News and Comments
APRIL 2010, Montreal
Many of the comments I last wrote in 2003 on my old website are out of date. They concerned the proposed changes to the laws dealing with child pornography and youth sex contained in Bill C-20 which subsequently died in Parliament. The principal issues as seen by the government, MPs and activists did not change however. The law as actually amended and enacted in 2005 is discussed below. While my earlier comments were quite lengthy I am leaving them in as they provide some interesting background and insight as to how laws are made in Canada.
The law came into being through the creation of an existential threat, like the way Iran is demonized by some with an agenda. Kiddieporn had to be made into a menace if it was to serve the promoters. The kiddieporn menace was constructed by a zealous elite without hard evidence, and with no more than a polemic concern for issues. Anecdotal tales from victims and activists were tossed in with paradigms, mantras and victimology theory. Back up was provided by government supported shrink studies of sex offenders under various degrees of pressure, and probably losers to boot, provided statistics to conjure up a ‘scientific rationale for the ever increasing censorship of under 18 sexual customs and attitudes; we can’t allow our kids too much agency. The Child pornography laws are a construction There is no substance behind the moral expression of the law; it is hollow, but its manifestations are horrific.
The advocates of trashing our child pornography laws are in an impossible position. These laws are the crowning achievement of the Righteous. They show people’s concern for our children, cheaply and satisfyingly. They’re getting near sacred. Statistical correlations that counter the rationale for the law are irrelevant and could be charged with advocating. It is not so much that people believe in the laws – they have to. Few positions are more isolating. Anybody want to be a Jew in Mecca? Harm criticisms suffer from little sympathy for sex offenders and could even make you suspect. Catharsis arguments accepted with adult porn are anathema in child porn. It is something completely different. The science of psychocops with feminist assistance rules.
The new child pornography provisions.
The key change for the definition of written material is 163.1 (c) shown in bold. It borrows from the definition that already applied to images and drawings in s. 163.1(a)ii. The new more restricted defence allowed is given in 163.1 (5) and (6). Subsection (6) particularly relevant to written material is in also in bold. I am not aware of any cases where these new provisions have been argued in court. It may be that the police prefer to charge under the old s.163.1 (1) (b).
Definition of “child pornography”
163.1 (1) In this section, “child pornography” means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) 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;
(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
163.1 (5) Defence
(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.
163.1 (6) Defence
(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence
(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.
What will come to be interpreted as legitimate purpose is not clear but will certainly include the police and their psychocops. What will be allowed in terms of art or for ordinary Canadians is likely to be extremely limited.
153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who
(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or
(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.
(1.1) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.
Inference of sexual exploitation
(1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including
(a) the age of the young person;
(b) the age difference between the person and the young person;
(c) the evolution of the relationship; and
(d) the degree of control or influence by the person over the young person.
Definition of “young person”
(2) In this section, “young person” means a person 16 years of age or more but under the age of eighteen years.
The new exploitation offence combines authority and trust. In effect it extends from coercive employer, a teacher and guardian are lumped in with acquaintances and anyone who may be attentive, generous Similarly control and influence are equated.
Bill C-20: What’s happening with our child porn laws?
NOTE: While Bill C-20 will probably not be passed because of dissention within Canada’s elite the issues involved are likely to arise again. The bill doesn’t go far enough and it goes too far, but all the politicos agree that something has to done. There are qualms about removing the artist merit defence and uncertainty about how the public good defence would work. For some Alliance members there should be no defence whatsoever. The public good, what does it mean, might be used as a loophole. They worry about how the police and courts would apply the wording. The police among others see the exploitation law as vague. It involves awkward definitions that the police don’t want to enforce. It would be ignored. The issue of written child pornography may not go away. There will be much lobbying and maybe more petitions for new, much more restrictive child pornography laws specifically targeting my writing. It is possible that some audacious politician or legal bureaucrat will actually read my stories this time as they plan their legislative assault on them. It won’t be easy. Bill C-20 was maybe a just a trial run. The same issues will likely arise again. Those seeking to inflame the public about the need to protect children from certain genres of literature will be thinking about what went wrong. When I wrote the comments below I assumed that the bill’s passage was almost certain. However I could not resist a little editing-plus as I reread what I’d written.
Comments on Bill C-20 by Robin Sharpe
Bill C-20 is an attempt to close any conceivable "loophole" in the adult/youth sex and child pornography laws. The adult/youth provisions are an attempt to effectively raise the age of consent to eighteen, something Ottawa did not do explicitly because of reservations by the Province of Quebec which did not want youth sex to be criminalized. The child porn provisions are a direct response to my acquittal and could expose me to something close to double jeopardy should I not divest himself of my transgressive stories.
The Exploitation Offence
Bill C-20 extends the prohibition to adults who are "in a relationship with a young person that is exploitive of the younger person." This would appear to be a catch all clause which could potentially cover almost any adult/youth sexual relationship.
The interesting thing about the child sex law changes is that they may offer some unintended opportunities for the defence. They could be used to expose actual real life adult/youth situations and through the courts and the media perhaps educate the public as to their nature better than academic studies and polemics. In determining whether the relationship is exploitive of the young person, "the judge shall consider the nature and circumstances of the relationship between the person and the young person, including the following:
1. the age difference between the person and the young person;
2. the evolution of the relationship: and
3. the degree of control or influence by the person over the young person."
How courts would interpret "the evolution of the relationship" in relation to exploitation is uncertain. Certainly if the adult is seen as a predator, exploitation could be readily inferred. Aggressive police investigators and prosecutors will try to paint the adult as predatory, or failing that, as manipulative. How they first met, and how the first "sex" occurred, could become the subject of detailed courtroom testimony. Any positive aspects of the relationship, for example improvements in the young person’s behaviour or mood. Will acts of friendship, generousity of time and material, doing special things together, all things traditionally associated with courtship, will they be deemed as manipulation, or as the child abuse industry terms it, "grooming"? And will quarrels which are common as adolescent and man pursue separate interests, will they be reinterpreted as evidence of emotional violence? The investigators could write soap operas. Cross examination on the evidence dealing with ‘first sex’ could be both entertaining and educational as the nature of the relationship is examined in court and broadcast. What might happen if the public learns about actual pederastic situations and scenes, and their complexity. Optimistically it could breed more tolerance.
The young person however, could have to deal with probing cross examination about intimate aspects of the relationship and its history or evolution leading to a more complete picture which could reveal positive factors such as genuine friendship and mutual respect which might be used to question the Crown’s claims of exploitation. This could perhaps benefit some men who become entangled in the law. At present the relationship can simply be dismissed out of hand as carnal.
The fact that the bill’s proposals allow the nature of relationships to be publicly explored could help some defendants challenge the simplistic myths people believe about boylovers Under the bill the courts would not only be ruling on what acts occurred but would delve into the quality of relationships. This is a radical precedent in criminal law
Just as how a relationship began may become a subject for detailed testimony in trials, and so may how they ended where it is not the result of police intervention. Who broke it off and why? The supposedly callous rejection of boys by men when they cease to be attractive will certainly be raised by the prosecution. In some cases this orthodox assumption may be very true.
"the degree of control and influence" by the adult over the young person can be highly variable and subjective. There is also the question of whether the influence and control have to be active, or is its mere existence a sufficient basis to infer exploitation? This subsection is no doubt intended to criminalize almost all adult/young person relationships. Certainly adults have power but that doesn’t mean that they use it. Many youth lovers deliberately leave the question of sex up to the young person.
An adult’s influence and potential control may depend on things like his respect, loyalty, trustworthiness, appreciated advice and counsel, and the young person’s feeling for him. Is this what the bill is talking about? Maybe but I doubt it. More likely the bill is trying to cover perceived power imbalances not covered by the position of authority and dependency provisions of the existing law. Power imbalance is a fundamental assumption of official thinking about adult/youth relationships and a central tenet of feminist and psychiatric theories. Equality concerns based on similarities preclude any consideration of the dynamics of asymmetrical or complementary relationships.
The New Child Porn Provisions
The new child pornography provisions are a panic reaction to the Sharpe decisions. Firstly, it extends the definition of written child pornography beyond material that "advocates or counsels" illicit sex involving minors to include, "any written material the dominant character of which is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act." This is very similar to a definition of visual child pornography. Presumably the bill was not intended to catch recognized literary classics but the phrase, "for a sexual purpose" is a very open ended and flexible phrase and has already been used selectively to convict those who can be labeled as deviates for material considered innocuous in the hands of others. One man I know was convicted for photographs that showed his preteen daughter’s breasts. For men suspected of deviancy possessing the works of de Sade, William Burroughs, Dennis Cooper and many others could well be a ticket to jail.
By extending the written material provisions to cover descriptions of illicit sex involving minors Bill C-20 creates some absurd situations. People could go to jail for five years for illegal acts committed by fictional characters in their reading material. There will be occasions, in novels for example, when it will be unclear whether or not the fictional adult has committed a sexual offence against a fictional young person. A number of sexual offences, perhaps especially the proposed new one relating to relationships that are "exploitive of the young person", are open to various interpretations. In order to convict the accused of child pornography charges it would become necessary to show that the fictional adult was guilty of an offence under the Criminal Code. It would in effect mean a trial within a trial presumably based on the evidence in the fictional account. Novels may of course be set in Ancient Greece, the highlands of New Guinea or among humanoids on an imaginary planet. Some novels may accurately reflect the "pederastic" practices of shamans and berdache in pre-contact Aboriginal Canada. According to Bill C-20 the fictional adults depicted are to judged against the Twentieth First Century Criminal Code of Canada. This proposal invites ridicule.
Secondly they abolished all the former defences, including of course artistic merit, and replaced them with one rather amorphous defence of the "public good". But this is only to the extent that the offence was necessary to serve the public good. For example if an author, in order to describe and develop a teen character in a story, has him/her depicted in a sexual encounter with an adult he must be careful not to over-dwell on it. A detective’s collection of child porn might be limited to the amount required for her educational presentations on its evils. The frightening thing about the public good defence is that you can’t be certain what it might be.
By abolishing the artistic/literary merit defence the drafters may hope that only a simple enumeration of the illicit acts described and the ages of the participants, would be relevant for court purposes. Are the acts sexual offences involving minors? Are they the dominant characteristic?, Courts may tend to see the police and psychiatric witnesses as the effective judges of literary works on which the defendant’s liberty may depend. Traditional literary qualities such as content, plot, style, psychological development and drama could become meaningless. Art in any conventional sense will become irrelevant when the spectre of child pornography is raised. While courts may defer to recognized Western classics what are they going to do when they encounter the works of more sex positive cultures such as Japan.
Certain logical arguments can be made for the possession of child porn by a "pedo" as being in the public good. Suppose that a man with one or two previous child molesting convictions many years ago finds he can satisfy himself with child pornography. He may worry whether he could keep himself from offending without it. Concern about protecting children could suggest that it is in the public good to allow this man to possess and use child pornography. Such a proposition would however be seen as outrageous and be dismissed with contempt. It would not protect the public’s sensitivities, which I suspect is the main objective of the proposed legislation. But suppose he were to be allowed access to child pornography, just how much and what type of porn would be needed to serve the public good, but go no further than serving the public interest? The logical answer is the kind of porn that best satisfies his needs and in a continuous supply so he always has fresh, effective material.
The Trials of Bill C-20
"The intent of Parliament", a legal term, is what courts must attempt to read from the words of legislation in constitutional cases. It is as I found out in my constitutional challenge, not the same as the intent of the parliamentarians who introduced and passed the law. The government may speak of all the good things the legislation is intended to accomplish but the law is limited to its wording. A diligent judge looks at what the actual words say, not what the politicians say. This is the rule of law. Advocates of the Divine Right of Parliament sometimes call this judicial activism. The intent of the child pornography provisions of Bill C-20 as expressed by The Honourable Martin Cauchon, the Minister of Justice, when he presented it in Parliament is clear: It is to prohibit material that is sexually stimulating using depictions of minors for that purpose. The moral foundation of this prohibition is that it is wrong for people to see, think of, or fantasize about minors in ways that arouse them sexually. Any material that could arouse those sexually attracted to minors should be prohibited as child pornography. The law tries to target the opportunities for masturbation by presumed pedophiles in the hope that this will protect children. Masturbation for pedophiles, unlike for normal people, is on a continuum that leads to sexual assault and rape of children. The minister’s statement and the debate in Parliament left absolutely no doubt that the decisions in my case R.v. Sharpe were the reason why the government brought in Bill C-20. The Crown could find no legal basis in law to appeal my acquittal on charges relating to my writing. So they drafted new laws just for me. The extension of the definition of written child pornography to include descriptions of illicit adult/youth sexual activities and the removal of the artistic merit defence were designed to cover my fiction. The Justice Minister claimed that under the "brand new definition" of child pornography, "…we believe the written material in Mr. Sharpe’s possession indeed would have been seen as child pornography." [Sept 25th]
I am however fairly confident that given good legal counsel, and a conservative, by the book, judge who bases his decisions on the wording of the law (which expresses the intent of Parliament), that I and my stories would again be acquitted under the proposed measures. Of course if I were to encounter an activist judge, one who gives precedence to populist demagoguery over the wording of laws, I would likely be convicted. Why do I believe that I would again be acquitted? One the reasons why Bill C-20’s provisions would fail, I am almost certain of this, is because no one in Parliament, or for that matter, the Department of Justice which was responsible for the legal technicalities of the bill, actually sat down and carefully read BOYABUSE: Flogging, Fun and Fortitude. Whether or not they even discussed the nature of the stories with anyone who had actually read them is questionable. Can the dominant characteristic of a story be an activity that only takes up five percent of the lines? Will literary devices that foreshadow events or developmental passages that set the context be part of the sexual activity itself? Does the sexual activity begin as soon as the high school girl leaves her house to visit her coach, or when she first lets him feel her breasts? Does the sexual active become more dominant if there’s some kink involved?
The committee and the Justice Department probably relied on reports of Detective Noreen Water’s selective forensic pickings and her outraged and outrageous descriptions. The media has latched on to her interpretation and I suppose most people don’t care anyway. She even admitted at my trial that she only read my stories as part of her job, that is to gather evidence for my trial. She had no need to understand them as stories. I find a certain irony in the fact that a semi-illiterate detective has been Canada’s most influential and unchallenged legal literary critic. The police witness dealing with child pornography at the recent hearings said she was a friend of Detective Waters and repeated her descriptions of my work. She knew all she needed to know about the subject. I also doubt if the Justice Department even went to go to the trouble of acquiring copies of the transcript from my trial in the spring of 2002 which contained the testimony of the literary experts and a one page excerpt from the story, Timothy and the Terrorist. They had a couple of bound copies of BOYABUSE and several copies on floppies from 1995 they could have looked at.
If the committee, instead of choosing to operate in a void, had examined the transcripts of my trial which document why the existing law did not work the way they had hoped, they would have come across mention that two of the original Boyabuse stories did not involve any sexual conduct and that in several others it was a very minor element. In a few others the sex did not involve acts prohibited by the Criminal Code. It may well be that if anyone involved had indeed taken the time to study the stories they would have been loathe to admit it others as this could be seen as compromising their objectivity. Only a few adjective laden sentences were sufficient to deal with my stories. One is reminded of the apocryphal tale about the American government’s China policy during the early Cold War years; that they would not trust the advice of anyone who had actually been to Communist China. It would seem that Parliament has deliberately chosen to rely upon inaccurate, false and misleading information mostly supplied by the police in drafting this legislation. It is to be hoped that the ludicrous proposals get the ridicule they deserve.
Looking at the wording in the bill it is interesting to speculate how the Crown would argue that illicit sex was the dominant characteristic of the stories. When the phrase dominant characteristic has been applied to images in case law, the courts have tended to interpret it as what they think a pedophile would see as the dominant characteristic, not what others would see. A good defence lawyer could make hash of this. Obscenity law is quite different. It is based on community standards, or what normal people feel their fellow countrymen should be able to view or read. The child porn law is based on what normal people would think a pedophile would see in the image or text. The same reasoning applies to sexual purpose. It may be that the presumed purpose of the defendant is not the one the creator intended, or what it would be for normal people. The law asks judges and juries to diagnose the defendant, to see him in the context of employing the material. It intrudes on the presumption of innocence. The situation is also problematic when it comes to the wording, the description, for a sexual purpose, of sexual activity. Again, case law has tended to assume sexual purpose means the purpose a broadly defined pedophile, not a normal person, would use it for. Sexual purpose is dangerously inclusive. One judge indulged in circular reasoning to convict a man: Why would he make or possess this material if it was not for a sexual purpose?
The term, the description is vague. If a writer says, "A performed oral sex on B", is that a description of sexual activity even if the genders of A and B are known? It is certainly not definitive, it does not tell us very much. To say that Judy Jones climbed the mountain does not describe the act of climbing. What purposes can a description of sexual activity serve? In a fictional account it may serve the purposes of defining a relationship and the nature of those involved, plot development, or a sexual act may be the resolution of the story. It is clear from reading the Standing Committee hearings and the Common’s debates in Hansard that many members simply want "to get the pedos" and will believe and propose whatever is necessary to further that aim. The Bill like the law itself is fraught with difficulties because it is offender centred. The focus is on pictures and stories not on the protection of children. If their desire to protect children were greater than their urge to punish presumed pedophiles, legislators might find some more constructive approaches.
Unlike the original child pornography law which was passed unanimously without any debate of substance, Bill C-20 led to some lively discussion. Everyone seemed to agree that the existing law was inadequate. The question of defences was the main issue with little said about the new written word definition which may have been uncontroversial. The Liberals supported the amended bill with its public good defence. The Canadian Alliance were strenuously opposed to any defence for child pornography whatsoever and opposed the bill because it was not sufficiently restrictive. The NDP also opposed the public good defence as vague and moved that it be deleted from the bill which presumably would have left the artistic merit defence intact. The Bloc Québécois members, including some who took quite a liberal position, spoke against the bill largely because of the elimination of the artistic merit defence. There was a lack of consensus, something that governments like to avoid when dealing with morality law and the bill was not given final reading. With the prorogation of Parliament and a new prime minister who may choose an early election, Bill C-20 is likely to expire. While probably most Canadians would be content to leave the law as is I believe it is likely that there will be fresh attempts by the righteous right in particular to tighten up the child pornography laws and to "close the loopholes" that allowed me and my writings to survive. Expect petitions in your local mall.
COMMITTEE HEARINGS AND PARLIMENTARY DEBATES
The Minister of Justice, The Honourable Martin Cauchon, explained the proposed legislation to the committee.
"Mr. Chairman, Bill C-20 contains five main points. First, it seeks to strengthen the provisions on child pornography; to offer young persons better protection from sexual exploitation, to strengthen the provisions on sentencing in cases involving offences against children; to facilitate the testimony of child victims and witnesses as well as other vulnerable persons; and to modernize the criminal law by creating a new offence of voyeurism."
I mainly discuss the proposals relating to child pornography and ignore the others. After second reading Bill C-20 went back to the Standing Committee on Justice and Human Rights who heard submissions from various invited witnesses in October 2003. There is no mention or record of any of the written submissions that were submitted by others. In addition to the views of influential groups such as the those representing and defending the arts and media the other witnesses were mainly anti-porn activists and those with a vested interests in its suppression. These were invited by the committee. Witnesses speaking to the question of child pornography included the following organizations; Project Guardian, The Evangelic Fellowship of Canada, Canada Family Action Coalition, Canadian Resource Centre for Victims of Crime, Canadian Civil Liberties Association, B.C. Civil Liberties Association, Beyond Borders, the Toronto Police Service, the Canadian Broadcasting Corporation, Canadian Professional Police Association, Canadian Bar Association, Canadian Conference of the Arts, Canadian Museums Association, Union des écrivaines et écrivains québécois, and the Canadian Writers’ Union.
The witnesses presented a range of mostly self serving viewpoints None of them challenged any fundamental child abuse assumptions or questioned the police science, evidence and reasoning behind the proposals. As with the original law the provisions in the bill were in large part the suggestions of the police and a result of police activism and lobbying. I will not go into anyway near as much detail of the committee hearings as I did with the original 1993 child pornography law in R. v. SHARPE: A PERSONAL ACCOUNT. To a great extent the arguments, the unimaginable evils of child pornography and its growing threat to children and the need to protect the artistic community and preserve its freedom to create, were the same as they were ten years earlier.
Alan Borovoy, the old CCLA warhorse was back with his same tired, vanilla civil libertarian platitudes. He listed a number of classics involving minors and sex; Romeo and Juliette, the Boys of Saint Vincent’s, Lolita, and a classic painting that shows a pre-pubescent Cupid fondling the nipple of the goddess Venus. He says that creating the likes of which might be chilled by the proposed law. He defends Eli Langer’s works. Referring to the bill he says, "This is capable of nailing legitimate art." While he repeats the position the CCLA adopted in Sharpe about only prohibiting depictions of real children his main thrust is protecting the work of artists, at least legitimate ones.
The committee members were treated to a presentation of examples of child pornography images by Sergeant Sylvie Bourassa-Muise, Unit Manager of the National Child Exploitation Centre. She was the principal police witness on child pornography, a role Detective Noreen Waters played ten years earlier. She made a child pornography presentation for the committee. When questioned by a committee member she insisted that the images shown were typical of the Internet images that she deals with. "These are images that we have coming through our office. It took me 18 hours to make this presentation. The reason for that is I wanted to be fair to this committee. I didn’t want to show you the most grotesque images out there and say this was the average. I wanted to show you the average. At the same time, I didn’t want it to be too basic also and to show you just child nudity. So I wanted the committee to have an honest appreciation of the average images out there." In other presentations I have read about, including the one by the Toronto police mentioned below, there is little attempt at balance. Some presentations consist of flashing extreme examples at the audience. She went on to say, "There are some images out there, sir, that you and I couldn’t even watch. I have been told by veteran investigators that they dare me to sit there and watch this image without throwing up or without going home sick. There are grotesque acts. I have difficulty with some of the images where children are tied down. Certainly I only showed you one. There are many more out there." The member felt that there could not be any question that the images she showed were pornographic. He noted that her images were of young children which she described as prepubescent with most appearing under twelve. This would suggest that the images were not age representative as much if not most visual child pornography depicts pubescents and young teens.
Sgt Bourassa-Muise went on to make a very interesting point that the practical criteria for child pornography varies substantially. She said, "However, the age for child pornographic images, for child abuse images, is 18 and under. What I’m saying here is that law enforcement has a discrepancy in the application of the child pornography laws." A member of the committee says he thought there was a uniform law throughout the country, based on the Criminal Code, and asks her to explain. She says that there certainly appears to be different provincial interpretations. "For between 14 and 18 years, Quebec is saying no, it’s not child pornography. Manitoba is looking at it and saying it’s child pornography. They’re looking at nudity and saying it’s child pornography. Some other agencies are looking at full frontal nudity as not being child pornography." She is not happy about the discrepancies. It is interesting that these descriptions are not tied to the wording of the law. Are the genitals necessarily the dominant characteristic of full frontal nudity? In B.C. cases I know one man who was convicted for photos showing breasts not genitals. He lost on appeal. Sgt. Muise’s observations were a revelation for me, in Quebec very few, and possibly none of the four hundred photos I was convicted of possessing would have been deemed as child pornography.
In discussing written material Sgt Bourassa-Muise seems to equate the literal depiction of criminal sexual activities as advocacy. In reference to an explicit movie file (video) the members were apparently shown, she says that if you described it in words, and added "some fluff" and "some niceties" to it, or if the material "talks in a sexual context about a child, the law is very clear: it’s against the law." She adds, "As far as I’m concerned, on the practical side of it, if I seize the written word where a child is being talked about in sexual connotations, and it counsels a sexual act against a child, the law is clear: it’s child pornography. It might be subjective, and we’re not sure, maybe, but if it’s as clear as day to me that it’s counseling or depicting sexual activity with a child, then it’s pornography; it’s clear." She refers to written child pornography as "fantasy story generators" a clear indication that pedophile’s masturbation is targeted. She says, "We have to be able to come to a point where we can say we have zero tolerance for child pornography, and when we have zero tolerance for child pornography, fantasy story generators are part of it." She claims that "Robin Sharpe’s work… creates a fantasy. It’s a story that encourages the belief that certain behaviour is normal and that could lead a person to commit certain acts.". Even the prosecutor at my trial would disagree. In terms of "fantasy story generators" she refers to a website hosted in Quebec, "If you want to see some of these fantasies generated where they’re just on the borderline of the written word, go to freespirits.org."
Sgt Bourassa-Muise is also concerned about cartoons, presumably Japanese manga and yaoi comiks which are often quite explicit. She says, "In Japan, actually, they had big problems. They were embarrassed on the international front several years ago because of their lack of child pornography laws and their lowered inhibitions as far as sexual normality or acceptability is concerned. "Shaming other countries is a standard form of Western moral imperialism. "There, these virtual images were being shown right on the big TV screens in stores, depicting children in sexual acts, or depicting people in sexual acts. They made no differentiation. You get into all kinds of issues when dealing with virtual images. I’d say we’d be going backwards if we went there." For people like Sgt. Bourassa-Muise their lack of child pornography laws was "a big problem". However Japan has fewer problems with violence and child sexual abuse compared to North America. Is this also a problem? Japan has a different culture with explicit sexual genres of literature, much of it produced by and catering to teenage girls and young women. It may well be that their greater openness about sexuality partly explains why the country has very low rates of violence and sexual abuse. Isn’t this more to the point than what their erotic literature portrays? Their culture very clearly distinguishes between fantasy and reality, a distinction that anti-porn crusaders must blur in order to justify their work. She also has things to say about this country, "Actually, Canada is looked upon favorably throughout the world for having such good laws. I know we’re complaining here about the difficulties in their application, because although in comparison with other countries we’re doing quite well with our laws, on the practical application side of it, we’re doing poorly. I’ll be quite blunt: We’re a laughingstock." Perhaps we must also be shamed, shamed into giving the police more power and support?
As for artistic merit she says, "There is nothing artistic when it comes to writings about children depicted for the sole purpose of sexual acts, where there’s fantasy drawn from hurting children, from sodomizing children, and committing all kinds of cruel acts against them…Of course, we take the notorious writings in Sharpe. I don’t know if you were ever privy to the actual writings in Sharpe. They weren’t fantasies such as we’re going for a picnic in a park on a nice little blanket and we’re going to play kissy-kissy, play as if we’re on a date with another adult. Those were not the stories... These depicted... I wasn’t privy to those, but certainly a friend of mine, Detective Noreen Waters, who was a primary detective in that case, recounts one scene where the writer is saying that there is such joyous and sexual gratification from driving a spike through the skull of a child. The writer is depicting sexual gratification from hurting a child, from committing acts of sadism against a child. There is no artistic value to comments of this sort." This is an outright fabrication, it’s a lie. I assume is Detective Waters’ fantasy that she passed on to the sargeant. The detail about the spike is taken from one of Clifford Olson’s eleven child murders. At one point in her investigation Waters was trying to connect me to B.C.s most heinous serial killer. I have come across other atrocious fabrications about my writings in mainstream Vancouver newspapers. Sgt. Bourassa-Muise, the police expert on child pornography, like our parliamentarians can judge written material without knowing it.
The Toronto police also showed examples of visual child pornography including videos to some MPs. Police Chief Julian Fantino has long had an interest in child pornography. He first came to national prominence as a result of the so called London Porn Ring Scandal when he was chief of police there in 1993. He posed for the media surrounded by hundreds of videos of which only a handful had anything to do with child pornography, and these depicted teen hustlers. Out of over fifty men he arrested only two were charged with child pornography. I give a more thorough review of this incident in R. v. SHARPE: A PERSONAL ACCOUNT. He subsequently became chief in Toronto when he leaped over the four candidates on the short list. (He is now the chief cop in Ontario. I do not know the background of this remarkable success. He has been active in lobbying for tougher child pornography laws ever since my original acquittal in 1999 when he met with a select group of social conservative MPs, mostly from the Reform Party as the Alliance was then known. (It is now the Conservative Party of Canada) He cultivates the political right and may have political ambitions.
The videos shown by the Toronto police were described by Alliance members. Darrel Stinson (Okanagan-Shuswap):"The videos we saw showed two and three year olds…" David Anderson (Cypress Hills-Grasslands): "Police officers who came and spoke to us did not talk about Romeo and Juliet. They talked about small children and babies that were forced to have oral sex with adults. They did not talk about Romeo and Juliet. They talked about small children who were being raped by adults. They did not talk about Romeo and Juliet. They talked about small children being held down while adults masturbate on them." James Lunney (Nanaimo-Alberni): "Some of us were here when members of the Toronto police came to the Hill. They apologized for having to subject us to the portrayal of such graphic images. Their officers, after dealing with this stuff and looking at it, sometimes have to go on leave because of the sickness they feel after seeing those images. Some members here who viewed those images had to leave the room. Some could not bear to look at the images. I am still haunted by some of the images we saw brought forward by the Toronto police, by what is out there on the Internet, what people are feeding on and what is being spread in our society, hundreds of images through computers and through other means, and yet the courts want to say that there is artistic merit in some of this. We need to get this stuff out of our society. It is poisoning the minds of our citizens and it is leading to abuse of our children." The Toronto police certainly made a case but I wonder how typical this material was and whether it was presented as such. The police use extreme examples to call for blanket prohibitions. Police science allows for few distinctions and if things are on continuums it doesn’t matter. Certainly the reactions of these MPs to the material the police showed them is understandable. The police have become sophisticated and effective political activists through propaganda, developing support groups and often setting agendas for others. They claim that the problem of child pornography is getting out of control and portray themselves as fighting a heroic rear guard battle.
I am only in a position to comment on the truth on things of I personally know about, and much of what Sgt. Bourassa-Muise’s says about my writing is false. Derek Lee, a veteran MP who was on the Standing Committee that drafted the original child pornography law had some oddly misinformed statements about the application of the artistic merit defence to my work. "There were two categories or factual situations manifesting that. One was a circumstance of what I would call a prolific child porn creator, a true artist who was a prolific creator of all things pornographic, a professional creator. He or she was simply really good at it, and produced and produced. In theory, that person could make use of the artistic merit defence… That’s one category… The second was the person who consumed and used and distributed child pornography, who became an artist for a day or a week, or who would occasionally do a sketch. Something like that happened in the Sharpe circumstances, where there was lots of other child pornography, but amongst the mix of materials there was something created by him." I wonder where he got this from. It is refuted by the evidence at my trial, all the materials were produced by me. It could be police misinformation or he may have simply invented it knowing that no one would contradict him. An NDP MP who speaks more rationally than most somehow erroneously believes I was convicted of distributing child pornography. More than my ego is offended by such ignorance. I have also come across other falsehoods, probably not deliberate but a result of being blinded by righteousness. Ms. Carrie Kohan of Project Guardian, the child advocate who founded Mad Mothers Against Pedophiles refers to Eli Langer’s paintings and drawings as depicting children having oral and anal sex with each other as well as with other adults and believes his works endanger children. She is simply ignorant of the facts of the Eli Langer case. She also wants a 20-year minimum sentence for serial pedophiles. That would include me I assume as my stories were written over a period of many years.
Age of Consent
The age of consent was another subject that was extensively discussed by the committee and witnesses although it was not part of Bill C-20. Russ Hiebert of the Canada Family Action Coalition said that the police claim that raising the age of consent is a matter of urgency. "The current law prevents concerned parents, police, and social service agencies from protecting or rescuing boys and girls who are coerced by older teens and adults." PC Inky Mark (Dauphin-Swan River) expressed his faith in legislation, "By the government’s failure to prohibit all adult-child sex, children continue to be at an unacceptable risk. Only by raising the age of consent would children be truly protected under the Criminal Code." Perhaps the most curious argument for raising the age of consent came from Alliance MP Gerry Ritz (Battlefords-Lloydminster) who argued, "Canadians have said that their kids up to age 16 receive a government cheque called a child tax credit. Under the tax system children up to the age of 16 receive a tax credit but at 14 they can have sex? It just flies in the face of any rational thinking that the government would not move that age to 16, and it makes no attempt in the bill to do that." This type of argument, tying the age of consent into other things is fairly common. Both Detective Noreen Waters and Liberal MP Tom Wappel have argued that if kids are not old enough to drive, drink or vote they shouldn’t be allowed to have sex.
Cherry Kingsley, a former child prostitute and Special Advisor to the International Centre to Combat Exploitation of Children said that consent is a non-issue. While she once spoke of being a young prostitute as empowering, giving her control over adults for the first time in her life, she is now a professional anti-prostitute advocate. "Consent, from my perspective, is a non-issue, because whether or not there is the appearance of consent from the young person," she includes prostitutes, "the culpability should always lie with the adults who choose to exploit, the ones who have the resources, the ones who exchange money, food, or shelter with a young person for sex." She does not just want pimps prosecuted but the restaurants, taxi drivers and night clubs that indirectly profit. She is however against the arrest and detention of young people as a form of protection. She supports the argument of some feminists that child pornography is a hate crime, an argument that disregards detailed content. She wants articles and illustrations or acts of imagination that promote violence or exploitation of children treated as hate literature. Is advocating sex with Jews anti-Semitic?
Young people are incompetent. One witness, David Griffin of the Canadian Professional Police Association stated: "Our issue is that a child at that age shouldn’t be able to give that consent and that adult shouldn’t be able to use the child’s consent as a defence." Another, Dr. Janet Epp Buckingham, of the Evangelical Fellowship of Canada claimed, "Sexual activity among young teens can have detrimental physical and emotional effects on the rest of their lives. Early sexual activity has the potential to bring devastating lifelong consequences and should be reserved for those of an age to be considered an adult. If they are too young to make responsible decisions about smoking, drinking, boating, and driving a car, surely they are too young to make responsible decisions about sex." I wonder if she also feels that they are too young to be responsible for the criminal acts they commit.
It is an article of police science that people who sexually assault children cannot be cured. Police science, the theories largely developed by the FBI and promoted by psychotherapists such as Dr. Peter Collins, has become legally entrenched in Canadian judicial decisions. Mr. Tony Cannavino, the President of the Canadian Professional Police Association stated "However, doctors and psychiatrists feel that these people can’t be cured. Only medication can prevent them from feeling these impulses. If we think that the measure should apply retroactively to all those who have been convicted, it’s precisely because they’re incurable... But the day they think they’re cured, they can very well stop taking the drugs. The impulses then come back and we find ourselves with a predator who’s attacking a child or an individual." Alliance MP. Richard Harris (Prince George-Bulkley Valley) felt that, "…the government has no intention of protecting our children from the likes of predators or perverts who would prey upon our children." In opposing Bill C-20 he knows "…full well that the recidivism of pedophiles is almost 100%, if not 100%". Others repeated this belief which is the basis of demanding harsher sentences and civil commitment where offenders may be held indefinitely after the end of their sentences. While it is impossible to establish if sex offenders are cured as there is no way to determine what they may think, their behaviour, their rates of recidivism, are matter of much investigation and record. A recent report of the American Justice Department report looked at almost ten thousand sex offenders released in 1994 and found that only three percent were subsequently convicted of another sex offence, a much lower rate than for other crimes. The myth of incurability serves the interests of many in the criminal justice system.
The danger of child sexual abuse is pervasive for some MPs. A Quebec Liberal MP referring to his grown children said, "To protect them from sexual abuse, we had to monitor their reading, the television programs they watched and the friends they saw. Today a father can be sitting in his living room, while his eight-year-old son is being sexually exploited on the Internet…My eight-year-old son is sexually exploited when he sits in front of the computer. I feel I have no control over the sexual education of my two children who are still at home." I wonder what sex education, if any, he would want for his son. It is also an article of faith and of police and child abuse industry science that the effects are traumatic and persistent. Tony Cannavino of the Canadian Professional Police Association describes the children, "Most victims are saddled with a lifetime of insecurity, mistrust, sexual dysfunction, sexual addictions, intimacy issues and all the related stress and health disorders." Police science empowers the police and makes them seem wise like family doctor of half a century ago.
[OCT 7th] Carrie Kohan, the founder of Mad Mothers Against Pedophiles and Co-Founder of Project Guardian, warned that according to an Interpol source that "Internet pedophiles increasingly crave video images of children being abused and that this could lead to pay-per-view child porn sessions, using web cameras, on the Internet." The source added, "… that child pornography is spreading across the world, and the age of victims is constantly falling, with even virtual newborns being exploited or raped online. If you can imagine, this is where we've come to-virtual newborn babies being raped online." Police science postulates continuums.
[Oct 8th] The question of privacy, the privacy of children as a vulnerable group is said to be violated by child pornography. Eradicating porn is seen as enhancing their privacy. This a radical departure of the traditional understanding which defined privacy in terms of freedom from state interference in people’s private lives – "A man’s home is his castle". It’s just an old fashioned sexist saying? The new post-modern concept privacy now has the state protecting people from third party actions, and requiring more intrusions into people’s lives in the process. Because child porn harms all children, it demeans them. , The mystical powers they ascribe to child pornography, working through the masturbation fantasies of pedophiles, infiltrate the ethos violating the privacy of children. It conforms to the Supreme Court’s interpretations.." The Supreme Court essentially bought this idea only condescending to allow say a diary of a teen’s affair with her teacher if the defence could offer evidence that no one else had seen it. That was about the only situation where they could see possessing pornography not presenting a significant risk to children. And they were damned for this "loophole" by the righteous right.
Frank Addario, one of Canada’s top defence lawyers, was the most eloquent speaker on behalf of my constitutional challenge at the Supreme Court. Before the committee he spoke for the Canadian Conference of the Arts. "We think there should be criminal sanctions for producing or distributing material involving the abuse of real children... But we don't support the elimination of the artistic merit defence." He claims that the law is working, that artists and art organizations are understandably worried that the legislation will send the message to police and the courts that "Parliament is prepared to sacrifice the artistic expression of legitimate artists nationally in order to satisfy a perceived need to ensure that pedophiles never access or use the defence of artistic merit. In terms of protecting artists "the public good defence just won't cut it."
Liberal Derek Lee (Scarborough-Rouge River) points out that the bill is a response to the Supreme Court's decision in Sharpe, and that the material I got to keep included sketches of children. The repeated mention of these non-existent sketches makes me wonder who has been feeding information to the committee members. He then lists all kinds of different types of depictions of children in sexual situations; photographs, films, actors pretending, virtual situations, sketches, and written descriptions, any conceivable child + sex context, and then asks, "Is that a given, that all those things should be prohibited because we as a society are simply not going to tolerate them?"
Addario brings up the usual objections and their exchange gets involved with criminalizing works of the imagination. Lee insists that things like sketches should be criminalized. Addario objects because it comes very close to prosecuting or criminalizing thought, a common and useful point. But Addario, awkwardly, has to defend the Supreme Court decision which he disagrees with. The law already "supports the criminalization of what I've just described as thought crimes." They subsequently get into the mind of the porn viewer as Lee believes that child porn, all of it does nasty things to pedos' thinking. Addario appears to take his point, assuming it’s valid, a step further into legal practicality, He replies, "First of all, there’s a problem of proof. They’d need extensive psychiatric evidence in every case to show that this particular suspect was potentially susceptible to having his or her attitudes changed." He gives a hypothetical the case where someone is "in possession of the famous Paul Peel painting that’s hanging in the Art Gallery of Ontario-two little naked boys warming themselves in front of the fire. You could imagine a situation in which one person in possession of it would have their attitude changed, and another person in possession of it-or the thousands of visitors every year-wouldn’t. So you would essentially be characterizing the material according to who had it. It would, I think, be unworkable in practice." Lee will have none of this, "Why is it that that inquiry is not again relevant to the artistic merit defence? In effect, you’re saying that’s great, it has artistic merit, it’s a wonderful piece of art, and all that sort of stuff. But there’s a whole pile of other evidence here that would likely turn someone into a person who...what does he call it-it makes the possessor more likely to abuse children sexually. That is ultimately the target of the legislation." Addario points out, "During the Langer case, I was Langer’s lawyer, and we heard evidence that not only are the fantasies of some pedophiles fuelled by what everyone would agree is child pornography, but also by YTV, the Sears magazine, school yearbooks… It occurred to me then that if you were really intending to get into the possessor’s mind, it would be almost unimaginably broad, if you were trying to use that as your hook."
A number of witnesses drew the "porn line" at depictions of real children in sexual situations, much as the Americans basically do although that is changing. This is about as far as it is acceptable to go in public without being one of them. Some of the witnesses and speakers from Quebec support this basis of definition. The civil libertarians while careful to condemn porn showing children engaged in sexual activity claim that products of the imagination should be excluded. So did Kirk Tousaw of the BCCLA who said that the law should "only ban materials that are created as a result of sexual criminal acts against children." They have come a fair way since 1996. While this was the original reason for prohibiting child pornography it can only be effectively argued by challenging the assumptions upon which the breadth of the existing law and the proposals are based on. Once you accept what psychiatrists have named, if not invented, as cognitive distortions there’s no real limit to what might be child pornography. They mean sex heresy. Attitudinal harm is another way it’s put. No one challenged this or any of the basic assumptions of harm behind the law, that child pornography inevitably leads to children being abused. No one contradicted the often long discredited "statistics" used to justify extreme measures. Police science is the official science of Canadian justice, much as Islam is the official religion of Iran. It is difficult for anyone to challenge basic assumptions, psychiatric pseudo theories and forensic paradigms.
I liked the more aggressive of approach of Charles Montpetit of the Union des écrivaines et écrivains Québécois. He stated "In my opinion, the problem with the existing provisions is that they apply to works of fiction. The government is not going to better protect children or address child abuse against real children by arresting artists. That does not serve the interests of artists and does not serve the interests of the public either. That does not serve the interests of the children either because we are only arresting the wrong people… It seems to me that if the law didn’t criminalize artists for having depicted, for example, sexual acts between young people of 14 or older-as is now the case-the public good would be much better served because the problem would be defined more specifically. Right now we are not going after the real criminals. I believe that neither the existing provisions nor Bill C-20 serve the public good. To serve the public good, we should focus our efforts on real abuse against real children."
[Oct 28] In the House of Commons both the Canadian Alliance and the NDP moved amendments to Bill C-20. The Alliance moved that there should be no defence for child pornography while the NDP moved that the clause containing the proposed defence of the public good be removed in effect restoring the artistic merit defence. Both motions failed to pass. On behalf of the Alliance Myron Thompson (Wild Rose) saw any defence as a loophole. He made the following motion directed at the newly proposed defence of the public good which was to replace the previous defences, and in particular that of artistic merit:
"That, in the opinion of this House, the government should protect our children from further sexual exploitation by immediately eliminating from child pornography laws all defences for possession of child pornography which allow for the exploitation of children."
In support of this motion he claimed, "The exploitation of our children has become of epidemic proportions throughout this country. We need only go to our neighbours in Toronto, to the Toronto police force and its sex crimes unit, where they will tell us, as Julian Fantino and other members of the sex crimes unit have stated time and time again, that this is becoming a very serious problem." He offered as evidence that he and two other alliance MPs had visited penitentiary inmates in prison for sexually assaulting or murdering young children. He said, "Nine out of ten of them said that the reason they got to that point was because they were absolutely hooked on child pornography, and that eventually pictures, images and stories no longer fulfilled their inner needs and they had to act out their fantasies. Their compulsion was overwhelming and it caused them to do what they did." He continued, "That has been proven through all kinds of studies. All kinds of people who are involved in the work of psychology or criminology will say that child pornography has played a major role in affecting those adult individuals who have and who will eventually attack our children. There is no doubt about that." If this is true it is certainly compelling evidence. No one in Parliament or on the committee that drafted the bill challenged this evidence. However even the redoubtable sex offender researcher and police science godfather, Dr. William Marshal of Kingston, and widely respected by social conservatives, has published studies disproving this.
Myron Thompson is an uncritical fan of the police. His faith in sex abuse myths may rival his faith in deity. This shallow zeal is common among the police and their victims group allies. To him the police are "the most important people in the land". Like many Alliance and other politicians he turns to the police for leadership, and of course there are police officers like Chief Fantino eager to oblige. He said, "We must not continue to tie the hands of the police. We must give them the tools and the ability to do their jobs so they can do what they want to do most, which is clean up this mess and provide real protection to our kids." He is an eager spokesman for the police. He repeats the police complaint about the large amount of porn they have to go through "to make absolutely certain that they do not have artistic merit or there is not some public good." While it is true that some seizures of Internet porn may contain hundreds of thousands of images it is not true that each image has to be individually assessed. He makes a plea for sympathy, "Can anyone imagine those officers spending 10 to 12 hours a day only looking at material like that, material that displays a 14 month old baby in diapers being raped and tortured by two adult men, or one and two year old little girls being brutally treated by adult men?" This tactic, the horror of it all and the poor suffering police, was pioneered by Detective Waters. In explaining why it took her six months to make a forensic review of my stories she said she could only read so much at a time as they were too grotesque for her sensitivities.
The afore mentioned Dr. Marshall conducted a study of Canada Custom officers who are responsible for keeping obscene and pornographic materials out of the country. They examine imported books, magazines, videos and other materials to see if they violate their regulations which may exceed what is prohibited by porn and obscenity law. He concluded that the officers were not affected by their duties. I would think no more than would teenage boys after the initial thrill. I discuss this study in R. v. SHARPE. That pornography and obscene materials have a potent toxic affect on the viewers is a matter of faith for people like Myron Thompson. It is also a foundation of mainstream feminist theory. He sees it as almost inevitably leading to sex crimes even in situations where the use of pornography is unlikely. So does our Supreme Court. After recycling some dubious and long discredited statistics about one in two women being victims of sexual assaults that float around feminist and child activist circles he says, "And, yes, it is true, a lot of it is within the family. It is not just strangers on the outside. It may be because mom or dad or both got hooked on some fantasy regarding child pornography and it developed into sexually assaulting their own children." However, rather than parents being motivated by child pornography to assault their children it is much more likely that parents already engaged in incest will decide to record it. Where doers he think that most infant and toddler porn comes from? The member from Wild Rose concludes by quoting his mentor, "Chief Fantino said ‘If only we had the courage, the conviction and the will the problem could be addressed’. Mr. Speaker, I want you to know that Chief Fantino and my colleagues have the courage and the will and we want it done today."
Liberal MP Paul Szabo (Mississauga South) sees the existence of child pornography as a social injustice and "…means that a child must have been abused… child pornography in all its forms and the possession of child pornography in itself is an abuse of children." There is a fixation on the idea that all child pornography as defined involves real children being abused or in some [mystical] way is dangerous to children. However another Liberal member,. John Bryden (Ancaster-Dundas-Flamborough-Aldershot), after noting that the motion is carefully worded suggests, "…rather than the meanderings of some people writing or drawing in their own private home. There has to be a real victim." Myron Thompson steps in, "Mr. Speaker, that is simply the statement of a cop-out… As far as I am concerned and most Canadians are concerned, any time we dwell on that, whether we are writing, sketching or whatever, even the activity itself is dangerous to our kids. It is an activity that must absolutely not be done."
Alliance member Peter Goldring (Edmonton Centre-East) knows his police science: "It is about pornography being considered a gateway, something that will lead to, contribute to eventually and condition people to make the next step to pedophilia, child molestation. We are all concerned with the explosion on the Internet of pornography as it is today and that could lead catastrophically to an explosion in child molestation too, if this is considered to be the first step toward it." Also from Edmonton Deborah Grey (Edmonton North), sees the proliferation of porn having "devastating ramifications and implications that will show up in the next generation." She speaks of "the absolute urgency that this be attended to firmly and squarely with the laws that we do bring down, to prevent this explosion from carrying forward into the everyday world."
The Alliance justice critic, Vic Toews (Provencher) was a losing prosecutor in R. v. Butler when the Manitoba Court of Appeal acquitted David Butler of most of his video obscenity charges. The Supreme Court ultimately convicted Butler, vindicating Toews, and in effect rewrote the obscenity laws in the process by interpreting through the lens of hardline feminist ideology. This was blatant judicial activism but it pleased social conservatives and most feminists at the time, and perhaps most importantly relieved the pressure on the government to bring in a new law. It pleased those who are prone to scream "judicial activism". While many see it as a disaster for sexual expression the Alliance believes that it doesn’t go far enough. Toews starts his speech by reviewing how he saw my case. He quotes Detective Waters descriptions of my stories to emphasize that "there was a legislative gap that required immediate attention." He goes on to praise "Detective Sergeant Gillespie from the sex crimes unit of the Toronto police service, who has done such a fine job trying to make the children of this country safer, and Mr. Tony Cannavino of the Canadian Professional Police Association. They continue to come to Parliament to remind us that we are failing our children and that Bill C-20 certainly fails our children." He refers to representatives of the Toronto police department. "These representatives were apologetic for the material they had to present. Even their toughened officers that are trained in enforcement in criminal matters had a hard time dealing with the content of what is available today in the trafficking of pornography and the vile images of children being abused. They apologized in advance and told us that some of us may have a hard time relating to the subject material. Many members had to leave the room as the presentation started because it was the kind of thing normal people do not want to imagine. The activities that are going on today and things that are being distributed throughout our society are so vile that the average citizen is really not aware of how evil they really are. These police officers were crying out to us as members of Parliament to do something." He unequivocally condemns any defence. "On this side of the House we do not believe that a public good defence is good enough. We do not believe there should be any defence for feeding on this kind of vile material… The people who feed on this kind of vile material will act on it eventually. The public good defence is simply not good enough. It is not good enough for Canadian society. It is not good enough for our children. It should be stricken down. It should be stricken from the law as a defence for child pornography. He was followed by his colleague Paul Forseth (New Westminster-Coquitlam-Burnaby) who was quite emphatic about what law is, "The Criminal Code itself is a grand piece of work which in essence is moral legislation. We are legislating morality when we apply the Criminal Code."
[Nov. 7th] Ms. Libby Davies for the NDP moved that clause 7 of Bill C-20 be deleted. The Parliamentary Secretary to the Minister of Justice, Mr. Paul Harold Macklin, was quick to point out, "In essence the motion seeks to maintain the status quo on child pornography. Simply stated, the government does not accept the status quo and neither do Canadians. He repeats the explanation for the bill given earlier by the minister. He notes. "In the 2001 Sharpe case, the Supreme Court of Canada interpreted for a sexual purpose as being that which can be reasonably perceived as intended to cause sexual stimulation… With this interpretation in mind, it is difficult if not impossible to comprehend the basis for any argument that seeks to support and protect materials that mostly describe the sexual abuse of children and where these descriptions can be reasonably perceived as intended or intending to cause the reader to be sexually stimulated." The readers, presumably pedos should not become sexually stimulated. The parliamentary secretary is saying that the bill is targeting masturbation. Just say no to masturbation? Arousal leads to abuse. "The types of written material that this motion seeks to protect are those that portray or purport to portray children as a class of objects for sexual exploitation." In a statement that seems to contradict the whole purpose of the public good defence, and that angers Alliance members, he states, "The second thing the motion seeks to do is to maintain the current test for when child pornographic materials should be protected by the defence of artistic merit." He subsequently elaborates, "Artistic merit still exists in the sense that a piece of art will have to essentially go through the new defence of public good and through the two stages. Of course, the first question is always this. Does it serve the public good?" It isn’t clear if any artistic merit itself would be part of the public good.
NDPer Wendy Lill (Dartmouth) puts the case for deleting the public good defence, "We want to talk about the fact that clause 7 weakens the whole bill. It weakens the ability to work against child pornographers. We heard witness after witness who came before the committee, from the Toronto Police Association to the B.C. Civil Liberties Association, to the Canadian Conference of the Arts to the Canadian Bar Association, indicate that clause 7 was problematic because the language that was used was vague and contradictory… It would be far more helpful to the protection of children to concentrate on the prosecution of people who abuse minors and those who silence the victims rather than suppressing information about abuse, which is what this law does." All the parties’ arguments were phrased in terms of protecting children even though they disagreed as to whether clause 7, the public good, no defences at all, or the status quo, would best serve this. The NDP motion to delete clause 7 was defeated just as was the Alliance motion to delete all defences.
The idea of an artistic merit defence is a red flag to the Alliance members. Larry Spencer (Regina-Lumsden-Lake Centre) claimed, "In the John Robin Sharpe case the judge considered some of those vile, ugly drawings to have some sort of artistic merit. That has been a problem with us and, I think, the nation." Another Alliance MP also mentions drawings which he seems to believe I produced. The problem is what drawings they are referring to. No question of drawings came up during the trial. There were a number of pictures, postcards and other visual materials including an art book with prints of ink drawings that were seized by the police but not entered by the Crown because they thought that such material would weaken their overall case. It could be that the members heard something from Detective Waters or had spoken to someone who had.
Some of the parliamentary prose about artistic merit was affected by the approach of Remembrance Day. One MP said, "However, they [the soldiers] did not die so that such garbage could be pushed upon society. They did not die so that such garbage could be used to penetrate and bring about harm in the lives of our children. They did not die so that our children could be preyed upon by adult sexual predators in this nation or in any nation." He held out a vision, "Can members imagine the children of this nation being set free to play on the playgrounds of this country, to play on the playgrounds of the schools, to walk safely home on the sidewalks of our cities and not be in fear of being grabbed or used or taken by sexual predators who run free in this land?" It sounded very much as things were like before the panic he is fuelling developed. The pedo as the bogey man.
It is clear where Alliance stalwart Art Hanger (Calgary Northeast) is coming from, "Mr. Speaker, when it comes to injustice, the wisest man in the world offered these words: When those of us are as outraged as those who have been victimized then justice will be achieved. That was said by King Solomon… The Canadian Justice Foundation, Mad Mothers Against Pedophiles, the Canadian Alliance and the police associations have waited anxiously for the government to respond to the outrage with some swiftness and strength and to invoke the notwithstanding clause against, for instance, Sharpe. We demanded nothing more than the protection of children from sexual predators. That was not a lot to ask…All one has to do is look at the activities of Mr. Sharpe or Mr. Toft, and I should not even address them as mister, both pedophiles." I don’t know what activities of mine he is thinking about but Karl Toft was a dorm supervisor at an Indian Residential School in Alberni Valley and was convicted of beating and raping boys he was in charge of.
Another Alliance MP, Lynne Yelich (Blackstrap) speaks to the difficulties the police could have including interpreting the proposed exploitation offence. She tells Parliament, "Sergeant Paul Gillespie of the Toronto Police Service’s, Sex Crimes Unit has provided me with a list of simple directives he says would greatly assist the police in successfully protecting our children. I would like to share those ideas with members. I urge members to listen to what he is asking:" [March 21]
1. raise the age of consent from 14 years.
2. eliminate artistic merit as a defence for child pornography.
3. include all child pornography convictions as primary designated offences for the purpose of the DNA databank.
4. allow for a sampling of materials seized as evidence, similar to how samples of narcotics are analyzed in the case of a large drug seizure.
5. make it illegal to advertise child pornography.
6. require accused persons to reveal the key or password to encrypted computer files seized by police.
7. Seventh, require Internet service providers to maintain client information and records for at least 60 days.
8. allow police to obtain client information records and logs from Internet service providers by way of a one page affidavit.
These would give the police considerably more power. Child pornography along with the threat of terrorism have become the principal justifications for extending police powers. Sometimes they are combined for greater impact. Julian Fantino used the kiddieporn issue to get funding when for Project Guardian when he was chief in London. In addition to lobbying their activism also includes supporting victims groups and forming alliances to further their political ends. It was interesting to note that an NDP MP shares at least some of my misgivings. Wendy Lill (Dartmouth) stated, "However, I am a writer of plays as well as a legislator. I think the government is making a mistake by caving in to the politics of fear that some have created coming out of the recent Sharpe decision at the Supreme Court…Do not get me wrong. I think that anyone who creates sado-masochistic pornography depicting children as sexual objects is sick. I think people who distribute such trash are criminals. The courts agree, which is why Sharpe was convicted on charges of distributing (sic) child pornography… I worry that the police chief of Toronto has been publicly criticizing the government and has been using child pornography as his reason to ask for more federal money for law enforcement. It does not bode well for our freedom of artists if police believe that their funding will increase if they lay more child pornography charges."
Many MPs send newsletters to their constituents and when they speak in Parliament and committee it is often for home consumption. Having their pictures and quotes in people’s homes is good politics. Posturing is common. The Alliance party in particular seems afflicted with this. They went for broke, they took an extreme ideological position pandering to demonstrate their concern for protecting children. It is a mantra. Their fanatical opposition, their insistence on a whole loaf rather than half doomed the bill. There is no question that if Bill C-20 had passed that much more writing and art etc. would have been problematic and dangerous for people involved.
Soon after Bill C-20 was introduced in early 2003 I started looking for briefs being submitted to the Standing Committee by advocates, the police, the arts community and civil libertarians. I found little interesting or new. At the time none seemed aware of the implications of the proposed exploitation offence although later the Canadian Bar Association and a police witness mentioned some of the same problems I’d seen. Nobody even hinted at the absurd situations that would be created by the extension of the written word definition. I had letters critical of the porn proposals published in gay papers in Toronto and Vancouver but got no feedback.
My e-mail letter to members and alternates of the Standing Committee on Justice
Then despite my notoriety I decided to send one page e-mails literally making fun of the bill’s proposals to all members and alternates of the Standing Committee on Justice, some fifty odd MPs. A copy can be found below. Realizing that no one would take rational arguments coming from me seriously, I chose an "in your face" approach. I included a brief paragraph deliberately violating the existing advocates or counsels definition of written child pornography. I didn’t expect or get much reaction. I got no replies but two MPs mentioned receiving the mail in the House. One Quebec member said, "For this pornographer - because that is what he is - to write to the members of the Standing Committee on Justice and Human Rights as a legislative analyst and legal commentator of our work is very perplexing, to say the least." The other, the leader of the Alliance attack on any defence whatsoever, Myron Thompson, said, "I too received a letter from John Sharpe. It was a wonderful letter. It is not very often that an MP can brag about getting a letter from a pornographer. The member from the Bloc said he received a letter. I think several of us received this letter from this ingenuous artist who has artistic merit in his writings, who even dared to put a quote in about how some people were saying that a sexual relationship between an adult and a child was healthy and it should be blossomed and encouraged. It stated that teachers in schools should have sexual relations with their students because it was good. What are we coming to when we allow that to go on?… Zero tolerance means zero tolerance, and for Mr. Sharpe and all the rest of the pornographers out there who want to write letters to all of us, I have a short, quick message. They might as well stop, because this member is not going to stop until their actions and activities cease to exist, for the sake of our children." I found the effort amusing. If I were charged for distributing the ‘pornographic’ letter, I would plead the defence of the public good, I was merely trying to prevent our MPs from passing stupid laws.
Many of the witnesses and MPs placed great emphasis on the proliferation of child pornography which has certainly been the case in recent years. Emphasizing proliferation makes the need to do something to close loopholes, to give the police more resources, to increase penalties etc. seem more urgent. Yet it is interesting that no one, except implicitly, says anything about the incidence of child sex abuse. The assumption, never supported by more than anecdotal facts is that it is growing, and that more and more children are becoming victims of sexual abuse. This, according to statistics, is not true but for those trying to justify extreme measures against ‘child pornography’ it is a necessary article of faith. After all the porn has increased exponentially so therefore the child sex abuse must have also increased. That porn causes sexual abuse is another necessary article of faith for the crusaders. If a connection or correlation of any sort between child pornography and sex assault was there I am sure that the police and activist witnesses would have laboured it. It’s not there, but to say so would be like saying the emperor has no clothes. The debate is not about real children or protecting them, it’s about an imaginary idealized child that symbolizes innocence and traditional values that seldom existed in reality. It is for this reason that ‘child pornography’ that is the product of the imagination is as bad as that depicting real children. It perhaps more effectively challenges the symbolic child representing the values to be defended. The debate is about pedos as they have been constructed in the public’s mind. It is about demonstrating the moral rectitude of the speakers by condemning evil. In all the horrors that the parliamentarians are aware of, much of it misrepresented, I have become the personification of evil. As Alliance MP Keith Martin (Esquimalt-Juan de Fuca) puts it I am "…the type of creature with whom we are dealing, to which this law applies, is a serial predator and sexual abuser of children. That puts these types of individuals in a class by themselves I would think." Many really believe I am a monster and those that don’t, do not want to appear as defending me. I am used to this.
Copy of e-mail letter sent to members and associate members of the Standing Committee on Justice and Human Rights, November 2003.
Dear Member of Parliament: (An Open Letter)
Re: Bill C-20, the written material child pornography proposals
I believe I am the only person in Canada for whom Parliament has devised a specific law. And I suspect that not one of you has read the stories that you are expending so much effort to prevent other Canadians from ever seeing. I further suspect that you are proud of your ignorance. Of course if you had you might realize how absurd the proposal is but then you might compromise your smug moral righteousness. (I will make electronic copies available on request)
The existing written material provision criminalizing writing if it advocates or counsels illicit sex with minors is bad enough. To indicate its nature I have included a brief advocates and counsels statement deliberately worded to violate the provisions of the existing law:
Many of the problems young people and adults face today could be alleviated by reducing generational barriers. One effective way to do this would be to encourage more sex between adults and youth. It could not only lead to more understanding but it could facilitate education. First and foremost I advocate sexual relations between teachers and their pupils in middle and high school. And furthermore I would counsel any such teacher or child to take the initiative in such liaisons.
That such a simple statement written down as here warrants severe criminal penalties is patently absurd, although the best minds of the Supreme Court would see it as somehow presenting a clear danger to children. It is simply an opinion that can be supported by rational arguments.
The new written materials definition in Bill C-20 goes much farther creating potentially farcical situations. This provision covering written descriptions of illicit sex involving minors means that people could be jailed for acts committed by fictional characters in their reading material. Does this strike you as something that could conceivably protect young people? There will frequently be occasions, in novels for example, when it will be unclear whether or not the fictional adult has committed a sexual offence against a fictional young person. A number of sexual offences, perhaps especially the proposed new one relating to relationships that are exploitive of the young person, would be difficult enough to determine in real life but how would this be done in fictitious accounts? In order to convict the real life accused of child pornography charges it would become necessary to show that the fictional adult was guilty of an offence under the Criminal Code. It could in effect mean a trial within a trial presumably based on the evidence found in the fictional account. Explicit lusty tales involving young people may be set in Ancient Greece, the highlands of New Guinea or among humanoids on an imaginary planet centuries from now. According to Bill C-20 all the fictional adults depicted are to be judged against the Twentieth First Century Criminal Code of Canada. The proposed law begs to be ridiculed.
John Robin Sharpe
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