique for his ends. The minority disagreed sharply on some points taking a more libertarian approach.

R. v. ZUNDEL

Ernst Zundel, Canada's most notorious Holocaust denier was charged under an archaic and seldom used law, section 181, "prohibiting wilful publication of false statement or news that person knows to be false and that is likely to cause injury or mischief to a public interest." The publication was a booklet, Did Six Million Really Die? which questioned generally accepted historical facts and claimed that the Holocaust was a myth perpetuated by a worldwide Jewish conspiracy. After a series of convictions in lower courts Zundel was acquitted when the Supreme Court in a split decision struck down the law as unconstitutional. The majority ruled that the CHARTER protects unpopular minority beliefs that the majority regards as false. They noted that no other free and democratic country had similar criminal legislation and that the law was not necessary to fulfil any international obligations. The minority arguing from equality and multicultural rights upheld the law.

R. v. ROSS

In ROSS a fuller implication of the premises of inferiority became apparent. Malcolm Ross was a Moncton high school teacher who on his own time publicly expressed racist and anti-Semitic views in pamphlets, letters and a TV interview. A Jewish parent filed a complaint with the provincial Human Rights Commission alleging that his employer, the school board violated the provincial Human Rights Act by discriminating against him and his children. A board of inquiry found that Ross's off-duty comments denigrated the faith and beliefs of Jews and that the school board violated the provincial Human Rights Act by failing to discipline him, and that by continuing his employment it endorsed his out-of-school activities. It would seem that failure to condemn equates with advocacy. The school board could not be neutral. There was no evidence as in KEEGSTRA that he promoted hateful ideas to his students. The board of inquiry concluded that his off-duty comments undermined his ability to fulfil his teaching position as his off-duty conduct "poisoned" the educational environment (lack of tolerance and equality) in which he taught. Teachers must be seen as impartial and tolerant. While a direct link was lacking the board found it "reasonable to anticipate" that there was a causal relationship between Ross' conduct and harm, presumably to his students. Ross claimed that his rights to freedom of religion and expression were violated. The Supreme Court ruled that the infringement of his rights was justified under s. 1 of the Charter. The ruling extended the protection of children, high school students in this case from not just the harm of direct exposure to offensive expression as in KEEGSTRA but to the indirect exposure to such ideas through a person who advocates them. Ross was an ideologically "bad" role model. It was as if he was an endorsement for hateful ideas much as Wayne Gretzky endorses a range of products. Similar concerns were expressed about Mohamed Ali for espousing outside the ring, his offensive to many, Black Muslim beliefs. It is also reminiscent of the moral based prohibition of married female teachers which only ended with the exigencies of WW2. More recently simply being gay has been seen as disqualifying teachers for similar reasons. One is led to wonder what other beliefs or lifestyle characteristics can be used against people in sensitive or exemplary positions in society. Gerald Hannon's problems at Ryerson College come to mind.

This case raises the question of how far the state should go in protecting children from offensive ideas. The emphasis on "harm" obscures the fundamental issue. The presumption of harm is based on the helplessness and fragility of kids. Vulnerability offers an attractive way for officials to interpret things. It enhances their role and affirms the dependency of kids. The kids just aren't able to cope with the fact that one of their teachers denigrates certain groups whose members may be among his students. The resentment, especially of his Jewish students is understandable but was the resolution wise? It is as if older children are simply assumed to be vulnerable cannot be trusted with all the knowledge they have, and are denied autonomy and the opportunity of to use it. For example, if children feel free to safely confront an alleged villain within the law of the school, to tell him he's an asshole if that's the case, and to get rid of him if that's what they want, I believe that they could handle it better themselves than any tribunal or court. Schools might be better off with their own charters of rights and freedoms instead of dress and conduct codes. Unless education is viewed as indoctrination, students at the high school level should be expected to be able to deal with ideological controversy, as historically and in much of world today they do. There are bad guys out there, as any kid watching TV knows, and it doesn't hurt to deal with one in the real world.

In a similar way the law, erroneously I believe, "protects" children from accessing pornography. However to go beyond that to trying to protect them from people charged with pornography as the Bennest case with its frantic parents, media hype and imported trauma team demonstrated, is carrying things to an extreme. Where do you stop? In ROSS the hate propaganda is once removed. It is what he preaches to others, regardless of any other characteristics and talents he may have, that define, disqualify and damn him. This is demeaning ideological coddling of youth.

The value placed on hateful speech and ideas by courts is minimal. However for those espousing them, white supremacists and anti-Semites, they may be important, providing an important part of their self identity. Their views may be the one thing giving them a feeling of self worth. Similarly offenders convicted of the most heinous crimes derive moral satisfaction and feel superior in their minds by hating and denigrating skinners and pedos. Hateful ideas can be very important for some people. However if hate propaganda were defined on the basis of actual effects in the real world in terms of inciting assaults, my personal experience suggests we should more concerned about mainstream journalism than fringe groups.

Except for IORFIDA one might almost get the impression from reading case law that political free speech is a neo-nazi, Holocaust denier issue. This is unfortunate for the image of free expression in Canada but ZUNDEL, KEEGSTRA and ROSS have all been significant cases and are relevant to mine. While these defendants may not be libertarians in any usual sense of the word they have not neglected the opportunity to champion free speech. I believe that they have been right to counter our attempts to shut them up. Our hate laws were designed for them although we have no idea if they do any good. I suspect they may even be counterproductive by casting the accused as underdogs and possible martyrs. One is reminded of underground Baptist groups in Cold War Ukraine or democracy advocates in China today whose speech is considered antithetical to the interests of society. Hate laws invite subjective assessments of cases, and permit selective targeting. Perhaps luckily a lot of important freedom of expression cases arose out of commercial concerns relatively free of the passions surrounding hate propaganda. IRWIN TOY was about pitching advertizing to little kids. The children were of course protected but a rational basis was required.

While individual teachers may significantly shape a student's attitudes and thinking, although personally I can't recall any, any teacher is only one amongst many influences that young people encounter in their lives. If students did respect Ross as a person, and knew he held certain racist views, which he did not share with them, their curiosity might be aroused, but so what? Is there such a shortage of more correct role models? Mainstream views of the Holocaust are overwhelming and pervasive in the media, and massive and costly pro-equality and multicultural propaganda is directed at the public, especially youth. To single out one influence is like claiming that one copy of Hustler magazine can overcome five years of a child's Sunday school indoctrination.

The Holocaust was news, not history when I was a kid. The news was absolutely horrific, about twenty million people I heard, were exterminated in cold blood by a fanatical dictatorial state. I could not comprehend it. After the liberation of the concentration camps newspapers and magazines had pictures of stacked bodies and skeletal naked survivors. They were the first photographs of naked people I had seen and in my still prudish adolescent mind the nakedness was almost as shocking as the horror of the camps. The survivors were Poles, Russians, Hungarians and many others including Jews. Although Victoria has the oldest synagogue on the west coast of North America I did not know any kids to be Jewish. There were a few classmates with strange names like Rapanos and Essihos that I erroneously speculated might be Jews but it was something I gave little thought to. Kids innocently used "jew" as a verb but I remember no explicit anti-Semitism. I can however remember as a small child being discouraged from playing with Catholic boys and my mother's unhappiness that my best friend in junior high school was a Catholic. It was some years before the horror of the concentration camps and other atrocities emerged as The Holocaust and the "six million Jews".

PUBERTY AND RELATED CONCERNS

When I was preparing for the preliminary hearing I began looking into the question of the physical/sexual development of children, particularly boys. The ten pictures of the two blond boys seized at the border were crucial evidence for two reasons. They were the only photos seized at my first bust at the border which meant that if I could get the search warrant for my apartment thrown out they would be the only photos I could be charged for. Secondly they were the only photos that I was charged with making as my apartment could be identified in the background. From my understanding of other cases the fact that no arousal or sex was depicted was not relevant. This fifth charge which carried a ten year penalty was only dropped shortly before the voir dire, in part because I agreed to acknowledge possession and authorship of the other material I was charged with, which saved the prosecution a fair amount of work, and also, I suspect because the boys were arguably over eighteen. The prosecution had already gone to some trouble to get the expert opinion of Dr. Lois Jean Hlady who had reported at the preliminary hearing that in her opinion at least one of the boys was under eighteen at the time the pictures were taken. Using Tanner stage categories she based her assessment mainly on the amount and distribution of pubic hair and what is colloquially called "the angle of the dangle". If I could get the search warrant voided and if I were successful in challenging the written word provision then these ten pictures could be the most damning evidence against me. I was highly motivated to find out more.

At the time of the preliminary hearing I reviewed the Tanner stages Dr. Hlady had used in her report. The Tanner stage categories are widely used as a method for age determination from photographs. I would note that the clinical photos of same age nude children in J.M. Tanner's books show considerable variability in genital development. Fourteen year old boys can appear to be from eleven to seventeen. I also consulted the works of John Money of Johns Hopkins University, a well known hormone researcher and author of popular as well as scientific books on sex whom surprisingly Dr. Hlady had never heard of. In cross examination Dr. Hlady had said that the first external signs of puberty are increases in the size of the testes which begins about age 11-12, that hormonal changes start at 9-10 and that puberty was complete at 18. Ever since I started writing when I was fifty, and wrote my somewhat autobiographical first novel, RUPERT UNEXPURGATED I been interested in the experience of adolescence. It took a great of introspection and recall to describe growing up from the child's perspective, what he notices and how he feels. Childhood can be a time of experiencing great injustices many of which you later learn are fair. Such realizations are germs of understanding law. Adolescence is when children start taking over their lives, and want to try and experience new things, explore new environments. I think people could learn more from introspectively exploring their own youth than from consulting the pronouncements of experts and the media's human interest morality. They would have a basis for assessment. Myself I went from hypermoralism, telling bullies that God will get them, to shame about masturbation because real boys fuck girls, to realizing that I liked the boys in my classes just as much. In my novels which I tried to get published I attempted to convey the feeling of adolescence with its fears, emotions, passions and fantasies of revenge and power. And decisions. When I was eight at a separation hearing and the judge asked me if I still wanted to see my father, and under my mother's glare, I answered yes and got a bawling out after. It was perhaps my first act of courage. After the openness and amorality of early-mid adolescence boys become more focused by their late teens and interested in money and the future. Despite Detective Waters' lurid description of one of my novels the prosecutor returned them both not long after they were seized.

According to John Money puberty in boys typically begins at about nine and half years when their sex hormones become active. They also become capable of sexual fantasies, feelings and attachments at that time. Their basic sexual orientation however has already been established by middle childhood. At about eleven scrotal/testicular enlargement begins followed a year or so later by penile growth. This agreed with Dr. Hlady's testimony. By thirteen boys start their growth spurt, pubic hair appears and they become capable of ejaculations. Genital development and growth is complete by their sixteenth birthdays and they reach the peak of their sexual drive. Muscular development and broadening of the skeleton continue until about 25 and secondary sexual characteristics such as body hair continue to increase into middle age.

All this is complicated by the fact that the age of puberty is declining and is affected by such things as diet and stress. Malnourished Third World street children living in deprived conditions often appear two to four years younger than their chronological age. In a Nineteenth Century study of children working and living under oppressive conditions in Manchester cotton mills Frederick Engels, of Marx-Engels fame, found that puberty (presumably in terms of pubic hair) was delayed until about nineteen in boys. The general decline in the age of puberty throughout much of the world, including Canada, is most apparent in girls where it is not uncommon for them to develop breasts as early as eight which suggests that puberty may start before seven. It is reasonable to expect that earlier puberty will be accompanied by an earlier interest in sexual activity.

However, when children become sexually active and what forms it takes are affected by society and cultural values. In sex positive cultures children's sex play evolves into intercourse by nine or ten, well before they are capable of procreation. Sex positive cultures regard sex as a natural activity and often celebrate a child's puberty. Examples are found alternative life style communes, kibbutzim and among some Third World communities. Children's sexual activity may become more restricted after puberty to limit unwanted pregnancies. Street kids who are not subject to adult control as in parts of Brazil also begin intercourse at that age. Lee Ann Lloyd, head of the Metro Toronto Special Committee on Child Sex Abuse was quoted in HANSARD, June 1993 as saying that the average age of first sexual intercourse among street kids in Brazil is nine compared to fifteen for Canadian teenagers. In sex positive societies depictions of sexual activities are not pornographic. This does not mean that such depictions could not be sexually arousing for people in those societies but that the concept of pornography requires negative attitudes towards sex. Anti-porn propaganda and activism essentially convey sex negative messages.

A less sexually positive and culturally more widespread pattern is where boys become sexually actively with peers and older youths at a fairly early age and remain primarily homosexual until they are expected to marry. Girls in such societies on the other hand are often secluded and much less is known about their sex lives. Canada and other English speaking countries (outside the middle classes) were in practice more sex positive in the past largely because the sex lives of ordinary people weren't discussed and therefore couldn't be made an issue.

At the other extreme there are highly sex negative societies which try to insist on total abstinence for both sexes before marriage. Adherents of this point of view are common, and apparently growing in the U.S., Canada and other counties influenced by Christian fundamentalism. For a boy sex negativity is like telling an athlete not to exercise or a writer not to write. This places an enormous burden on youth, particularly males at the height of their sexual powers and leads to neuroses and suicides. It is difficult to see what possible purposeabstinence could serve unless it is some kind of absurd moral callisthenics to develop will power. Abstinence becomes moral masochism and puberty becomes a cruel joke played on boys. There may be some increasing tolerance of masturbation among the religious conservatives since they've discovered it doesn't lead to feeblemindedness and apostasy. However youth's right to sex cannot simply be a right to masturbate. Sex is something you have with others and share. Nothing but solo sex for young people is unhealthy. The Nineteenth Century Mormons referred to below, thought it better for boys to have sex with other males than to masturbate. As a child I picked up the idea that masturbation was wrong and I can remember in my early teens trying and trying not to masturbate, sometimes heroically abstaining for a week but always ultimately failing and feeling guilty about it. Sort of like trying to quit smoking only you can't. As a result I became obsessed with sex.

It is generally recognized that in early adolescence girls are more developed physically and socially than boys. Girls interests tend to be more romantic and they look to boys older than themselves rejecting the immaturity of those their own age. In late adolescence boys tend to catch up. However it is a general pattern in most societies that the male is older than the female in sexual pairings. Men on average probably prefer younger female partners. Where the male is expected to be the provider there are also strong economic arguments for an age differential.

An interesting thing about human sexual development is that we reach sexual maturity earlier in relation to our full physical development than most if not all other mammals, and certainly long before procreation is appropriate. How this gap is handled varies from society to society. Only in those societies with well developed extended families where grandparents can take on a major share of the burden of child raising is it practical for adolescents to bear children. Some societies as mentioned previously tolerate or even condone male adolescent homosexual activity seeing it as a phase rather than a permanent orientation. This was very common until recently in Mediterranean countries and not unknown in North America in the recent past. (see AMERICAN MANHOOD by E. Anthony Rotundo, Basic Books 1993. especially chapters "Boy Culture" & "Youth & Male Intimacy" and SAME SEX DYNAMICS AMONG NINETEENTH CENTURY AMERICANS: A MORMON EXAMPLE by D. Michael Quinn) Where there are different standards for boys than for girls it is common for either prostitution or adolescent homosexual behaviour, or both to be tolerated. A very few societies even have transitional formal, age structured homosexual arrangements for young males which lead to adult heterosexual pairings.

Another interesting and seemingly anomalous phenomena given the earlier maturity of girls is that males reach their peak sexual drive long before females. The current bus advertisement for Pond's skin care products which proclaims: "Men's sexual peak 17/ Women's sexual peak 35", is in accord with established scientific knowledge and essentially correct. This imbalance is evident in anecdotal accounts of marriages where in the early years the men want sex more often than their wives while in later years the situation is reversed. Social anthropologists have suggested that the later peaking of women's sexual drive serves to keep couples together for the purpose of raising children. However boys' early peaking of sexual desire or urgency appears to provide no advantage and is frequently seen as a problem. One need only think of all those things like crime that get blamed on testosterone. Very few females show any interest in early adolescent boys suggesting that this difference cannot be accounted for in terms of heterosexual relationships.

The short term "superiority" of females in early adolescence, their earlier maturing, may partly explain their long term disadvantage in many human endeavours. At a time when girls are socially interested in the opposite sex, early adolescent boys are more interested in their own sex, hanging around together more. Competition among boys is less personal and they are more likely to co-operate in order to produce and compete. They learn to work together. In effect boys go through something like an extra phase where they acquire intragender skills which give males an advantage in business, politics, hunting, war and some professions, or wherever teamwork is required. It is a homosocial phase, not necessarily a homosexual phase, but whatever it is called it is a factor in what feminists call patriarchy. But this may simply be due to women's differing biological role and the fact that perhaps appropriately girls do not go through a similar homosocial phase.

In the past social and religious policy was focused on the family, the primary object was to create conditions favouring enduring families for the raising and nurture of children. Adultery which disrupts families was strongly condemned but prostitution and the keeping of mistresses which serve as a safety valve for men were quietly tolerated as a lesser evil. The arguments that prostitution not only reduces rape but also helps to preserve families because it seldom leads to competing affections make a lot of sense. Similar arguments in a less salubrious context have been used to justify the pedophilic activities of priests who are "married" to the church. The argument is basically that boys don't count as a violation of their vows because they don't involve the competing commitment that a spousal relationship with a woman would entail. I used this idea in two short poems, "Priestly Cel'bacy" and "Sri Temple Boys" in RAAV. This argument is no longer politically tenable and is one reason for the movement to allow Catholic priests to marry. Peer adolescent homosexual activity, which also presents no threat to the family ideal, while not condoned has also been widely tolerated. If there was no scandal and people didn't talk or write about it, it wasn't an important concern. It was in fact widely believed up until fairly recently that boys went through a "homosexual phase". This had the welcome side effect of helping to protect the chastity of girls which was the main concern as this related to marriageability and family fortunes. The tradition of fathers encouraging their adolescent sons to visit prostitutes was similarly justified. It also served to introduce boys to heterosexual activity and set them on the right path. The general absence of pornography and the suppression of sexual discussion helped facilitate various informal arrangements which accommodated the contradictions between biology and morality. The so-called "double standard" was a logical accommodation to the perceived need to protect girls and women and to allow sexually charged young males a measure of freedom. In fact up until about a century ago age of consent laws often applied only to females. It was certainly not as some now claim a case of denying boys equal protection.

The early age of puberty relative to the appropriate ages for family formation, the earlier maturity of girls relative to boys and the fact that boys reach their peak sexual drive long before women are the basic natural or God given constraints on adolescent sexuality. What are we to make of the apparent contradictions inherent in these constraints? If instead of adapting to them, as most societies have in practice if not in theory, we attempt to deny them as may increasingly be the case under the organized onslaught of religious and feminist extremists, we can expect a great deal of human suffering as result with boys getting the worst of it. It is ironic that those fundamentalists who claim to be most in tune with God's will should be the most ardent in contriving moral prescriptions for abstinence that deny youth their God given sexuality. The well organized and energetically promoted revival of conservative moralistic concepts disguised as "family values" coupled with the ascendency of a particularly virulent type feminism in recent decades has placed contemporary youth in a difficult position.

The sexual revolution that followed WW2 was more a shift in attitudes and public expression than a shift in behaviour. The removal of prohibitions on a number of formerly banned novels was part of the liberalization of sexual expression. I can remember reading with amazement and prurient fascination James Joyce's ULLYSSES in the mid 1950s. I don't think I understood it but that didn't matter. D.H. Lawrence's LADY CHATTERLEY'S LOVER and some of Henry Miller's works followed as soon as I could get my hands on them. Sometimes the "dirty parts" were already marked. Just as love often follows sex, literary appreciation may follow prurient interest.

The most significant event was the publication in 1948 of the first volume of the KINSEY REPORT which for the first time systematically surveyed and documented male sexual behaviour. This highly controversial and pioneering study produced results which many found shocking and even unacceptable. Perhaps the most astounding findings were that over one third of the subjects had post pubertal homosexual experiences to the point of orgasm and that one in ten males were primarily homosexual. Kinsey saw sexual preferences on a continuum, not on an either or basis. A similar survey today would almost certainly find a much lower rate of homosexual activity, first because of an actual decline, and secondly because contemporary identity politics and homophobia make honest replies less likely. The former is largely a result of the latter. Whereas in the past boys could rationalize same sex activity opportunistically, it now may be seen as a commitment to a gay lifestyle. To some extent the former benign "homosexual phase" concept has been replaced by one of vulnerability where gays and pedos seduce young boys and turn them queer. Viewed through victimological theories it fuels fantasies of abuse.

Along with the post war liberalization of attitudes there has been what has been called the heterosexualization of boys. With WW2 over and men wanting their jobs back a strong domestic family ideal was promoted and reflected in the media. For young people dances and other school activities promoted the ideal of couples and dating. And if you didn't have a girl friend or boy friend you were a wallflower and uncool. The pressure and opportunities for boys to have girl friends and sex increased with the liberalization of attitudes and the greater availability of contraceptives especially the pill which came much later. Things relaxed in the 60s and early 70s. There was even a brief children's' liberation movement where children's' right to sexual expression was recognized. Then came widespread concern over child abuse beginning with physical abuse; the battered child syndrome and revelations of brutal treatment in family and institutional settings. This was followed by a growing concern over sexual abuse which was highlighted by a series of scandals such as the 1973 Emanuel Jacques case in Toronto where a twelve year old shoeshine boy was horribly raped, tortured and finally murdered. Over the years concern and government funding grew. Child sex abuse specialists and bureaucracies, various advocates and activists joined with feminist controlled rape crisis centre's already stridently activism, lobbying for changes and new laws on a range of victims' concerns. With little evidence to back up claims pornography became a dramatic ideological focus for women's issues and concerns of protecting children.

PORNOGRAPHY AND NETPORN

I had never been very interested in pornography prior to my troubles. I had browsed bookstores in Amsterdam in 1977 which I describe below and even purchased one small booklet as a souvenir and because I felt I should buy something after spending the best part of an hour examining the store's stock. It featured photos of a handsome lad about fourteen with a guitar taken at a marina and on a small sail boat. It was erotic, partly due to its novelty but it was essentially nudist material. I gave it away some time after I returned to Canada. A few years later I saw a couple of the Golden Boys series. These were short, mostly European made super 8 films with little plot but lots of explicit action. They were commercially available by mail order in the 1970s. The two I watched were amateurish with the boys in the 12 to 16 year age range being coy and performing almost diligently. Except for the pictures I took myself I did not collect any material. However after my bust, and being very aware of the extreme moral opprobrium attached to kiddieporn, I became much more interested. I came across several articles supposedly about child pornography on the Internet, they all portrayed it as a serious problem which something should be done about. Aside from sensationalist examples not one writer however attempted to describe what kind of images that might be child pornography are available on the Internet. The "evil" was not to be described other than to condemn it. My curiosity increased, I wanted to find out what all the fuss was about.

First I would like to give a brief history of anti-child pornography measures. In the 1970s a range of child pornography and erotica was available in Canada through mail order from European and American sources. There were little glossy magazines occasionally with cute comments, large format nude youth art books and super 8 movies like those mentioned above. In parts of Europe and North America this material was on the shelves in stores.

The Amsterdam porn bookstore I visited in 1977 was about the size of a small supermarket. I had never seen anything like it. The gay section which took up just under half was divided about equally into three parts; adult, juvenile (under 16) and a mixture of S&M, transsexual and fetish related materials. In the juvenile aisles there were several hundred small thin magazines most of them part of some series. There was also a large selection of coffee table books with collections of artistic pictures of boys mostly in natural and studio settings. Some of the latter were by well known photographers. Both the books and the magazines mainly featured nude boys in the ten to sixteen year age range. Their popularity extended well beyond those with an erotic interest in children. Of the magazines most were "soft core" and did not show any explicit sexual activity though some poses could be considered provocative. Those showing explicit sex activity were frequently playful with the boys shown as enjoying themselves. Masturbation, mutual fondling and oral sex were most common. Although apparently legal at the time there was only a small number of magazines showing adults, usually unrecognizable, coercive sex, distress and humiliation which suggests their lack of popularity. I found these disturbing as I suspect most collectors did.

Beginning in the late 1970s there was a moral panic particularly in the U.S. about child sex abuse with many wild and never substantiated claims. In their book, SATAN'S SILENCE - Ritual Abuse and the Making of a modern American Witch Hunt (Basic Books, NYC, N.Y. 1995) the authors Debbie Nathan and Michael Snedeker describe some of the testimony at congressional hearings. Judianne Denson-Gerber, a crusading American psychiatrist-lawyer claimed that children were being routinely sold for snuff films where they would be murdered and that 1.2 million American children were victims of child pornography and prostitution. Even incest was blamed on kiddieporn and claims were made that up to one in 25 American children were being sold for sex and posed in obscene pictures. These and many other improbable claims were accepted uncritically by the media.

This hysteria resulted in an American backed international crack down on commercially produced child pornography which was then concentrated in a few countries. Open and larger scale suppliers who relied overwhelmingly on foreign material disappeared or went underground. Some continued to come in from the United States. However the American authorities began sting operations which extended into Canada. Police, customs and postal officers placed advertisements in sexually oriented magazines suggesting the availability of child pornography. Contact with consumers would be established, "innocent" pictures might be sent to begin with and then the purchaser would be set up with Canadian police co-operation. Entrapment became the principal means of enforcement and consumers began to distrust any commercial source. With the decline in explicit child pornography police and legislators turned their attention to other material. Originally child pornography tended to be viewed as documentation of actual child sex abuse, in other words as a record of a crime. This clearly included illicit acts involving children and by extension to other sexual activity where the depiction of it is criminal. For example, while the private sex play of ten year olds may not be criminal it is illegal for an adult to contrive to photograph it. While defining child pornography as a record of abuse is still used it is now generally applied to images where no illegal or even sexual activity is involved. According to Laurence O'Toole in his book, PORNOCOPIA: Porn, Sex, Technology and Desire (Serpent's Tail publishers, London, 1998.) in the U.S. and U.K. the broadened definitions including much if not most youth nudist material, images, including clothed ones that are considered suggestive or exploitive, have led to a huge increase in the number of charges and convictions. The largest nudist youth magazines, Jeune et Naturel and Sonnerfreund closed down. Images scanned from these magazines, many thousands in total, make up a significant proportion of the postings to some newsgroups of interest to boylovers. There is an argument that unlike other nudist material, magazines featuring adolescents would only appeal to pedophiles which in effect means it is child pornography. Internationally recognized youth photographers and parents taking bathtub pictures have also been charged and in many cases jailed placing great strains on the children and families involved. This also serves to sexualize nudity in the public mind. Some kids got the message that they should be ashamed of their bodies and reacted by wanting individual shower stalls in gymnasiums, no more gang showers where their peers or the coach might see them naked.

As a consequence of the crackdown and extensive sting operations which made commercial sources highly dangerously some consumers became motivated to become self sufficient by producing their own kiddieporn. Amateur production proliferated aided by new cheap videocam technology. One result was that for the first time significant numbers of Canadian children became involved in the production of pornography. The same thing happened in all countries where laws were made more restrictive including the former source countries. Although it is likely that the total quantity of porn was substantially reduced the number of original videos made and the total number of children that have been involved in producing child pornography increased dramatically. The changes not only failed to protect children as intended but actually abetted their abuse. Canada's new child pornography law which prohibits possession in the hope of eradicating it by targeting all links in the market is unlikely to have much success. Computer technology has already led to an explosion in the amount available and largely replaced market activities by providing material at no cost to the consumer.

The economic consequences of trying to completely prohibit child pornography are much more complex than merely drying up demand. Consumers will certainly become more cautious and paranoid but demand doesn't disappear. It fragments and becomes localized. Especially before the growth of the Internet a man, or a couple of men, not knowing where to get any "good" kiddieporn, but knowing a boy, or two or three boys who would gladly pose and play naked in front of a camera for a good time and some money, might simply make their own. It would be less risky than trying to purchase similar material. This could explain cases like Gramlick, Jewell and originally West. The proliferation of pornography on the Internet may have reduced the incentive for men to make their own pornography although this would be very difficult to determine.

In the cases that have so far come to the attention of the courts such as GRAMLICK, JEWELL and WEST, relations between the pornographers and the boys appear to have been relatively amicable. This is evident from reports in the press and the frustration expressed by the police and therapists. The prosecution has been unhappy with the boys' lack of perceived victimization. However, the more severe the penalties, the greater the fear that lawbreakers will have, the more desperate measures they may take. A man who fears ten years in prison because he believes a boy he has used in making porn will betray him could easily endanger the boy. It can be argued that the new law provides incentives for snuff films where children are killed on camera. Since the Bernardo trial we know that snuff films are not always figments of imagination or clever special effects. Pornographers producing for a market are constrained by that market, by what material consumers will buy. How could one go about selling snuff films in Canada? People producing for themselves have no such built in constraints. Hopefully the new legislation will not inadvertently encourage the most abusive types of porn. Because it is small scale and often personal it will be very difficult for the police to keep track of. It is possible that seizures will eventually decline which could lead the police into claiming that the war on kiddieporn is being won. But what if more bodies of abused children begin to turn up in fields and alleys?

While escalation of the war against kiddieporn may be very satisfying morally with numerous citizen groups expressing their approval of the severity of the new legislation, the price of these laws may well be paid by children with their lives. Public sentiment, and the law, seem to be based on the naive assumption that the more inclusive, restrictive and punitive our child pornography laws are, the greater the protection of children. It is not difficult to conclude that the new child pornography law poses much more serious threats to children than the milder provisions of s. 163 which only deals with obscenity. The protection of children should be the result as well as the intended purpose of the law.

Partly as research on my case and partly out of personal interest I began looking into material on the Internet that might be considered child pornography. There is a considerable amount, but then there is a huge amount of porn and erotica to be found.

By default and for obvious reasons the Internet contains a preponderance of material that is not readily available or legal in commercial markets. Obscure fetishes and uncommon paraphilias all seem to be represented. I became a serious youth erotica and kiddieporn collector for the first time in my life. I didn't know if I was leaving myself open to further charges or not. Occasionally I had visions of the police knocking at my door again with arrest and search warrants based on monitoring what I had been viewing/downloading from the Internet. I suspected that the question of netporn would come up and I knew if I was challenging the law it would be helpful to know what is out there. On the basis of my experience I was pretty sure that what the police and other anti-porn groups were claiming about child pornography on the Internet was exaggerated and misleading.

I looked especially at newsgroups which men having an erotic interest in boys would likely follow. On newsgroups people post images, requests for images, stories, comments and discussion related to the general subject. The images are scanned from photographs and drawings and are seldom the poster's own original work. Postings can be made anonymously with little additional effort. Other people download them when they select and view them. The person viewing does not know beforehand exactly what the image will depict although he will usually have a good idea. Some groups try to have rules that images of nudes should be identified in the headers that people know beforehand. What many do not know is that downloaded images are temporarily stored in one of several caches where they may remain for some time unless specifically deleted. Even then they may be retrieved from computer hard drives with sophisticated programs. Some police organizations are equipped to do this. In some categories like the alt.fan newsgroups most are designed for teenagers themselves with young television, film and music personalities portrayed and discussed. I focused on material relating to boys rather than girls partly because I believe that there are significant differences in both the sexuality of the sexes and in the consumers of each kind of material. I confined myself to newsgroups and story collections of possible interest to boylovers without defining them too narrowly. For visual material I examined most of the alt.binaries, alt.erotica, alt.fan, and alt.sex newsgroups relating to children, boys, teens, pre-teens, pedophilia and incest. I did not look at any sites requiring credit cards or payment to access and I made no attempt to contact anyone. I only checked to see what was readily available. Despite apparently defined groups the material within them is unorganized making investigation difficult. Some groups such as alt.sex.lolitas, alt.erotica.teen.male, and alt.sex.pedophilia.boys contain mostly, sometimes it seems little else, but spam. Some newsgroups seem to have been completely abandoned to spam. Many are empty. (Spam is indiscriminately posted commercial messages which may have little to do with the group.) A person looking for images of prepubescent males may find more headers relating to HORNY TEEN SLUTS, gay S&M and zoophilia. Postings change frequently and hundreds if not thousands of new headers may be added to a group every day while others are removed. Diligent collectors of specific kinds of images may visit their favourite groups regularly and could amass tens of thousands of images in a few weeks.

There are many newsgroups which men with an erotic interest in boys might turn to for images. Teen idol sites designed for young fans are very popular with some boylovers. A child actor such as Jonathon Taylor Thomas the TV series Home Improvement may have thousands of enthusiastic boylover fans who collect his picture and have fantasy affairs with him. Some of these child stars have probably helped trigger hundreds of thousands if not millions of orgasms. There is not much that the law can do about this salacious state of affairs until society is prepared to deny kids their innocent pleasures and revise some fundamental legal concepts. Certainly there many people who would claim that these child stars are being abused in the process. I have not heard any evidence that the children involved feel victimized. Then there are newsgroups specifically featuring pictures of mostly early adolescent boys in a variety of situations; street shots, fashion poses, sports and everyday scenes, but no sex, suggestiveness or nudity. Some images are apparently posted by proud fathers showing their sons skateboarding or other activities. No doubt many of these are used for erotic purposes and some anti-kiddieporn vigilantes even condemn and harass these groups.

Other groups clearly catering to boylovers judging by comments posted along with the images contain beach, sports, underwear and nude pictures but generally no arousal or sexual activities. It is however practically impossible to prevent people from posting images of explicit sex. Some may show boys undressing or posed in what might be claimed as provocative poses à la Calvin Klein jeans ads. There are many naturalistic nude pictures taken at beaches, camps and in pools, showers, etc. Then there are studio "art" pictures and reproductions of nude paintings. Images like these are found in newsgroups such as alt.binaries.pictures.boys. and alt.fan.prettyboy. These are lively groups with discussion about what images should be allowed or what is or is not kiddieporn and the ethics of man/boy love are interspersed with the images and spam. Heated exchanges are common with vigilantes threatening to report unwelcome posters. Many of these images are scanned from professional quality photographs. One poster who calls himself Soccerboy only posts pictures of boys playing soccer, another confines himself to pictures taken at public beaches. Beyond that there are groups where people post pictures of boys exposing themselves, in sexy poses, with erections, and/or self or mutual touching. Similar scenes occasionally occur in mainstream movies such 1900 starring Robert de Niro and stills are posted.

Clearly beyond commercial media standards are the images showing masturbation, mutual masturbation, fellatio and actual or pretend intercourse involving boys. Far more extreme and definitely abusive are the images where adult actors, violence, bondage or coercion involving young boys are depicted. Many of these images are stills from movies or taken from magazines. The worst I saw showed small boys being restrained and buggered. It is not very common and this type of material is condemned even on some pedophile newsgroups. Some of these images appear to be scanned from the most extreme kiddieporn booklets from the 1970's when material like this was available. Other such images depicting rape appear to be of more recent origins. There are also advertisements for explicit boy videos, often with a few stills. Most of these appear to be made in Russia.

Another category which some people would find disturbing are images of children being spanked or caned. These include photos, etchings, drawings and often annotated cartoons. Most appear to be from books, magazines and stills from movies where children are punished. Some of the amateurish drawings appear to have been made by children. For the most part these images are perfectly legal as they are not sexual. There are photos of domestic discipline, school paddlings and judicial floggings. Most of the latter are from former British colonies such as Kenya, Malasia and Singapore where the use of corporal penalties has increased exponentially since independence. These include pictures of boys modestly displaying their welts and residual scars. There was even a "boyspank" site offering images and videos but it required a credit card or money to access its wares so I only saw a few sample images. Another site offers contemporary news about corporal punishment, historical accounts about punishments in the military, schools, prisons, juvenile institutions including personal memoirs and discussions pro and con about physical punishment. There is also alt.parenting.spanking where many posters quote biblical injunctions for applying the rod. As an aside I would note that religious conservatives who strongly oppose child pornography of any sort are the principal proponents of spanking in our society. Instructional videos for parents showing them how to administer corporal punishment to their children are available. To the extent that they stress avoiding injury while maximizing pain they may in some sense help protect children. They are controversial and their distribution has been banned in the U.K. I do not think that is any doubt that some viewers use much of this material for sexual purposes regardless of the motivation of those placing the material there.

Most newsgroups to which anyone can post have a degree of self regulation. Mixed with the images and inevitable spam are messages to other posters and viewers. In the previously mentioned alt.binaries.pictures.boys there is a self appointed group called the Guards who try to impose certain standards. While nudes of all ages are welcome anyone posting KP, images of boys showing sexual arousal or sexual activity "will be reported to their Internet service provider", and if they persist, "they will be reported to the appropriate authorities in their country", all "WITHOUT PRIOR WARNING". They may be told to make their postings to more appropriate groups like alt.sex.pedophilia. It is difficult to determine how effective vigilantes are although there are frequent postings announcing that so and so has been arrested or jailed. Others users of the newsgroup "flame" the alleged offenders, tell them they are "sick" and should commit suicide. Non users may not share the group's definition of what is not kiddieporn but they seem to have achieved substantial compliance to theirs. Some people have kill file programs in their computers so that the images/messages of unwanted posters (and spammers) are not downloaded. There are also complaints about overposting, inferior quality postings and many requests to repost certain favourite images. I would note that many image programs enable the viewer to blow up and crop images which can be used to make them subjectively more pornographic.

Written material, erotic stories relating to sex involving boys is found in several newsgroups and web sites as part of larger gay sex story collections under adult/youth. M/B (man/boy), intergen. or incest headings. A story may be classified under more than one heading. Of the ones that I have looked at most are graphic, amateurish masturbation fantasies. Rape and violence are less common but I have come across a few "snuff" stories. Erotic spanking stories usually in school or family settings are fairly common. While many involve no sex others have both the adult and the boy deriving sexual satisfaction from the experience. Internet stories are typically indulgent and soon boring. Contributors often write a series of similar stories or follow a few characters through many episodes. Many are narrowly focused on the writers pet paraphilia. Quite a few stories are written as childhood reminiscences or as told by a boy narrator. Some claim they are pure autobiography, others admit to some embellishment. A few are plotted stories sometimes with exotic historical or sci-fi backgrounds. For the purpose of arousing and satisfying the sexual appetite the written word can be extremely powerful. Imagination is the only limit unlike film and video. If the priority of anti-child pornography laws is to stop pedophiles from masturbating, if that is the real goal, then efforts should emphasize written material.

Cleaning up the Internet involves the problem that effectively discouraging the worst would require the cooperation of those enjoying and defending less offensive material. However many crusaders believing in zero tolerance are not prepared to make the distinctions required for this approach to be used.

Catherine Ford writing in the VANCOUVER SUN [21/05/99] in a column titled, "Thinking skills are the best defence against Internet filth" asks in respect to children what is the cure? She points out that selective censorship to weed out filth on the Internet is impractical. She suggests, "Lessons in philosophy, morality and old-fashioned critical and creative thinking, everything that the schools, parents and churches are actually supposed to be doing." She advocates that youth be educated "to assess what they see", and learn to use their judgement. In effect she advocates empowering children and inculcating autonomy. Ford concludes, "In the move to wire the schools for computers we've forgotten to wire the students."

The harm engendered by child pornography is often defined on three bases. One is the abuse entailed in the making of the images. Where children are threatened, coerced, tricked or deceived (hidden cameras) into participating the abuse is self evident. The worst is often evident from the images itself. We should however objectively ask how serious most child pornography is in relation to other abuse experience. The claims that it is "worse than homicide" and amounts to "soul murder" are obviously far fetched. Usually there is little evidence of actual experienced abuse in the images themselves where the boys are often cheerful and enthusiastic. Small children may be ignorant of what is happening. Judging by what is available, and there is an abundance, most child pornography consumers find images of coercion, rape and brutality highly offensive. If continuum theories, which suggest that consumers seek ever more extreme material, were valid we would expect a much larger proportion it on the Internet.

A second area of potential harm to children is the question of identification. If pictures which a boy may have allowed a man to take as a personal matter are afterwards widely circulated, sold or published causing embarrassment or exposure the damage can be traumatic. A boy may be particularly anxious that the images do not fall into the hands of the police. If he is identified he may be subjected to abusive interrogations and be exposed to the humiliation and contempt of peers, family and community.

The third and most controversial potential harm to children is the effect of child pornography on the consumers. Never before has there been so much child pornography available with so little risk, effort and cost in accessing it. There is conflicting evidence. On the one hand there is no evidence that the over all availability of child erotica and porn bears a positive relationship to child sex abuse, in fact the opposite may be true. On the other hand there is anecdotal evidence and the testimony of some clinicians that there is a causal relationship with some convicted offenders.

Perhaps overriding the question of harm to children is the widespread repugnance at the idea of men being able to possess and use child related material for their sexual gratification. It is considered morally wrong for men to do this and this is why, I believe, child pornography and sexual assault laws are enforcement and offender oriented rather than directed at protecting children.

If we are to accept the word of serial killer Ted Bundy that porn made him do it, as some of our parliamentarians did in justifying the need for our pornography laws, then we should also consider the claim of serial killer Clifford Olson that he started killing his victims because he did not want to go back to jail. Both claims are self serving but Olson's, despite all his bullshit, raises the question of whether harsh penalties for sex crimes involving children are wise.

Images of boys masturbating often show them looking at boy porn mags. This may be one reason for the contention that men use child porn to "groom" their victims which has been unquestioningly accepted by many. The simple fact may be that it is the only kind of porn that the men have around and use themselves. Consumers may of course be flattered to think that boys enjoy it themselves. In a practical sense straight porn, especially videos, would be much more effective in seducing young boys.

To talk about pornography outside the context of masturbation is like talking about cooking without reference to eating. Pornography is very important to many people without attractive sex partners. It is a substitute for the real thing. Even unattached people who have access to desirable partners may prefer pornography for reasons of cost, convenience or kinkiness. Pornography is a tool for experiencing sexual release, something that is considered conducive to health by many people. Pornography, or rather people are very selective. Men only respond to a certain range of imagery in terms of solitary sexual activity. Few things are more boring than another person's porn. Also, I believe the same porn cannot be reused successfully over and over again. More rather than less porn may be beneficial for users. Images used for aesthetic enjoyment rather than arousal can be enjoyed repeatedly.

I would suggest that anyone deciding to study porn on the Net, even if only prurient reasons, should study the images closely, the backgrounds, the attitudes of the bodies and especially the expressions on the faces. Are the kids happy, indifferent, laughing, distressed, in pain, relaxed, being prompted? The quality of direction is likely no better than the quality of the picture. In addition anti-porn advocates might be able to be more honest if not effective if they knew what they were talking about.

My plan to challenge the law was very audacious and I wasn't optimistic, but I was positive in my mind most of the time. I knew I was attempting something never done before and this gave me a sense of mission although not one I could share much with anybody. The friends who spoke most meaningfully to me were books and articles. I explained my plan to any who might be interested but usually they weren't. Most were pessimistic, so was I, and at least a few thought I was foolhardy, and they didn't want to know the details. Only Jim Heller seemed curious but it was out of his field. Seeking reassurance was not profitable. I was dealing with a bad law and I had some arguments that made sense to me. But then I recalled the other thing that Ritzker had said about the court listening to you and then doing what they would do anyway. In law things appear different than in reality, which is necessarily subjective for everybody, and words may have different meanings. I felt there could at least be a good fight and maybe I would get some assistance if put on a good show. I know enough to expect the unanticipated, and I knew there would be many unknowns.

THE BUTLER AND LANGER DECISIONS

"The truth about sex is that sex is just sex - basically it's bad, unless it's good, and we all know which one it is when we see it." Brenda Cossman commenting on the Butler decision in BAD ATTITUDE/S ON TRIAL, page 125,

In 1983, nine years before the Butler decision there were a number of changesredefining rape and sexual assault laws which greatly increased control over individuals through the criminal law. New offences were created, penalties were increased and potential defences were removed. It may be seen as part of the strong, long term historical trend towards greater state control of the individual through criminal law. Legal reform - Social control by Loureen Snider in, "The Dangers of Abolishing Rape" published in the International Journal of the Sociology of Law examines sex assault law proposals and reforms. She says, "Reform has come to mean changing the laws so that they are in theory equally repressive for all." While women got changes that made it easier for women victims to testify, none of their liberalizing proposals were successful. The Justice Minister of the day, Jean Chretien was not anxious to again go through the "public abuse" he took over the legalization of private homosexual acts between consenting adults, a reform he had nothing to do with. The changes made it easier to charge and convict men accused of sexual offences. The police had virtually all of their recommendations instituted. The parallels with the making of the child pornography laws are interesting. Laureen Snider explains, "Because they (state law enforcement agencies) were inside the state control structure and because resistance to centralized power in Canada is virtually non-existent, they were consulted extensively, formally and informally, and were able to shape the very contours of the Bill throughout." In a way it is like government consulting with engineers about construction codes except that it's us, as people, that's being regulated and punished. Few care or question the police role in law making.

Rape and attempted rape had traditionally been specific offences. Rape is not putting your hand on an unwilling person's crotch. Rape is defined as sexual intercourse (penetration) without consent effected by force, duress, intimidation or deception as to the nature of the act. Rape is an outrageous sexual violation of one person of by another. This is pretty clear. However certain feminists didn't like rape being separate, and they had their way when the Criminal Code was amended in 1982. It's the violence, not the sex that should be targeted they argued, and women don't just suffer from rape. Except for hiving off cases involving injury or weapons everything from classic rape to minor instances of sexual touch became sexual assault. Rape which had been a separate crime with a clear cultural meaning was now just part of a continuum it shared with unwanted kisses. Rather than trivializing rape, the new classification raised trivial, but arguably traumatic acts in terms of victimological theory to serious offences. It became very easy for a man to get into trouble. Bureaucracies arose in offices and colleges to define and regulate gender relations and human rights tribunals were established.

Some feminists resisted this attempt to define sexually mature females as pathetic defenceless creatures dependent on the laws and agents of the state. It is hard to be victim and equal at the same time. A women who has her breasts touched or a boy who has his bum patted is not raped but they may well have been sexually assaulted. But aren't they mini-rapes? And isn't the perpetrator is on a continuum with violent rapists? A horny teenage boy can very easily push things too far. I remember the roman hands and russian fingers of back seat adolescent encounters. I think I described a typical encounter in my autobiographical novel, RUPERT UNEXPUGATED. It used to be that the girl would remove the boy's hand and tell him to behave, now she may have him charged with sexual assault. By current standards most of the boys in my high school, circa 1950, would have been criminals. Also when I recall the probably hundreds of depantings and other schoolyard and locker room sexual assaults I witnessed, and took part in, as a kid I cannot help but think of the many millions in legal and therapeutic expenses that those incidents would generate today. "Fooling around" as it was called, was common. The taunting, teasing play often with sexual overtones that kids engage in is perfectly normal and part of the rough and tumble experience of childhood. Kids growing up necessarily have to deal with things which adults with their cultivated sensitivities would find intolerable, including things intended to make them good and behave such as spankings, lectures, time outs and groundings. Children are fortunately resilient. The important things for kids are positive; acceptance and love, both of which provide a foundation for self worth.

The ascendancy of psychiatric and other therapies with their inherent disrespect for the autonomy and social intelligence of children has led to a decline in our ability to deal with such incidents. Teachers used to ignore such "fooling around" or terminate it with a simple, non-moralistic, "Cut it out." or "Settle down." unless it was too blatant or a kid was frightened. What is now termed sexual assault was in the past commonplace. It was also no big deal. Those who were over enthusiastic might get teased. Not long ago the twelve year old son of an acquaintance was suspended from his school for sexual assault, to wit abusive, obscene words. His father stood up for him and rightly got legal satisfaction. Applying feminist victimocratic theory to the rough and tumble, learning world of kids is stupid and can only harm kids. Today with child sex hysteria and mandatory reporting laws people who work with kids are often obligated to report such behaviour and have it dealt with by "experts". And some really believe in zero tolerance and experts.

Kids pretty well have to take seriously, sometimes traumatically so, things that adults suggest or insist they do. Teaching toddlers and young children what to fear and what not to is fundamental to parenting. Kids though their own experience and the influence of their peers soon begin to modify the fears their parents give them becoming more sophisticated. They are continually made aware of new things to fear (It's a lifelong process) which with growing capacity for autonomy they assess. How to react to sexual advances, particularly by much older kids or adults needs to be learned. In most cases where a kid's not interested a simple "Fuck off." or "NO" should work and the kid should warn his friends if he's been bothered.

Ordinary people generally know this. Therapists may also know this but it is not part of their "professional" knowledge or "ethics" and it is costly to their professional "integrity" and pocket books to admit it. Some therapists, like Dr. Collins who testified at my voir dire have to dogmatically deny the harm of exposure to justify their professional existence. Therapists are frequently the major part of the problem with their expensive and invasive solutions. Well into the 1970s it was widely recognized that exposure and the reaction of adult authorities could be more harmful to kids than the incidents themselves and informal resolutions were often favoured. However, under the onslaught of therapists, feminists, opportunistic politicians and a media hyping sex abuse and child pornography this approach no longer became publicly tenable. Like many other reforms to protect children they became foremost among the victims.

Any kid who believes he should tell parents or teachers anything they might like to know is stupid and not being what he should be. Keeping secrets from adults is part of healthy socialization and maturation for children. But they should free to tell appropriate adults things they want them to know about such as things that they themselves experience as abuse.

Concern about the increasing availability of pornography had been growing for a number of years prior to the Butler decision. Social conservatives who saw pornography as a threat to family values and who basically opposed any representations of explicit sex were joined by feminists who saw much pornography as harmful to both women and women's equality. Both lobbied the government for more stringent laws. The 1985 FRASER REPORT which had adopted a feminist definition of obscenity led the Conservative government to introduce Bill C-114 the following year. Anti-porn advocates claimed it didn't go far enough although most religious and family oriented groups and the Association of Police Chiefs approved of it. However the proposed legislation met with widespread and strong opposition from libertarians, the arts community and some feminists for being too restrictive and placing too much emphasis on sex relative to violence. It died on the order paper. In 1987 the government introduced Bill C-54 which attempted a meticulous codification of obscenity. The definitions were overbroad potentially covering a huge range of artist and intellectual material. Librarians were particularly outspoken and articulate in their criticisms. Any practical consensus become impossible and it too died. Even government spokesmen admitted that Canada would have to live with the existing legislation.

The feminist arguments that were so influential derive from the theories of Catherine McKinnon, a prominent academic and Andrea Dworkin a prolific anti-male writer. They led the radical feminist crusade against pornography using their theme that porn inspired rape and led to women's subjugation. Their evidence was anecdotal and moral, reinterpreted as harm to women. What little scientific evidence they referred to was mainly laboratory experiments with college students, which I discuss elsewhere. McKinnon sees pornography as an act of violence against women. She is quoted: "the message of these materials, and there is one... is 'get her', pointing at all women, to the perpetrators benefit of ten billion dollars a year and counting. This message is addressed directly at the penis, delivered through an erection, and taken out on the women of the world." Porn incites men to rape and there is no place in their theories for men using it as a "safety valve". Their theories found their way into the FRASER REPORT whose authors acknowledged their contribution. McKinnon and Dworkin had mixed success implementing their theories locally in the U.S. with one of their ordinances being ruled unconstitutional. But their ideas came to dominate mainstream feminist ideology, inspiring organized anti-porn activism and attracting the interest of social conservatives who opposed porn for different reasons. And then there was the Butler decision.

Catherine McKinnon was invited by LEAF, the Legal Equality Action Fund, a feminist anti-porn group to co-author their factum with Kathleen Mahoney. The LEAF factum provided a rational for reinterpreting the existing legislation in a way to satisfy those insisting on reform.

The Butler Decision and Judicial Activism

Shortly after Donald Victor Butler opened the Avenue Video Boutique in Winnipeg in August 1987 his store was raided and he was charged with over two hundred counts of selling and possessing for the purpose of distribution obscene material; "hard core" videos, magazines and sexual paraphernalia. The core issues of the case were firstly whether the definition of obscenity infringed on the right to freedom of expression. Obscenity is defined as: "any publication a dominant characteristic of which is the undue exploitation of sex, or sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene." Judge Wright of the Court of Queen's Bench ruled that the definition did. Secondly, whether the infringement was saved under section 1 of the CHARTER. Based on content of the material the trial judge found this was the case in counts relating to 8 films for which he convicted Butler, but not in 242 counts where he acquitted the defendant. He ruled that only materials containing scenes involving violence or cruelty intermingled with sexual activity, or which depicted a lack of consent or otherwise, could be said to be dehumanizing. These were legitimately proscribed under section 1 of the CHARTER. His ruling seems to be based on the simple meanings of the words in the definition. The Crown appealed the acquittals and the defence appealed the convictions.

The Manitoba Court of Appeal in a majority decision entered convictions on all counts saying that the materials lacked protection since they constituted purely physical activity and involved the undue exploitation of sex and degradation of human sexuality. Obscene material was simply not a form of expression that the CHARTER was designed or intended to protect. Obscenity cannot convey a meaningful message. One dissenting judge wrote that a law deciding what others may read and view was contrary to the principles of a free and democratic society and upheld the trial judge while the other dissenting judge felt that the law was arbitrary and vague and would have acquitted the defendants on all counts. The Appeal Court ruling was appealed to the Supreme Court of Canada.

The Supreme Court heard the appeal and ordered a new trial on all charges. They ruled that while section 163 infringed on the freedom of expression provisions of the CHARTER it could be demonstrably justified as a reasonable limit in a free and democratic society. The significance of the Butler decision is that it re-interpreted Canada's obscenity laws supposedly on the basis of harm rather than morality. The Court had to stretch the weak and since disowned and widely discredited studies offered by LEAF as "proof of harm" to justify obscenity as constituting a "substantial risk of harm". In the process the Court expanded the definition of obscenity to include a wide range of material then available. Most feminists were jubilant as it entailed the acceptance of their theories. The decision was even welcomed by social conservatives who got much of what they wanted albeit rationalized in words not of their choice. It was also welcomed by the politicians who were no longer under pressure to rewrite the pornography laws which could be a divisive and onerous task. The Supreme Court of Canada effectively amended the law without changing a word. This piece of judicial activism was supported by most of the same groups that are now complaining most stridently against it. Perhaps they are only opposed to "bad" judicial activism.

The decision revolved around what is obscenity as set forth in subsection (8) of section 163. The Court stated: "In order for a work or material to qualify as 'obscene', the exploitation of sex must not only be its dominant characteristic, but such exploitation must be 'undue'." Undue is to be based primarily on the "community standard of tolerance" test. "This is concerned not with what Canadians would not tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed." In other words what are you prepared to let your neighbour read or view? Tolerance is assumably based on people's perceptions of the degree of harm, in terms of predisposing people to act in anti-social manner, that may result from such exposure. The Court speaks of a "reasonable apprehension of harm" and of a "substantial risk of harm" as self evident and not in need of proof or demonstration. Public opinion about what people may think may lead to harm defines obscenity. Any to need to demonstrate a causal or correlational relationship objectively is superseded by evidence that public opinion accepts that such a relationship exists. It is like saying that if people believe that tomatoes cause cancer then they indeed do cause cancer. The Court rationalizes: "While a direct link between obscenity and harm may be difficult to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs." It is not said why this is reasonable to presume. It sounds like the Court's very own community standards. They then go on speak of "the gravity of the harm" and "the threat to the values at stake". The argument is one directional in that it looks only at the possibility that porn may incite sex assault and completely ignores the possibility that it may substitute for assaultive behaviour, the so called cathartic effect. The cathartic theory widely accepted a few decades ago has been a victim of the anti-porn crusaders. It is antithetical to their interests and those of the criminal justice system. Public opinion and presumably community standards have shifted. The cathartic theory was an important consideration at my voir dire

The Court refers to "a growing recognition" that material said to exploit sex in a degrading or dehumanizing" manner will necessarily fail the community standards test, "not because it offends against morals but because it is perceived by public opinion to be harmful to society". It might be argued that the Court simply replaced morality with presumed public opinion concerning moral questions. Moral authority democratized? They also note that in deciding whether material is degrading or dehumanizing, "the appearance of consent is not necessarily determinative." For many feminists consent or apparent pleasure could make material even more degrading.

In their qualifying remarks Justices L'Hereux-Dubé and Gonthier state: "Obscenity leads to many ills. Obscene materials convey a distorted image of human sexuality, by making public and open elements of human nature that are usually hidden behind a veil of modesty and privacy. These materials are often evidence of the commission of reprehensible actions in their making, and can induce attitudinal changes which may lead to abuse and harm." They succinctly say: "The assessment of the risk of harm (here) depends on the tolerance of the community. If the community cannot tolerate the risk of harm, the materials... will constitute undue exploitation of sex and fall within the definition of obscenity." They seem to believe that obscene materials possess almost magical powers to alter attitudes and values. This seems to be the very similar to the concept of "cognitive distortions" used by the Crown at my voir dire.

Community standards based on public opinion can presumably change, just as conventional wisdom changes over time. Canada has a small industry monitoring changes in public opinion. Public opinion can also be manipulated and this involves large industries. As for community standards there are many groups that are trying to change peoples attitudes and thinking on what is permissible is terms sex related matters. The various intervenors with their factums were part of this. Anti-porn feminists, victim rights groups and certain members of Parliament have taken an overtly crusading stance. The police in their "educational" work, as per Detective Noreen Waters, try to influence public opinion as in the ongoing debate to raise the age of consent. Community standards as public opinion invites activism with influential and well organized and funded (often funded by the taxpayer) groups having an advantage. This could be a never ending war for the community standards of Canadians, a war with many casualties. I wonder if perhaps deference to some moral authority rather than public opinion might be preferable, especially if enforcement is lax. History is replete with societies that have managed to have their moral cake and eat it too.

The Butler decision pitted equality rights against expression rights. Following feminist reasoning the court saw pornography as an obstacle to women achieving equality. They made further assaults on the integrity of the English language by rejecting the ordinary meanings of words by making them contextually sensitive.

In BUTLER, as in perhaps Canadian pornography trials generally, there was nobody there to represent the consumer. The consumers, especially of "hard core" obscenity, are a denigrated group and are highly unlikely to stand up for their interests. It would be humiliating, who wants to say they need, prefer or sometimes want this kind of material as a masturbation aid? Nobody. This means there is no one there to express directly the value to some people of the freedom of expression involved. The court can simply degrade the value to a base level demeaning the value of sexual expression generally. Nobody was there to energetically and articulately contest the simplistic "monkey see, monkey do" theories of psychiatrists, radical feminists and social workers wrapped in victimological sophistries.

While there was more material that could be deemed obscene there was no change in the direction of enforcement. Gay and lesbian bookstores continued to be targeted and it seemed that the goal of protecting women from males could be satisfied by censoring gay and lesbian materials devoid of man/woman encounters. The words of the obscenity definition, abused into abstractions by the decision, were open to clever and perhaps valid interpretation as former feminist supporters were sad to discovered. Gays' access to sexual material, especially that dealing with S&M, also suffered as men were found to be in equal need of protection from dehumanization. Their theories of harm were used against them. The consumers of XXX adult porn faced curtailed selections but most probably learned to like vanilla.

There have been some excellent analyses of the Butler decision. Perhaps the most incisive is that of Brenda Cossman in BAD ATTITUDE/S ON TRIAL: Pornography, Feminism and the Butler Decision, co-authored with three other Canadian academic feminists; Shannon Bell, Lise Gotell and Becki L. Ross. The title refers to the American lesbian magazine, Bad Attitude that was seized by police from a Toronto bookstore. It was ironic that a feminist publication should be the subject of the first big obscenity trial following the Butler decision which was heralded as offering protection for women. Dany Lacombe's BLUE POLITICS is also very helpful in providing an historical and theoretical context for the Butler decision and I have relied on both but draw my own insights.

Richard Posner, the well known conservative American jurist in the October 18, 1993 edition of the New Republic gives a reasoned analysis of the ideas Catherine McKinnon which were so useful in the Butler decision. He sees her as "obsessed with pornography". He says she appeals to the elemental passions of fear, disgust, anger and hatred rather than the rational intellect. Pornography is hate literature and is used to oppress women. He quotes her theory of censorship, "The more speech is protected, the more dominant they (men) become." Posner points to the glaring contradiction between declining rates of rape and the proliferation of pornography. He also notes that "women's status is lowest in societies that repress pornography (such as those of the Islamic nations) than in societies that do not (such as those of the Scandinavian nations)." Social conservatives felt that pornography endangered the family by deflecting husbands from intercourse to masturbation.

It may be unfair to overly fault the Court. There were a number of practical and political considerations which were difficult to ignore and quite literally the ball was in their court. They are also bound to make decisions on the basis of evidence before them and the evidence was one sided. Often it is only the voices of the respectable or powerful that are heard and listened to. When the poor and disreputable are heard it is likely to be some wretch, who feeling shafted by the system, has a screaming outburst as he is led out of the courtroom. There was no factum from the Canadian Pornography Consumers Association. That association does not exist any more than does the Unshamed Johns of Canada. We are talking about people, men for the most part, that cannot afford to speak publicly in the present moral climate. I have personally experienced the power of stigmatization. The Court in referring to the impracticality of exhaustive definitions, as the failure of Bill C-54 demonstrated, say they "strive towards a more abstract definition of obscenity which is contextually sensitive and responsive to the progress in the knowledge and understanding of the phenomena to which the legislation is directed." What about the simple meanings of words? This is an invitation to more abstruse constructions of reality. It certainly gives courts more leeway than ordinary meaning of words. The "progress of knowledge and understanding of the phenomena" is interesting. Does it mean that if the shaky scientific evidence is shown to be worthless that the definition in practice would change? I doubt it because for community standards to change new evidence would have to become entrenched in conventional wisdom. I assume the Court knew what it was doing. They had to engage in some intellectual gymnastics to accomplish it. Perhaps they believed they were making the correct and best decision and this was the best way they could justify it. Behind the curtain they may have stretched the fabric of the law but they did not rend it.

R. v. THE ART OF ELI LANGER(forfeiture hearing under s. 164)

"When I use a word," said Humpty Dumpty, "It means exactly what I want it to mean, no more and no less."

The other big case I want to refer to is the Langer forfeiture hearing. This is probably Canada's best known child pornography case under the new law. The basic facts are quite simple. The impugned child pornography was a series of paintings and sketches which depicted young preteen children in sexual situations sometimes with adults which were seized from a public art gallery in Toronto four months after the law was proclaimed. The gallery owner and the artist, Eli Langer were charged under both the obscenity laws and the new child pornography laws. Langer did not believe that an artist should have to defend his works, they speak for themselves. His friends saw them as addressing social issues, the artist had spend time talking to people who had been victimized as children. The Crown described it as a test case and cited the need for judicial interpretation of the new law without placing any individual in jeopardy of a criminal conviction. The charges against the individuals were dropped and the art works themselves were put on trial through a forfeiture hearing. The case was to decide if the new law was constitutional and whether the works were indeed child pornography. Eli Langer had widespread support from Toronto's art community and the Canadian Civil Liberties Association, the Canadian Conference of the Arts and Pen Canada made representations as intervenors on Langer's behalf. Canadians for Decency were intervenors on the side of the Crown. Frank Addario was retained to defend his works on the basis that the law violated freedom of expression as guaranteed by the CHARTER. The judge, Mr.Justice McComb of the Ontario Court of Justice (General Division) ruled that the statutory definition of child pornography, 163.1 (1) violated section 2(b) of the Charter but was saved by section 1 of the CHARTER. In other words the law was constitutional. He decided however that Langer's works were not child pornography because of their "artistic merit", a defence written into the law. Langer "won" and got his works back. Some saw that as a victory for freedom of expression.

The Crown claimed that Langer's works were child pornography and should be forfeited and presumably destroyed. They brought in as expert witnesses Detective Sergeant Robert Matthews head of Project P, Canada's largest anti-pornography unit, a member of the Ontario Film Review Board and psychiatrists, Dr. Peter Collins, Dr. Howard Barbaree and Dr. William Marshall. These clinicians are associates who work with convicted sex offenders. Marshall and Barbaree often co-author articles, and Barbaree is Collins' superior. Dr. Marshall has testified before the Standing Committee on Justice a number of times on matters dealing with sex offences and youth. He has produced a number of studies on sex offenders funded by the Department of Justice. All three have very cosy relationships with the criminal justice system.

Sergeant Matthews who testified extensively before the Standing Committee in support of the law provided samples of alleged child pornography; the Nambla Bulletin, an obscene collage, photos and kiddieporn magazines from his collection and described the exhibits explaining how pedophiles acquire, distribute and use child pornography to place children at risk. A few months earlier Matthews had assured the Standing Committee that the arts community had nothing to fear from the law yet now he was leading the charge against an recognized artist's works. Matthews was quoted in MACLEANS Magazine: "In my opinion an art gallery cannot be used as a sanctuary for pornography." (July 24th, 1994.) In the same article Bob Horner who was Chairman of the Standing Committee is quoted, "the police have overstepped their boundaries in this case." How sincere was Matthews? Or was it simply a case of doing his job?

The three psychiatrists offered their theories about the harm of child pornography; fuelling fantasies, reinforcing cognitive distortions and grooming children. The three psychiatrists were also of the opinion that Langer's paintings and sketches could incite a pedophile to sexually assault a child. Dr. Barbaree suggested that the distress obvious in the faces of the paintings' children wouldn't be apparent to a pedophile implying that they are basically insensitive men.

Frank Addario brought in his own expert witnesses, Dr. Jonathan Freedman and Dr. Ronald Langevin who testified that there was no scientific basis for concluding that "explicit depictions sexualizing children will increase the likelihood of sexual abuse of children." Langevin didn't think Langer's works would turn on pedophiles suggesting that photos showing genitalia would be better for fuelling the fantasies of pedophiles and that even"innocuous mainstream advertising images" would be more effective. He was by no means defending child pornography, he would lose credibility if he did, but he was making the point that some porn might be more effective than others and not just on the basis of explicitness as advanced by the psychiatrists. Langevin also testified at Stoempl's trial recommending therapy, and implicitly incarceration for the accused.Judge McComb in his ruling upheld the entire pornography law. He uncritically accepted the testimony of Sergeant Matthews about the exhibits he entered. In his ruling McComb describes the NAMBLA Bulletin in words that sound like they were borrowed directly from the head of Project P: "The publication panders to homosexual paedophiles. It contains pseudo-intellectual editorializing purporting to justify sexual relations between men and boys, and argues for the removal of societal taboos against such behaviour." His words suggest that he had not seriously examined the newsletter himself. Later this suspicion influenced me to enter sample copies of the NAMBLA Bulletin at the trial so the court could decide for itself. He continues: "It also panders to the prurient interests of its readers with photographs of (they have a no nudes policy) young boys, and first person accounts of sexual activity between men and boys."Nowhere is the meaning of "advocates or counsels sexual activity ..." discussed in his decision, he seems to assume that the positive presentation of ideas constitutes advocacy. Nevertheless this brief exposition served as his justification for the constitutionality of prohibiting written material "which counsels or advocates..." I found this disturbing. Written material had nothing to do with the Langer case. It was not on trial; there was no one present with a primary interest in defending it. I believe that Judge McComb erred in allowing Detective Sergeant Matthews to enter exhibits from his child pornography collection that did not relate to the material in question. I can find no indication that Frank Addario raised any objections to this material being used. Matthews may well have wanted to get a ruling on as much material as he could, perhaps especially NAMBLA, knowing it would not be seriously questioned. It would be feather in his cap to have testified when the law was upheld. Judge McComb seems to be sympathetic to his position in this regard.

Judge McComb also uncritically accepted the child pornography theories advocated by the three psychiatrists. His ruling seems to have borrowed all the terminology and logic as he repeats their ideas. He accepts the clinicians' testimony as evidence "that paedophiles fuel their fantasies not only with explicit sexual images of children, but also with material that is not overtly sexual." and "that the determined paedophile is able to get his hands on it, and as will be seen, uses it in ways that are harmful to children." Actually a pedophile didn't have to be very determined in 1994 to accumulate a large amount of explicit material. McComb states that pedophiles use child pornography to: "reinforce cognitive distortions" by rationalizing paedophilia as a normal sexual preference." The judge also repeats in clinical phraseology that child pornography is also used to "groom" children, to entice children into posing for porn and sexual activities. This theory may be plausible with very young and naive children but for adolescents XXX adult porn would be much more effective than pictures of naked children in eliciting their sexual cooperation. The common sense approach is to ask what materials are used to groom what kind of potential victims. The psychiatric approach based on moral assumptions seeks only to show that some materials may be so used by some men in unspecified situations. The "grooming" theory at best has limited application and should be applied on a case by case basis depending on the nature of the image and the apparent age of the participants. The problem in reality is the misuse of porn whether child or adult. The problem in law is the misuse of the grooming theory. It had no relevance in LANGER. In fairness to the judge it should be noted that he was offered no competing theories or explanations. In terms of the constitutional issues the defence was possoibly derelict in its duty by not advancing any alternatives.

While the judge admits: "That there is considerable controversy within the behavioural science community about the effects, if any of child pornography upon behaviour." He then concludes: "However, although the evidence may not establish a clear link between child pornography and child sexual abuse, I accept the clinical opinions of experts Dr. Peter Collins, Dr. Howard Barbaree and Dr. William Marshall, each of whom has extensive experience in treating sex offenders, that paedophiles are often highly motivated to get their hands on explicit child pornography, (This only proves that the material is highly valued by the men) and to use it in ways that put children at risk." No degree of probability or likelihood is mentioned.

The judge also agreed "that material that stimulates the arousal of paedophiles is on a continuum with explicit motion pictures being more stimulating than still photos, which are more potently arousing than less explicit depictions. To a paedophile, the more realistic and explicit the depiction, the greater the erotic stimulation." I don't think this distinguishes pedophiles from any other men who use pornography nor does it mean that men prefer this material. Most men who use porn of any sort prefer images well short of the most extreme or violent available to them. There is no continuum. Pornography consumers have their standards like all consumers. Is there any reason to believe that pedophiles are different?

However Judge McComb is not satisfied that Langer's works pose a realistic risk of harm to children. In support of this he alludes to a concept similar to the definition given in 163.1 (1) b. dealing with material that "advocates and counsels". He prefers the view that although "the subject matter ... is shocking and disturbing, the work as a whole is presented in a condemnatory manner that is not intended to celebrate the subject matter." and states, "the purpose is not to condone child sex abuse..." In saying that the works are condemnatory and do not celebrate sexual abuse the judge is staking out a claim on applying "advocates or counsels" criteria to visual material as well as written. The children depicted in Langer's paintings and drawings appear unhappy and distressed. They are not having a good time. The works in effect do not advocate sexual activity with a person who is under the age of eighteen that would be an offence. Where the visual representation requires detailed crafting and often emotional input by the artist, paintings, drawings and professional studio photography and videos, there is a logic to the negative implication argument, or judging the work on the basis of apparent intent. And certainly visual works showing even extreme child sex abuse which are made by people undergoing treatment should be protected as they may well be therapeutic. These could however be covered by "medical purpose" in the list of defences.

But in visual representations depicting real children in real situations this could be paradoxical. An expression of distress may itself suggest abuse or transform another's innocent gesture into a threat. If an image can be judged on the basis of whether or not it presents child sexual activity in a positive or negative manner then in otherwise similar images, including photos, could it be argued that the one with a child appearing happy is pornography while one with the child cringing is not? The implications are absurd. If we extend this reasoning to written material then a work can be judged by which side of an argument it takes, or how a plot develops or the moral tone of the author. We would be into censorship on the basis of opinion, interpretation and conclusions, in other words content. But content is protected. Even McComb himself recognizes this when he quotes from R. v. KEEGSTRA to show that this is so. But isn't any difference between condemning something and celebrating it a question of content?

This reasoning is similar to, and probably derived from the claim by some feminists that depictions of women enjoying being raped are particularly pernicious as they convey the message that women actually enjoy being dominated thereby encouraging male violence against women. Such images condone rape in a way that a depiction of a woman struggling would not. But what about reality?

Judge McComb is also leaning towards classifying things as porn on the basis of the perceived intent of the creator. If it's intended to arouse rather than disgust or bring forth sympathy, then it becomes more likely to be defined as pornography. I am reminded that deploring something but describing all the juicy details is an old and common journalistic trick. Perhaps it could serve pornographers equally well. I have heard some of the fund raising letters of the late Father Ritter, founder of Covenant House described as such.

In the wording of the law the artistic merit defence appears absolute. However if this were the case anything with artistic merit could not be used to secure a conviction. The judge sees this as a problem for the judiciary to remedy and reads the community standards test used in obscenity law into the "artistic merit" defence of the child pornography. (No doubt this bit of judicial activism was applauded by those who usually condemn it.) This serves to limit the scope of the defence. He says, "harm must be measured with reference to community standards."

Community standards refer to moral sensibilities not to the harm that any individuals may experience. This is consistent with Marshall's position that abuse should be defined in relation to social norms. This enables him to justify the use of loaded terms such as "abuse", "victim" and "perpetrator" rather than more neutral terminology in scientific discourse. McComb concludes: "both on policy grounds, and on the grounds of consistency with other criminal offences involving sexual expression, that the legal meaning of 'artistic merit'... is the same as in the law of obscenity." Therefore it is subject to community standards test. He further limits the artistic merit defence by stating "where the safety of children is concerned, community standards of tolerance based on the risk of harm are more important than freedom of expression, no matter how 'fundamental' that freedom may be to a free and democratic society." This could be used to completely negate the defence provided for in the law. The statement is absurd, it is posturing at its most extreme. He seems to be saying that any scintilla of risk to children may justify suppressing any freedom of expression. But in today's climate of fear it is not something that any politician or lawyer could dare oppose in public.

McComb then, rather quaintly in my opinion goes on to agree that section 2 b. is there to protect unpopular, offensive expression. Is free expression as the judge seems to assume harmful to children? Is there a correlation? Any evidence or examples? Free and open discussion of adolescent sexuality including fictional and polemical expression is necessary in a free and democratic society. We have a huge amount of evidence that the suppression of debate that facilitated the self abuse hysteria of the last two centuries possible caused immeasurable harm to boys and young men.

Judge McComb sets out factors for the artistic defence to apply:

a. The work must be sincerely created;

b. The work must provide something of value to the viewer;

c. He posits that in rare cases child porn could have artistic merit

and also pose a strong risk of harm to children

What could this be? Does anyone anywhere know of any image or writing aside from religious scriptures that poses even a moderate risk of harm? Anyway he states that in these "rare cases" they would then fail the community standards test and lose the protection of the artistic merit defence.

The purpose of the legal exercise of LANGER was to establish the constitutionality of the law; Langer's works were merely a prop, a convenient prop that didn't involve sordid reality and which provided a foil for the main job of validating the law. It became a show trial. Collins and Marshall were sent in by the government to provide any "science" that might be required. People cheered when Langer got his paintings back. Meanwhile McComb basically transcribed the theories presented to the court by Dr. Collins and Dr. Marshall into his decision. In doing so he wove them into the fabric of the law through subsuming, precedents, reference to other laws and decisions, and his own conclusions and pronouncements. The child pornography laws which many had felt were overbroad, flawed and even bound to fail, had a successful baptism of legal fire.

The most ominous thing about LANGER is the way Justice McComb abuses the English language. He says: "I agree that child sexual abuse (presumably as defined by the Code) is an act of violence." He says it twice in the context of adult/child sex. Where does he get this hysterical claim from? It sounds like McComb is proclaiming a new meaning for a common term. One might reasonably argue that most adult/small child sex is exploitive but to categorically define all adult/child sex as violent is patently untrue. There is a great deal of evidence that a large majority of adult/child sexual relationships are non-violent, non-coercive and often affectionate. At my voir dire Dr. Collins would say that 80 to 90 percent of offenders were "of the non violent ilk". But if all child sex abuse is violent, and all contact is abuse, then all pedophiles must be violent. This is similar to the ideological position of some feminists (see Andrea Dworkin's INTERCOURSE) that all sexual intercourse is rape. The mentality is the same: Sex equals violence.

Justice McComb is not alone in reading violence into sex abuse. In the Sentencing of Gordon Stuckless in the Maple Leaf Gardens scandal Justice David Watt gave him two years saying that the lack of violence, force, weapons, or penetration warranted a lower end sentence. Madame Justice Rosalie Abella added, "Sexual abuse is an act of violence... and represents the use of compulsion against someone who is defenceless". The hardly defenceless boys in the Gardens' cases were similar to those in Gramlick and Jewell. The Gardens was just one of several places in central Toronto where street kids would go to exchange sex for favours or money. She uncritically accepted and probably believed the constructions of reality concocted by psychiatrists and social workers. If consensual non violent behaviour is defined as violence how long will it be before courts define thought crimes as violence? Long live Big Brother!

I thought of Ritzker's advice, "Words mean what they say." It's at least a good place to start. McComb and Abella define violence into such acts rather than seeing violence as one possible characteristic of such acts. It suggests that violence is independent of any force, coercion, injury or physical or moral attack. If child sex abuse is inherently violent how do we describe truly violent acts? Violent violence as opposed to non-violent violence? This is abuse of the English language because it erodes the integrity of the meaning of words. If law is based on language then is not abuse of language a fundamental abuse of law?

One way of looking at McComb's Newspeak is to assume that he is not referring to violence related to the child participants but violence to, abuse of, moral sensibilities or community standards. This interpretation follows the theories of Marshall and Finkelhor. Whether or not the child experiences violence is totally irrelevant from this perspective. They are passive pawns in clinical theory. It is not the child that suffers the abuse and the violence, of which it may never aware, but those whose moral sensibilities are assaulted by the existence, or at least the knowledge of illegal acts. They are the ones who suffer, who are offended. Perhaps it would be kinder if they never knew. This justifies the punishment of those who do the offending. If heavy penalties are demanded it is a measure of how deeply moral sensibilities have been wounded. But is it necessary to twist and abuse the ordinary meanings of words so that they lose their integrity?

But this twisting has a potentially useful purpose. Violence is a form of expression, often an extremely powerful one. But violence receives no protection under common law or the CHARTER. Violence can be absolutely prohibited. By defining child sex abuse, and with it child pornography, as violent he is making an argument to exempt child pornography from any protection under freedom of provisions of the CHARTER. When Judge McComb walks Langer's constitutional challenge through the stages of the OAKES test, applying the wisdom he's perceived from the evidence and weighting factors accordingly, the law emerges triumphant. McComb does not go so far as to discount the expressive activity entailed in child pornography entirely, but he says it is "a form of expression which can hardly be said to be crucial to the principles which lie at the core of s. 2(b)." What principles lie at the core of freedom of expression? Certainly artistic and political freedom. But what about personal fulfilment, possessing and doing things that define oneself. Suppose Parliament perceiving some pressing and substantial objectives were to enact a law criminalizing masturbation and setting a five year penalty for those convicted. Let us say a man, it could be a woman, challenged the law claiming it violated his freedom of expression. What does the freedom to masturbate mean to people? Many people believe they have a right to sex and have no practical alternatives for sexual relief. Some people believe masturbation contributes to both their mental and physical health. It may be part of yogic practices. As a highly sexed adolescent I would sometimes masturbate so I could concentrate on homework. Can these "hardly be said to lie at the core of s. 2(b)"? I claim that masturbation can be of substantial importance to many people, especially the single young and elderly. The right to masturbate should be protected and if that requires pornography then any protection should be extended to it. Even the clinicians claim that pedophiles value their porn highly. McComb, as a finder of fact, was completely unjustified in assigning a low value to pornography. However it can be rationalized by resorting to community standards which enables him to ignore any actual effects for individuals. In fact by using community standards coupled with psychiatric theory almost any restriction on expression can be justified since it can then be judged not by those who possess and want it but by those who are offended by it. Community standards replace the corruption of public morals, the will of God and the best interests of the state.

In LANGER we have entered a world where words no longer have their ordinary meanings, a world where abuse does not necessarily mean that any participant was harmed, a world where violence exists independent of coercion or force and where the pornographic aspect of images may not be inherent but involve the alleged intent of the producer, and the particular category of viewer. These special non-ordinary meanings of words can become entrenched in law just as others did in Soviet Marxist/Leninist dogma or in the doctrines of some religious sects. The reconstruction of reality along narrow ideological lines so apparent in GRAMLICK and JEWELL is provided with linguistic legitimacy in LANGER.

Another case which promised some interesting constitutional questions was R. v. LOGAN. Vern Logan was a small businessman in a small northern Vancouver Island community. He was an older married man and not in the best health. As a result of a sting operation his residence was searched, a variety of child pornography mostly relating to mature teenage boys was seized and he was charged with simple possession. Among the materials seized were copies of the Sodomite Invasion Review a gay literary magazine to which I contributed. At his trial in February 1996, Logan who had no record of any offences, pled guilty. However Provincial Court Judge Brian Saunderson said that the child pornography law violated the CHARTER because it is "an infringement of one's freedom of thought, belief or opinion..." Among the materials concerned were copies of the NAMBLA Bulletin which he described as 90 per cent editorial with no pictures of a pornographic nature. Judge Saunderson suggested that the B.C. Civil Liberties Association might be prompted to take on the case and fight it to the Supreme Court of Canada. The accused in poor health had no wish to be wish to become a "crusader". He received an absolute discharge. There was outrage in the media over the judge's statements and leniency and a local RCMP officer made a public call for action. The Crown appealed the sentence to the B.C. Supreme Court which saw no reason to change it. Vern Logan's case, being less complex than my own might have offered a better basis for mounting constitutional challenges. He had to relocate and face the problems of re-establishing himself elsewhere. It is difficult to see how justice and the public good was served by charging him. I do not know if the BCCLA was ever approached about it but given their stand against the NAMBLA Bulletin I doubt if they would have been interested.

R. v. SCHLICK

Except for the Langer case where the artist had substantial community support, and the conviction (forfeiture) of his works would have alienated the arts community, defendants have generally not dared to challenge the police and prosecution's deeming of child pornography. Defendant after defendant has pled guilty often to marginal material to avoid more publicity. The stigmatization, the rejection and the huge social, economic and professional costs of being associated with "child pornography" overwhelmed them. And there were some genuinely nasty people involved. The law and its definitions were not being tested. As a result the police end up deciding what the law covers which may then become legally entrenched through judicial decisions. The expert witnesses and the police can then testify that they have obtained many convictions on the basis of similar material an argument which could sway many judges. I know of only one case where a defendant challenged the definition in terms of the depiction of real children, and he was convicted. This case illustrates how the child pornography laws can abuse children, disrupt families and perhaps be used as a tool of persecution. At issue is the s.(1)(a)(ii) definition of child pornography: A photographic or other visual representation, "the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years".

Victor Schlick comes from a liberal European background where family nudity and saunas are common, they have a sauna and exercise equipment incorporated into the large bathroom of their house in the small interior town of Merritt, B.C. Schlick is a photographer, basically a keen amateur who prides himself on his skill and who takes several thousand frames annually. He takes a wide variety of pictures a few of which he sells. Among his favourite subjects are flowers and his family whose daily life he has recorded over many years. His wife and two daughters are used to this and enjoy taking part in his hobby which is a source of pride for all. Like many children his daughters often copy poses and expressions used by models in ads and fashion magazines. He also collects the work of others including some art and naturist photographers.

Viktor Schlick is also a local activist, he tried to help a minority teenager in a wrongful dismissal case which brought him into conflict with the police, he filed various complaints against the local assessment authority, the school board and social welfare officials presenting evidence that they had violated their legal responsibilities. He has made enemies and believes that some people in his community would like to see him shut up, or down. But he also has people in the community who support him wholeheartedly and believes he's had some positive effect.

The case arose out of a roll of film that Viktor Schlick took in to Costco, his processor in Kamloops. Two pictures showing his thirteen year old daughter naked above the waist were turned over to the RCMP. Schlick had taken the pictures to document chest injuries resulting from a schoolyard assault which he had reported to the school. His daughter did not want to press the incident further. Subsequently the RCMP, using the two pictures to obtain a search warrant, raided their home and seized a large quantity of material consisting of photos, albums, magazines, clippings and books selected from their large family library. All of the books and magazines were commercially available. The seized magazines listed were MacLean's, Hustler, Psychology Today, Playboy, Playgirl, Mad Magazine, Discover, Atlantic Monthly and Time. Among the many books listed are ones on erotic art, sexual health and glamour photography, The Joy of Sex, a Kinsey Report, the Ms. Guide to a woman's Health, a novel by Anais Nin, Margaret Mead's Sex and Temperament, More Jokes for the John pocketbook and Machiavelli's The Prince. While this kind of material probably wouldn't raise any eyebrows with most urban dwellers it was used by the Crown to create a snare to convict Schlick.

Viktor Schlick who is well known in the community was charged with three counts of possessing child pornography and his two teenaged daughters were apprehended and given a choice of living in a group home or with a relative on the Coast. His partner was not charged. Schlick was outraged by the charges and let it be known that he wanted trial by jury so that he could be clearly exonerated in the eyes of the community. The Crown however chose to proceed summarily, with concomitant lesser penalties but which denied the accused the option of a jury trial. Schlick pled not guilty. In September 1997 in Provincial Court Judge Dollis convicted Viktor Schlick of one count of possessing child pornography, specifically twelve, out of over three hundred photos of his adolescent daughters which were seized.

In a decision that accepted every argument of the Crown and every innuendo of its chief expert witness as fact, Judge Dollis ruled that the breast was a sexual organ because it related to reproduction in mammals and because some guy in Ontario who grabbed a 15 year old girl's breasts was convicted of sexual assault. The judge would not "deny reality", the breasts are sexual organs. She proceeded to decide that where the viewer's eyes are drawn, even if not initially, to the depiction of a sexual organ (even where it is not clearly discernible) then that was the dominant characteristic of the picture. She simply concluded that the only reason anyone would take such pictures would be for a sexual purpose. The fact that books relating to erotica and glamour photography were found in the same house confirmed her view that the pictures must have been for a sexual purpose. The trial operated under a presumption of guilt which Schlick's counsel was unable to shake despite her efforts. Schlick didn't want his daughters to testify and claims that social workers misrepresented his daughters' statements to the court. The workers claimed that the daughters' decision to live with a relative implied they didn't want to live at home when that was not a choice they were allowed. The judge goes out of her way to deny Schlick any benefit of doubt. In her lengthy decision she doesn't mention that there had never been an overt suggestion of any sexual abuse involved. She states: "I think it is important to be clear about the issues in this case. What this case is not about is community standards of morality or appropriate behaviour in one's home, including nudity, or attitudes towards nudity or partial nudity in pubescent boys or girls, or whether young girls should be taught to have pride in their bodies. The issue is whether the Crown has proved its case beyond a reasonable doubt." It sounds very nice.

R. v. SCHLICK is notable for the way the Crown interpreted the impugned photos as pornographic through creating a context that suggested an inappropriate lifestyle and possible abuse.The Crown perhaps concerned about the accused's intent to plead not guilty brought in Dr. Peter Ian Collins, an expensive forensic psychiatrist from Toronto as an expert witness. This was despite the fact the Crown was proceeding summarily, not by indictment. This was the same Dr. Collins who testified in LANGER and who would later testify at my voir dire. This was the seventh time that Collins had testified for the Crown at a child pornography trial. He is one of the new breed of psychiatric entrepreneurs who offer themselves to the Crown as experts in securing convictions in cases where guilty pleas are not forthcoming. At the time he claimed to have been an expert witness over 375 times. In SCHLICK his job was to interpret the large amount of supposedly related material seized from the accused's home as indicative of the accused's deviant sexual interests. Under direct examination by the prosecutor, Mr. Oliphant, Dr. Collins admits he cannot diagnose the accused as a pedophile or paraphiliac as he has never examined him however he describes the concept of "collateral materials" about which he has testified over twenty times previously. Collateral materials, he claims are possessions that speak to the particular type of sexual deviancy of those who collect them. He has been able to study Schlick's collateral material and this has led him to certain conclusions but of course he can't diagnose the accused because he has never examined him. By classifying Schlick's material as "collateral material" he makes an immediate presumption of deviance and implicit guilt. He never has to say why it is collateral material because he uses it to define abusers who give it meaning. According to the witness collateral material "may not be directly related to crime, but gives us in forensic psychiatry and the authorities an indication of what a person's sexual preferences are, sexual hobbies or sexual interests." He says that there are four types of collateral material including erotic materials. The latter can include a vast range of material and he specifically mentions underwear ads in the Sear's Catalogue and telephoto pictures of children playing hockey. The other types are educational, introspective and intelligence which are discussed later. Collateral materials define deviant sexual preferences and in respect to the seized materials Dr. Collins answers his questions from the unstated premise that Schlick is an incest offender. He sees homemade collateral material (such as Schlick's photos) as evidence that the possessor is also a sex abuser. He explains that while it is less common for incest perpetrators to collect collateral material, some do, and referring to Schlick he says, "your collection is not as great". The implication is clear.

With Prosecutor Oliphant leading him Dr. Collins begins a comparison of Schlick's family photos of his daughters with examples selected from the RCMP's collection of child and other pornography. Collins selects examples from the police collection and again and again he finds similarities in poses and expressions between pornographic images and Schlick's photos of his daughters. In reference to one photo the expert witness states, "In some respect it mimics what you can see in the adult magazines in terms of posing, but the positioning of the body, the smiling, just the way the subject is looking at the camera, to me there's no practical purpose of having pictures of a girl of that age posing in this manner." He is certain that pedophiles would seek out and highly value pictures like these. He speaks of seductive looks, the spreading of legs and breast areas as being of concern. The witness repeatedly expresses his concern as if he were the only one to see the underlying abuse. Dr. Collins also claims that some of the books in the Schlick's library have also been found in the possession of pedophiles implying deviant interests. It is like claiming that possessing a copy of the National Post means you're some kind of looney. The article clipped from MacLean's about "obscenity" is also used to damn Schlick. The expert witness sees ominous implications in any number of trivial details. Innuendoes and often wild speculations abound, and he is repeatedly concerned. He knows inappropriate behaviour and lifestyle when he comes across it. His narrow, bodyphobic Jewish morality becomes a standard by which to condemn liberal family lifestyles. Relentlessly through the use of the concept of collateral materials Collins establishes a sexualized, pornographic context for Schlick's family photography. Through what may best be described as "guilt by association" approach he sets the stage for the key material. In discussing the pictures that had got Schlick into trouble, the ones documenting the injuries to his daughter's chest, Collins, at times assuming the role of prosecutor, wants to know why the injuries to the nipple area weren't documented by someone else. Presumably by his moral standards this is not something that a father should do. Better done by a stranger? He also wants to know why the girl wasn't taken to a clinician, and why the assault wasn't reported to the police. There would appear to be no evidence from the photos that medical attention was required but presumably parents, and the child are not competent to make such decisions. He says that the pictures don't "hone in on... the scratches and excoriations on the chest area, but are a general upper body shot." Presumably the pictures show more than necessary to document the injuries and this in his mind proves sexual intent. Dr. Collins never once varies from his premise that Schlick is guilty, and that it his duty to help convict by never once granting the defendant a benefit of a doubt. He continues, "The only other comment I have is that people who take these photographs of children in various stages of undress, whether they be sex offenders or incest perpetrators, they almost to a person have what's called cognitive distortions." The expert witness who modestly admits he can't diagnose a man without examining him can however narrow him down to two choices of deviance.

Because of Dr. Collins's busy schedule Ms. Suzy Gray, Schlick's lawyer has only one day to examine the witness. Dr. Collins busy schedule was also a problem at my voir dire. And as he did later at my trial Dr. Collins he asserts his Jewishness as he is sworn in. I am puzzled as to why he makes a point of this. Under cross-examination Ms. Gray begins by questioning Dr. Collins' impartiality and his ability to view things from the point of view of the defendant being innocent. It is obvious he can't. The witness who has only testified for the crown protests, "I'm not a hired gun". "I'm here to educate." Myself, I tend to see him more as heavy artillery. Suzy Gray tries to untangle the web created by the witnesses' use of the collateral materials concept. She questions him about the book LITTLE BIRDS EROTICA by Anais Nin and asks him if people can have a healthy collection of erotica for other than a sexual purpose. Collins doesn't want to deny this but when it occurs in the same case as pictures of their daughters in various stages of undress he says it, "pushes alarm bells in me." She questions him about other books classed as collateral material including Ms. Magazine and THE PRINCE by Machiavelli. She points out that the MacLean's "obscenity" article is about the Butler decision and asks him if that case isn't also about artistic merit and freedom of expression. Collins admits that freedom of expression is valuable, "but I also have to, as a forensic psychiatrist and criminologist, be acutely aware of when people are perhaps -- their rights are being infringed on by having photographs taken of them in stages of undress." Collins claims that the other material ties in when seen in context of the photos of the girls. What he has seen, the "signs and symptoms" lead to "a reasonable conclusion" of "what conditions" might affect Schlick. He is accusing the defendant of being sexually deviant but he is not of course giving a diagnosis. The fact that the library includes books belonging to all family members does not change Collins' views "because then one has to question the sexualization of the children." Collins maintains that the photos would have been sinister even without the material in the library. He is "concerned that anyone would photography their step daughters like that." Collins refers to a "normal family". Gray asks if there's anything wrong with the Northern European tradition of public saunas, public bathing and a more open view of nudity and body image? Collins replies that his family was not like that and where it can be explained as normal in families "it turns out that it's the early sexualization of children." At every stage the psychiatrist holds up his own prudish, bodyphobic, Jewish family ideal against the Schlick's family's open, liberal, body accepting one. The choice is between righteousness and probable child sex abuse. To the judge who accepts the expert witness uncritically there is little choice.

As a social photographer Schlick takes many pictures, often several at a time of an animated subject. I do the same myself when I can afford the film. Some of Schlick's clusters of shots show one of his daughters sitting down on a sofa with a towel around her after a shower and the question is whether one or two frames actually provided a glimpse of her genitals, others show them in T-shirts reading at a table, another shows a girl wearing only an oversize sweatshirt. Out of the thousands of photos of the girls the police find a few where there are glimpses of nipples, outlines of genitals, a curl of pubic hair or other evidence of "child pornography". Disagreements arise over whether a girl sitting at a table has shorts on or not. It is hard to tell, she could be displaying her naked buttocks and thighs. When the girl in the oversize sweatshirt series expressively raises her arms apparently parts of her genital area are visible, but again it is hard to tell. Dr. Collins cannot see any thing other than sexual purpose in the pictures. He repeatedly expresses his concern. When Gray questions him about the photos showing the girl's chest injuries, the result of a schoolyard scrap, he refuses to say whether or not they would need medical attention. However he maintains that if they were serious enough to document then they were serious enough for medical attention and why would one document it anyway. He also seems to believe that all schoolyard scraps should be reported to the police. She questions him about many of the collateral material pictures, almost all of which the witness finds something sinister about. Dr. Collins sees as inappropriate pictures of a barechested girl exercising with weights, flexing and doing muscle poses, as "Totally unacceptable" and as suggesting "abuse from other sources." To substantiate this he says that similar poses are found in commercial and amateur pornography. Guilt by analogy and association arguments are conclusive to the psychiatric expert witness. Gray makes him admit that similar photos of a boy the same age would not cause him as much concern. Collins however, speaking as "a psychiatrist who works with families, being a medical doctor, this (taking of such photos) does not occur." Gray points out that he doesn't work with normal families, only abnormal ones. He only treats sex offenders and she claims it is something outside his experience. He can't comment on the family he admits, only on the photos, but he finds them "alarming" and "abnormal". He repeats the suggestion that Schlick's pictures would be valuable in the kiddieporn market. This claim impressed the court.

Dr. Collins continually returns to his conservative Jewish family values and anything that does not correspond to them is abnormal and anything like the photography of Peter Schlick is a symptom of sexual deviance. It was a clash of cultures but one side had impressive professional credentials to back its narrow moralistic assumptions. Schlick ended up as an abuser in the mind of the court without ever being accused. R.v.SCHLICK provides compelling evidence of how the child pornography laws are used to attack the integrity of families whose lifestyles do not conform to conservative norms. When you consider that Dr. Collins saw Eli Langer's paintings as an incitement for pedos to go out and assault children it is not difficult to see him claim that a photo of a bruised breast would do the same. It is extremely unlikely that a jury of Schlick's peers from the ordinary ranching, logging town of Merritt would have been as gullible as Judge Dollis.

R.v.SCHLICK raises the question of the cultural and moral values of expert witnesses where it relates to the nature of their testimony. Dr. Collins offers his conservative Semitic morality, which historically abhors nakedness, as a norm from which to label other behaviour as "inappropriate", a cause for concern or "rings an alarm bell with me". Christianity unlike Judaism and Islam has a tradition of nudity in religious art. The magnificent works of the Renaissance masters such as the Sistine Chapel celebrate the nude through depictions of the Christ child, angels and characters from the Bible. There are even religious statues of the Christ child with an erection intended to demonstrate His humanity. Dr. Collins was in effect an expert witness on conservative Jewish cultural morality of the "if you shake it three times you're playing with it" school. While Ms. Gray tried she was unable to expose his narrow puritanism for what it is or to make Schlick seem the normal guy he is. Judge Dollis, despite her disclaimer about what the trial was not, convicted Schlick for his lifestyle by uncritically accepting the moral testimony of a supposedly scientific witness. This may well have agreed with her own personal moral outlook.

Another reason why R.v.SCHLICK is notable is that it demonstrates the harm that the child pornography laws can do to families and children. It can be a weapon in the hands of vindictive authorities to attack those who question their decisions and perquisites. I am not usually a believer in conspiracy theories as there are usually more mundane explanations for the perverse course of events. However Schlick as mentioned earlier is a local political activist and has stepped on a few toes including some of those arraigned against him at the trial. I wonder. The definitions of child pornography, particularly the one pertaining to depictions of sexual organs for a sexual purpose is an invitation to abuse by the police, the Crown or any aggrieved bureaucracy. This definition was one of the last minute amendments to Bill C-128 which was never subject to any public scrutiny. No doubt many people including the drafters of the law assumed the broader the definitions were, the better the law would be, and that the more people that could be caught by the definitions, the greater would be the resultant protection of children. Their aim presumably was to cover any image that could be interpreted in any way as sexualizing children under eighteen. Hundreds of thousands of Canadian families could be affected. Inevitably as part of the team the social welfare system moved in to grab Schlick's daughters. Luckily they were placed with a relative and did not have to endure the vagaries of typical foster placements. It took nine months and a courageous decision by a family court judge in Vancouver before the girls were allowed to return home. All the members of the family who lived in a small community have been subject to enormous and unnecessary stress due the prosecution of this case. The girls' social life was disrupted in a way few adults could tolerate and their academic performance understandably suffered. The law abuses children. The Schlick case shows how the child pornography laws can be and are used to reach into people's homes with potentially devastating consequences for the integrity of families. A man in Schlick's position wants to defend himself, and he wants to protect his children from the hyped hysteria of the courts and media. The two are in conflict and the defendant faces a difficult dilemma with social welfare officials striving to portray his children as victims regardless of what they state in their affidavits. The law targets adolescent sexual expression as Tom Wappel very clearly intended it to do. Remember his rant. Section 163.1 is a family wrecking, kid abusing law masquerading as protecting children. It should be judged by its effects not by its intent. Any good it may have done could have also been accomplished under other provisions of the Criminal Code.

FREEDOM OF CONSCIENCE

Under Fundamental Freedoms the Canadian Charter of Rights and Freedoms in s. 2(a) guarantees "freedom of conscience and religion".

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1966) defines conscience as "the sense of right or wrong within the individual; the faculty, power, or principle that guides toward the right and away from the wrong; innermost thought or sense: knowledge of inner self." The complete OXFORD DICTIONARY OF THE ENGLISH LANGUAGE defines conscience variously as: "Inward knowledge, consciousness; inmost thought, mind... internal conviction... Internal or mental recognition or acknowledgement of something... Consciousness of right or wrong; moral sense."

My main concern as a defendant and writer was freedom of expression, in particular the "advocates or counsels" definition for written material, s. 163.1 (1) (b). That was my priority but I also felt that prohibiting the simple possession of material that may define one to oneself was both extremely intrusive and vulnerable to challenge. I saw it in terms of freedom of conscience. The CHARTER protects freedom of conscience and religion. What is the conscience that the Charter protects? Protection implies that what is protected might otherwise be denied or prohibited. It cannot specifically or only protect what people may think such as their thoughts about gods, races, good and evil or sex which cannot be externally controlled although they can certainly be influenced. Conscience must be more than that.

I argue that freedom of conscience is the foundation of freedom of expression. Without it, freedom of expression is incomplete and illusory. What is the use of freedom of expression if you have nothing to say? If you cannot independently explore experience, ideas, concepts, alternative explanations and lifestyles, then freedom of expression can have no personal foundation. We can simply defer to a friend's opinion, a political party, journalists or editorial writers. Freedom of conscience is freedom to know yourself. It is the right to form, declare and share your ideas and values. It is essential to the full exercise of freedom of expression. At a minimum in a free and democratic society people must be free to record their thoughts about culture and society and share them privately with others who are interested. I am not talking about conspiring to commit crimes or inciting crimes. I think we should be clear about what conspiring and inciting mean. Conspiring is not fantasizing or speculating. Inciting is not reasoned argument, advocacy or the promotion of offensive ideas. This includes possessing the things that give meaning to one's life and for some that includes what others may define as child pornography.

As I see it freedom of conscience includes the right to say who or what you are, and expressing how you see the world and what you believe. It is freedom to be an individual, to be who you are. It subsumes private personal acts that are part of that being. While regulation of these activities by the state may be appropriate where others are involved no intervention can be warranted in instances of solitary prayer, meditation, callisthenics or masturbation. Do we really care what is going on in the minds of people when they masturbate? Is fantasy control an appropriate subject for state intervention?

Aside from child pornography what else is there that is absolutely illegal for ordinary people to possess? Stolen property is if you know it is. The need and purpose of such a prohibition is clear. Clearly dangerous and threatening things such as weapons of mass destruction, and quantities of explosives and toxins are also logically prohibited. The dangers posed by people possessing these items are obvious and relate to normal usage, not exceptional usage. Weapons kill, explosives blow up and toxins poison. The fact that knives, small guns, axes and a multitude of other things are used to murder is not an argument to prohibit them although there may be sound arguments for regulation in some cases. The major legal prohibition of possession relates to recreational drugs. I use the term "recreational" because most users of even heroin and cocaine are not addicts and use them as part of their normal lives without serious consequences. These prohibitions are being increasingly questioned and even seen as counterproductive to the intent of the legislation. Drugs are not expressive materials, it is their consumption, not their continued possession that provides satisfaction. Only when the possession of drugs is an act of political defiance in itself would drugs relate to expression. Unlike pornography drugs in themselves have no meaning. While I often find myself morally outraged by the consequences of drug possession laws, drugs are not equivalent to things like symbols, talismans, images and writing.

It is not illegal to possess hate literature although no doubt many Canadians would support the idea of making it illegal to do so in the belief that some good would thereby be accomplished. What one believes about the organization of society and the status of groups within it is a matter of conscience. It should be no more illegal to believe in an authoritarian racist state than it is to believe in an open, egalitarian democracy. It follows that one should be able to possess literature, symbols and paraphernalia that support and develop one's beliefs. Nor is it illegal to possess obscene materials although here again there are many who would like to see them prohibited. People may possess such materials for their personal use without fear of criminal prosecution even though access to them is subject to restraint. Practical measures to suppress the possession would entail actions on the part of agencies of the state that would grossly compromise many other freedoms that Canadian society stoutly claims to uphold. Prohibition of hate literature would also tend to mystify it and give it an unwanted appeal.

The prohibition of possession of child pornography is unique and pioneering legislation. It is an unprecedented extension of state power into the private lives of people. This was not publicly noted by any politicians at the time or the Department of Justice although they may have had their qualms.

And what about the use and value of child pornography to those who possess it? The main uses of pornography are to delight, to arouse and most importantly to aid successful masturbation. Pornography is also used to enhance sexual activities and where partners are not mutually attracted to each other. Masturbation is increasingly believed to be beneficial to the health of people lacking regular sex partners. This is an extremely common situation and is typical of the situation facing many older people. Pornographic preferences, or what will satisfy the needs of arousal and orgasm are frequently narrowly focused as to the object and activity. This may well increase with age. There is limited substitutability. Few things can be more boring than another person's porn, unless people want to be shocked.

For some men, and some women, sex fantasies involving children or adolescents may be necessary for successful masturbation. For others it may be fantasies focusing on pain, humiliation, domination, animals or fetish objects. There are a myriad of explanations why this may be so but as long as effort is focused on suppression rather than understanding we are unlikely to learn very much. Certainly they can vary among individuals. There is not much that the state can do about what goes on inside people's heads. I am tempted to add, "yet" as many vocal anti-porn advocates would welcome such a possibility. Pornography helps generate fantasies. For some, effective fantasies leading to orgasm may be impossible without the appropriate (to the person) pornography. The three, pornography, fantasy and masturbation are closely connected. I do not think many people would disagree with this statement. To deny people "their" pornography can deny some of them the opportunity to masturbate and its benefits to their health. Something as personal as masturbation should be of no concern to the state. For some of those who enjoy child pornography its prohibition can entail significant personal costs. They therefore place a high value on possessing it.

Porn, all kinds of pornography can be misused. Just as we try to prohibit the dangerous use of vehicles, prescription drugs etc. we should prohibit the dangerous use of pornography, all pornography. It is difficult to argue that child pornography is any more dangerous than much adult pornography is in seducing adolescent boys. If porn, any porn is used to entice children into unwanted sex then it is an improper use of porn and wrong. The law should deal with misuse not possession.

Possession laws create potential Catch 22 situations. In my own case I felt that material which had been established as illegal to possess by previous judicial decisions was important for me to possess as part of my defence. Rightly or wrongly I saw the NAMBLA Bulletin as the key to demonstrating that the written material provision was targeting what was essentially political expression. Certainly Tom Wappel seemed to have that in mind when he read NAMBLA's mission statement into the Parliamentary record to justify the provision. I felt that I had to break the law in order to challenge it.

Possession also allows us to know what is involved in other prohibitions and enables laws to adapt. With people legally being able to possess the thing, say child pornography, which is illegal to make or distribute, then we at least know what we are dealing with. If possession itself is illegal then exactly what it is, the thing that it is illegal to make or sell, becomes uncertain and effectively what the police may decide it is, particularly with something like child pornography. The preponderance of extreme examples used by police in their presentations to others obscure the fact that it is not representative of much if not most of the material they charge men for. Knowledge requires private possession. I argue that allowing private possession is essential to having fair enforcement of laws prohibiting making and selling things like pornography. Citizens could know or find out just what is involved. To support this argument that society needs to allow possession so people can know exactly what is banned by importation, making and distribution laws I would point out that many books now acclaimed as great literature were banned not long ago in Canada. I think of the works of Henry Miller, James Joyce and D.H. Lawrence. While banned from the country possession of these works was not however prohibited. Some people were able to read them and form their own opinion independent of any description that Canada Customs might permit them to hear. With very limited circulation these books were read and discussed. This permitted the people's perceptions to develop and for attitudes to change. Unless we regard the decline of censorship in the 1950s, 60s and early 70s as a mistake we should be thankful that possession was not an offence. I am not going to claim that my impugned literary efforts will be viewed more favourably at some point in the future but can we not trust the wisdom of future legislators and courts to make decisions concerning a wide range of materials currently deemed repugnant? Or are we so sure of our eternal wisdom that we do not ask the question?

Reading case law on freedom of conscience Charter cases was not that profitable. Religion, which is of course a matter of conscience, was central to most. Two major cases related to Sunday observance laws and led to businesses being allowed to operate on Sundays, another pertained to government funding of the electoral expenses of political minorities. The only case that seemed relevant was the trial of a Victoria man, Ian Hunter who tried to challenge the marijuana possession law claiming pot was a sacrament. The attack was not well crafted and failed. It seemed to me that freedom of conscience was underused.

Supoena for Waddell

From my reading of the hearings of the Standing Committee on Justice and Hansard, the debates in Parliament I had become convinced that Parliament's intent in adding written material to the definition of child pornography was to suppress the political advocacy of certain sexual heresies. The immediate target was the NAMBLA Bulletin. I made this clear earlier. This intent I believed was clearly in violation of the freedom of expressions guarantees in the Charter of Rights and Freedoms. Incidentally only one Member of Parliament, Mr. Ian Waddell, former Justice Critic for the NDP and a member of the Standing Committee, suggested that there was any question of civil liberties involved in the legislation and he said it took courage to mention it. To back up my contention that the intent of Parliament was unconstitutional I subpoened Mr. Waddell whom I had known slightly for a number of years. There was nothing personal in this and the fact that he had mentioned the matter of civil liberties was not relevant. He was the only former member of the Standing Committee that drafted the legislation residing in the region and I certainly could not afford to pay transportation costs for a witness. I had already spent almost seventy dollars to have the subpoena served. He immediately sought to have the subpoena quashed.

Less than three weeks before my trial was scheduled to begin I was in court to argue against the quashing of Mr. Waddell's subpoena I had served on him. His lawyer, Jack Woodward a big amiable man cited case law dating back a few centuries. I submitted a list of questions I wanted to ask the former M.P. and presented an argument based on statements in Hansard that parliament clearly sought to prohibit political advocacy and that they specifically targeted NAMBLA. I more or less had to out myself as a boylover. The judge, Madame Justice Humphries, listened attentively but as I expected ruled to quash. She described me as forthright. I found out that parliamentarians cannot except in rare undefined instances be held accountable for statements they make in Parliament. This led me to wonder momentarily if I should try to subpoena Department of Justice officials and question them. The judge explained that what I wanted to ask Mr. Waddell, which mainly related to Parliament's intent and the process of making the law, did not relate to material evidence but rather to his interpretation and opinions. It is up to the courts she said, not parliamentarians, to decide what Parliament intended. In other words parliamentarians statements of intent cannot be used as evidence of Parliament's intent. I confess it makes some sense. Otherwise someone charged with an offence relating to opium could argue that he should be acquitted because the stated intent of the original 1917 Opium Act, was to prevent Chinese pimps and brothel keepers from using opium to enslave white women, a purpose no longer relevant or correct if it ever was. It was a good experience in speaking in court; every skirmish helped. Prosecutor Schultes attended.

Keeping in Shape

As the trial approached and stress increased I began smoking again after having more or less quit for over three years. I was what might be called a chipper, the term applied to occasional users of heroin. If I have not had a cigarette for several days or a week I get the most fantastic rush from the first puff which I claim is better than a toke of freebase cocaine or crack. I also know of no better drug for clearing and focusing the mind than tobacco. However nicotine is very addictive and I was soon creeping up to a pack a day. I resented the recent provincial law, ostensibly to protect children, which made the sale of single cigarettes illegal, something which offered me a chance to control my consumption. Kids too must also buy by the pack which makes them more likely to share and more liable to get hooked. Where suburban campaigns have been successful in preventing cigarette sales to minors teenagers may resort to going down to Hastings Street where they will have no problems scoring very cheap cigarettes and find a wide range of other drugs readily available. Marijuana was not very helpful except in very small quantities to overcome mental blocks, but it's wonderful for relaxing. I made it a point to walk a couple of miles everyday. I went nowhere without pen and paper. I swam in the building's large outdoor pool whenever I could. I found bridge columns an intellectual oasis of non moralistic thought.

I knew nothing about Judge Shaw before the voix dire. I looked him up in the Courthouse Library but I could find only one rather obscure and irrelevant decision involving a constitutional issue. I enquired about him from some of the lawyers I'd come to know but was told nothing startling. Those who knew anything about him said he was a conservative, by the book, kind of judge about my own age. This was reassuring. I had been worried I might get some gung ho feminist judge of either gender. I resolved to put aside the misgivings about the judiciary that I had acquired from reading case law and would go before him with in open respectful manner. I would follow his advice and instructions although this might affect the points I could make. My attitude and trust would have to offset my gross lack of courtroom experience and technique. For once I welcomed rules and convention. Again I remembered Michael Ritzker's advice, "The law is simple and words mean what they say."

PART FOUR: THE VOIR DIRE

I went to the courthouse alone and found it unusually crowded with TV camera crews stationed by the entrances. They were not for me however, my hearing just happened to coincide with the trial involving Sarah McLachlin's songs. I found the designated courtroom on the seventh floor where a gallery runs the length of the building overlooking the terraces of the lower levels under the enormous glass shed roof. A statue of Justice, blindfolded and holding scales is at one end of the main floor plaza. The Arthur Erickson designed courthouse is a beautiful and extravagant structure especially from inside. I was disappointed later when part way through the voir dire the trial was moved down to a small stuffy basement courtroom.

Even though I knew there was a publicity ban I had expected that there would be some curious observers and media people there but to my knowledge no one from the media attended during the entire voir dire. I was glad of this and aside from a few friends of mine who came from time to time I noticed only a few other visitors including some I assumed to be law students who sat in briefly one day. Being pre-occupied with the task in hand I did not pay much attention to spectators. I always had cordial relations with the prosecutor Mr. Terry Schultes and we got along well. He seems very much, a "by the book" prosecutor. His job was to present the Crown's case which he did conscientiously but colourlessly. Perhaps his best line came when I was demeaning the rigid "offender/victim paradigm" of Dr. Collins's thinking. He brightly remarked that the law was based on the victim/offender paradigm. He introduced me to his handsome young assistant, Mr. Brian Wasiliew, a criminology student from SFU doing his practicum. Brian struck me as very dour at first. Initially I imagined him with a pitchfork in his hand as the man in the famous "American Gothic" painting. He had a "christian chic" look about him in the style of young white missionaries in the tropics wearing their gabardine suits. I'm sure he initially saw me as some media constructed pedophile. His demeanour relaxed, possibly because I failed to fulfil some preconceptions of a pariah monster, and I was able to have easy conversations with him. He is a personable young man that both women and gays would find attractive.

Mr. Schultes advised me on some basic courtroom procedures and rules and we discussed how to proceed. At the pre-trial conference in early October before Judge Gil I learnt that he would be calling nine witnesses, basically the same ones who had testified at my preliminary hearing in February in Surrey. No mention was made of a Dr. Peter Collins.

When Justice Shaw took the bench we both gave our names and the voir dire began with the reading of the four charges against me. Two related to simple possession of the material seized in the two arrests and two related to possession for the purposes of distribution of my collection of short stories, BOYABUSE: Flogging, Fun & Fortitude. The prosecutor who did most of the talking stated that I had filed a proper notice of a constitutional question which is a technical requirement to mount a challenge to the law. He conceded that the two sections of the child pornography laws that I challenged; the written material definition [section 163.1 (1)(b)] and the simple possession offence [163.1 (4)] infringed on the freedom of expression provisions [section 2(b)] of the CHARTER, but claimed that the legislation was saved under s. 1 of the CHARTER which allows rights and freedoms to be limited "subject to such reasonable limits as may be proscribed by law as can be demonstrably justified in a free and democratic society." This provision is the key to many challenges. The prosecutor claimed that my rights under the other sections of the CHARTER I was challenging, namely sections 2(a), freedom of conscience, 2(d) freedom of association, and 15, equality rights, were not breached. I would have to substantiate that the two sections I was challenging did infringe on my rights under those sections of the CHARTER.

Mr. Schultes referred to the case of ONTARIO v. LANGER, the 1995 decision of the Ontario Court General Division that I had looked at earlier. He said that because this was a forfeiture hearing pursuant to section 164 an appeal to the Supreme Court of Canada was refused. This was fortunate for me because of the paucity of evidence and argument at that hearing would probably have led to the law receiving the Supreme Court seal of approval. Referring to LANGER he said the Crown submits that this decision be adopted as an accurate statement of the law. He would be calling witnesses with respect to the pressing and substantial objectives of the legislation. This was to be the essence of the Crown's case.

I informed the Court that I would not be calling up any witnesses. I had given up that idea as impractical. My search for allies who might have been able to support me had been futile. I had thought of possible witnesses during my readings but I couldn't afford to bring one in anyway. I was going alone, I would have to rely solely on casting doubt on the testimony of the Crown's witnesses. I thought I had a chance with Detective Waters because of her obvious zealotry. I listed the items I wanted to submit as evidence and explained that they related to the question of overbreadth and the suppression of political advocacy. In reply to a question from the Court I said that advocacy in respect to changes in the law and advocacy in respect to human conduct "can be one and the same thing." I can understand the Court wanting me to clarify what I was trying to do. He was proceeding cautiously, asking questions to make sure points were understood by all. I would also be making a "public good" argument.

I had planned things much too formally, writing down arguments I intended to make and to counter those I expected I would have to deal with. I went into the voir dire not knowing what to expect. I had studied several constitutional decisions but this only gave me a vague idea of what to expect in a actual courtroom. I suppose I was expecting a set piece battle fought with arguments. I approached things as a writer, I made a lot of notes giving my constitutional arguments. I had my Preliminary Comments, my Opening Remarks and write ups on the precedents and cases I felt supported my arguments. Much of this I never used or used only partly. Some was not relevant and a fair amount got covered superficially out of context making it difficult to come back to. Some I couldn't work in. A lot of it was more appropriate for the summary. Cross examination involves the art of making statements through questions and I was a neophyte. I had to keep adapting and playing it by ear when I had expected a more prepared speech type of thing. While I knew that Detective Waters would be testifying and I would be able to cross examine her I saw the voir dire as mainly a debate about the law between myself and the prosecutor. I had not watched any constitutional cases and perhaps fortunately very few courtroom dramas on television. I would have benefited enormously from some simple advice from a lawyer experienced in such matters but all those I was talking to had other expertise. The law is so vast that most practitioners are necessarily poorly informed about most of it. I was taking on the whole system by myself with no allies. It was scary. Despite my profound ignorance I had accumulated a large amount of legal and social science knowledge during my apprenticeship which I could draw upon.

We discussed exhibits. I said I wanted Brongersma's LOVING BOYS and MALE INTERGENERATIONAL INTIMACY entered. Mr. Schultes said that he had no objections, although I was not specifically charged with them he said Brongersma's works met the definition of child pornography. Earlier he had said that they were "too positive". There was some question about the admissibility of the hearings of the Standing Committee on Justice and HANSARD. Schultes emphasized that "Parliament speaks as corporate entity. And the will and purpose of Parliament is to be construed from the legislation as a whole." However he volunteered, "But in numerous cases, the legislative committee proceedings and HANSARD have been received by the courts." The point had been made at the hearing where Mr. Waddell's subpoena had been quashed which he had attended. Prosecutor Schultes was basically honest and fair as ideally he should be, a servant of the truth. I was going to try to be the same and my early impressions of Justice Shaw was that it could cost me if I tried to do otherwise. No fancy dancing here.

The Court explained that the usual procedure in a hearing was for the evidence to be presented first followed by the arguments. I didn't know this, probably most lawyers could have told me but I never asked. My carefully prepared opening remarks and arguments could not be used although I hoped to salvage parts for later. It was agreed that I would submit my evidence, consisting solely of exhibits consisting of written material, and then the Crown would submit their exhibits consisting of my impugned child pornography, case authorities and testimony of expert witnesses who could submit their own exhibits. This would be followed by arguments based primarily on legal precedents. That was the plan of the voir dire.

EXHIBITS

The first exhibit I entered was copies of three issues of the NAMBLA Bulletin, the newsletter of the North American Man-Boy Love Association. I prepared and included a detailed content analysis for each of the three issues submitted. As they were simple factual summaries neither Court nor Mr. Schultes offered any objection. I had been concerned that entering material already deemed in other cases as child pornography might get me into trouble as practically everybody I had discussed this with, including lawyers, thought it would be a dangerous move. I could be seen as being contemptuous of the law and perhaps face additional charges. I alluded to this and the Court assured me that items used for the purpose of defence are protected. I explained that the NAMBLA Bulletin was the principle target of the written material provision to the child pornography law. I wanted to argue that if this was the intent of the law, then this intent is improper because the publication is essentially political speech which, I believed was unequivocally protected, not only by the CHARTER but also common law. I was unable to say as much as I wanted but I felt that the law by targeting advocacy with political meaning was a blatant if not deliberate violation of free expression. It would have been very nice if that argument impressed the court but since failing to stop the quashing of Waddell's subpoena I had less faith in it. At least, I rationalized, I wanted to force the judge to rule on the legality of the newsletter, which could result in a minor victory although it would not necessarily exempt my stories.

In the words of its members, Parliament was in particular targeting the NAMBLA Bulletin and similar publications because they support consensual intergenerational emotional and sexual relations and call for the repeal of age of consent laws. The mission statement of NAMBLA, which I quote elsewhere, supporting the above was read into the parliamentary debates as evidence of the need to prohibit written material!

NAMBLA's goals as evidenced by its statements and editorial content are clearly political. They lobby. They give news favourable to their cause that is not readily available from other sources and offer support to both men and boys who they believe are victims of misguided laws. They also provide a forum for discussion of issues related man/boy relationships. As you would expect from a group that is subject to widespread opprobrium there is a tendency to self justification with theories and analyses that would bolster the self esteem of their readers. They definitely feel themselves to be on the defence. Except for the fact that the content, the ideas and viewpoints expressed are very offensive to many people the NAMBLA Bulletin is similar to many other special interest newsletters. It provides some insight into the concerns, thinking and behaviour of boylovers which could enable others to understand them better.

I argued that the provisions prohibiting material that "advocates or counsels" sex with kids is not only a violation of the freedom of expression of those wishing to favourably comment on intergenerational sex but it also violates the freedom of expression of all Canadians in that it denies them information upon which to form their own opinions and express themselves. In denying others "the right to know" it is thus doubly restrictive of freedom of expression. The Supreme Court of Newfoundland had ruled in the 1987 case, RE GEORGE RIDEOUT: "Freedom of expression includes access to such information as may be essential to a responsible exercise of freedom of expression." (referred to in CRD 525. 70-01). For example at the present time there is a concerted effort by police, so called child advocacy groups and governments in Canada to raise the age of consent to 16 or 18. This is promoted as a measure to combat underage prostitution. It is also assumed that teenagers are too immature to have sex anyway. No counter-arguments about raising the age of consent have appeared in the mainstream media that I know of. Anyone who publicly argues against the idea runs the risk of being suspected of promoting the interests of pimps and pedophiles. We need publications like NAMBLA so that counter-arguments are at least articulated.

I first examined a number of issues of the Bulletin in bookstores in Amsterdam in 1995 just a few days before I was first arrested on my return to Canada. In common with the newsletters of most special interest groups it contains news, articles, editorials, letters from readers and short pieces of fiction, for the most part stories involving an erotic interest in boys.

NAMBLA has brought public attention to serious social problems, one being the extremely high suicide rate among gay teenagers and youth. Studies in Canada including a recent one in Calgary have confirmed this problem. The gay community in the United States was reluctant to act on this problem for fear of being identified with pedophilia. NAMBLA through its publications and albeit weak voice basically shamed gays into taking some action. The outreach programs for gay youth which seek to bolster their self esteem through intellectual and organizational support from the gay community are in part the result of lobbying by NAMBLA. I am glad to be able to say that we have such programs in the Vancouver area.

The articles include information and points of view not accessible elsewhere. The May 1993 issue contains a report, "Janet Reno's Dark Past". The same story was just recently broken by Public Television, PBS in 1998, five years later. It details how a fourteen year old boy, Bobby Finje, was jailed for twenty months on very dubious sex abuse charges where he faced life imprisonment before he was acquitted by a jury. Six of those months he was in solitary confinement and sometimes kept naked as a suicide prevention measure. Janet Reno, the U.S Attorney General made her reputation prosecuting child sex abuse cases in Florida and used the protection of children from such abuse as a rationalization for the assault on the Branch Davidians in Waco, Texas which resulted in 72 deaths including several teenagers and ten children five and under.

The April 1997 issue of the NAMBLA Bulletin includes, "Molested" the testament of the mother of two young boys whose innocent sex play was inadvertently mentioned to a school counsellor who reported it. The mother describes the suffering her whole family, and other families are going through as a result of zeal and insensitivity of child abuse officials. It implicitly questions the workings of mandatory reporting procedures for suspected child abuse. More recently similar stories of the legal/bureaucratic abuse of children have appeared the mainstream media. The letters sections include discussion of internal politics and rants and testimonials from readers both men and boys. The erotic fiction which is sometimes passionate, if not all that graphic, explores the thinking, often accurately paranoid, of men in their relations with boys. The stories are often about thinking about, watching, wanting, approaching, or being approached by a boy, and some ensuing adventure with the boy. Sometimes they are written with insight but more often they are not. In common with romance stories generally there are often social and ethical dilemmas, they are about relationships set a cultural context for behaviour.

Even reading the content analysis (the magazine has been deemed illegal to possess and men have been jailed for having done so) provides some idea what the NAMBLA Bulletin is all about. It is of course mainly written by and for boylovers, men who are attracted to boys and who usually have an erotic interest in them. Men like this have always existed everywhere. They are not created by such magazines as is claimed by people like Detective Noreen Waters. She stated, "NAMBLA promotes the sexual molestation of children." and described it as a manual for the sexual abuse of boys. I submit that it is not a question of men reading NAMBLA being inspired to have sex with boys but one of men who have an erotic interest in boys discovering NAMBLA and political, cultural and ethical contexts it provides.

Men who lack any contact with others of similar interests may become moral isolates and pursue their interests with less responsibility. They are exposed to less social control and review. Such men can be potentially very dangerous. People who commit heinous crimes are often moral isolates subject to little social or peer pressure. Or more likely they are psychopaths. NAMBLA provides an ethical context for men attracted to boys. It ties their interests into the news, politics, art and literature, it contextualizes and entertains. This socializing includes ethical standards to reflect their own activities. Depriving people of an ethical and moral context of their behaviour, however offensive that morality may be to correct sensibilities, can be a recipe for dead children. While it may be reasonable to claim that banning written material favourable to intergenerational sex reduces the number of instances that occur it is also very arguable that it increases the chances of substantial harm in others. Severe penalties create fearful and desperate men. Where children are involved we need to exercise extreme caution. It is quite reasonable to believe that the net effect, the balance of probabilities, is that NAMBLA-like materials serve the public good and help to protect children. While intergenerational affairs are treated positively the newsletter is not an incitement to assault children. It should be asked whether or not young boys are safer if boylovers can read magazines such as this. It provides some structure for their thoughts and behaviour.

I also tried to enter a table of contents from PAIDIKA: The Journal of Paedophilia, the somewhat more academic European magazine that had refused to send me a sample copy because of Canadians laws. This was refused as the Court considered a table of contents as hearsay evidence. My second exhibit was the book FLANTING IT!, an anthology of gay journalism edited by Edward Jackson and Stan Persky. I had recently purchased it at a downtown bookstore. It contains the article, "Men Loving Boys Loving Men" by Gerald Hannon. This controversial article was the subject of a long drawn out pre-Charter legal case, R. v. POPERT which was only resolved in favour of free expression a couple of months prior to the proclamation of the CHARTER OF RIGHTS AND FREEDOMS.

My next exhibit was the case, IORFIDA v. McINTYRE discussed earlier which struck down the prohibition against literature promoting illicit drug use in section 462.1 of the Criminal Code. I drew a parallel with the written materials provision of the child pornography laws, "which advocates or counsels" . Wasn't IORIFIDA & McINTYRE about "advocates or counsels"? I was still innocent of the complexities of judicial thinking, I was quite idealistic for a while when I began to love law. Although the decision was at the Ontario Provincial Court level, the fact that the ruling was not appealed by the Crown gives it weight. This means however that the decision is technically only binding in Ontario. The Crown's prospects were gloomy and an unsuccessful appeal would more deeply entrench the regained freedom. They didn't want to give NORMAL's cause more publicity. A wide variety of "drug positive" literature became legally available again, and also paraphernalia which was still on the books, but the police have continued to make punitive seizures of literature to harass distributors. The lack of a Supreme Court decision on the matter makes it costly for distributors to fight seizures.

Exhibit #3: Three copies of High Times. This American magazine was banned from Canada for a number of years under section 462.1. It's currently available in most Canadian cities thanks to the decision in IORFIDA. The magazine was in fact the chief target of the "literature" provision according to parliamentary debate. High Times used to be the potlover's equivalent of the NAMBLA Bulletin. Now we grow our own magazines too. One example is Cannabis Culture published in Vancouver which has a circulation of 56,000. I did not refer to any specific articles in High Times, I merely wanted to show that as a result of IORFIDA Canadians now enjoy the freedom to be informed on and discuss matters relating to recreational drugs including advice on cultivating marijuana. Perhaps we even have the right to access all countervailing points of view. The political implications of IORFIDA seemed obvious to me.

Exhibit #4. The next exhibit I entered was the book, DARES TO SPEAK - Historical and Contemporary Perspectives on Boy-Love edited by Joseph Geraci, who is also Editor-in-Chief of PAIDIKA. This is an anthology of boylove articles from many different sources and contains many positive references to adult/child sex. I purchased it locally with the specific intent of entering it as an exhibit. My purpose, aside from bringing the content of certain articles to the attention of the court was to demonstrate the breadth of the law. Similar works had been deemed child pornography by the Crown.

Exhibit #5: the 1991 NETHERLANDS SEX LAWS, unfortunately available only in Dutch. The judge agreed to accept it in part because I was able to provide two commentaries on it in English. One of them was an article in the above book entitled "The Netherlands Changes its Age of Consent Laws". In Dutch law the age of consent which approximates the age of puberty is 12. Because the legislation allows sexual activity with children which would be illegal in Canada I wondered if it could be seen as "advocating" and hence be deemed child pornography in itself. I also wanted to show that countries equally concerned about protecting children adopt quite different approaches, in this case a reactive as opposed to our pro-active one.

Exhibits #9 and 10: My erotic, often sadomasochisticly themed boy stories titled BOYABUSE: Flogging, Fun and Fortitude were entered by the Crown and were the principal material evidence against me. An unfinished story, Stand by America was entered separately. I wrote these stories using the nom de plume of Sam Paloc. Sampaloc is the Tagalog name for the sour-sweet leguminous fruit we call tamarind. Most of the stories would probably be obscene under section 163, however I was not charged under that section which contains no simple possession offence.

Exhibit # 17: LOVING BOYS, this two volume study by my late friend Edward Brongersma was entered by Detective Waters at my request. This is a pioneering study of the subject and is more encyclopedic than scientific. Dr. Brongersma had a background in medicine, his father was a doctor, he earned a doctorate in law and was a noted jurist. He was fluent in English, German, Dutch, French, Spanish and Portuguese and could read the Scandinavian languages. As a result of earlier writings he amassed an enormous amount of correspondence with both men and boys who were or had been involved in intergenerational relationships many of which lasted for years. This enabled him to draw extensively on the experience of those involved. He also built up an archive of material relating to boylove which was seized and essentially destroyed in 2000 by the Dutch police under pressure from the Americans. Brongersma is possibly the man most vilified by those who crusade against child pornography. Detective Noreen Waters sees him as an insidious influence and Dr. Peter Collins dismisses him as "a convicted pedophile". I read a paragraph from the book jacket to the court:

"Dr. Edward Brongersma is one of Holland's most distinguished jurists. In 1946 he became a member of the Dutch Upper House of Parliament, or Senate. Four tears later he was arrested for having sexual contact with a 16 year old boy - under an archaic law which he helped repeal in 1971. After release from ten months in prison, he rebuilt his shattered law career and returned to the Senate in 1963, where he was chairman of the important Judiciary Committee from 1968 until his retirement in 1977.The Queen knighted him into the Order of the Dutch Lion in 1975."

Edward Brongersma died April 27th, 1998, the day I received his last letter. Dr. Brongersma sought to understand what Dr. Collins seeks to treat without understanding. I wrote a memorium, "A visit with the doctor", and posted it on the Internet along with those of others. It was also printed in the NAMBLA Bulletin.

Exhibit #18: MALE INTERGENERATIONAL INTIMACY:Historical, socio-psychological and Legal Perspectives: This book was also seized from my library. This is another anthology made of articles and reviews. The seventeen academic contributors include David Finkelhor one of Dr. Collins' authorities. This book also "met the definition" of child pornography and the prosecutor would not allow me a have a photocopy of the Introduction by Dr. Gunther Schmidt as even it was deemed child pornography.

Exhibit #19: WITCHHUNT FOILED: The FBI vs. NAMBLA: I discovered a review of this 1985 NAMBLA publication by Hamilton on an Internet site. The review said that the book chronicled a series of confrontations in the courts and the media between the FBI and NAMBLA in the Northeastern United States. The review mentioned certain events in a way which seemed to contradict testimony about NAMBLA given by then Detective Wolff before the Standing Committee on Justice. I had already noted several errors and gross distortions in her testimony before the committee and was looking for further evidence that might challenge her credibility. I ordered WITCHHUNT FOILED but it was intercepted and detained by Canada Customs as it was considered to be child pornography. I appealed and the book was forwarded to Ottawa where the ruling that it was child pornography was upheld. Ottawa passed the book on to Detective Waters, the investigating officer in my case. I called the prosecutor, Mr. Schultes, explaining that I needed the book to prepare my case. He told me he could not obtain WITCHHUNT FOILED for me, he said later he never saw it, but he was good enough to arrange that I could examine the book at CLEU headquarters under the gaze of Detective Waters and one of her colleagues.

The main incident described in the book was an attempt by the FBI in conjunction with local police and the media to tie in some NAMBLA members with the highly publicized disappearance of a six year old boy, Etan Patz in 1979. The case was similar to the unsolved disappearance of Michael Dunahee in Victoria a few years ago. The police "leaned on" some teenaged boys and gave them alcohol to gain their co-operation, and then on a pretext of child pornography three NAMBLA members were arrested and had their homes searched. Amongst the material seized was a photo of a boy that the police suggested to the public and the media as being that of the missing Etan Patz. No child pornography was found. The picture was on the front page of the Boston Herald American with headlines pointing towards NAMBLA. After many months the FBI case collapsed when the picture turned out to be from a 1968 calendar. Some of the police were later indicted for theft of the arrestees' property. The book also documents a series of trumped charges which failed or were withdrawn. Admissions made by the police in one of these cases, cited in the New York Times, appeared to contradict facts presented by then Detective Wolff to the Standing Committee on Justice in 1993. To deem WITCHHUNT FOILED child pornography is absurd and was a blatant abuse of Canada Custom's powers. Canadian authorities apparently considered "egg on the face" of the American FBI to be sufficient reason to deem WITCHHUNT FOILED as child pornography. After reading it I informed Detective Waters that I wanted the book entered as a defence exhibit at my trial. She threatened me with charges of importing child pornography if I did. I decided to take that chance.

My final exhibit was copies of the hearings of the Standing Committee on Justice and the Solicitor General and HANSARD which related to the drafting and enactment of our child pornography laws. I covered this in some detail earlier.

TESTIMONY OF DETECTIVE NOREEN WATERS

Detective Noreen Marie Waters was icily formal in court. I saw her as a primly dressed, determined zealot with contempt in her eyes. This was a big improvement over her hostile attitude at the CLEU fortress when I had dealings with her. I spent many hours there listing and looking over my seized materials with her and a colleague watching me closely, although sometimes she worked on crossword puzzles. I knew from the preliminary hearing that she had a lot of ready, lengthy replies which might relate to aspects of questions but not answer them. Despite my lack of courtroom savvy I almost looked forward to cross examining her.

According to her CV (Exhibit #7) Detective Waters has been a member of the Vancouver Police Department for 22 years. For three and a half years in the late 1980s she was an undercover narcotics officer participating in "buy and bust" operations in the Granville Mall area. During this period she claims she got to know prostitutes in this area well enough to determine that almost all were sexually abused as children. She was very likely involved in busting a number of them in her role as a drug cop. As such undercover operators soon become known to the regulars in the area it seems surprising that any significant number of them would extend candid personal confidences to her. Beginning in 1992 she was assigned to the Pornography Portfolio of CLEU, The Co-ordinated Law Enforcement Unit. She states that she had been involved in 200 to 300 local, national and international investigations relating to child pornography and prohibited adult material. In October 1998, a month before the voir dire she was presented with Criminal Intelligence Canada's "Award of Excellence in Policing" for her child pornography investigations. She has attended lectures by forensic psychiatrist Dr. Peter Collins of the Ontario Provincial Police Behavioural Science Unit and Kenneth Lanning of the FBI relating to pedophiles and child pornography. Except for material seized in investigations her study of these subjects as given in her CV seems confined to material made available by criminal justice sources.

In addition to three presentations (including one on Bill-C27) to the Standing Committee on Justice she has given thirty lectures and presentations dealing with child pornography and sex abuse to police, social workers and community groups. She has appeared on a panel with Dr. Collins and had hosted the recent large international conference in Vancouver focusing on child pornography on the Internet. From a law enforcement perspective these are impressive credentials.

In her direct examination by the prosecutor she spoke confidently and eagerly often at length and was asked to slow down several times. She said pornography can take whatever form people want and described photographs, contact sheets, videos and she went on and on. She described some of the most extreme examples of visual child porn and fiction she had seen. She then turned to NAMBLA which was the main concern of her presentations to the Standing Committee. She says that the NAMBLA Bulletin has been deemed child pornography and that they have obtained convictions for possessing it. In particular she mentions an article in the October 1991 newsletter, "Staying Safe and Happy as a Man/Boy Lover" which provides practical cautionary advice and ethical guidelines for the behaviour of both men and boys. She is particularly upset by advice on how to terminate relationships. She felt that this was evidence of their callous attitude toward boys. However the etiquette of breaking up is a common theme in magazines which deal with relationships such as those written specifically for teens, women and men. Why should it be different with men and boys?

She also mentions my late friend Dr. Brongersma and manages toconfuse his two volume, 848 page study, LOVING BOYS with a ten page article by Gerald Hannon in FLANTING IT!. This is an error of fact. She then became so excited that both the prosecutor and judge asked her to slow down. She spends some time discussing Internet porn and the use of digital manipulation including morphing. She claims that child pornography can be made from innocent material such the National Geographic, Sears Catalogue and parenting magazines by cutting and pasting pictures to make it look like children engaged in sex.

She said that most material is distributed through the Internet and she describes how material is scanned from old kiddieporn magazines and other material. Twice she claims that there is a "tidal wave" of child pornography on the Internet. This she says has made it so much easier for people to collect it and men have collected tens of thousands of images. With computer technology this would be very easy. Detective Waters' testimony makes it clear that there has been a huge increase in the amount of child pornography available and that it is easier for pedophiles to obtain.

Detective Waters goes on to mention NAMBLA and says, "I was involved in 1996 in November with working with U.S. authorities in Seattle with their Criminal Intelligence Unit doing surveillance and working on the conference NAMBLA held in Seattle at which there were over 60 members attended." She talked to a police officer who had infiltrated NAMBLA and said he believed that pornography was traded. Hearsay? She also mentions a case in B.C. where the U.S. Customs set up an Internet sting operation. Their website which made it appear that they had and were interested in child pornography had 40,000 visits in eight weeks she said. (Some sites get over a million "hits" a week.) Depending on how it was set up for search engines 40,000 may not be a large number, it is repeat hits or visits which show real interest in a site and she doesn't mention them. This could still be several thousands. There were probably many similar sites which anyone on the Net could check out in a few minutes for themselves. She said that people sent in a lot of porn to the sting operation and a number were arrested.

She repeats the argument that the simple possession law has facilitated their work by enabling search warrants to be obtained. Before the possession laws she explains that the police were unable to seize even the most egregious material and horrific written words. This has led them to uncovering other crimes including child sex abuse.

She describes a sample of the photographs and stories seized from me which she entered as exhibits #8 to #15 completing her direct examination. From her descriptions of my photos it is clear that she considers nude pictures generally as child pornography. It seems that all frontal views "focus on the genitals" and that rear views inevitably "focus on the anal region". This is certainly what some members of the Standing Committee wanted and probably was why the definition referring to depictions of sexual organs and the anal region were added to the law at the last minute. Computer disks of Sam Paloc's BOYABUSE: Flogging, Fun & Fortitude - A Collection of Kiddiekink Classics which comprises seventeen separate short stories with a total of about 200,000 words were entered. She described the stories as extremely disturbing with sadomasochist and violent sex acts with children often enjoying their abuse. Another story intended for inclusion in BOYABUSE but never finished, called Stand By America was entered separately. She then enters the contents of Sam Paloc's yellow suitcase where I kept my arty/erotic boy photography. Several photos and an album of nudes of an older boy were excluded. There are maybe a couple of hundred of photos with a few portraying erections and one very naughty one which I'm sure she included in her sample for the court. That completed her direct testimony. In court the next event was the Direct examination of Dr. Peter Collins but for the purposes of the book I am moving on to Detective Waters cross examination to keep each witness's testimony together. I had about a day and felt reasonably prepared.

The prosecutor knew I would be arguing that the law was overbroad. I had been fairly insistent in my communication with him in demanding to know which books of mine he was deeming child pornography. In fact my only real criticism of the prosecutor was his tardiness in making disclosure, and this I believe had more to do with Detective Waters than Mr. Schultes. Some books had been returned as had my poetry and my novella about the disfigured beggar boy. MANILAMANIC, my Filipino journal they would neither return nor deem it to be child pornography and I am not sure why. Before starting my cross examination I had Detective Waters, who had custody of the remaining seized material, enter Brongersma's study, the intergenerational anthology and WITCH HUNT FOILED as Exhibits #17 to 19. A total of thirteen books including several boylove romances from my library were retained but none were entered as exhibits by the prosecution. I was surprised they did not seize my copy of CROWSTONE - The Chronicles of Qaamar by Hakim Bey perhaps the best known of this genre, and I speculated if it might somehow have been successfully defended in some other case. I wanted to be charged with as much material as possible. I felt a certain satisfaction when Canada Customs seized WITCH HUNT FOILED and deemed it child pornography. I had appealed to Ottawa and lost! What better piece of alleged porn to be charged for, to show the absurdity and overbreadth of the law. I wanted the prosecution to pile up the exhibits to prove my point. Terry Schultes knew this, and although I suspect that Detective Waters also wanted him to enter more, he only charged me with the stories I had authored. I believe that the detective wanted to get me on as much as possible and have Brongersma's works officially declared child pornography. I didn't know about Max Reymer at the time, but from her response to a comment I had made to her outside of court about seizing his scholarly works, I gathered she saw him as an evil sinister figure. After I had Brongersma's works entered as an exhibit the prosecution had an analysis of his LOVING BOYS prepared by Constable Nancy Midbow of the RCMP. This was simply a series of quotations taken completely out of context and which suggested his work was some sort of compilation of obscenity and depravity. It was submitted for the Crown as Exhibit #20. Initially I thought I would have to refute it but when I saw how, ignorant, blatantly biased and incompetent it was I made only a few brief comments, and decided to let Constable Midbow's analysis speak for itself. If the judge treated it with less than derision I was doomed. I was sure this piece of trash was the detective's idea: She was out to discredit Brongersma by any means.

This upset me, I became quite emotional and had to wipe away my tears. Edward Brongersma was a friend. He had died only a few months earlier. I encountered him first in print, quoted in some book I was reading, and later I bought his LOVING BOYS study, a major purchase for me at almost a hundred dollars. In 1991 I began corresponding with Dr. Brongersma through the Brongersma Foundation as I had heard they archived boylove material. Not many people liked my more bizarre stuff anyway and I always worried about preserving my stories, my unpublishable, sadomasochisticfaggotkiddieporn or SMFKP as I called it before I digitalized the stories and assembled them as BOYABUSE. Brongersma liked my "atrocious" stories and we found we had certain interests in common including Filipino culture. We got into lengthy debates and discussions on many subjects, mostly relating to youth and the men who are drawn to them. He had a curious encyclopedic mind and like me he was fascinated by strange customs and practices. We wrote back and forth at least monthly for years. He never used a keyboard and wrote in a small neat script. I hope some day to publish his letters. I had kept him informed of my case. He was a jurist and had written on constitutional matters. He was no fan of the English Common Law system. We argued about juries, the Dutch had gotten rid of them, and he couldn't understand why I had chosen (at that time) trial by judge and jury. I tried to explain that despite its flaws, and arguments that justice would be more effectively served etc., that juries keep law in the hands of the people. The results can be unfortunate, but there are times when juries see things that judges can't or are reluctant to. There are also times when the implications of the law are unconscionable, and while it almost never happens juries can be perverse. I also saw a jury as a way to slow things down so that in court I could make points with greater exposition of details which I thought could help my case. Maybe I could establish rapport with one or two? It was all speculation, fantasy, I had no idea of what it would be like.

Brongersma was into his eighties and in declining health when we started correspondence. I visited him for a day in 1994 at his home in Overveen in Holland and was able to spend a couple of hours exploring the Foundation's archives little of which is in English. I gave him one of the few bound copies of BOYABUSE I had made up and later archived another copy in Berlin. He was a large man with a broad gentle face and abundant white hair. He was at peace with himself but was concerned about the increasing hysteria about man/boy sex and the growing power of police authorities everywhere. He had recently been visited unannounced by American police officials who threatened him and he had been shouted down at public meetings where he had been invited to speak. Later his house was attacked at night by stonethrowers.

Cross Examination

In the detective's presentations to the Standing Committee discussed earlier she had stressed the need to prohibit the NAMBLA Bulletin, I asked if this was because of its advocacy. She replied that she had been asked to focus on the written word (I failed to enquire by whom) and said it was a very outspoken organization. She goes on to mention that she was dealing with a man who was a very strong proponent of NAMBLA and who was on TV, radio and the newspapers about this organization. She fails to mention that this was as a result of her laying unsubstantiated charges against the man in the first place. Detective Waters did admit in reply to my questions that he had twice been charged with sexual offences against children but was acquitted both times. This man was old Max Reymer although I didn't know that until some time later. She denied that he was targeted because he was outspoken.

I asked Detective Waters if she was a student of child pornography and pedophiles. She replies that she is an investigator. In her CV she lists some of the material she has read such as psychiatrist's reports and American police material. I asked her if she had read anything with a positive slant. She mentions NAMBLA and "Men Loving Boys Loving Men" I asked her if she regarded the latter as child pornography. In her opinion it was, although she obviously confused Hannon's article with Brongersma's study. I pointed out her error and mentioned that the article was found not indecent or immoral under the law at the time in R. v. POPERT in 1978. She felt it would be child pornography now. I begin asking her if she has read specific books starting with the American 1970 Presidential Report on Pornography. She had not. I then name three books by Canadian feminists, XXX: A WOMAN"S RIGHT TO PORNOGRAPHY, BLUE POLITICS and BAD ATTITUDES. She had not. I then name two well known books on pornography by male Canadian academics, PORNOGRAPHY: THE OTHER SIDE and THE JAGUAR AND THE ANTEATER. She had not read them. As her readings were almost exclusively American I allowed myself the sarcastic question, "Do you distrust Canadian sources?" She had however read about the Butler and Langer decisions. She again mentions reading seized material as part of her job. Her level of comprehension of my writings suggest she did no more than look for evidence. She said, "I don't read the material other than as part of my job." I assume she does not read, or risk reading, to understand.

Detective Waters' CV had mentioned her work on raising the age of consent and I asked her about it. She said she wanted it raised from 14 to 16 or 18 to combat child prostitution as that is the age they are drawn into it. In reasoning similar to that of Tom Wappel's rant against adolescent sex (SCJ hearings) she states: "We've written many reports on the issue of other areas of investigation where we have-don't allow children to drive a car 'til they're 16; we don't allow them to vote 'til they're 19; we don't allow them to go into an outlet that either shows pornographic films or-which are termed peep shows or sells pornographic material until they're 18; and yet our age of consent is 14." This is obviously an absurd statement but I believe it illustrates the mentality of the witness and perhaps a certain religiously held belief. Perhaps it should be mentioned that one has to be thirty to be appointed to the Senate. I then asked her if I were to advocate lowering the age of consent to ten, say by handing out pamphlets on the Granville Mall, if she would charge me? The witness replied that it would depend on the content. I said scientific and cultural reasons. Detective Waters answered: "Quite possibly, you would be charged with possession... or distribution of child pornography. Standing on the Granville Mall, I think, is somewhat different to standing before a committee in Ottawa or in Vancouver, a justice committee in relation to lobbying for this type of changes." I asked her if she was suggesting lobbying be limited to certain locations? If it advocated sexual activity with someone aged ten she said I would be charged. The court astonished: "Just so that I've got this right. Are you saying that if the pamphlets advocate sexual relations under 14 that's basically the reason you would-" The witness: "Yes." The Court: "consider a charge? If the pamphlets advocate lowering the age of consent by Parliament, I think that's the question-" Waters: "Yes, that would be-" The Court: "-the witness is getting at." After a further query from the judgeabout advocating changes in the law she claimed she had misunderstood the question. I think Detective Waters finally realized what I was trying to get at; that if she could advocate changing the law one way others might be free to argue for changing it in the other direction. After another question she also admitted that people may advocate pedophilia without other parts that would be an offence. It seemed analogous to being able to advocate democracy without being able to advocate elections.

But when I questioned Detective Waters later about an article in the October 1991 NAMBLA Bulletin she had mentioned in her direct examination by Mr. Schultes she reverted to her previous position. The article which I have never read, had according to the witness, included a proposal where a man, a child and parent could go before a judge and get a consent degree so they could have sex. I asked her if the proposal itself would be child pornography? She replied: "If it advocates sexual activity with a child under 18, yes, My Lord under the legislation, it would constitute child pornography." Once again the judge pointed out that this was advocating a legal change, and that she had earlier agreed that there was a distinction between advocating legal change and advocating sexual activity. Detective Waters argued that the proposal mentioned specific sexual acts and that the earlier discussion was about the age of consent not sexual activity. The Court reminded the witness that sexual activity is implicit in the age of consent.

I was trying to portray Detective as a zealot who allowed her moral beliefs to interfere with her professional objectivity. I felt my previous line of questioning had suggested her judgement was clouded. In their book, RESTRICTED ENTRY (Press Gang Publishers, 1995. p. 157) about the Little Sister's trial, authors Janine Fuller and Stuart Blackley claim that during the trial Detective Waters left the witness stand in order to run after an associate of the defence team whom she believed was going to photocopy an exhibit entitled BOILED ANGEL. This would certainly have been evidence of overweening zealotry. I was unable to contact Ms. Fuller the day before but I questioned Detective Waters about the incident as described anyway only to have it denied. I had to accept that. Following it up later I found that the authors had been mistaken in their facts. This was embarrassing.

I referred back to her testimony in direct examination about there being a "tidal wave" of child pornography on the Internet. Detective Waters agreed that there had been a dramatic increase in both the availability of child porn on the Internet and in the percentage of households connected in recent years. She testified that the size of collections had increased a hundred fold as a result of the Internet. This is not surprising as a collector could easily download a thousand images in an evening. The old kiddieporn magazines had perhaps 30 to 40 pictures each in them. She said over 100,000 images of child pornography had been downloaded from computers and that this could represent 100,000 different children. I knew this could not possibly be the case, hundreds of images of the same child are often posted at one time, but she insisted that it was possible. Having established that there had been a substantial increase in child pornography I asked the witness if there had been a corresponding increase in child sexual assaults. Detective Waters would not answer this question and insisted on talking about the relationship between porn and sex abuse. When repeatedly pressed, she knew what I was trying to do, she said, "I can't answer, My Lord." Given her professed expertise I suspect she could have answered but didn't want to because the truth would have cast doubt on the claim that there is a causal, or even correlational relationship between child pornography and child sex assault.

I next asked Detective Waters, who can legally possess child pornography? She didn't answer the question but mentioned the defences provided in the law so I asked her what defences she relied on for her own possession of child pornography. The witness rambled on about the artistic merit defence. I reminded her about the time she appeared on television with a bunch of pictures of little naked girls being urinated on in which the genitals but not the faces were covered. It took three interjections by the judge for her to understand what I was asking. She finally replied that this was for an educational purpose, and added, contradicting me, that the faces were covered. The latter point is categorically is untrue. I have a video tape copy of the program to prove it. I asked her if advocating or promoting anti-porn measures would be an educational purpose. She replied that to educate the public she would show them child pornography. I then asked if anybody could view the examples of child pornography the police have in their possession? "No, My Lord." She had been talking about nudist material as child pornography but also about artistic merit as if not all nudist material was child porn. I asked her how an ordinary citizen could find out exactly what is child pornography? I found out that if I was part of a citizens group that asked her to make a presentation I might get to see some examples. I asked her how a person might determine if something they had, say a postcard they received showing naked children frolicking, was safe to keep without drawing attention to themselves. She didn't know any way they could but if they come forward, the police wouldn't look at them as someone horribly involved with children. The judge pointed out that possession does not necessarily mean involvement with children.

I wanted to clarify the definition of visual child pornography that does not involve explicit sexual activity. Sub-section (1) (a)ii referring to images states:

the dominant characteristic of which is the depiction,fora sexual purpose, of a sexual organ or the anal region ofa person under the age of eighteen years.

In an attempt to clarify matters I asked her if images of nude children were necessarily porn? She said it depended on how the child is posed but it also depends on if it's used for a sexual purpose. I asked her if the same identical material could be porn in one situation and not in another. She said that was correct. I find the idea that the mere transfer of possession of an image could change it from something innocent into something subject to a five year penalty. The question of who possesses it seems fraught with uncertainty. Could an image of a child be porn in the hands of a pedophile but not in the hands of a gerontophile? Would an image cease to be porn when the police seize it from a pedophile? And what would be a pedophile anyway? Lacking any criminal convictions would the person possessing the image have to be phallometrically tested to determine if he is a pedophile? Could such tests be constitutionally justified? I asked her what is "sexual purpose"? This was not an easy question for the detective and she talked about differences in poses and focus that could not apply to identical images. It seemed that sexual purpose depended on how the image was used and who possessed it. The question of how an image is used can only be a matter of speculation unless a person is caught red handed using it as a masturbatory aid. I could not get a clear answer to the question of whether child pornography is intrinsic to the image or not but it seemed that at least sometimes pornography lay in the eye of the beholder or in his possession.

I then asked the witness what "dominant characteristic" meant. She answered that it was question of focus, "where the person's vision is drawn to". I asked if this was a question of flow, the convergence of lines? She replied that it was not difficult when she saw the material, that it was usually quite obvious. Hers was basically, "I know it when I see it" criteria. She spoke of natural poses not being pornographic but I was unable to get a clear idea of when a nude picture might be child pornography. I asked her if it was a natural pose for a teenage boy to be sprawled back on a sofa with his legs apart. She admitted it was. I then asked if the boy was nude if it would still be a natural pose. This relates to some of my own material. She answered that it would not be child pornography if the boy was "just nude standing there". Nor would it be a boy sprawled on a sofa. I tried a few other hypothetical situations such as a series of a naked child doing flips or somersaults where one frame focused on the genitals but got no clear answers. In reply to other questions Detective Waters said that her determinations of child pornography had never been challenged by defendants or ruled innocent by a judge. To me this suggested that the defendants or their lawyers had been too afraid of making a fuss which they believed might create publicity and possibly lead to a more severe sentence. I was getting off the track and the judge let me know. I had the cover of a book that I entered as part of Exhibit #4, DARES TO SPEAK shown to the witness. The cover is a detail from the painting, "Apollo, Hyancinthus and Cyparyssus Singing and Dancing" by Alexander Ivanov, a Nineteenth Century Russian artist. Apollo half draped sits beside Hyancinthus with an arm around the nude pubescent boy. I asked her if the cover was child pornography. The witness said it was nudist and had artistic merit and would not constitute child pornography. I believe it would be easy for many people to interpret the picture on first sight as erotic although as with many other things this may decline over time. Although her testimony on the matter has helped send men to prison I concluded that the witness was not able to consistently define child pornography under sub-section (1) (a)ii.

Detective Waters, then Wolff, had been the strongest advocate for criminalizing written material to appear before the Standing Committee, in fact she said she had been asked to do this. The definitional sub-section of the law states:

(b) any written material or visual representation that advocatesor counsels sexual activity with a person under the age ofeighteen years that would be an offence under this Act.

I asked her how she defined "advocates or counsels". She replied: "That the material is written in such a manner that it advocates that behaviour, that it's written in a sort of glorifying it or in a positive light, if you read what the definitions are." And it would have to be an offence under the Criminal Code. If the writing made the behaviour appear to be normal that would be positive. I did not specifically ask but I would gather that a written description of a man raping an unwilling twelve year old would not be child pornography but if they were having willing, pleasant, non-coercive sex it would be child pornography. I wanted to get the detective's ideas on a book I had purchased at a Robson Street bookstore which I had entered along with a sales receipt as Exhibit #XX, THE 120 DAYS OF SODOM by the Marquis de Sade. No happy children here. The book is considered a classic and my copy has an introduction by the well known feminist Simone de Beauvoir. De Sade's at least trendy these days. In the book sixteen kidnapped children, boys and girls from 12 to 15 are forced to have sex with each other, whipped, raped, tortured, maimed and murdered by the four protagonists. I asked her if that sounded like child pornography. She didn't want to say without reading it but thought it might. As she had not read it I unable to question her any further on it.

I next turned to the book, WITCH HUNT FOILED. This was the book I had ordered that was seized by Canada Customs and deemed by them to be child pornography. I asked her if she had reviewed it? She replied: "I have, My Lord." I asked her what it was about? Detective Waters replied: "It deals with the whole issue of man/boy love... it's produced by NAMBLA... Deals with the issue of an investigation by the FBI, but it also has-advocates sexual activity with children under the age of 18. It would be an offence under the Act. The material would fall under the advocating, the entire publication throughout advocates that behaviour." She had custody of this book and I read it under her gaze at CLEU headquarters. There is no description of sexual activity in the book. I hoped the judge would look at it. Detective Waters was either deliberately lying or hopelessly confused. I wish I had the nerve or presence of mind to accuse her of lying under oath at the time. I don't know why she persisted in this falsehood. She even said she re-reviewed WITCH HUNT FOILED and this confirmed her opinion that the book was child pornography. She could not however say in what way the book advocated illegal sexual activities. The detective is I believe a fairly honest person in that she does not deny concrete facts yet this is hard to explain. Perhaps given Noreen Waters' zealotry and strong moralistic outlook it could be that in her mind any NAMBLA publication is axiomatically child pornography regardless of the content. It could also be related to her identification with and faith in the American police system, particularly the FBI which has been expanding into the child sex abuse field. Her unquestioning acceptance of discredited information from police sources and disregard of other sources suggest a lack of objectivity.

There is one other explanation for her falsehood: She simply does not comprehend what she reads. At the preliminary hearing when she was explaining her justification for obtaining a search warrant for my apartment she had hopelessly confused my journal, MANILAMANIC which she claimed to have reviewed months earlier with my novella, LIFE ON THE CORNER - THE MOON EYED BEGGAR'S TALE which she seized when she arrested me. When she resumed the stand the following day, all the while under oath, she made a point of correcting her error. Now, she must have either realized her mistake on her own, something I doubt given her zealotry, or someone, perhaps a fellow police officer who was familiar with both works, had pointed it out to her. If the latter was the case Detective Waters violated her oath as a witness that she swore on the BIBLE. Once a witness takes the stand they are forbidden from discussing their evidence with anyone else. The other example showing a serious lack of comprehension was her confusion of Hannon's ten page article with Brongersma's two volume study. These suggest that she does not comprehend what she reads and cannot even relate what she may pick up to the source. Despite the detective's fondness for cross word puzzles she has profound literacy problems. Also, based on her analyses of my writing given in the REPORT TO CROWN COUNSEL it would appear that her mind works like a computer word search program; she picks out the names of acts and the ages of participants, usually expressed in terms of as "as low as", and remains totally oblivious to meaning, context and plot. The acts and ages mentioned in WITCH HUNT FOILED were references in police and media allegations. In her uncritical mind these became "advocacy". Thus an exposé of police harassment becomes child pornography. This does not explain Ottawa's deeming however, or does it?

When I read WITCH HUNT FOILED I decided that the book would be excellent evidence for the law's overbreadth and that I wanted the book entered as an exhibit at my trial. When I told her this at CLEU Headquarters I remember her threatening to charge me with importing child pornography if I insisted on having it entered. This would be an additional and most serious charge. Of course there was nothing to prevent her from charging me anyway assuming she really believed the book was child pornography. I asked her about this in court. She denied threatening me; she claimed she merely advised me that she could. That was not what I heard but I had to leave it at that.

The final point I wanted to make was her own advocacy. Her CV listed thirty lectures, hearings and conferences at which she had made presentations, all but one involving child pornography. It became clear that many if not most of these presentations involved proposals for change in laws and policies. She also submitted reports on various matters to provincial and federal justice ministers recommending changes. I asked her if she considered this advocacy? Except for her appearances before the Standing Committee she did not: "I don't consider it anything other than a part of my job to-in the protection of children." That basically completed my cross examination of Detective Noreen Waters.

I argued when discussing GRAMLICK and JEWELL that defence lawyers should seriously consider having the impugned child pornography put before the court to demystify it. Unlike drugs pornography is not a set of homogenous categories. Cocaine and heroin vary only in terms of purity and potency and this is usually the luck of the market, not the consumers' choice. Pornography is what economists call a heterogeneous product like women's clothing which reflects taste and preferences of the user. While a collector of child pornography may accumulate a variety of kinds he will have his preferences. The Internet allows the collector to pick and choose. His collection will reflect his tastes and interests. It is not a simple matter of preferring the most extreme porn as the remarks of Dr. Collins would have us believe. As we will see he himself, despite his ample opportunities, professed ignorance about such things. The law as it stands makes no distinction; something is either child pornography or it is not although the line between may be unclear. In this definitional democracy an image of a seven year old being raped is equal to a seventeen year old with an erection. Legally the abuse the subjects' are assumed to have suffered is also equal. Obviously this situation is absurd but it is not one that can easily be questioned. Better to just quietly plead guilty. Making distinctions is not in the interests of the police or prosecution. It is however important if looked at from the point of view of the actual or potential children involved. What I am saying is that people should see the impugned porn. They should study it until any initial shock has had a chance to subside. If in photographic images, child pornography is "a permanent record of abuse" as almost all anti-porn advocates claim then let us examine what the image shows. Are the children portrayed distressed? I personally do not think that we can apply to photos Justice McComb's opinion re Langer's paintings that the distress of the subjects is an ameliorating factor. But the radical feminists claim that videos depicting women being raped are worse if the subjects appear to enjoy it. Would these feminists apply the same criteria to child pornography? What about coercion, violence or lack of willingness, rape for example that is evident in the images? What about the involvement of adults or significantly older people? What about the question of naturalness or spontaneity? Or is all child pornography such an unmitigated evil than any distinctions are irrelevant?

THE TESTIMONY OF DR. PETER IAN COLLINS

"It is not possible to serve Hippocrates, the Healer, at the same time as Hammurabi, the Law Giver." (Felicity Goodyear-Smith in FIRST DO NO HARM: THE SEXUAL ABUSE INDUSTRY, New Zealand: Benton Guy Publishing Ltd. p.38)

The Crown's second expert witness was Dr. Peter Ian Collins, a forensic psychiatrist. Psychiatry is a branch of medicine and practitioners must have a general medical license. They treat major mental illnesses and acute conditions frequently using drugs and neurological intervention. Forensic psychiatrists are those who specialize in determining criminal responsibility in the courts. Psychologists who are academically trained and have their own association are more likely to use talk and counselling techniques. Psychoanalysis is a therapeutic method based on free association which is extremely expensive. Both psychiatrists and psychologists may be psychoanalysts. Social workers are a more practical profession trained in casework which often incorporates psychiatric theories.

Dr. Peter Ian Collins submitted a 17 page CURRICULUM VITAE entered as Exhibit #16. He holds degrees in psychology, criminology, medicine and psychiatry. He lists extensive post graduate education principally in psychiatry and has taken fifteen advanced courses. His five present positions included Staff Psychiatrist at the Clarke Institute, Manager of Forensic Psychiatry Unit for the Ontario Provincial Police, Co-ordinator of Police Liaison and Criminal Investigative Support Service, Consultant Psychiatrist at the Sex Behaviour Clinic and Assistant Professor in the Department of Psychiatry at the University of Toronto. Dr. Collins' previous employment includes work in mental health centres and probation. He holds appointments as Consultant Psychiatrist to the RCMP and the International Criminal Investigative Analysis Fellowship, Forensic Psychiatrist to the Toronto Police Service, Consultant to Critical Response Group of the FBI, and is on the Advisory Board of Forensic Sciences Program at the University of Toronto. He is also on two government committees. In addition he lists fourteen professional memberships and eight teaching experiences including an "Expert Witness" class at the University of Toronto Faculty of Law for the past eleven years. He has provided staff training to twenty police and law enforcement agencies including six in the U.S. including the FBI. Dr. Collins had given 106 presentations both here and in the U.S. These have dealt with pedophilia, child pornography, child sex abuse, sex offender treatment, hostage taking, stalking, victimization and suicide. He has also testified as an expert witness over 400 times. While he has testified overwhelmingly for the prosecution he was an expert witness for the defence at the trial of Karla Homulka. Dr. Collins claimed that she was really a victim and was controlled by Paul Bernardo.

Accompanying his CV was a copy of a letter addressed to the prosecutor, Mr. Schultes. He had been asked to review material in the REPORT TO CROWN COUNSEL and "collateral material" including my personal correspondence. In his letter Dr. Collins outlines a theory of child pornography which could form a basis for his direct examination by the prosecutor. He discusses NAMBLA and mentions that members feel their "persecution" is analogous to that of the Jews in Nazi Germany. In his summary, after noting that he never examined me, "and cannot offer a diagnosis", he states in his professional opinion that I would "likely be extremely difficult, if not impossible to treat given the extent of his cognitive distortions thereby placing him at high risk for reoffending." I took this as threatening, especially his presumption of reoffending when I have not offended in the first place. The letter also suggests that the Crown knew well ahead of time that he would likely be an expert witness in my case a fact I was not made aware of. I feel that I should have been informed at the pre-trial conference.

There can be no question but that Dr. Peter Collins is one of the foremost Canadian authorities in his field, a fact which should be noted. It should also be noted that his career is intimately bound up with the criminal justice system. He works closely with the police, advises them as a consultant and trains their members. He is in effect, "married" to the criminal justice system and I wondered if his testimony should be treated as akin to a spouse's. He has great influence on the assumptions, policies and goals of the police. He is in no way an independent professional. His testimony in support of the scientific basis of the law is akin to the testimonial of a manufacturer about the quality of his product.

Dr. Collins is a large, baldin