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, balding middle aged man who looks very confident and business like in a conservative suit and tie. The first thing he said when he entered the courtroom before taking the stand to testify was that he hoped nobody had any difficulty with his "Toronto Jewish accent". This was his sole attempt at levity. I noticed nothing unusual about his manner of speaking.

Direct Examination

Prosecutor Schultes began his direct examination by highlighting Dr. Collins' credentials emphasizing his work with pedophiles. The witness mentions that he recently gave "a half day to the National Organized Crime Workshop for the Criminal Intelligence Service Canada on pedophilia". He said that pedophilia "comes under the auspices of organized crime because of the way they communicate with each other and the advent of the Internet and Internet pornography". For people who tend to think of organized crimes in terms mafias this is a novel definition. However police organizations have been working to extend the definition of organized crime to many criminal activities where any semblance organized co-operation is employed. Legislation incorporating the new definition makes it easier for them to get at people who are not easy to prosecute otherwise and to seek higher penalties for them. Under this definition two teenagers with cell phones engaged in an illegal activity can become organized crime blurring any distinction between them and "The Mob". Dr. Collins's use of it is also novel, in that he defines organized crime not in terms of an illegal activity such as money laundering or extortion but in terms of sexual orientation, or paraphilia as the witness would term it, of those in communication with each other. A feature of the Internet is that communication requires no organization.

Dr. Collins mentions that he spoke on Internet pornography and collateral materials at the international conference hosted weeks earlier by Detective Waters. He talked about the way pedophiles think, how to structure search warrants (police work), and how to interview pedophiles. I had only a few minor questions regarding his credentials.

Prosecutor Schultes continued his examination by asking the witness "what is pedophilia?" He says it is a paraphilia which he defines as a clinical term denoting sexual deviance. The most recent official classification (see DSM-IV) says that paraphilias are based on fantasies that begin in childhood or early adolescence. The fantasies are described as reoccurring, chronic and lifelong. As they are used for masturbation this is to be expected. Supposedly fantasies are only paraphilic when they lead to clinically significant stress. I wondered if this included the stress arising from fears of persecution. Another curious characteristic of paraphilias is that clinically they are found almost exclusively in males. I tried to think of other mental illnesses that were confined to one sex but aside from PMS which is triggered by physiological changes I couldn't. Dr. Collins said that pedophilia is one of the more common types described in the Diagnostic and Statistical Manual of Mental Disorders, or DSM which is a standard nomenclature of all forms of mental illness published by the American Psychiatric Association. This APA classification is offered as evidence that pedophilia is a mental disorder with the implication that it is treatable, which is what he claims to do.

The original 1952 APA DSM classified masturbation, homosexuality, fellatio, cunnilingus and promiscuity as pathological and presumably treatable by psychiatrists. The classification was clearly based on moral and legal considerations even though it claimed to be scientific. In psychiatry however there is no clear line between science and morality which partly explains why the profession is favoured by state authorities. In fact psychiatry has grown up under the wing of the modern state and retain the mentality of asylum keepers. The current version, DSM-IV lists pedophilia, zoophilia, voyeurism and fetishes among other paraphilias. This attempt to classify all mental diseases, illnesses and disorders is widely used by the medical insurance industry to determine if the symptoms or diagnosis of a claimant are covered. If they are not covered by the DSM then the insurance company may not pay out. Over the years since the first DSM the number of disorders have increased, which it can be argued, serve the interests of those who treat mental problems.

In the following comments I rely in part on the work of Dr. Frederick Suppe of the University of Maryland. (Classifying Sexual Disorders: The Diagnostic and Statistical Manual of the American Psychiatric Association) There is some controversy in other professions about whether the sexual paraphilias are actually mental disorders. Up to 1973 homosexuality was listed as a mental disorder. Psychiatric evaluation at the time had been based almost exclusively on studies of clinical and prison populations (men were often jailed for homosexual acts) just as they are for pedophiles at the present time. In neither case are these populations representative. However after other scientific studies cast doubt on the prevailing psychiatric orthodoxy that homosexuality was a disorder, intense lobbying by the gay liberation movement and considerable and bitter debate within the psychiatric community, a referendum was held where psychiatrists voted on what was ostensibly a question of science. They voted to drop homosexuality from the list. Voting? Scientific democracy? Can we imagine physicists voting on the validity of quantum theory? Clearly the whole matter was more political than scientific if it was decided by a vote.

As it was, a compromise was reached whereby a category called "ego-dystonic homosexuality" was included in the next DSM. Ego-dystonic homosexuals were those who were disturbed by, in conflict with or wished to change their sexual orientation. In simple terms those who were unsatisfied with their homosexuality were sick, but those who were not were healthy. It begs the question of why some homosexuals are unsatisfied with their sexual orientation and whether the reasons lie within themselves or in society. Can the consequences of a condition, not the condition itself be considered a disorder? Many Jews in Nazi Germany became neurotic and suicidal: Was this because of their Jewish identity or the persecution they experienced? It also raises the question of whether psychiatric evaluations of sexual paraphilias generally are matters of science or pseudo-scientific rationalizations for conservative sexual mores. Clinically significant stress might result from guilt or culturally induced fear. Is social deviance a mental disorder? If so we can understand why the boys in the Gramlick and Jewell cases were told to get psychiatric help. Professor Suppe concludes that including the so-called "sexual paraphilias" in the DSM is "unwarranted, unscientific and only serves to strengthen the conclusion that psychiatry has resorted to the codification of social mores while masquerading as an objective science."

Dr. Collins defines pedophilia as the erotic or the sexual attraction to prepubescent children which he suggests is up to 12 - 14. He then points out there are two sub groups, the first being hebephilia which is an attraction to post pubescent or early adolescent children and not technically pedophilia according to the DSM, the second is infantiphilia involving children under five. In common usage pedophilia is frequently defined as where adults have sex with minors or persons under 18 although this often limited to men having sex with boys not adolescent girls. He further classes them as heterosexual, homosexual and bisexual pedophiles. He said that child molesters can be classified as preferential offenders (sometimes called true pedophiles) and situational or surrogate offenders who use children opportunistically. They are not pedophiles as are 80 per cent of incest offenders. These distinctions are significant as studies the witness submitted show that a substantial majority of child molester offenders are not true pedophiles. They would prefer adults but because of a lack of opportunity or personal inadequacy they molest children. Almost all his subsequent testimony deals with pedophiles neglecting the majority non-pedophilic child molesters.

What I can gather from Dr. Collins' testimony, reading the latest DSM-IV and critical comments is that the category of sexual paraphilias comprises a number of different fantasies each focused on a particular type of person, activity or object that are used by paraphilics to masturbate. For some, particularly older people, the range of fantasies that are effective may be limited and quite narrow. While paraphiliacs may, like almost all men who lack regular partners, successfully masturbate on fantasy alone, many prefer at least sometimes to use aids. Each paraphilia has its own pornography in effect, or objects and paraphernalia which may assist the user to become aroused and successfully masturbate. Most of this material would not be recognized by outsiders as such unless it was part of an obvious collection. Only pornography, or certain kinds of pornography appealing to particular paraphilias are commonly prohibited. Only child pornography is illegal to possess. Some pedophiles use it to trigger to masturbation fantasies, others may never use it or even encounter it. Harm based pornography theories assume that a pedophile is more likely to sexually assault children if he has child pornography. This is regardless of the type, form, variety, quantity or nature of the child pornography. There is also commonplace material called "collateral material" that Dr. Collins believes also incites offending behaviour. This may be found anywhere and is accessible to all pedophiles.

With Schultes leading him with more or less set questions Dr. Collins began his exposition of what I call the Collins' theory of child pornography although it is not specifically his but rather the orthodox forensic psychiatric cluster of child pornography theories. The prosecutor started off by asking, "What role does fantasy play in pedophilia?" The witness replies that fantasy is the driving force behind all paraphilias. This is not surprising as all paraphilias are defined by fantasies which are used for sexual arousal and masturbation. He then claims tautologically, "I, as a forensic psychiatrist, can diagnose someone as being a pedophile solely based on the fact that they have (particular) fantasies." It would seem that the only thing which distinguishes paraphiliacs from other people is what turns them on. He says that pedophiles are notorious collectors of material to "fuel their fantasies". This would include non pornographic material, what psychiatrists call collateral material, that a pedophile finds interesting. It includes ordinary pictures and items that cannot be deemed pornography but which can be used as a basis of fantasies. Anything that might turn on a pedophile can be collateral material. He goes on to say the material is problematic "because we don't want them to fantasize at all". Fantasy prevention. He repeats this statement throughout his testimony, and preventing fantasies is the primary goal of his treatment. He admits that it's a tall order but it's so important that he, and his FBI associates, designed collateral materials into VICLAS, the Violent Crime Linkage Analysis System. He explains that the concept of "collateral materials" was developed by the FBI in the early 1990s and that for pedophiles erotic collateral materials can include any pictures, drawings or stories involving the age group they prefer. Obviously it could include much advertising, teen fan magazines, main stream movies "which they misinterpret as having pedophilic themes" or which have semi naked boys, television programs with child stars and the Sears Catalogue which he specifically mentions. He said that collateral materials are in essence aids to masturbation but warns that they can be used for other purposes as well. There seems to be no end to what could be collateral materials. There is also educational collateral materials which provide offenders with knowledge about the criminal justice system, police investigations and how to thwart the law. This, in his experience, even includes copies of Supreme Court decisions. He makes an indirect reference to NAMBLA. There are also introspective collateral materials, books and articles in journals that they have to gain insights into their sexual disorder. He finally mentions intelligence collateral material including such things as list of children's names and addresses and travel brochures. This new FBI concept of collateral materials seems to be nothing more than a new label for what police have been doing for generations. Sherlock Holmes was a collateral material expert.

Dr. Collins next explained the "grooming theory" whereby pedophiles use child pornography to seduce children, and most of them are seductive he claims. And, "In actuality they perceive their selfish desire as being healthy for children." he claimed. once they get to know the child, that they have "targeted", which may involve non sexual touching, they introduce the subject of sex and try to "normalize" it, and "demystify it using their own pedophilic prejudices." They will then use pornography which he admitted may be of the "adult variety" and sexually assault the child. Child pornography is a tool used to seduce children.

The second way Dr. Collins claimed that child pornography endangers children is by inciting pedophiles to sexually assault children. This is often called "fuelling fantasies". He claimed that there is very good literature about child pornography inciting pedophiles to reoffend. He refers to and enters as an exhibit, Exhibit # 21 a study by Dr. William Marshall of Queens University titled, "The Use of Sexually Explicit Stimuli by Rapists, Child Molesters and Non-Offenders" that appeared in the Journal of Sex Research, May 1988. This is the same Dr. Marshall who testified before the Standing Committee and at LANGER. I wondered if there was any ulterior reason for grouping child molesters who are not usually violent with rapists who usually are. The witness quoted from the study: "Slightly more than one-third of the child molesters and rapists claim to have at least occasionally been incited to commit an offence by exposure to one or the other type of the sexual materials specified in the study. For some of them, the role of sexual depictions as an instigator to offend was accidental, or at least the stimuli was not deliberately sought out to incite them to offend. However, amongst those child molesters who were incited, 53 per cent of them deliberately used the stimuli in their typical planned preparation for offending". It seemed to conjure up images of pedophiles bringing out their kiddieporn, becoming all excited and dashing out to rape some poor child. I saw it as a "monkey fantasize - monkey do" theory. The witness did allow that some child molesters use such material solely for masturbation fantasies. Interestingly another study (Kant and Goldstein, 1978) quoted in a Department of Justice report (A GUIDE TO THE SOCIAL SCIENCE EVIDENCE ON THE EFFECTS OF PORNOGRAPHY, p. 75.) found that "a family background with conservative sexual attitudes and repressed discussions on sexual matters is a better statistical predictor of sex crimes and other deviant sexual activities than self reports of the influence of pornography consumption on activities."

There are a number of problems with Dr. Marshall's study including the fact that he never makes clear how many of the child molesters were actually pedophiles. This study of offender "volunteers" involved in the criminal justice system, which I discuss further when I come to the cross examination, was his main support for the fuelling fantasies theory. Dr. Collins said that the use of child pornography ties in with the use of erotic collateral materials for masturbation fantasies. In his treatment work he insists that pedophiles purge their collections because "we don't want them to fantasize about children at all." That is the basis of his treatment.

Another example of Dr. Marshall's research which provides a better idea of his approach is his widely noted study of Canada Customs officers who review possible pornographic material. These officers spend many hours looking at porn in the line of duty. The researchers applied various tests to 91 Customs officers to determine the effect of "massive exposure on the viewers propensity to commit non-normative sexual acts." Marshall concluded that they were not ordinary mortals and credited the officers with extraordinarily high resistance to immoral influences. He implies that most of us are not able to take such high dosages without committing non-normative acts. The researchers are quoted as saying, "The overall lack of ill effects may be seen as puzzling". (VANCOUVER COURIER, July 6th, 1995) Assuming Dr. Marshall is not a consumer of porn the explanation may lie in an ignorant demonological concept of what it is. But beyond that his study was based on false assumptions. Consumers of porn usually choose when, where and what type of porn to watch. They also usually choose a situation where they can masturbate if they want to. A lonely man may like to look at pictures of women wearing only high heels and a black lace bra as he masturbates before going to sleep. What does his experience have in common with that of a customs officer sitting at his or her desk trying to get through a pile of alleged porn before quitting time. They can't masturbate should they want to. Obviously the two situations don't have much in common but Dr. Marshall got a government grant to check it out anyway. It makes me glad I don't pay more in taxes. This same fallacy was incorporated in dozens if not hundreds of university laboratory studies which attempted to prove links between porn and violence. In these experiments supposedly naive first year male psychology students, as part of their course requirements, were show various types of porn and then had their reactions analysed. One of the principal researchers in this field, Dr. Edward Donnerstein has publicly stated his work should not be used for legislative purposes. This type of research has generally been discredited and abandoned. It was however research of this type that was used as scientific evidence by intervenors in the Butler decision and presumably accepted by the Supreme Court. It still makes the rounds as "proof" in anti-porn circles. That these methods persisted as long as they did is a testimony to the popularity of the results with radical feminists and the insularity of psychiatry. Dr. Marshall's study is not research, it is farce. It is more evidence of his cosy relationship with the government than it is of the stalwart moral character of our customs officers.

According to Dr. Collins the third way that child pornography puts children at risk is by affecting the thinking of pedophiles, creating and reinforcing, what forensic psychiatrists term "cognitive distortions". Cognitive distortions he said, are pro-offending beliefs such as that children want sex with adults, are not harmed by such sex and that sex enhances such relationships. Cognitive distortions he said, were ways of validating their beliefs and behaviour. He then moves on to organized cognitive distortions, namely NAMBLA. NAMBLA and its publications "support and actively seek changes in legislation pertaining to sexual contact with children." He is saying that it is a political organization. The NAMBLA Bulletin is "another way of, for them, gaining acceptance and status and trust, and more importantly psychological support." This sounds very much like what therapists are supposed to do for their clients. NAMBLA he claims, also contains pseudo-intellectual and pseudo-scientific articles by Ph.Ds. regardless of what their degree is in. It's not true science he claims, just "another way of them espousing their beliefs." Isn't espousing beliefs true of most special interest magazines? "My testimony in some cases has been reported in NAMBLA. I'm regarded as an enemy of pedophiles. I would not be surprised if somehow this case finds its way into NAMBLA as well. They refer to incarcerated child molesters as political prisoners", he said sounding self important, "and in conversations I have had with a police officer who in an undercover capacity infiltrated NAMBLA..." The judge interjects that the testimony is getting into hearsay which it obviously was. In retrospect after his boasts and indignation I found it amusing. Mr. Shultes explained the testimony was needed to demonstrate "the overwhelming distortion inherent in that organization's philosophy." Dr. Collins continues saying that an agent who infiltrated NAMBLA, the same one Detective Waters mentioned, said "they see themselves being persecuted by the criminal justice system, by the press and they use an analogy in their organization that this persecution, is analogous to that of the Jews in Nazi Germany." It was clear that the witness was upset by NAMBLA's comparison of itself with the Jews. When he brought up the comparison again during cross examination he admitted he found it offensive and an insult to the Jews who perished in the Holocaust. He was however only using it in his testimony only as an illustration of "their mindset when it comes to these cognitive distortions, these rationalizations and justifications". It does however beg the question of how much do pedophiles and members of NAMBLA have to fear. It could be argued that the series of infiltrations, false accusations, the laying of unsubstantiated charges and their vilification in the media could make them feel acutely persecuted. Another way he sees pedophiles as augmenting their cognitive distortions is by communicating with each other. Dr. Collins seems to think like a policeman investigating an underground Communist cell in McCarthyite America.

The witness again mentioned written material and strongly denounced pseudo-scientific works available from pedophilic publishing houses: "There is no scientific validation for what these 'findings' are and they have absolutely no basis in fact or in science." In discussing the question of novels, fantasies and stories, he says that written material can be more powerful and disturbing than visual material. In answer to a question from the judge Dr. Collins said he was referring to the reactions of the investigators who read it. Written material can both fuel fantasies and create cognitive distortions. "The problem is, is that some of these pedophilic authors don't just write for their own personal use but they make an attempt to show others their writing." Of course that is why most writers write.

That concluded Dr. Peter Collins' testimony for the Crown. I felt that I understood clearly what he had said, I had taken some notes, and I believed that his theories were vulnerable with many weak points. I dearly wished I had a verbatim transcript as I have now. The prosecutor with his assistant Brian Wasyliew to takes notes for him had no need for a transcript. I had checked the rates with the transcribing company and the three day service would, I calculated, cost me well over a thousand dollars. I also had time problems. Each day after court I prepared for the next day. I would read cases and articles, and write and revise notes. I gave up on my word processor and reverted to more sensible foolscap pads. Usually at least one friend would be in the courtroom part of each day and I kept most social visits brief. Friends contributed money so I could take a taxi to the courthouse and arrive fresher, and to have some meals in restaurants which saved me time. I took short walks, paced my apartment, and tried to get a good sleep every night. I was also smoking more and more as the voir dire progressed. My apartment was cluttered with papers and books and housework was neglected. I needed time to prepare for Dr. Collins cross examination. He was a surprise witness. While I had known for many months what other witnesses the Crown would be calling at the trial proper I did not know that he would be an expert witness at the voir dire. I explained that the introduction of Dr. Collins had dramatically shifted the case as I been prepared to argue on the basis of political advocacy as the basis of freedom of freedom of expression. I requested a ten day adjournment to prepare my cross examination. Mr. Schultes said he expected it would be exactly the evidence he gave in the LANGER case which was subsequently cited favourably by Mr. Justice Macomb. He briefly lists the components of the Collins' theory. The Court asked me if I was familiar with the LANGER decision. I replied that I was but pointed out that LANGER dealt with visual representations not writing which was central to my case and that, "LANGER was the scientists on behalf of the Crown against artists on behalf of the defence". In LANGER the scientific theories were not seriously challenged; the judge had simply accepted them at face value and repeated them in his decision thereby giving them a judicial seal of approval even though they were peripheral to the case. There were problems with Dr. Collins availability due to his busy schedule and he would have to make an extra trip out from Ontario. The adjournment was arranged.

My Cross Examination of Dr. Collins

I did however agree to begin my cross examination as I had some exploratory questions. After listening to him being led through his supposedly scientific theories I saw Dr. Collins as a narrow, dedicated, self righteous man thoroughly immersed in cop culture, a sort of policeman-psychiatrist hybrid. I also saw him as a judge-executioner. He had judged me sight unseen, "solely on the basis of fantasy" I suppose, and decided I would be difficult if not impossible to treat. I knew that psychiatric orthodoxy as expressed by Dr. William Marshall before the Standing Committee was that sentences should be based on response to their treatment, not the nature of the offence. And I knew that Dr. Collins, in Canada's ultimate legal power trip of one man over another, is like an executioner too. He administers chemical castration to men convicted of consensual sex with adolescent boys such as Gordon Stuckless.

I started my cross examination of Dr. Collins by going over the main points of his child pornography theories which I saw as involving four things; fantasy, pornography, masturbation and harm, and how they related. The witness added collateral materials, grooming and cognitive distortions which I had subsumed under the other headings. I asked him if he was in general agreement with the ideas of Dr. William Marshall. Somewhat evasively I thought, he replied that he had some differences with Marshall on the question of sex offender registries. It seems that stress can predispose offenders to reoffend and Marshall believed that sex offender registries can add significantly to the stress they face. Collins prefers a hard line approach. I asked him if he knew Professor John Money of John Hopkins University. (Money is the author of fourteen popular and academic books stocked by the Vancouver Public Library dealing with sexual matters including pedophilia. Among his books are: SIN, SCIENCE AND THE SEX POLICE, 1998; LOVE MAPS, 1993; LOVE AND LOVE SICKNESS, 1980. He also appeared for the defence in POPERT.) The witness chose to construe the question socially and replied that he had never met the man. I had to rephrase the question and ask him if he was familiar with his writings and he said only in terms of gender research but not pedophilia. I then asked him if he was familiar with the works and theories of David Finkelhor, and if he was in general agreement with his ideas. The witness's replies seemed evasive and the judge asked him to clarify what he meant. I repeated the question about being in general agreement with Dr. Finkelhor and Dr. Collins said that he had contributed to the literature in terms of looking at the impact of harm to children but he was not familiar with all his studies. He then said he had some of Finkelhor's studies in his briefcase and produced one from the Journal of Child Abuse entitled "The International Epidemiology of Child Sexual Abuse". This is a cross cultural study which purports to show that child sexual abuse is an international problem, it is found everywhere. This study is based on the assumption that Western values and standards apply to foreign cultures. It sounded like moral imperialism. On this basis we would find that child sexual abuse is universal in some societies and normal in many others although it is not seen as such. Dr. Collins was being very careful not to commit himself.

I then proceeded to ask him about Dr. Theo Sandfort and Dr. Fritz Bernard. Dr. Sandfort is Co-Director of the research program of the Department of Gay and Lesbian Studies at the University of Utrecht in the Netherlands. In 1987 he published a study, BOYS AND THEIR CONTACTS WITH MEN (Global Academic Publishers, Elmhurst N.Y.) based on interviews with 25 boys in ongoing relationships involving sex with older men. Dr. Bernard is a clinical psychologist who has published several works on pedophilia. In reply Dr. Collins asked me if I meant the ones who had co-authored some works with the pedophile, Dr. Brongersma. It turned how that he had read some of their works years ago but said he believed they were pedophiles. He stated emphatically that their works "are self serving tracts" that "it flies in the face of all the scientific literature out there." The witness tended to label and condemn rather than refute those he disagrees with. He felt Sanfort's unique study was tainted simply because the boys were contacted through a pedophile organization. How else?

Difficulty of Research

It is now all but impossible to conduct research on ongoing relationships between adults and minors. If the subject was not such a big issue there would be little need for research. In recent decades a strident pedophobia has emerged in Western countries proclaiming that all such relationships are exploitive and abusive. This increases the difficulty of carrying out studies. It is a melodrama of good guys and bad guys, predators and victims. This pedophobia fuelled the police zealotry in London and Martensville which harmed a lot of people including children and adolescents. Research carried out by the sex abuse industry tends to be results oriented often with funding in mind. Distinctions are often conveniently obscure. Epidemiological studies and retrospective studies based on years later accounts, often produce the "wrong" results. Interviews with men in Kingston Penitentiary or under some legal duress apparently produce better results. In the uproar following the publication of the KINSEY REPORT in 1948 the Institute lost its funding from the Rockefeller Foundation and was investigated and monitored by the FBI. Any researchers investigating childhood or adolescent sexuality not only have trouble getting funding but face harassment and sometimes persecution. David Sonenschein wrote in the Journal of Sex Research, August 1989, an article, "On having one's research seized". He gives examples of legitimate researchers having research data seized as "child pornography", and even being charged and convicted. In one extreme case a published research psychologist was fined $10,000 US and sentenced to ten years in jail. How to control the spread of AIDS among young people made sex research more urgent. However in the early 1990s the U.S. Government cancelled a major study of teenaged sex because asking kids about sex might give them ideas and the Health Secretary's policy was to advocate abstinence. It was also feared that the survey would invade privacy, offend morals and legitimize homosexual lifestyles.

More recently we have been exposed to the ludicrous situation surrounding, "A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples" by Bruce Rind, Philip Tromovitch and Robert Bauserman which appeared in a 1998 issue of Psychological Bulletin. A meta-study does not do original research but analyses and compares the results of previous investigations, in this case 59 academic studies in the field of child sex abuse. The authors found much pejorative terminology which confused wrongfulness with harm, inconsistent results, generally low reporting of perceived adverse effects from non family adult contacts especially among males. Family environment more than sex abuse correlated with long term adverse psychological effects. The meta-study was condemned as "junk" by "Dr. Laura" (Laura Schlessinger) the radio show host and newspaper columnists. She felt it was it was unprofessional, unconscionable and irresponsible for the American Psychological (not psychiatry) Association to give a forum to such inflammatory and dangerous conclusions. She defers to Dr. Finkelhor. It was not so much the study itself but the message it sent. In the U.S. reports of this study so outraged the child abuse industry that they got the U.S. House of Representatives to unanimously pass a motion condemning the study. It seems we not only have psychiatrists voting on scientific truth but politicians as well. How far have we come since the days of Galileo and Pope Leo?

Cognitive Distortions

The theory of cognitive distortions related mainly to the written word, and the more serious charges I faced. If my stories did indeed "advocate or counsel" sex with children this might well be because in the mind of a pedophile they might create or reinforce cognitive distortions that children wanted sex, enjoyed sex, or that it is OK for kids to have sex with adults. In a variation on the "community standards" approach it might be asked what a reasonable person would tolerate (not an another ordinary person but) a pedophile having in his possession. I also felt that the theory of cognitive distortions was politically dangerous but vulnerable to logical analysis. To begin with, in selecting or contriving the pejorative term "cognitive distortions" a conclusion is premeditated. It's another example of Newspeak. If we believe that they are indeed "cognitive distortions" then there's not too much else worth knowing about them. End of debate. This practice of loaded terminology is very common in some social sciences. There are clear and common English words that would serve more objectively. To me unorthodox beliefs and unconventional ways of looking at things would suffice. Do Muslims who believe in charging interest on loans have cognitive distortions? Would democracy be a cognitive distortion to a slave? Are sexual heresies cognitive distortions?

I asked Dr. Collins if he had once described them as "screwed up thinking". He had, but preferred describing them as very odd and bizarre thinking that pedophiles have. I asked him if they were the same as "sexual heresy"? He had not heard of the term. I then asked him, partly in view of the study he had quoted from, if cognitive distortions are cultural relative in that they vary from society to society. He said he didn't know and began to re-explain what they were. The Court interjected that he was not answering the question. He repeated that he didn't know but offered that it was certainly one of the defences that pedophiles use in respect to some Third World countries. I was surprised in view to his claims to expertise that he would proffer ignorance about the nature of cognitive distortions which were so central to his theories. I rephrased the question but he could not say if they were the same throughout all societies.

The cross examination was adjourned for ten days. In the meantime I would be cross examining Detective Waters which I discussed earlier. I felt that in the first part of my cross examination I had established the narrowness and intolerance of the witness's personal and professional viewpoint. While this was helpful it in no way cast doubt on his credibility as an expert witness in forensic psychiatry. I felt in the few days I had that I would have to get deeper into the literature in the field. Months earlier when I had been thinking about questions for Dr. Lois Jean Hlady, the Crown's expert on determining ages from photos, I had spent some time at the Woodward (medical) Library at UBC. I had in fact photocopied several articles from the Journal of Sex Research that I had come across including the Dr. Marshall's that Dr. Collins had entered as an exhibit to show that pedophiles use child pornography to incite themselves to sexually assault children. I returned to the Woodward Library but despite the help of the staff I could find nothing more that might help me. I wasted a precious day.

I went over the material I had accumulated, I spent time at the Vancouver Public Library reading, I analysed Dr. Marshall's article. I felt it was junk science, pseudo-science, but I couldn't understand all the statistical techniques, standard deviations etc. that he used and I needed to cast doubt on it. The definitions were not always clear and the classifications were confusing. I was smoking heavily again; tobacco is such a wonderful drug for clearing the mind and concentration, but horribly addictive. You can't just buy one or two cigarettes, it's illegal. I had to take care of my fragile health. I ate irregularly but well. I paced for exercise and was never more than a few steps from pen and paper when ideas occurred. Friends would drop by and we'd play backgammon, for a while it seemed I couldn't lose. An older friend, a suburban businessman would arrive with a six pack and give me pep talks. I needed also to relax and at the end of the day I would have a few tokes of the primo bud a friend had given me. While normally this would help me disengage and relax I was so immersed in what I was doing that it often sent me off on new and sometimes constructive lines of thinking and I would go back to writing. Some nights I lay awake with my mind racing.

When the cross examination resumed I asked Dr. Collins if there were important differences between pedophilia a hebephilia. He didn't believe that there were, and that the treatment was the same. The treatment would recognize no difference between a man attracted to fifteen year old girls and one attracted to five year old boys. If that were the case his treatment should work equally well on men attracted to thirty year old women. The treatment of course is simply to prevent the man from fantasizing about what turns him on. Would it work on bank robbers? Or smokers?

I asked him a number of questions about paraphilias. He did not know how they originated but said they could not, according to the literature, originate before puberty. (I later found that this is contradicted in DSM-IV) He said sexual orientation is not a paraphilia although he conceded that homosexuality was erroneously thought to be paraphilic but now it is not. This relates to the earlier discussion of the DSM. He said this doesn't apply to homosexual pedophiles because in psychiatry they are in separate categories. I then asked him if many homosexuals are attracted to people younger than themselves. He strongly denied that this was true. My own experience and observations suggest that many gays are attracted to younger people with maybe half of the relationships involving significant age differences. Youth is valued. I believe this is obvious to anyone with social knowledge of gay scenes. I also believe that many if not most heterosexual men are attracted to women several years younger than themselves and that there are good reasons why this is so including the preferences of many girls and women for men older than themselves. There are, of course, also gerontophiles who are attracted to the elderly, three have contacted me as a result of my case. The witness however saw the idea that many gays prefer younger partners as a "myth... perpetrated by pedophiles". He claimed that there was an advocacy group among pedophiles trying to link themselves up with the mainstream conventional homosexual community who don't want anything to do with them. An embarrassing fact for many respectable gays is that it was youth and boylovers that pioneered gay liberation in the 1960s and 70s. He makes indirect allusions to NAMBLA. I ask him bluntly if homosexuals are attracted to people their own age and he replies that there are probably more heterosexual than homosexual pedophiles. I didn't know how to deal with his evasiveness and ramblings. He said that because one is heterosexual it doesn't mean that they're attracted to little girls. He said phallometric (peter meter) testing proves this. So I asked him about former times (meaning within the last century) when it was common for adult men to marry girls as young as twelve, if that was pedophilic? He says we don't know because in "antiquity" people didn't live that long and views and mores were different. He sees it as another cognitive distortion of pedophiles: "Well doc, it was done in ancient Greece..." But: "We just don't accept that." To me it suggests that what he calls cognitive distortions are culturally relative, something he refused to admit earlier. I found his profound ignorance disturbing but I couldn't tell if it was constitutional or calculated.

Consent

We next got onto the question of consent when I asked him if young children of say five, eight years old could have fantasies with erotic content. He brings out a well known and very influential paper by David Finkelhor entitled "What's Wrong with Sex Between Adults and Children? Ethics and the Problem of Sexual Abuse" from the October 1979 issue of the American Journal of Orthopsychiatry. Dr. David Finkelhor is head of the Family Research Laboratory of the University of New Hampshire. He is recognized as a leading American authority on child sex abuse. In his book, SEXUALLY VICTIMIZED CHILDREN he defines abuse in terms of "social appropriateness" not in terms of the child's experience or the effects on the child. Finkelhor believes that children are victims of many sexual acts they don't even notice. He believes that it is wrong to interpret things like fondling and masturbation as lesser forms of sexual contact although he says violence causes trauma. He notes that only 25 to 33 per cent of incarcerated child sex offenders have a primary interest in children. He argues in the context of the family and easily generalizes from father/daughter incest to non family situations making no distinctions. The dealings of independent street youth with men, as in GRAMLICK and JEWELL, becomes essentially the same thing as a man forcing sex on his eight year old daughter. It is all child sex abuse.

Dr. Collins said that the core of Finkelhor's argument is that children are incapable of giving consent, and that his statement is generally quoted and accepted in the literature. I had already come across it a few times myself and knew it was popular with some feminists and fundamentalists. It is the foundation of psychiatric child abuse theories. The witness quoted it at length and I reproduce it here directly from the transcript:

"Because they are children they cannot consent. They can never consent. For this reason, sex between an adult and a child cannot be sanctioned under our moral standard that requires consent to be present... Can children give informed consent to adults? It is fairly evident that they cannot. For one thing children lack the information that is necessary to make an informed decision about the matter. They are ignorant about sex and sexual relationships. It is not only that they may be unfamiliar with the mechanics of sex and reproduction, more importantly they are generally unaware of the social meanings of sexuality... A child does not have the freedom to say yes or no. This is true in a legal and also in a psychological sense... The empirical fact that sex often causes harm to children is widely offered as the most compelling argument against such behaviour... Adults who take sexual advantage of children are notorious for their(sic) justifications they give and for their stubborn refusal to admit to any wrongdoing. No harm was caused they often say."

These widely separated excerpts from Finkelhor's article distort the author's meaning suggesting that either Collins did not understand the article or was attempting to misrepresent it. Dr. Finkelhor sets out to "criticize some of the more complacent arguments against sex between adults and children, and to suggest a sounder line of reasoning in support of such a prohibition." Finkelhor explicitly states in his article that "adult" means a person 18 or over and "child" means a prepubertal youngster. He is clearly not referring to adolescents. He even points out that he approves of sex play among prepubescent children and sexual experimentation among adolescents. His arguments make more sense with very young children although an approach through ethics would lead to similar if less rigid conclusions. Finkelhor rejects three common "intuitive" arguments against the idea of sex with children: "such sex is intrinsically wrong", "it entails a premature sexualization of the child" and "sexual encounters are clearly damaging to the child". The latter he claims is rather weak because it is based on an empirical, not a moral, foundation, and an empirical foundation that is far from absolutely established." He also further says that "harm is not sufficient in itself to earn condemnation." He claims that many normal activities may cause harm and trauma to children. Finkelhor then advances as a substitute for the "intuitive" arguments his consent based theory from which Collins took his excerpts. These are solely based on assumptions about the ignorance and incompetence of children rather than assumptions about harm. Finkelhor, the psychiatrist and scientist believes his consent theory about adult-child sex is "a great improvement" because, "It puts the argument on a moral, rather than empirical, footing." In doing so he makes his theory impervious to scientific and empirical challenge. By denying children autonomy he makes facts irrelevant. In practice his theory is not just applied to prepubertal children, as Finkelhor does, but also to persons up to eighteen who may in the case of males be at the peak of their sexual powers. There may be no better example of this misapplication than to the "children" in GRAMLICK and JEWELL and the boys, many being the same ones, in the Couture interviews. Collins was involved in this case.

I would like to mention one other study by David Finkelhor, his book NURSERY CRIMES, Sexual Abuse in Day Care. This is a meta study in the sense that he examines dozens of ritual sexual abuse daycare cases similar to the one Martensville. He uses sophisticated statistical analyses comparing the cases and he draws up a profile of the typical offender - a woman, and offers psychological explanations for this unusual result. The only problem with his study is the data. The cases it was based on, like the one in Martensville, have almost all collapsed with convictions being overturned and people released, a process underway before the book was published. NURSERY CRIMES is analogous to a study of murder based on the convictions of David Milguard, Donald Marshall and Guy Morin. The point is Dr. Finkelhor's gullibility and moral zealotry in pursuing this study long after serious questions about this iatrogenic hysteria had been made known.

The boys in GRAMLICK and JEWELL certainly believed they were capable of giving consent, of saying yes. They did not lack information. They certainly did not seem to ignorant of the mechanics of sex and in gay sex reproduction is not an issue. The boys were clearly aware of the social meaning of sex in their case which is why they did not want their activities exposed and were reluctant to co-operage with the authorities. The social meaning was that what they had done was "wrong". They denied they were harmed and resisted the attempts to make them out as victims although under pressure and offered what were in effect bribes some acquiesced.

But what more precisely is consent and when is it an issue? We do not usually think of consent if we agree to requests to eat, play chess or dance. We're either willing or not and merely agree or refuse as the case may be. Acts with no implications beyond the act itself do not involve consent. Beyond the mere fact of willingness, for consent to arise there are a number of factors. The act must have significance beyond the immediate situation or possible consequences in the future. Where some sort of commitment or contractual arrangement is implied, or the act has some symbolic or lifestyle significance consent may be an issue. We can never fully know the consequences of any act but we can have an idea of what makes consent an issue.

Sex, engaging in sexual activity, has traditionally been an area where the question of consent has been considered important. In the past the reasons for this, which generally applied only to females, was the dangers of pregnancy and the prospects of marriageability, all things involving the future for both the daughter and the family. If sex is a matter of immediate impact only with no future consequences either legally, physically or emotionally then consent beyond willingness is meaningless, it is like a shared workout for example. But we never raise the question of consent in other things which clearly entail coercion, pain and possibly trauma, such as when a child is spanked.

Should consent be viewed in terms of ethics governing interpersonal behaviour, situational ethics which would include the maturity and relative power of the individuals and possible consequences involved? Or is it a special case if certain acts are performed which are judged in respect to a moral code? It would be much simpler, more honest and healthier for society if the question of consent were treated as a purely moral issue. At least this way we will not be empowering a priesthood of professionals like Dr. Collins.

What can children consent to? Can an eight year old consent if he or she engages in sexual play with an age mate? Is consent an issue? Is willingness consent? This is not a problem for parents who accept that sex play is normal and nothing to be concerned about but it can however distress others. The latter think in terms of parents' rights which means greater legal control by them and the police over their children. Now if a twelve old can consent to sex with an age mate or even someone fourteen why can't he consent to sex someone twenty five or older. What is the difference?

Objections are made that differences in age create a power imbalance which makes meaningful consent impossible. This certainly can be the case with naive, sexually ignorant, attention hungry children including prepubescents generally. Even with older children a reluctant child who is persuaded by lies, enticements or teasing is not giving consent. But to apply it uncritically to all adult-child sexual activity, without examining the particular situation simply because accepted concepts say it must be so, in no way serves to protect children. The tragic results of the London "snarl" illustrate this. In terms of man-boy relationships it is true that men provide things the boys want which may be both social and material. It is also true that the boys have something the men like or want and boys are usually aware of this. Boys are not powerless and soon learn to negotiate as the background to GRAMLICK and JEWELL indicate. However, a man who conceals his interests and then acts upon them is behaving unethically. Boys should be prepared for any advances and they should warn each other that so & so is a FAG. The fact that man-boy relationships are usually asymmetrical is no barrier to mutuality and respect any more than most relationships which are complementary.

In terms of consequences where injury, trauma, pregnancy and disease are not involved the most important are those arising from prevailing attitudes and exposure. If something is "bad" then those engaging in it are likely to suffer especially, or only if discovered and exposed. The widespread neurosis and suicides resulting from centuries of campaigning against self abuse or masturbation is probably the most striking example. It can be argued that adult-child sex is harmful for the simple reason that society defines it as "wrong". This often operates through fear and some might argue the more fear the better. Some writers including Edward Brongersma see it as a powerful reason to avoid sex with children below the legal age of consent. It is certainly effective even if it is costly in terms of harm to both men and boys in particular instances.

Dr. Collins had mentioned that pedophiles were notorious collectors of child related material and pornography and that they placed great value on it. I certainly agree with him on that point. Many collectors do place a great deal of value on their pornographic collections some of which may be irreplaceable. I feel this is strong evidence for the argument that the courts are mistaken in putting a low value on the "right" to possess child pornography as they did in LANGER. In that case the value of child pornography was dismissed as, "a form of expression that can hardly be said to be crucial to the principles which lie at the core of s. 2(b)." This discounting of the value of porn is taken for granted and never questioned as it appeals to the most "base aspect" of men, that of physical arousal. This is a comment on sex as much as on pornography and skews the whole question of proportionality. I submit however that the value of something to society must take into account the value it has to individual members. It should not be decided on an abstract basis. The value to some would include the value of effective or enhanced masturbation, something of considerable interest to men without partners.

Using his classification of child molesters as preferential and opportunistic/surrogate molesters, I asked which would prefer child to adult pornography. Only the preferential offenders he said because the others are mostly incest offenders who do not usually use porn anyway. This classification system is based on Finkelhor's theories and looks at incest as a sub-category within each of the other categories rather than a distinct one itself. This classification seemed to cut across the classification of pedophiles, presumably the preferential offenders, that Dr. Collins had used earlier. I asked him if the different types of molesters committed different types of acts. He didn't know if the question had ever been addressed. I asked him if one type was more prone to violence. Again he replied he didn't know if it had ever been addressed. He said he had seen varying degrees of violence in incest cases which he partly defined in terms of penetration. I asked him if incest was the most widespread taboo in the world. He didn't know but said it was certainly a taboo. It began to appear that the only things he knew were what was in the psychiatric literature. This was from a prominent expert witness in the field. He again tied in collecting to pedophiles so I asked him if laws against child pornography were mainly directed at pedophiles. He couldn't say who the laws were directed at explaining that he was not a lawyer. I felt I could have provided him with some expert testimony.

I moved on to the use of phallometric devices or peter meters as they are commonly called. He explained that phallometric testing is another term for penile plysmography. I found that an interesting piece of trivia. The procedure involves attaching measuring devices to a man's penis, showing him different kinds of dirty and neutral pictures and recording the results. The technique was developed by Dr. Kurt Freund to help weed out homosexuals from the Czechoslovakian army but he also found it could measure age preference. Dr. Freund later came to Canada and worked with Collins at the Clarke Institute. Dr. Collins sees the peter meter as a good diagnostic tool to determine whether or not someone is a pedophile. He said earlier he could define pedophiles on the basis of fantasy alone. Phallometric testing assumes that porn can be used to induce fantasies and arousal. Results however can be faked by some men, and "it's usually pedophiles who do the faking." Dr. Collins said. Essentially I gather that phallometric testing doesn't diagnose pedophilia but is used to define it. If we think in terms of AIDS, a person who is HIV positive is defined by the presence of the virus in his system, he is diagnosed by various tests.

Having been somewhat surprised by his previous "don't know" replies I asked him if he claimed to understand the thinking and behaviour of pedophiles. He said there appeared to be different patterns to their thinking but that there was no typical profile. This didn't seem to be an answer to my question so I asked him if he had gained any useful insights talking to pedophiles. He said of course but I failed to follow up on this.

On many occasions when Collins did not or could not answer my question he would answer some other question and ramble on. I began to wonder if this was a technique he taught in his expert witness classes. I did not have enough experience or know how to control the witness and several times the judge had to remind him to stay on track. I appreciated this if only for the time saved. Another tactic that effectively interfered with my cross examination when I had a related series of questions to ask was that he would continue and partially cover future questions making it awkward to bring them up later. I wished I had some courtroom skills.

Dr. Collins was perhaps being shrewd in evading the questions about the increase in porn and any related increase in sexual assaults. From his very extensive contacts in the criminal justice system he could be expected to know a great deal about both. Given the fact that he has been hired by the Crown several times before one could argue that he was derelict not to know these things. Detective Waters is right, there has been a "tidal wave" of so-called child pornography on the Internet. The increase has been exponential and is still estimated as doubling each year. There has also been a huge increase in the number of households connected to the Internet. All this has been accompanied by a dramatic increase in the number of men, including of course pedophiles, who have for the first time been exposed to child pornography. Others who may have only seen child pornography, or had only a few items can now pick and choose from an abundance of child erotica and pornography. The question to ask in respect to the safety of children is what effect this abundance has had on the behaviour of pedophiles. Has it sent them rushing out into the streets looking for children to assault? Or has it merely improved their solo sex lives? For Dr. Collins to admit that there has indeed been a "tidal wave" of child pornography would undercut his "fuelling fantasies" theory. It would also question the basis of his clinical practice.

There has been no clear increase in child sexual assault that can in any way be related to porn. Collins, desperately I thought, postulated a delayed reaction. I suspect that he proffered ignorance to avoid betraying his theory. His theory logically requires that a massive increase in the quantity and availability of child pornography would lead to a substantial increase in sexual assaults. The fact that this hasn't happened casts fundamental doubt on his fuelling fantasies theory. It is not enough to say that some men may sometimes be incited to commit offences. I like to use the analogy of inflatable air bags in cars. It has been shown that these safety devices sometimes kill children and other small people. Is this a sufficient reason to ban them? Is the fact that air bags save many more lives than they terminate relevant? In the case of air bags common sense can prevail and modifications are being made but in the emotionally charged world of pornography with its deep ideological commitments this is not easy. This lack of evidence that porn harms kids may bother Dr. Collins but it is good news for parents and children.

Pedophile Profiles

The development of criminal profiles, another concept pioneered by the FBI, is part of their VICLAS system that Dr. Collins worked on. From my own experience of having known many pedophiles, or more accurately boy and youth lovers, I had the impression that a high proportion of them suffered problems such as alcoholism, drug dependency, paranoia and low self esteem, if only because of the opprobrium they face from society. I asked Dr. Collins if pedophiles were more prone to these problems than the general population. He was unable to say but said that they came from all walks of life and that there was no psychological profile for a pedophile and no psychological tests that could identify them. There is no cause or correlations worth knowing. They are, he claimed, as mentally healthy as anyone else and quoted from Dr. Marshall's book, SEXUAL DEVIANCE supporting his contention. "Their problem is they molest children." And according to him fantasies are what causes offending. He seemed to be arguing that pedos are not sick people, just people with wrong fantasies. There is no cure, just fantasies to suppress. Just as there is no psychological test to identify pedophiles in the first place there can be no psychological test to show improvement or any objective way to assess a man undergoing his treatment except through his fantasies. With the shortcomings of self reporting and peter meter results, decisions would seem to be in the hands of those treating them, like the doctor himself. A truly innocent man convicted of a sex offence would be at a great disadvantage. If he persisted in maintaining his innocence, or denial as it would be called, he might never be released under the proposals made by Dr. Marshall before the Standing Committee.

Still pursuing the idea that some of the problems that pedos face was due to how society perceives and treats them I tried to ask the witness if pedophiles were affected by sensationalist media coverage linking them to child sex crimes. I was thinking it might affect their self esteem. He replied that they use newspaper clippings as collateral material and said that cases get reported in the NAMBLA Bulletin. I felt he was being evasive again so I asked if he felt the coverage was sometimes sensationalistic? He couldn't say and I tried the same question a different way Dr. Collins replied, "I am not an expert in journalism sir." This was not an important point but I believe it illustrates how narrow and closed the witness's mind was. The judge didn't think it was very relevant either but it led to my next point, "Do pedophiles often feel that they are being persecuted?" He didn't think so, not more than other law breakers. He couldn't comment on whether they were more vilified more than almost any other group. He did not think they were maligned and again brought up their comparison with the Jews which he found odious. Keeping in mind his differences with Dr. Marshall over sex offender registries I asked him if expressions of public outrage and media sensationalism might not lead to offence inducing stress. He didn't think so.

To me the relationship between fantasies and masturbation has always seemed clear if not inevitable. To Dr. Collins fantasies were the driving force behind child sex abuse. I started by asking if masturbation was healthy, and if it could be therapeutic for older men. For him this all depended on the content of the fantasies. He agreed that masturbation is usually or always accompanied by fantasy and I asked him if some men required fantasizing about children in order to successfully masturbate. The witness did not like the question and said he couldn't understand it. After I repeated it he said they'd probably masturbate anyway, still not answering the question. The problem with men who masturbate as an alternative to offending, he claimed, is that they may offend, anyway. He doesn't want men to have fantasies that would enable them to masturbate if the fantasies involved children. If pedophiles can't masturbate without fantasies involving children then they shouldn't masturbate. In effect, pedophiles in his mind do not have the right to masturbate. This belief provides moral justification for castrating them, something he does chemically. But are children safer if pedophiles don't or can't masturbate? I was trying to conjure an image of pedophiles seeking victims as a substitute for fantasies and porn. Even the judge was having difficulty following this reasoning and asked his own questions. Collins replied that if pedophiles thought about sex with children they were automatically in danger of doing so. If, as he claims pedophiles are psychologically the same as others then women are in danger every time men without partners think about sex with them.

Thinking of Marshall's study I asked him, trying to confirm what he had previously said, if most child molesters prefer adult porn. He didn't want to admit that nor contradict himself so he talked about pedophiles being more incited by more graphic materials. I let him get away with changing the subject again but I was going to ask him about pornographic content anyway. In reply to a question Dr. Collins said he had studied the pornography collections of pedophiles. I asked him if collections were almost entirely of sexually explicit activity or simply nudes? He said he'd seen both. He refused to say which was more typical. I asked him if pedophiles preferred explicit to non-explicit materials. He said explicit material but he wouldn't say if this was true of their collections. He said explicit materials were harder to acquire suggesting they were under-represented in the collections he'd studied. Dr. Collins evasions and answers leave open the possibility that most "child pornography" and collections may be little more than nudist pictures. Leaving open the possibility of deeming most depictions of nude children as child pornography may explain the Standing Committee's last minute addition to the visual definition of child pornography. This definition combined with using the "eye of the beholder" as an aspect of the criteria for the deeming of child pornography would provide the flexibility and the freedom to enforce the law selectively against those they can label as pedos. Both Detective Waters and Dr. Collins support the idea that porn can be defined by who has it. When laws are officially enforced on the basis of who one is, not what one does, one usually thinks in terms of Blacks, Jews and Aboriginals.

Dr. Collins strongly supports the concept that photographic child pornography constitutes a "permanent record of abuse" although this might only be the case when a pedophile looked at it. Porn as a record of abuse has become a mantra repeated by all anti-porn advocates and is becoming definitionally entrenched in judicial decisions despite its lack of rational substance. He mentioned an article in the journal, Sexual Abuse 1977, called "Proof Positive: Pornography in a Daycare Centre" which he said looks at the effects afterwards. There was no suggestion that the pictures were more than simple nudes. I asked him if that included the effects on the children. He quoted from the study to show that the pictures of the pre-school children were "devastating, not because it is violent or less obtrusive, but because it creates an indelible record of a disturbing and humiliating offence". The existence of the material not its production makes it devastating? It is not clear how this works but in topics eliciting moral outrage such as child pornography it unnecessary to back up righteous statements with reasons. Under the permanent record of abuse definition of child pornography if an image depicts a nude child then nakedness must be the abuse depicted. If it depicts a boy with an erection then arousal is the abuse depicted. Are nudity, masturbation or sex play forms of abuse? Many, even today believe they are. This is the same thinking that fuelled the anti-masturbation hysteria of recent centuries that drove thousands of boys and young men to suicide. This approach can easily be used to harm children and wreck families. This occurred in R. v. SCHLICK where Dr. Collins himself testified for the Crown that the breast is a sexual organ in a politically charged case in a small Interior community.

Alternately it can be argued that it is the actual recording of the child that is the abuse, not what was recorded. Abuse is not necessary for abuse to occur. Things which are not abuse in themselves (many will disagree) such as nudity, arousal, masturbation and sex play with peers become abuse when recorded. The photos or videos are not evidence of abuse but the abuse itself. This basically MacKinnonite theory assumes "exploitation" to avoid the question of actual abuse in any meaningful sense. This is usually justified by ideologically postulating some externality such as a power imbalance which "proves" exploitation. This approach, rather than the simple permanent record of abuse is favoured by the police as it readily extends to the creation of porn by cropping, enlarging, collaging, morphing and other forms of computer manipulation where no abuse was involved in producing the original material. Anyone who has ever been photographed could potentially be made into a victim of child pornography and would probably be unaware of the fact.

The concern in the Proof Positive is mainly with parents and community standards or moral sensibilities. Collins concludes by stating that no parent would want a nude photo of their child in the hands of a pedophile confirming his relativist definition of child pornography. This question had arisen earlier, so I asked him if porn consisting of pictures of nude children is a record of abuse, whether the abuse was intrinsic to the photo or is it based on context. Collins firmly says it is context. Child pornography can lie in the eye of the beholder. Pictures can become child pornography by passing into the hands of a pedophile. He uses an example of a pedophile clipping an innocent photo from Japan Camera and using it abusively. Presumably the child is violated when the pedo gets aroused by the picture. Dr. Collins is one short intellectual step from the voodoo concept of harming someone by sticking pins in "their" doll.

Following up on the permanent record of abuse idea I asked the witness if the head of one child, say some well known child TV star is realistically placed on the nude body of another, unidentifiable child if both of them are abused. (Such images are widely available on the Internet) He thought both children were abused especially the unidentifiable one because of its nudity. This would suggest that some child stars like Aaron Carter, the Hanson brothers and McCauley Culkin are abused thousands of times a week. He said some pedos cut the faces out of pictures so the subject can't be identified but that it was still pornography and a record of abuse. It was not clear if the child was more or less abused if its face was not shown. Another point, not mentioned, is that most pictures of young children after several years would no longer identify them. I was interested to learn that the endlessly repeated permanent record of abuse concept was not dependent on the subject being recognizable but had a life of its own. It would seem that the child is not violated in his/her own right but in service to society's moral sensibilities.

Dr. Collins brought up another article which I never had time to check, "The Influence of Child Pornography on Sex Crimes:" by Murrin and Law which reputedly supports Dr. Marshall, and in facts quotes him. In professional journals this incestuous business of researchers quoting each other is common. After quoting from another article, more Marshall fans, he brings up the London Porn Ring cases referring to a new report by Project Guardian which was the name of the police operation in the crack down. Here is proof, he claims that it is not just small children that are harmed in making porn but adolescent boys as well. The proof he claims is in the victim impact statements. At the Gramlick and Jewell, and related trials the boys who reluctantly if at all accepted victim status were not permitted to make their own victim impact statements. What they may have wanted to say was not what the London social service people and the police wanted the court and the public to hear. Victim impact informations were prepared by therapists who weren't getting the co-operation they wanted from the boys. The boys may have been persuaded to sign these informations just as were being pressured about other things. Their sense of honour was being ground down. Now their victimization by the therapists is recycled as victimization by pornographers. It seems that the victim impact informations prepared by the therapists have become a permanent record of their abuse by the system! Here we have it as official history, now who would dare question the suffering of those poor, porn abused boy victims in London.

I ask him if he is referring to cases of Gramlick and Jewell. He doesn't remember the names but tells the court that he was involved in a number of aspects including the search warrants and with collateral material. Presumably he was wearing his policeman's hat. He said he spoke to officials who interviewed the boys and set up treatment teams. All this victim and abuse talk got me carried away and I started referring to contradictory press interviews with the boys. I was out of order and the judge stopped me. I can only ask questions.

We returned to the "fuelling fantasies" part of the theory of child pornography. I was thinking of the still low esteem of masturbation vis-à-vis "the real thing" when I asked Dr. Collins if more positive attitudes towards masturbation would reduce sexual assaults. He had no answer. I asked him in respect to men who use porn to masturbate if they prefer fresh porn or can they use the same material over and over again. He didn't know. He couldn't say if men get bored with the same stuff. He goes on in a revealing way to explain why he doesn't know: "I'm not... really never professionally taken interest or studied masturbation. I only have knowledge that pornography in terms of pedophiles can be used as masturbatory aid and that that's been studied and been reported by pedophiles. But to get into greater details, I would have to say I wouldn't know." Masturbation is perhaps the critical component in his theory of child pornography. It is only when porn does not lead to masturbation that there's a potential problem. His disdain for a subject so close to his supposed expertise amazed me. For him to assert, and it sounded almost like a boast to me, that he is proudly ignorant about matters central to his work is an admission of incompetence. I questioned him further and he referred to his treatment, "My focus is that they get rid of pornography period." I do not think that the witness was being untruthful, only that he is such a moralist that he cannot extend his curiosity beyond what may be necessary to accomplish his prohibitory goals. This is why he cannot even contemplate the internal distinctions and characteristics of fantasy and pornography. He is not interested in what turns men on, only that images of child sex, nudity or boundless collateral materials may do so. He has a zero tolerance mentality.

Cognitive Distortions

Dr. Collins agrees that cognitive distortions are the pedo's rationalizations and justifications for deviant behaviour. I asked him if didn't everyone to a great extent rationalize and justify their behaviour. He would only admit that some people do to some extent but he is using the term scientifically in the area of sexually offending against children. He saw cognitive distortions as applying to paraphiliacs. I asked him if a cognitive distortion can also be a true fact. He didn't believe so. They were offence facilitating beliefs like for example, "sex with a child is healthy for the child". To test what he meant by cognitive distortions being untrue I gave him a few statements that I felt to be true and asked him if they were cognitive distortions: "One, most boys who have entered puberty are capable of enjoying sex." He didn't know if the statement was a cognitive distortion but then he said it would depend on who believes it. It's a cognitive distortion if a pedophile says it but not if said by "an adolescent male who is dating and he's beginning to have exploratory sex with an age appropriate individual". I tried other examples with similar results. Truth, according to Dr. Collins, does not necessarily lie in statements themselves but in the minds of speakers and listeners. Some statements would appear to always be cognitive distortions. I tried several quotes all expressing tolerance for intergenerational sex from well known people; Jane Rule, Michel Foucault and Allan Ginsberg. The witness labelled them all cognitive distortions. The idea that science (psychiatry) can assign the truth of any meaning on the basis of whether a man is a pedophile or other paraphilic or not is truly revolutionary. It's all the more amazing given that he claims that pedophiles have no profile and aside from self reporting can be identified solely, and perhaps only, on the basis of his fantasies. Dr. Collins makes no claims to being a philosopher or theorist. He also explicitly states that he is not a researcher, an expert on the Internet, student of history, a journalist, an ethicist, an endocrinologist, a judge or a lawyer.

I asked him if cognitive distortions change over time. The witness replied that they can get some pedos to change theirs. I felt he was being evasive again so I told him I meant historically, are they historically relative? Dr. Collins replied that he was not a student of history, but he knew that some pedos use examples from antiquity to justify the sexual abuse of children. I then asked if pedophiles should be allowed to state their positions publicly. Collins replied; "It's a tough question. I would... people have a right to express their views, but I don't have a good answer for you. I am offended, or at least I'm concerned when these views promote the sexual abuse of children, so a balance has to be reached and really as a psychiatrist, I can't give you a professional opinion as these things are determined by other people... As to what limits on freedom of speech need to be put in place, you know, is it equitable to hate crime?Perhaps so and I don't like hate crime so... but I haven't really given it much thought, to be honest with you Mr. Sharpe." Mr. Schultes broke in at this point to point out quite rightly that what the witness thought about free speech was not relevant to his area of expertise. Perhaps it was a cognitive distortion on my part to see some irony in what the prosecutor said. The equating of pornography with hate is a radical feminist idea. The slogan, "Pornography is the theory, rape is the practice" popularized by some feminists is based on this idea. The "hate" implied is not that the maker or consumer of pornography actually hate women, or children, as in the case of hate literature directed at racial or ethnic groups, but rather that in the material "objectifies" or "dehumanizes" the subject. Toronto Police Chief Julian Fantino is promoting this concept. It seems that any ideological construction that leads to the desired negative conclusion is valid in the minds of many anti-porn advocates. Logic and reason become tools for the oppression of women and children. "Child lovers" are ipso facto "child haters". With children there is the awkward fact that while biological men have never been women they have always been children.

Grooming

We moved on to the concept using child pornography to "groom" prospective victims of child sexual assault. I agreed that some child molesters would find child pornography useful to sexually seduce some children. I think that child pornography in the hands of a non pedophile molester would be most worrisome because they would not be using it for their own personal gratification. As an aside I would mention that the kiddieporn magazines of the 1970s often show children looking at other kiddieporn books. This is sometimes offered as proof of the use of child pornography in grooming. The truth may well be that that was the only porn the pornographers had around because that was what they made or enjoyed themselves, and including it helped to sexualize the image for the consumer. The boy patiently being fellated by another would probably have preferred a comic book.

I could see that for pre-adolescent children pictures of age mates engaged in sex, particularly with adults could tend to normalize such sexual activity for them. For older kids especially boys, the purpose of using porn would not be to induce what might be termed cognitive distortions but to get them sexually aroused. The most effective, easiest to get and safest porn to use would be adult XXX from Red Hot Video or the adult section of your typical video rental store. Given the risks, costs and general poor quality of child porn videos I cannot see them as significant grooming tools for adolescents. This does not mean that adolescents would not be keenly interested in seeing porn made with kids their age. In what is known as the MacGowan case two boys of 14 years and one 19 made a sex video of themselves shortly before the child pornography was proclaimed. A copy came into the hands of the police and the boys were arrested and victimized by those supposedly there to help them. An audio of this sex video was played on CBC Radio's IDEAS program. The boys can be heard wondering what to do, talking about various things and apparently having a good time. They even talked about using condoms. In one of my BOYABUSE stories two teenagers take naughty polaroids of each other only to have them immediately discovered by the maid who becomes aroused and unsuccessfully attempts to seduce one of the boys. Incidentally there is also some porn made for gerontophiles using elderly people.

I had thought about the question of grooming that, instead of focusing exclusively on child pornography, it might be more profitable to look at just what would be most effective and most likely to be used in that context. When I asked Dr. Collins if adult XXX porn would be more effective for "grooming" adolescent boys he didn't want to agree because, "I don't believe that grooming should go on, period." I hoped that the judge could see that I was getting statements of moral principle in reply to questions within his technical expertise. I asked him if he felt alcohol would be more effective than child pornography for seducing adolescent boys. He said it was more popular and that he had been involved in cases with varying combinations of alcohol and pornography. I asked him if he thought that crack cocaine would be more effective still? I have personally seen the devastation that crack wreaks by turning boys into coke sluts and eroding their sense of honour. Dr. Collins couldn't answer and gave the same reason that it shouldn't be done, period. "It's a false argument, sir." Well, I asked him, are the problems in the things themselves, or their misuse? "It's both." And then he recited a credo: "I don't feel that there should be child pornography, and I don't feel that child pornography should be used to groom children to have sex with adults, and I do not believe that children should have sex with adults, or that adults should prey upon children for sexual purposes." I asked him if this was a moral position? He replied: "This is a psychiatric position as well. As a forensic psychiatrist." I believe him.

Aspects of Pornography

I tried through a series of questions to get Dr. Collins to discuss specific aspects of the effects of pornography but he either did not know or did not want to say. I suspect the former even though his thousands of sessions with pedophiles provided a unique opportunity to learn about the relationship between types, forms and availability of porn, and the behaviour of the offenders who use it. All he says is that pedos like more explicit porn but offers no evidence even though he has reviewed many collections which could have provided him with some insight. His profound belief that child pornography is morally wrong may explain his obvious lack of intellectual curiosity to find out more.

I asked Dr. Collins if he agreed with Detective Waters that there has been a "tidal wave" of child pornography, particularly on the Internet. The witness was very reluctant to agree or concede that there had been much of an increase, "I would imagine, to hazard an opinion, that there's probably a greater amount because of the Internet." He did concede that porn was easier for a pedophile to collect but he couldn't say if that meant there was more collecting. I suspect he had guessed my next question which was if there had been a corresponding increase in child sex abuse as a result. That there actually has been an increase, almost an exponential increase, seemed to me obvious. He couldn't say. When he finally did answer the question about the increase in sex abuse it was in terms of his own practice which had modestly increased. This is from a man who frequently lectures and trains criminal justice personnel on child pornography and is in close contact with people in the field. Surely he would have a good idea yet he was claiming ignorance in his field of expertise. I felt he was trying to deny the obvious in order to protect his theory. I had put him in an awkward situation where he couldn't admit to the vast increase in the availability of child pornography in the light of no significant increase in abuse attributed to it. He hints that better investigations, understanding and treatment may have made a difference but: "Whether there's a causal relationship between the pornography and the abuse that's out there, I couldn't say."Dr. Collins had just spent hours giving the court his theories of how child pornography caused child sex abuse and now he can't say if there's a causal relationship. He falls back on individual cases he knows where offenders had collections, a correlational not causal situation. The police assume that where offenders have collections that is what caused the offence. He mentions better policing and the need for research. When pressed if there a simple correlation between child porn and overall child sex abuse he thinks "yes". But with the Internet he thinks there needs to be some studies and I'm not sure what he means but then he adds, "I'm not an expert on the Internet." He had just been a participant at the large international conference hosted weeks earlier by Detective Waters. Dr. Collins had given a presentation on Internet pornography. The Court asks if he has basis for thinking that there's been an overall increase. It takes several questions by the judge before the witness admits that he's basing his answers on his own limited practice.

We take a short break at this point. We have been working very late because of the witness's other commitments and I am ill and exhausted. I lie down on a bench in the corridor and Dr. Collins sympathetically asks me how I'm feeling. He advises me to rest sitting with my head bent forward. He seems genuinely concerned. I would have preferred to have had another day to finish my cross examination. I saw his testimony and credibility as very important. I had found a number of social science sources that challenged some of Dr. Collins's basic claims and beliefs about the harmfulness of any adult-child sexual contact and thought if I could put some of their points to the witness that I could weaken his arguments. I had made photocopies of articles by Allie Kilpatrick, Paul Okami and other academics. I was unable to do much with them as the witness had simply not heard of them and I could not make my points. I wished that I could have had my own expert witness so other materials and theories could have been brought to the attention of the court. I don't think it would have been difficult to refute the more absurd pretensions of Dr. Collins.

There were several things I wanted to do but didn't have the energy for. I was tired and weak, But I decided to tackle the Marshall study that the witness had entered as scientific evidence to back up his claim that child pornography incites pedophiles to offend. Dr. Marshall's study was based on interviews with volunteer sex offenders who gave answers based on autobiographical recall including their deviant fantasies. It was more than just self reporting Dr. Collins pointed out. The conclusions being that some men excited by child pornography sometimes commit offences against children. The evidence was in the results of the study. I am basically sceptical of how honest people in that position are, or want to be. To begin with I didn't think that the subjects in the study were "volunteers" in the usual meaning of that word. I asked the witness if Dr. Marshall believed in compulsory treatment. He couldn't say. I read from Dr. Marshall's testimony before the Standing Committee when asked if sex offenders should be required to take treatment, he replied "Yes. If the contingencies are there, then we don't have to require it, because they really have no choice. More than 90 per cent of them... volunteer for treatment simply because of the contingencies the face if they don't." I saw it as a unusual definition of volunteer so I asked Dr. Collins, are men acting subject to contingencies voluntary or not? He replied that they would have to agree and wouldn't be denied treatment if they didn't. He didn't think the men in Marshall's study were subject to contingencies. I quoted from Marshall's study: "Approximately 69 per cent of the patients were at some point in the judicial process; ie. under investigation, charged, convicted or on parole or probation but none were incarcerated or hospitalized when they were assessed." What are contingencies anyway? He said that the ethical committee and the scientific committee at Queen's University would have reviewed his proposal and that they are very strict about such things, "so if Dr. Marshall says they're voluntary, I can guarantee you, sir, they are voluntary." The witness had earlier said that pedophiles do not seek out treatment on their own because they don't believe they are sick. Referring to treatment I asked if the ones who were arrested to begin with and who did volunteer for treatment would be representative of all pedophiles. I was thinking that the more clumsy and abusive pedophiles would be more likely to come to attention of the courts. Dr. Collins felt that the sample was representative pointing out that 80 to 90 per cent of the offenders in his programs are "of the non-violent ilk". That was interesting. Dr. Marshall's "child molesters" are classified as heterosexual molesters, homosexual molesters and incest offenders. He never uses the terms pedophile or pedophilia and it's not clear how many are pedophiles in his sample although the subjects were given phallometric tests to determine gender and age preferences. It may be assumed that few of the incest offenders but perhaps most of the homosexual molesters were pedophiles but Dr. Collins could not sort them out. The study involved questions about "deviant fantasies" and masturbation and I questioned the results which showed which showed some child molesters masturbating without deviant fantasies. The witness dismissed the anomalies saying, "So they claim, which is the problem with the self reporting study to begin with", explaining it could mean an underestimation. Yet the study, and presumably its conclusions were based on self reporting! I asked if this didn't cast some doubt on the conclusions? The witness seemed indignant, "Not at all... I can't keep repeating myself, sir; he hadn't sub-categorized the heterosexual group so I can't comment." He seemed to imply we should take the conclusions on faith. We discussed a few other topics but I was unable to continue after much longer. The judge noted that Dr. Collins had been long winded. I wondered if this was another technique that he taught his students in his expert witness classes. But it was not practical to arrange for the witness to return on another day and that was the end of my cross examination of Dr. Peter Ian Collins.

At times I could feel fear. Here was a very powerful man. He is chemical castrator. He is taken very seriously at high levels of government. He can decide if prisoners are recommended for release and like Marshall he probably believes such decisions should be in the hands of psychiatrists, not panels and the courts. He felt that resistance to psychiatric treatment could, or should get one designated a dangerous offender. The truly innocent and stoutly heretical thereby being disadvantaged. He has a unique role in the power he holds over other men through the response to his treatment and the weight of his professional opinion which I had come to believe was narrow, biased and unsupported by hard evidence. A man who confidently labels paintings and photos of breasts as offence facilitating. A man with theories he promotes; an advocate, a trainer, a witness, a therapist, a judge and executioner wearing a professional's suit, shirt and tie. No doubt he could persuade men to "volunteer" for chemical castration given the contingencies. I felt a bit like Winston Smith in the presence of O'Brien in 1984. And he had already deemed me highly likely to reoffend.

His theories of child pornography if they apply at all only work with his stereotyped pedos who may be quite atypical. They could seem more common to clinicians. A lot of things work with desperate men. The offender's role as defined by the theory may be seen as an effective one to assume in order to get good treatment reports. The attempt by psychiatrists to impose their orthodoxy on society is similar to that of the Christian Church to impose its own orthodoxy on Europe after it had finally overcome the influence of indigenous religions around the beginning the last millennium.

To Collins the question of pornography distinctions is answered by his claim that pedos shouldn't fantasize, period. Therefore questions of whether children would be safer if pedos had some kinds of "porn" but not others cannot even be discussed.

THE SUMMARIES(November 14th, 1998.)

The Prosecutor's Summary

Terry Schultes based his submission on R. v. Paintings, Drawings and Photographic Slides and basically wanted the court to adopt LANGER in its entirety. While this decision was not binding he claimed that it is a very persuasive authority: "I submit that this court can resolve this entire Charter application by adopting the reasoning in LANGER." He claims that this decision considered the constitutionality of all of s. 163.1 and that the Charter justifications for the law under s. 1 were "fully considered." LANGER which I discussed earlier was an expression rights versus equality rights case, phrased in terms of "protecting society's most vulnerable group, its children from the lifelong harm caused by sexual abuse". Mr. Schultes pretty well ties himself down to Justice McComb's pronouncements and revisions to the meaning of English words. He accepts the mantra that depictions of actual children engaged in sexual activity is expression conveyed via violence and consequently not protected. It is violent because child abuse is an inherently harmful activity. Would gross neglect, also a form of abuse, therefore be a violent act? He implies that violence is intrinsic to illicit sexual acts involving children rather than a characteristic that may or may not apply to such acts. Logically then such acts cannot be non violent. Common sense? He would also probably accept Dr. Collins' claim that 80 to 90 per cent of his child molesters were of the "non violent ilk". He concedes that depictions of children engaged in legal sexual activities and works of the imagination are not violent and therefore their prohibition must be justified as a reasonable limitation of expression under s. 1 of the Charter. This he sets out to do. He says that my case, notwithstanding the different subject matter, is similar to the challenge in LANGER.

Section 1

The section 1 analysis for determining the constitutionality of a law is set forward in the steps developed in R. v. OAKES. The inputs however are based on subjective evaluations. Schultes quotes at length Justice McComb's summary of the Oakes test:

(a) it must be proscribed by law (that is, it must not be so vague that it fails to provide an intelligible standard for discussion);

(b) it must have legislative objectives that are pressing and substantial in a free and democratic society, and which are sufficient to warrant overriding a constitutionally protected right; and

(c) the means used must be proportional or appropriate. In assessing this proportionality, the court must weigh three factors:

(i) whether the measure is carefully designed to achieve the objective without being arbitrary, unfair or based on irrational considerations. This is often called the "rational connection" test;

(ii) whether the means chosen impair the freedom in question as little as possible, having regard to the context and surrounding circumstances (the minimal impairment test); and

(iii) whether there is proportionality between the effects of the measures and the identified object (the proportionality test).

Prescribed By Law

In respect to (a) I had not claimed that the sections I was challenging were vague, to me they were all too clear and overbroad which was part of my challenge. "Advocates or counsels" to me meant positive portrayal. This certainly seemed to be the police interpretation. Dr. Collins assumed it extended to "pseudo-scientific" theories that conflicted with his own. In the visual definitions however vagueness is a question and Schultes, repeatedly referring to Judge McComb, defends the terms; "who is or is depicted as being under the age of eighteen years:", "explicit sexual activity", "for a sexual purpose" and "artistic merit". He says that the Supreme Court of Canada has been reluctant to strike down laws on the basis of vagueness and quotes from LANGER and BUTLER. He says that s. 163.1 is more precise than other sections of the Code and would cover my writing. Mr. Schultes submits that I would have no difficulty identifying the type of material caught by the legislation.

The question of just what is prohibited in terms of visual depictions of is not clear. Can kissing be a sexual activity as defined in ss. (1)(a)i. Would a photograph showing from the waist up two twelve year old boys passionately kissing be interpreted as explicit sexual activity. It would likely appeal to many pedophiles and some might find it arousing. Is having an erection or self touching a sexual activity. The definition, ss. (1)(a)ii, where the "dominant characteristic" is the depiction of a "sexual organ" for a "sexual purpose" is far more problematic as Viktor Schlick found out. While Schultes does not attempt to interpret them at this point he needs justify both definitions and in doing so he relies on Justice McComb who viewed them as equally exploitive. McComb in turn was adopting the opinions of Drs. Collins and Marshall. In his attempt to be consistent and justify both sections as "equally harmful" Schultes states: "In my submission, the way these are defined is to treat, and reasonably so, to treat both types of depictions as harmful in the same way. So in the Crown's submission, there isn't a helpful distinction to be drawn between the first one, which shows a person in an explicit sexual activity, or something where the dominant characteristic is showing the sexual organs or the anal region of a person under 18.... they're equally harmful and they're equally intrusive, in that they are the ones which require an actual participant". The Court had some difficulty accepting this. Would a depiction of a nude that some might think of as naughty be equal to one of a violent rape? It was fairly clear from the evidence that both Detective Waters and Dr. Collins have expansive interpretations perhaps only exempting nudes in certified art. The forensic psychiatrist could even see harm in bathtub photos. Mr. Schultes, specifically rejecting that example and noting that they are not lawyers, cannot accept the witnesses' broad definitions which is a problem for him as he uncritically accepts their other evidence. Additionally the Court is having difficulty finding nude depictions harmful. In order to justify the harmfulness of ss. (1)(a)ii depictions of real children he advances a narrower interpretation: "And I say the sexual purpose has to be intrinsic to the depiction of a sexual organ, the genitals or the anal region of a person under 18." Abuse or exploitation would presumably have to be evident. Applied to the material in my case hundreds of impugned photos would be reduced to a handful at the most. Porn that depicts only genitals is rare and sexiness does not require the depiction of genitals in any case. As for sexual purpose, two pictures of mine, which Detective Waters twice goes out of her way to mention, and referred to by Schultes show a boy's genitals with a ribbon tied around them. Out of a hundred odd pictures of the boy these were, I believe, the only close ups of his genitals. On one of the prints I dodged (blurred the edges to form an oval) in the darkroom to create an old fashioned cameo effect. Now I regarded these pictures as whimsical, cute perhaps but certainly not sexy in the sense of arousing.

As for sexual organs, if breasts can be sexual organs, could mouths also be included? They are used as such. Consider a photo of a young girl's face with her lips pursed as if offering a passionate kiss or oral sex. Some men might find it a turn on.

Pressing and Substantial Legislative Objectives

In respect to (b) above, pressing and substantial legislative objectives, Mr. Schultes lists the three purposes enumerated by Judge McComb: protecting actual children from the abuse that takes place in production, protecting these children from further abuse through the circulation of child pornography and protectingall children from the indirect harm of child pornography. He sees my challenge as directed at the latter. The prosecutor speaks of the "inherent abuse in capturing the actual acts of sexual exploitation". The Court asks if he is talking about explicit sexual activity or children in the nude. Mr. Schultes says "both", if the result is child pornography. The Court has difficulty seeing nudity as abuse and Schultes appears to backtrack, saying the Crown witnesses who had implied as much are not lawyers and that their definitions were not child pornography under the law. He uses the child in a bathtub example. I was confused. He refers back to the definitions in the law, ss. (1) (a) i & ii, and says that abuse must be inherent in the photograph. He strives for a reasonable and consistent interpretation which obviates the question of the eye of the beholder or the use it may be put to by the possessor.

This required refining what would be included in each definition. This is easier with explicit sexual activity ss. (1)(a)i than with the depiction of organs, ss. (1)(a)ii. Following Justice McComb, who was uncritically accepting Collins, he had to claim both equally harmful.

Mr. Schultes does not dwell on the matter of circulation but quotes Detective Waters at length where she testifies about the prevalence of child pornography including materials that "justify and glorify sexual activity with children", explicit stories and "pseudo-scientific articles and journals". We are back to cognitive distortions. He quotes McComb where he dismisses the inconclusive testimony of defence witnesses at that trial and relies on the opinions of the clinicians, Drs. Collins, Marshall and Barbaree. He repeats the Collins' theory of child pornography and claims that even comic strips give rise to the same risks as child pornography involving real children. The comic in question, Boiled Angel which consisted of funny looking humanoids, could presumably could be used to convince children that sex was normal. Fantasy and reality are equated.

To emphasize the pressing and substantial nature of the legislation Mr. Schultes makes an indirect quote from another decision which quotes Justice Finlayson in GRAMLICK and JEWELL; "The conduct underlying these convictions discloses a subculture that is unsettling and repugnant. These appeals confront the court with the pressing issue of how to deal with offenders... who prey on young persons... for no purpose other than their own sexual gratification." The subculture was not before the court, neither Justice Finlayson nor the trial judge ever viewed the impugned videos, and I was surprised that Schultes who is generally a fair and reasonable prosecutor should recycle such pejorative moralistic garbage. It may simply be that any illicit sexual activity involving minors must be assumed to be in a context lacking any but the most base and selfish motives. He then repeats the market arguments (which do not apply in my case) and urges the court to accept the decision in LANGER.

While agreeing that the Supreme Court has "required nothing approaching a causal link in a scientific sense" between depictions and harm the Court mentions there is also common sense: "And that's concerning me somewhat because although I can see the reasoning that a photograph of a nude boy that focuses on the genitals may be particularly inviting to a pedophile and part of the pedophile's process of... fantasy in masturbation, I'm having difficulty in going the next step..., that there's any evidence or common sense that says that those photographs are going to incite the pedophile to do something that the pedophile isn't-because he is a pedophile, isn't quite prepared to do in any event." He is not ready to accept the evidence of the experts on that point, that in effect such depictions solidify cognitive distortions. Mr. Schultes claims that Dr. Collins' evidence is compelling. The Court is prepared to accept that explicit materials can be used in grooming. There has never been to my knowledge an attempt to quantify the pressing and substantial nature of the harm of child pornography and it would be very difficult to establish.

Proportionality

In dealing with the question of proportionality Schultes points out that the Supreme Court has ruled that not all forms of expression lie at the "core of the values that are sought to be protected". He quotes from KEEGSTRA where the court ruled that "hate propaganda was only remotely related to "core" free expression values and that in BUTLER pornography was entitled to a very low level of protection. Incidentally Dr. Collins borrowing from extreme radical feminist ideology equated child pornography with hate speech. Mr. Schultes also uses the R.J.R. MacDONALD decision dealing with tobacco advertising which also was held that to be of low expressive value. That decision accepted the argument on the basis of common sense that reducing advertising would reduce consumption when the social science evidence was inconclusive. He seems to be arguing that child pornography is an advertisement for sexual assault. But then could people consume tobacco advertising as a substitute for cigarettes? Common sense can be used to argue that porn is a substitute rather than incitement for sexual assault. As for the value of any expression I suggest that it should be based on its value to those making use of it, not to those who don't. If pornography is overwhelmingly used for the purpose of masturbation then it needs to asked what is the value of masturbation to the person who uses it. If masturbation contributes to health, as many claim, then pornography, including child pornography could be said to serve a medical purpose. Similar arguments have been made about the medical use of marijuana. The legislation actually provides for a medical a defence.

The Rational Connection Test

Approaching the question of "advocate or counsels" The prosecutor says that written material or visual representations "must advocate or counsel sexual activity with children that would be an offence under the Criminal Code. So written material that simply describes or narrates would not violate the section." It "must be promoted as beneficial or good or as something that should happen". This begs the question of where a depiction becomes promotion. Is a positive portrayal promotion? And isn't "promotion" a stronger term than "advocate"? Would a story depicting unwelcome and brutal sexual activity escape the definition while a story depicting an affectionate relationship be covered by it? Can definitions be based on a story's outcome or plot? He lists prohibited sex acts including those where an adult is in a position of authority. On this basis one could promote sex between a man and a fourteen year old boy if they were casual acquaintances but not if the man were the boy's teacher or coach. This also means that it would be legal to argue against but not for such activity.

Mr. Schultes, never deviating from LANGER raises the question of the defence of artistic merit. I did not raise this question at the voir dire although I intended to do so at the trial proper. He claims that it is a "very onerous test for the Crown." in that in that it did not require a great deal of artistic merit in the opinion of the artistic community. However Justice McComb imported the test of community standards from the obscenity law as developed in BUTLER. If the Crown could show that the material was harmful as perceived by public opinion then the artistic merit defence could be overridden. As I said earlier it is questionable if public opinion which is both fickle and malleable is superior to an arbitrary but consistent "moral" standard. In any case it depends on the context of the material. It was as an example of the vagaries of community standards that I referred to the Marquis de Sade's 120 DAYS OF SODOM, available in mainstream Vancouver bookstores. Presumably Canada Customs allows this book which is far more gruesome than any of my stories to be imported into Canada. It is considered a classic by some authorities. While other written material seized from me was said to meet the definition of child pornography it was only my stories that I was charged with. The Court questioned Mr. Schultes on Dr. Brongersma's books which he describes as "chalk full of observations relating to man/boy love and they're certainly the product of an immense amount of work." He replies, that without finding the other way, he has chosen not to proceed. It would, he says, be very difficult to prove that they did not have a scientific purpose which is an unqualified defence as he interprets the legislation. (He also chose not to proceed on the copies of the NAMBLA Bulletin I entered.) Mr. Schultes portrays the defences listed in ss. (6); scientific, educational or medical purpose as being very broad and as permitting "advocacy of all actions short of criminal offence against children". This is certainly far narrower than the type of material that Dr. Collins saw as child pornography. The photographs are the other evidence against me. Judge Shaw recollects, that off the top of his head, only one in which there is explicit sexual activity. Schultes says that there might be a couple of others.

I argue that the right of advocacy subsumes the following rights:

1. to explore through studies, essays, fiction, art and poetry theramifications of existing law and arrangements influenced by it;

2. to produce studies, essays, works of fiction, art and poetry which support the advocacy;

3. to form organizations and develop programs directed towards implementation of what is advocated. (This is one reason why I have included in my challenge anappeal to section 2 d. of the Charter.)

I would add that literature and personal testimonies can provide glimpses of realities as people experience them in their lives that all the clinical, scientific and academic studies in the world cannot accomplish. Their insights usually predate those of scientific investigations and legislative changes. What has often been yesterday's obscenity, or pornography, (birth control information, abortion advocacy, public approval of juvenile masturbation, and the works of numerous writers becomes the norm at a later time. The decriminalization of homosexual activity in 1968 for example was abetted by literary works such as Canada's Jane Rule's DESERT OF THE HEART which was published in 1964. I argue that literary works exploring the diversity of human behaviour have served a political purpose and that many were intended to do so by changing the public's understanding of and attitudes towards controversial and frequently despised behaviour.

I would ask the court to consider the defence of "educational purpose". For many years, since before my time, the subject of sex education has been controversial. The debate has been about what young people, but not exclusively young people, should be publicly taught. What information may be conveyed to them? The debate is about what we are prepared to see others taught, "community standards" in other words. Fortunately for many youths the street, and the pornography they can get their hands on, fills in some of the gaps that the imposition of what is already in effect "community standards" will not permit. I would think that anything that might remotely be considered child pornography would not be tolerated in education no matter how beneficial it might be. The controversy over the book SHOW ME which was clearly designed as an educational tool is an example. Perhaps the only situations where child pornography would qualify for an "educational purpose" defence would be where it was used to instruct police and customs officials and for lobbying politicians and community groups to support even more restrictive laws. To overcome the "educational purpose" defence a court would merely have to recognize that community standards already apply. The "educational purpose" defence could apply to medical education material such as the photos of nude children used by people like Dr. Hlady, a Crown witness, for theassessment of Tanner stages. It would, I believe, be foolhardy for an ordinary defendant to rely on an "educational purpose" defence.

Few "scientific purposes" would require child pornography, perhaps only a study of the material itself. At present all that is available is anti-porn advocacy prepared by police agencies that uses pejorative definitions and extreme examples to illustrate their claims. Until and unless scientific studies are carried out there is no way to challenge the biased and self serving presentations made by people like Detective Waters. A serious researcher-scientist might wish to investigate the extent, nature and accessibility of "child pornography" on the Internet. I do not know of any scientific study that has looked at the matter qualitatively, i.e. one that describes, analyses, contextualizes and objectively classifies. The researcher would need to download (possess) images and text for detailed classification, comparison and analysis. This could enable society and relevant public officials to better understand what is actually out there. I believe we need research into what is alleged to be child pornography. Unless some type of preclearance could be obtained such research is highly unlikely given the provisions of s.163.1. and the climate of moral outrage surrounding the subject.

It is not clear, at least to me, what "medical purpose" would include. Dr. Marshall and Dr. Collins use child pornography for diagnostic and assessment purposes. It has also been used in aversion therapy for some sex offenders where it is used in conjunction with phallometric devices and electric shocks. The patient is punished for "inappropriate" penile responses and rewarded for appropriate responses to acceptable types of porn. The intent is to refocus the patient's sexual interests on acceptable behaviours. These treatments are based on Pavlov's famous experiments using salivating dogs. The ethics of this therapy has been questioned. I would mention that sexually explicit material destined for medical schools for teaching purposes have already been detained.

Mr. Schultes goes on to deal with IOFIDA v. MacINTYRE which I had submitted as an authority to support my challenge to the written material provision. He claims that it cannot be relied upon in my case. He says that the provision in s. 462 dealing withimporting, exporting, manufacturing or sale of "literature for illicit drug use" had "an absurdly broad effect on many valuable and non harmful forms of expression." because it contained no defences for literature produced in pursuit of artistic, scientific or political ends." This is his most persuasive argument. "Its purpose was found to be the restriction of debate about drug use, which is an impermissible legislative objective." "This stands in stark contrast to the legislative objective of protecting children." I had claimed that ss.(1)(b) had a similar effect of restricting debate about intergenerational sex. He claims that IORFIDA lacked evidence that "the prohibited material... would be used in a way that would put a vulnerable section of society at risk of harm, in our case children." While this may be true it could simply be an oversight on the part of the Crown. S. 462 he claims "targeted expression itself, not allegedly harmful consequences flowing from it." I find this argument devious given that protecting young people was certainly a stated intent of the legislation according to the Parliamentary records. Would Schultes claim that for young people the adverse consequences child pornography are greater than drugs? He states that s. 163.1 does not prevent people from advocating changes in the law. While this may be true, debate about an issue cannot be confined to narrow political concerns, it must also permit positive artistic, polemic and literary exploration of the question that flesh out the political discourse. If one is free to argue that the age of consent should be reduced to twelve, as it is in some countries - or abolished completely, then one should be able to develop the argument in fiction which can treat questions at more subtle, complex and personal levels. In the past the private circulation of banned novels has helped prepare the way for subsequent liberalization of laws. In respect to s. 462 there would seem in legal terms to be rational connection between suppressing written drug advocacy material and discouraging drug use, but rational connections often depend on which way things are looked at and may work both ways. There can be competing rational connections. I would note that the drug literature provision was seen as precedent for ss. (1)(b) by some members of the Standing Committee. The prosecutor concludes that the child pornography law "appears carefully formed to avoid just the sort of overbreadth that troubled the court in IORFIDA."

Minimal Impairment

Minimal impairment means that a law should limit a freedom as little as possible in order to achieve its objective. A law mandating the seizure of vehicles to discourage parking violations would probably fail on this basis. Mr. Schultes quoting Justice McComb deferring to the expert opinion evidence of Drs. Collins, Marshall and Barbaree supports his conclusion that the child pornography provisions meet this standard. He says that "the linchpin, the link supporting the evidence of harm... and that Dr. Collins evidence is key on that." He claims that the provisions are "tightly focused" and that they "do not catch behaviour that is not likely to lead to harm to children." This is a very sweeping claim. If true, given the abundance of child pornography available, we should expect horrendous levels of child sex abuse by pedophiles. Bearing in mind Dr. Collins' testimony which suggests that less than one third of child molesters are pedophiles the "link" would appear very tenuous. "Lesser restrictions only suppressing material that shows illicit child sexual activity, material using real children in its production and material with no artistic purpose would not meet the legitimate objectives of Parliament."

Freedom of Conscience

Mr. Schultes next dealt with my claim that my freedom of conscience, s.2(a) of the Charter was violated by the simple possession provision of s. (4) of the child pornography laws. Unlike my challenge under the freedom of expression guarantees he is not willing to concede that my freedom of conscience rights have been infringed. In this he relies on R. v. BIG M DRUG MART LTD. a 1985 Supreme Court decision. This was a successful challenge to the old Lord's Day Act which prohibited the selling of certain goods on Sundays. The accused corporation had challenged the Act on the basis that it infringed on its freedom of conscience and religion. The legislation was held unconstitutional in provincial court and this decision was upheld by the Alberta Court of Appeal. The Crown appealed to the Supreme Court of Canada which dismissed the appeal. The Court held that: "Government may not compel individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others". The Crown argued that the Act did not interfere with the right to "free exercise of religion", and that even if it did the Act constituted a reasonable secular limit. The Crown "urged that public convenience, order and health necessitate standardized working hours and a standardized day of rest." In other words that while the legislation may have originally had a religious purpose it now served a valid secular purpose and that the law should be judged on its beneficial effects. The Court had rejected this shifting purpose argument.

Prosecutor Schultes quotes from BIG M DRUG MART: "Viewed in this context, [i.e. that these freedoms are fundamental to the purpose of the Charter] the purpose of freedom of conscience and religion becomes clear. The values that underlie our political and philosophical traditions demand that every individual be free to hold and manifest whatever beliefs and opinions his or her conscience dictates, provided that inter alia, only that such manifestations do not injure his or her neighbours (Crown's emphasis) or their parallel rights to hold and manifest beliefs and opinions of their own." He proceeds to state that my "wish to possess" child pornography is not an aspect of religious belief or a "deeply and sincerely held matter of conscience. Indeed , the most reliable evidence (that of Dr. Collins) is that a sexual interest in children is a kind of paraphilia, or sexual deviancy. The outward manifestation of such deviancy, which are no more than the means of satisfying sexual desire, can lay no claim to the status of religious rituals or acts of conscience." Again quoting from BIG M DRUG MART he says that 2(a) protection does not extend to acts that harm others. He claims "Dr. Collins has provided compelling evidence that the activities prohibited by the child pornography provisions pose a serious risk of harm to children. By virtue of that risk of harm, they are outside the protection of s. 2(a)." Consequently there is no need to proceed with a section 1 analysis. There was no oral argument in respect to section 2(a) at this point in the voir dire.

The prosecutor's whole argument, in effect, is dependent on Dr. Collins' claim, which he was unable to substantiate in any over all sense, that the possession of child pornography incites pedophiles to sexually assault children. The opinion of clinicians based on self reporting offender studies and anecdotal evidence is the backbone of the presumption of harm.

My Summary:Exhibits

I began my summary by discussing the exhibits I had entered starting with the NAMBLA Bulletin. I mentioned Detective Waters' (then Wolff) persistent advocacy before the Standing Committee and that this newsletter had been Parliament's principal target of the written material provision. In reply to a point raised by the Court I explained that it was the touchstone of the prohibition of the written word and that this was why I entered the copies, despite advice to the contrary by two lawyers I had consulted. One of them, Michael Ritzker had told me that ethically he couldn't do that because it was child pornography. The Court inquired: "You mean possession of something for the purpose of a defence in a court action is an offence itself?" I explained that that was the opinion I got and that it was one reason why I was defending myself. The Judge said that he had some difficulty with that proposition: "If something is germane to a defence... I can't see how it can possibly be suppressed. That doesn't make sense to me. It's quite contrary to our open court system." He said however, that since I had not been charged with the NAMBLA Bulletin he did not have to rule on whether it constituted child pornography. I stated that the newsletter's content was political, that they lobby, give news favourable to their cause that is not readily available from other sources, and provide a forum for discussion of issues related to man/boy relationships. It is similar to many other special interest newsletters. I further stated that prohibition of such material "violates the freedom of all Canadians in that it denies them information upon which they can form their own opinions and express themselves." In this sense the prohibition is doubly restrictive. How can issues be debated if one side is prevented from presenting it views? I quoted from Re George Rideout, a decision of the Supreme Court of Newfoundland:

"Freedom of expression includes access to such information as may be essential to a responsible exercise of freedom of expression."

I argued that while the NAMBLA Bulletin is mainly written by and for boylovers who have always existed everywhere it provides insight into the concerns, thinking and behaviour of boylovers which may enable others to understand them better. I submitted that: "it's not a question of men reading NAMBLA being inspired to have sex with boys, but one of men who have a erotic interest in boys discovering NAMBLA and the political, cultural and ethical context it provides." I pointed out that men who lack contact with others of similar interests may become moral isolates and perhaps pursue their interests with less responsibility. I claimed that NAMBLA provides a moderating ethical context for men attracted to boys, serves the public good and helps to protect children. I briefly reviewed some of the contents that I discussed earlier. I also reviewed the article "Men Loving Boys Loving Men" in FLAUNTING IT!, the book DARES TO SPEAK and the Netherlands Sex Law. While I originally entered the latter as an example of possible absurdity of a literal interpretation of the written word provision I also suggested it as less restrictive means of achieving the protection of children. The Dutch pursue a child centred approach, empowering children over 12 and their parents rather than pro-actively employing the offender/abuse/victim paradigm that we do.

I spoke to the curriculum vitae of Dr. Collins who is thoroughly immersed in the criminal justice system. I suggested this gave him a narrow police outlook and implied that he is not an independent professional witness.

I then turned to the two volume study by Edward Brongersma. I had been upset by Dr. Collins dismissal of him as a "convicted pedophile" and became emotional for the only time at the voir dire defending him. He was a friend and we corresponded regularly. I received my last letter from him in April on the day he died at 87. I briefly reviewed his career as one of Holland's most distinguished jurists. I explained that he had been imprisoned for sexual contact with a sixteen year old boy under an archaic law, which later in 1971 as chairman of their Senate Judiciary Committee, he helped repeal. In 1975 shortly before his retirement Queen Wilhemenia knighted him with the Order of the Dutch Lion. I explained that LOVING BOYS was a pioneering study, perhaps more encyclopedic than scientific that he was able to put together with his enormous number of contacts and correspondence facilitated by his fluency in all major western European languages. I discussed other books I had entered and explained the problems I had with WITCH HUNT FOILED which I discussed earlier.

Testimony

I went over some of the problems and what I saw as weaknesses in Dr. Collins' testimony. I felt he was sincere if devious. (I would have been be less charitable if I had read his testimony in SCHLICK) I said: "He is, I think, basically a believer. I felt that he sometimes reinterpreted questions, that he had difficulty seeing things outside his narrow psychiatric world view, but he is a practical man who fixes, treats deviant men or at least tries. I felt, however, he did keep punctuating his testimony with moral platitudes about the evil of child sex and I felt there was a confusion of psychiatric theories and moralities... To him, these matters are a moral imperative. To him, it is common sense." I said that he treats fundamental challenges to his psychiatric and moral premises as cognitive distortions and that these therefore endanger children. He contemptuously labels rather than tries to refute scholars with contending viewpoints and disparages the journals that print their articles. On easy questions he dissembled becoming expansive, on hard questions he retreated into his narrow professional expertise, or simply didn't know. On core questions he was consistently dogmatic. Where adult/child sex came to the attention of the criminal justice system he was insistent that it was the sexual activity itself not its exposure that harmed the child. To say otherwise would reflect adversely on the system. I reviewed his awkward answers when questioned about the "tidal wave" increase in child pornography and any corresponding increase in child sexual assault.

Returning to the question of cognitive distortions I mentioned that when I had asked Dr. Collins if pedophiles could put forth their views, he had said that he wasn't sure because he equated some of them with hate crime. And he had said that pedophiles are criminals and if they meet and form groups around their common interests, such as NAMBLA they are ipso facto organized crime. I asked if street kids meet and make plans to deal in drugs if that was organized crime. I brought up the catharsis or substitute theory of pornography. I wanted to place more emphasis on it, the Court had indicated some interest in it, but I didn't have good sources to back it up. Later, through a new friend I was introduced to some impressive research that substantiated this theory. While I agreed that the grooming theory made some sense with little children I pointed out that the high profile cases in Vancouver, and the "London Porn Ring" all involved adolescent boys. I suggested that if a pedophile interested in adolescent boys had in his possession both X-rated adult porn and child pornography that he would likely use the former to arouse and seduce boys and use the latter as an aid to his masturbation. In such a case, in order to protect children, it would make more sense to deny him his adult porn and leave him with his child porn so he can be happy masturbating instead of looking for boys. I said that therapists with their faith in victim/offender theories often cause a lot of trouble as it leads them to seek out sexual abuse as a cause. I said I was thinking of "the recovered memory or false memory syndrome dealing mainly with women who have reason to be unhappy with their lives, and therapists begin counselling them, using various forms of psychotherapy, and they had in... their minds, the therapist, you know, sexual abuse causing problems. Some of this goes back to Freud. But as a result of this paradigm and the therapists belief in it, you had hundreds of men who were convicted, mostly fathers as a result of therapists who, while they thought they were uncovering real memories, were implanting false memories." I was getting off track and the Court let me know.

I moved on to GRAMLICK and JEWELL and brought up the question of the social context I had discussed earlier. I said that the boys' motives may have been quite diverse and complex, and the fact that boys turn to such men is a reflection of the failure of families and the social welfare system to meet their needs. I claimed that the trial judge had been unrealistic to treat such factors as the defendants' age, generosity, concern over the boys' needs and problems, and the duration of the relationships as aggravating factors. I said that if the concern arose out of or parallel to the sex related activities, a more likely situation, then it should be considered mitigating. Similarly casual long term relationships which are more likely to involve a lot more than sex should be considered mitigating. Unfortunately the nature all adult/child sexual relationships have been generalized from father/daughter incest. It is fairly obvious that where a man repeatedly has sex with his daughter over a period of years it is a greater offence than if a man, feeling rejected and perhaps drunk, crawls into his daughter's bed on one occasion. But if a boy voluntarily comes back again and again and has sex with a man is that aggravating? Again I was getting off track.

Freedom of Conscience

Next I began dealing with my freedom of conscience, 2(a) Charter challenge to the simple possession offence under ss. (4). This developed in an unexpected way which was crucial for my acquittal. I pointed out that LANGER was a challenge based on freedom of expression and that the judge ruled that on the basis of expert testimony that Parliament's objectives were sufficiently important to override freedom of expression including simple possession. I submitted that simple possession has nothing to with freedom of expression. I claimed that simple possession is a matter of conscience and that the Langer decision never mentions it. I stated:

"Possession of meaningful, private images, symbols and words, including one's own, is part of a person being himself. It's part of their essence. Crucifixes, Korans, icons, mantras, aids to meditation, and I would also include masturbation, things which are within the boundaries of the self, this relates to conscience. It is not even the expression of conscience. Expression of conscience (is) such (things) as declaring one's beliefs, or particular attire or following customs and rites and beliefs. These are things guaranteed in R. v. BIG M DRUG MART."

I quoted definitions of freedom of conscience from two cases and dictionaries. In R. v. VIDEOFLICKS, a Sunday observance law case it was defined as:

"Freedom of conscience does not mean the mere decision of an individual on any particular occasion to act or not act in a certain way. The behaviour has to be based on a set of beliefs by which the individual feels bound to conduct most, if not all of his actions"

WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY which I customarily use, in words similar to the OXFORD ENGLISH DICTIONARY, defines it as:

"The sense of right or wrong within the individual. The faculty, power or principle that guides towards right and away from wrong. Innermost thought or sense, knowledge of the inner self."

"These are the definitions I could find. And freedom of conscience, as far as I can tell, has not been defined with legal clarity to any great extent. Now I want to discuss what freedom of conscience is. And I see conscience as having levels that, at the core, is the proper reality of the person and his mind, his inner sense, thoughts and feelings. This is what is not externally apparent to anyone else...

Then there is a personal level of conscience. And that is beyond, and that includes the private and personal possessions that define a person to his or her self. These are things of value to the self without display, sharing or disposal. And this is where religion becomes a matter of conscience.

And then beyond the inner and personal, there is the public where the conscience becomes manifest. You will find a reference to this in VIDEOFLICKS. At this point the conscience manifests itself, declaring itself publicly through symbols, attire, customs and rites. This is the expression of conscience which shows identity, allegiance, orientation. Others may observe and form impressions, stereotypes and draw conclusions.

Only where things are seen as intimidating or hateful, where they in themselves broadcast a threatening meaning, and in effect become an exercise of freedom of expression, as well as an expression of conscience, are they regulated. I mean if we have a bunch of people wearing SS uniforms and parading in front of a synagogue we start to get a bit concerned. And that is what I see as conscience. And freedom of conscience is the foundation of freedom of expression, that it lies beneath freedom of expression.

Freedom of expression begins when a person tries to enlighten, educate, persuade or directly influence others - when one tries to convey meaning in a deliberate sense. And expression itself has levels. Now the basic level of expression is invitational - where the other meets in private to receive the meaning. A person in his own home where others visit, for example. Short of conspiracy or violence or abuse the law does not intrude at that level.

Beyond the invitational level of expression there is the broadcasting of meaning, from promotion, advocacy, counselling, proselytizing. At this level the law begins to get involved in regulating expression. Obscenity laws are an example. And then beyond this again are demonstrations of protest and power which are regulated, and extreme expression - violence which is prohibited.

I would like to talk a bit more about freedom of conscience. I said it was the foundation of freedom of expression because without it, freedom of expression is incomplete and may be illusory. What is the use of freedom of expression if you have nothing to say? If you cannot independently explore ideas, concepts, alternative explanations or lifestyles then freedom of expression can have no personal foundation. We can simply defer to a political party or editorial writers. Freedom of conscience is to know yourself, and it is the right to form, declare and possibly share your ideas and values. It is essential to the full exercise of freedom of expression." I referred to the definition in WEBSTER'S DICTIONARY given above emphasizing "innermost thought or sense, knowledge of the inner self". I believed my possession had caused no harm, I felt I had done no wrong.

"I feel that at a minimum, in a free and democratic society, people must be free to record their thoughts about culture and society and to share them privately with those who are interested. I'm not talking about conspiring to commit crimes or incite crime. Conspiring is not fantasizing or speculating. Inciting is not reasoned argument, advocacy or the promotion of what some might deem cognitive distortions. The latter is simply a pejorative clinical name for sexual heresies. What I mean is possessing the things that gives meaning to one's life. And for some people that includes what others may define as child pornography."

I also said that there were practical reasons for allowing private possession. How can community standards exist in a vacuum, or in a situation where the police are the sole arbiters? "allowing possession is essential to having fair laws prohibiting the selling of things like pornography because then we know what we are prohibiting the making and distribution of... in effect, freedom of possession supports the legitimacy of community standards."

I went on to say that possession of child pornography must be separated from misuse. Unlike Dr. Collins who claimed that even its use as a masturbation aid was wrong I would define misuse as necessarily involving others. For him, the healthiness of masturbation did not lie in the physiology relief it provided but was a question of the fantasies that accompany it. I again alluded to the concept of catharsis which I put in the context of whether or not children are safer if a neighbourhood pedophile has an ample supply of child pornography. I claimed that people have a right to masturbate and that for some, meaning people without appropriate partners, it may be very important to them. "For some men," I said, "sex fantasy with children may be necessary for successful masturbation... To deny pornography can deny some people the opportunity to masturbate and its benefits to their health, certainly their mental health and probably their physical health." While it is probably a myth some men believe that semen shouldn't be allowed to accumulate in their bodies.

Then I raised a question: "the Charter protects conscience and religion. And the fact that it is protected implies that what is protected might otherwise be denied or prohibited. I mean what exactly is it protecting that might otherwise be vulnerable? It does not specifically or only protect what people may think about God, races, good or evil, sex (all of) which may not be capable of external control... conscience must be more than that."

I concluded this portion: "Freedom of conscience includes the right to say who and what you are, how you see the world and what you believe. It's freedom to be an individual, to be who you are. And I said before, it subsumes private, personal acts that are part of that being, such as prayers, meditation, exercise and solitary sexual gratification. While regulation of these activities may be appropriate where others are involved, I believe that no intervention can be warranted in the case of solitary activities. I mean, aside from Dr. Collins and his colleagues, do we really care what is going on in people's minds when they masturbate? ... Is fantasy control an appropriate subject for state intervention?"

The afternoon break was called and the Court stated: "I say this to both you and Mr. Schultes. Listening to your submission, and even before listening to your submission, I have been giving a great deal of thought to the concept of privacy that appears in many Charter cases. I think it would be helpful if I were to be instructed by counsel, or you, Mr. Sharpe as well if you can, on the bases upon which the privacy freedoms are built. You are certainly aiming right now at an element of privacy in human existence. I think it would be very helpful to have that explored." He went on to say that he now wanted to hear an oral submission on the 2(a) argument which he previously felt was not necessary. I realized that something was happening but was unsure as to what but it seemed hopeful. I had not investigated the question of privacy rights which are covered under section 8. of the Charter: "Everyone has the right to be secure against unreasonable search or seizure". The court announced we would be late starting the next day which he expected would complete the voir dire.

To support my claim that the written word provision was directed at political expression I mentioned that NAMBLA's mission statement had been read into Hansard (given earlier) and that a Standing Committee member, Mr. Derek Lee had said in Parliament that the provision was to specifically target advocacy. I repeat his statement:

"In fact some people in Canadian society over the past few months basically dared Parliament, their little group 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 that challenge."

My purpose in referring to NAMBLA's mission statement and Mr. Lee's remarks was to show that the intent of the legislation was clearly to limit debate of a political nature which is an impermissible legislative objective. I claimed that political advocacy is "an absolute freedom and right". I juxtaposed the statements made in Parliament with a quote from Madam Justice L'Heureux-Dubé in the case of THE COMMITTEE FOR THE COMMONWEALTH OF CANADA:

"The liberty to comment on and criticize existing institutions and structures is an indispensable component of a 'free and democratic society'. It is imperative for such societies to benefit from a multiplicity of viewpoints which can find fertile sustenance through various means of communication. The alternatives are particularly frightening."

I then discussed the meaning of the phrase "advocates or counsels". While their meanings are similar I suggested that "advocates" relates to the broadcasting of meaning while "counsels" relates to specific audiences. I used the examples: "I advocate buying B.C. products", and "I may smoke myself, but I counsel young people not to". Either can mean as little as "recommend" or "favour". They do not have the strong meaning that the term "wilfully promotes" has in s. 319 (2) of the hate propaganda laws, nor are they equivalent to "counsel" in s. 22 dealing with a person counselling an offence where the term is specifically defined to include "procure, solicit or incite". The section relates to a person counselling another on committing a specific offence, not crime in general. "For example, to say, 'Robbing banks is good for the economy' is acceptable speech although it's probably untrue. To counsel someone likely to take advantage of the information that a specific bank has a certain weakness in its security is not acceptable, perhaps especially if it's true." The ordinary meanings of "advocates" and "counsels" are extremely broad. I said: "there is a rich literature extolling man/boy affairs from many different times and parts of the world. It would not be difficult to find dozens of examples on the shelves of the Vancouver Public Library... The written word provision, I submit, is about denying people access to ideas. And it's unfortunate that a narrow ideology nurtured by clinicians, promoted by anti-porn feminists has convinced officialdom that it's all about protecting children, and the way to protect children is to make certain social constructions cognitive distortions, a form of dangerous heresy." I also said that if the written word provision were upheld that it should be interpreted in such a way as to exclude political material such as the NAMBLA Bulletin.

I brought up R. v. POPERT the pre-Charter case where the article, "Men Loving Boys Loving Men" in Body Politic, which clearly "advocated" pedophilia and which had been acquitted after a series of trials. I had come across the decision on the Internet and felt it would bolster my freedom of expression arguments. Unfortunately I bungled badly, I was disorganized and submitted an earlier losing decision which was later successfully appealed. The Court noted this. I made a desperate search in the Courthouse Library during a break but I could not find the final decision.

On the last day Judge Shaw had other commitments and the proceedings didn't begin until after 4:PM. Mr. Schultes who had consistently underestimated the time required was anxious to wrap things up. I was becoming exhausted, the stress was enormous and I having difficulty sleeping and smoking heavily, my health was deteriorating. I also wanted the voir dire to be over but I had so much more I wanted to say.

I knew I had to attack LANGER. I had not expected that it would be so important to the Crown's case. I claimed that LANGER was flawed in both fact finding and language and that it was muddied by reliance on the questionable theories advanced by the clinicians. I repeated the arguments I gave earlier about incorporating violence into the term abuse so that the meaning becomes corrupted. Justice McCombs had spoken of depictions of real children as involving "direct violence" without regard to the nature of what was depicted. I could not understand how a judge could make such an absurd claim. It would mean that a photographic depiction of an affectionate but illicit sex act involving children becomes inherently violent. This is tending towards Orwellian Newspeak. To illustrate the harm that arises from this abuse of language in the social sciences I talked about the masturbation hysteria which lasted well over a century and led thousands of boys and young men to commit suicide with millions more becoming victims of troubling neuroses. I pointed out: "Masturbation used to be labelled 'self abuse'. This pejorative definition made the subject very difficult to discuss rationally. The terminology had a chilling effect. This suppression, and the prudery it fed, while ostensibly for the protection of children, tragically had the opposite effect. Are we so naive today that we believe that suppressing investigation and debate about adolescent sexuality somehow protects children? The use of words which pre-empt conclusions make it difficult for people to express certain ideas, perhaps even form them. Newspeak is the abuse of language, and language is at the heart of law. As I said before, "if language becomes corrupt, then the law itself is endangered." I suggested as regards violence that you look at what is supposedly abuse and then decide if it is violent or not, rather than assume it is violent because it is defined as abuse.

The low value of the right infringed, possession of child pornography, was part of the Crown's case. The low value of the right infringed had been a factor in several other constitutional cases such as KEEGSTRA, BUTLER and LANGER, but no one had really questioned it. In defending myself I felt I had an advantage in that a lawyer cannot say that he or she supports Holocaust denial or possession of child pornography. Their professional self image prevents them from directly and forcefully arguing for such generally despised values. They can only give abstract legal weight to them. But regardless: "How do we determine the value of a right denied? I would contend that if a measure denies people a right, then it should be based on its worth to those who consume that right, to those who use that right. If someone were to ask me how important is my right to go to church, I would say not very because I don't go to church anyway... Now if you ask the same question to a churchgoer, that right would be very important to that person. ... it's consumers who bear the cost of deprivation. And if we are looking at child pornography, we're looking at certain men without partners, and we might want to keep them that way," I emphasized, "and we're looking at old men who use it as a form of self therapy. And in the lives of these people, it may be quite important, their access to pornography for them may be on a par with another person's value on the right to attend church."

I pointed what I felt were weaknesses in the Langer decision: "nowhere is 2(a) mentioned, that the whole issue of freedom of conscience was not even considered." I said that in criminalizing possession "there is a great leap based on weak and largely questionable evidence" and the "linkage between child pornography and harm to children is tied to the three part theory of child pornography advanced by the clinicians. Now I've tried to cast doubt on that theory using the reasoning and resources of an educated layman. I also contest certain findings of fact, for example, the uncritical acceptance of police testimony which was basically opinion". I said that the police took the opportunity of the trial to make a presentation and... get a ruling on material that was not really part of the trial. And no one was there to defend the written word per se. No one was at that trial to defend advocacy... It was about visual material and the whole defence was organized around the fact that it was visual material." The other evidence was uncontested. This is obvious in Justice McComb's decision where he described this evidence in police terminology. NAMBLA "panders", it contains "pseudo-intellectual editorializing" and so on. Did he study the material?

I submitted some rough notes reviewing and analysing Collins' three part theory of child pornography. I posed a series of questions. In terms of "fuelling fantasies": "I suggested two questions that we should ask if you're looking at the probable effects of reducing the availability and use of child porn; first will fewer children be involved in sexual activity with adults? And this is a question of balancing off the incitement to offend versus using porn as a substitute for offending. The second, will the sexual and related activity be more abusive, violent or traumatizing? We would look at the nature of the activity and the context within which it occurs." I noted that the "famous English parliamentarian and philosopher, Edmund Burke, once said something to the effect that the unintended consequences of laws are often greater than the intended ones." I was intending to go over the history of anti-child porn measures that I had discussed earlier and show how the crackdown at the end of the 1970s had provided incentives for people to make their own child porn and led to many more children being involved in production. I was however introducing new evidence, and as I had not entered the sources when I should have, it was only hearsay anyway. There were several occasions when I would have benefited from some elementary legal advice on matters such as on entering evidence. I was also becoming increasingly disorganized, losing track of references and being repetitive. The stress was getting to me and I was becoming emotionally and intellectually drained.

I then examined the concept of child pornography reinforcing "cognitive distortions". I suggested that this could operate in two ways. One is through illustration or examples of explicit adult/child sexual activity which could tend to make such activity seem acceptable to men. This happens. This would include what has traditionally been considered as obscene or pornographic. The other is through information which may rationalize, justify, advocate or celebrate such activity. This would include scientific and historical works, poetry, fiction or essays which might ethically and intellectually predispose adults to engage in sex with children. This second way in which cognitive distortions may be reinforced, which was the one that Dr. Collins in his testimony weighed against, is the more powerful and influential, and serves political ends whether or not it has political intent. And I noted that holding these supposed cognitive distortions was a right of conscience.

Turning to the use of child pornography in grooming I repeated my arguments that only for very young or prepubertal children would child pornography have any advantage over X-rated adult porn. I granted that the use of child pornography in grooming does occur but I suspect that it's rare. While I do not believe that showing kids any kind of porn in order to seduce them is ethical, I would venture that for adolescent boys. material that would sexually arouse them is far more effective than trying to implant "cognitive distortions" in them by showing actual child pornography.

Dealing with the harm to real children involved in production I accept the Crown's contention that harm or exploitation must be inherent in the depiction. This is determined on the basis of the definitions in the law. There is a problem that on one side of a line a photo or video is porn, and therefore harmful, while on the other it is not. A fine and arbitrary line may separate the heinous from the innocent. The law provides for no distinctions, and while courts may make distinctions based on the material in hand, my readings of case law suggest that often they do not. In most criminal law cases the existence of a crime is usually quite clear; either a robbery occurred or it did not, either a person was killed or was not. With non violent sex crimes and pornography the situation is frequently murky with many nuances possible. There is the added factor in pornography that harm is not necessarily or even primarily viewed in relation to a victim but to community standards of tolerance.

I said that harm to children involved in production can be looked at in several ways: "First harm can be based on activity... And we can go all the way from saying nude, a provocative or coy nude, through to a solitary child masturbating. Then we can get two or more children touching, embracing, kissing, through to sexually explicit activity with or among children into sex with adults, up to rape and extreme violence." It would seem that the degree of harm would relate to what activity was depicted even if harm derived from the recording of it. I couldn't say much about the question of age or gender but for sexually mature children, those over 16 say, I feel harm is less likely. Some European countries allow 16 year olds to work in porn. Another consideration is that of expression or attitude. Mr. Schultes, when asked by the Court if he would take into account in determining sexual purpose, "the look on a boy's face, the type of pose, provocative look, that sort of thing?" the prosecutor replied that they would be crucial. Would a photo of a cheerful, perhaps even eager looking boy, showing no signs of distress more likely be deemed pornographic than a boy in an identical pose who looked uncomfortable and resentful? I mentioned how Justice McComb in LANGER had interpreted the unhappy expressions of the children in the paintings as evidence that the works were not child pornography. A question is whether definitions should be based on evidential harm to child participants, or on harm to community standards, which may be contradictory. I said that the definition ss. (1)(a)ii allows considerable latitude to the police, as testimony of the expert witnesses indicates, and that because of the opprobrium attached to child pornography most people would be reluctant to challenge their deemings even if their material was marginal. I had suggested that any postures, movements and expressions that would not be suggestive with clothes on should not be covered by the subsection. As an example I suggested that a teenager's typical lounging position, which may make the genitals prominent, should be considered natural. Beyond this I said that there are depictions of common, age appropriate play and self exploration which borders explicit sexual activity. The book, SHOW ME found not be obscene in 1972 depicted as much and more. I concluded by asking if the pictures in my possession posed "a realistic risk of harm to children."

I also made arguments that the child pornography provisions infringed on my right to freedom of association and equality rights but I had done very little to prepare, they were subsidiary and were not significant at the voir dire. I had also intended to bring up the defence of "public good" but I only mentioned it in passing.

I discussed the question of lesser measures which related to the minimal impairment test in OAKES. Were the extreme legal measures really warranted? I should have evoked a "tidal wave" on the Internet. I explained that I explored the Internet and investigated sites appealing to men who like boys. And I explained as well as I could how newsgroups worked with people posting images, requests, comments, polemics and flames. I submitted that most, but not all of the thousands of images I viewed were harmless. As I discussed earlier there are some pretty ugly images. Most boy newsgroups try to maintain a standard of acceptability and there are online wars over content with the violators being attacked. They have their own standards, I explained: "These vigilante members, they protest, they send flames, they condemn, they report people to the newsgroups servers, and they inform the police about unwelcome postings. And from what I could gather this has some effect because in a case where a newsgroup is getting what I would call hard core child porn where this explicit sexual activity, these newsgroups may be shutdown and, in fact, are. So this provides them with a motivation for self-policing. And I think official nurturing of self-policing on the Internet, for example, and not just the Internet, is probably the most effective way to control sources of the worst child pornography." This approach I said, poses a problem: "A problem for some, a moral problem. It would involve protecting the more benign forms of child pornography and this might not be acceptable to some people. But the alternative is heavy investment in the criminal justice system and measures on the Internet which might have ominous implications for other interests and freedoms that fall within its ambit. And we already have and are using technology at the consumer or receiver end which filter the material coming in."

I finished my summary with references to the pioneering nature of the two provisions of the law I was challenging: For the first time simple possession of expressive material was made a criminal offence and for the first time written advocacy was prohibited. I was starting to think of the latter as the cognitive distortion law. I claimed that they were radical and largely unprecedented in their extension of state power. Except for Ian Waddell, who rather plaintively mentioned civil liberties at one point, Parliament ignored the question of the public's rights and freedoms.

I would have liked to go on, there were points I hadn't covered, but I was ill, burnt out and exhausted. The Court was prepared to allow me more time although he seemed reluctant to do so. I would have to stretch things out and then go through another night of hectic rethinking, rewriting and reorganizing my arguments. I wanted this phase over, I wanted the closure, I wanted to rest.Another day was not practical. I wasn't very satisfied with my performance in the summary but I was glad it was over.

THE CROWN'S REBUTTAL

Prosecutor Terry Schultes began his reply or rebuttal. I only became aware of the structure of the voir dire as it unfolded. He said he would address freedom of conscience, the Court's inquiry about privacy rights under the Charter and my "so-called safety valve theory" about child pornography.

Freedom of Conscience

Mr. Schultes began by defining freedom of religion and conscience as "freedom from the state coercing an individual to engage in, or refrain from, otherwise harmful acts in the name of a belief, religious or conscience, that is held by a larger group." He stated that freedom of conscience did not protect harmful acts, in which he would include possession of child pornography. Public safety is at issue. And I would have to, in effect, show that my possession of child pornography was "based on a sincerely held belief, based on my conscience." I had not claimed that, I don't think porn is more than entertainment, sexual arousal and relief. Except for the material I created, I had never "collected" anything that might be "kiddieporn" until I started preparing my defence, so I can't claim that it means all that much to me. Schultes says that the interpretation of freedom of conscience must be limited because otherwise it would be "a limitless excuse for avoiding all unwanted legal obligations." That was a valid point. He again quotes from BIG M DRUG MART.

Privacy Rights

On the matter of privacy Mr. Schultes opened his submission by saying: "The courts have, in my submission, protected the privacy rights of individuals in the context of intrusions by the government into a zone or sphere of privacy rather than prohibitions of material, possession of material." Drugs came to my mind. The whole question of Charter privacy rights was unfamiliar to me. What I had seen as my rights under the freedom of conscience guarantees under s. 2(a), the Court saw as privacy considerations under s. 8. I knew nothing of the cases under this section and had no legal arguments to contribute. I have chosen therefore to give an abridged version of the transcript of Mr. Schultes' arguments and the points raised by the Court. There were sometimes spirited exchanges. References were made to several decisions including DYMENT, a case dealing with impaired driving and the taking of blood samples, HUNTER and THOMPSON, a case dealing with an office search and BIG M DRUG MART. I have not identified the particular references which are available in the transcript. References are shown in quotation marks.

MR. SCHULTES: "From the earliest stages of Charter interpretation, this Court has made it clear that the rights it guarantees must be interpreted generously, and not in a narrow or legalistic fashion.... That case dealt specifically with s. 8. It underlined that a major, though not necessarily only purpose of the constitution protection against unreasonable search and seizure under s. 8, is the protection of the privacy of the individual.... "The foregoing approach (generous interpretation) is all together fitting for a constitutional document enshrined at the time when Westin tells us society has come to realize that privacy is at the heart of liberty in a modern state: see Alan F. Westin, PRIVACY AND FREEDOM. Grounded in man's physical and moral autonomy privacy is essential for the well-being of the individual." "Claims to privacy must, of course, be balanced against other societal needs, and in particular law enforcement, and that is what s. 8 is intended to achieve... "This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from 'unreasonable' search and seizure, or positively as an entitlement to a 'reasonable' expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.... The first challenge then, is to find some means of identifying those situations where we should be most alert to privacy considerations."

THE COURT: (referring back to the prosecutor's reference beginning, "The foregoing approach...") Does that follow what Mr. Sharpe is saying? A pedophile in the privacy of his own home may wish to use certain kinds of child pornography to please himself. He put it on the basis of freedom of conscience. I've been listening to that through the years as the right to privacy. And isn't that what we're concerned about in this case? How far should the state reach into the pedophile's home, or to anyone else's home, to seize their personal possessions which are part of their very essence of living, and which brings us back to that balancing problem of basically how much harm is there needed to overcome that very fundamental right of privacy. Is that how you see the case as well?

MR. SCHULTES: Exactly, and what I was going to say about this, and I will say it because I think it responds directly to Your Lordship's question is that the privacy right has entirely been dealt with under s. 8 because that's the most appropriate place to characterize unreasonable intrusions by the state. And my submission is that it's only symbolically in Mr. Sharpe's rhetorical presentation that that's occurring. Possession of contraband, for example possession of a narcotic is not. The criminalization of the possession of has no privacy aspect.

THE COURT: There's no privacy aspect... Well I follow what you're getting at, and a person does not have the right to commit murder in the privacy of his own home. The state's going to reach into the home. And in the balancing process, weighing privacy against the public's interest that murder not be committed it's no contest. But at some point it becomes a contest. (Schultes agrees to all the above) And that's, as I follow the substance of what Mr. Sharpe was getting at, there's certain aspects of this law that put that into contest. For example, the nude child. Yes there are certain arguments that can be made for not even taking that child's photograph, but those arguments don't carry anywhere near the weight of the argument against subjecting a child to a sexual situation, and photographing that child in a sexual situation. They're different levels of importance. Now when we get down to what a person does in one's own home, and we've got down to the point where an ordinary citizen cannot possess a photograph of a nude boy which photograph has been taken for a sexual purposes, now we're into a weighing process there which I don't think occurred in the Langer case. The right of privacy was never addressed in LANGER, if I'm correct."

MR. SCHULTES: That's correct... I'm saying that the privacy interests, the way in which privacy per se is defined in the Charter and interpreted has to do with the state's ability to enter that zone. And that's what I am saying, My Lord, is that possession offences are fundamentally different. They attract Charter attention in many ways, but this is designed to say that the possession of this material is harmful, and we have all that evidence.

THE COURT: But if I follow you correctly you're distinguishing this case from the s. 8 cases under which the concept of privacy has come into full bloom. (Schultes agrees) But here we are dealing with a situation where someone can walk into Mr. Sharpe's home and take his collection of nude boy photographs and other things too. Well the validity of the mandate to go into his home doesn't arise in this case but the fact that the authorities can get a warrant to go into his home is part of the overall picture. I can't ignore that. That says the Crown has the right to walk into his home? (Schultes agrees) And if the Crown has that right, is that not an intrusion into his privacy which in the circumstances requires the court to weigh which value should be given the greater weight? And that's why I'm concerned about your distinction that the privacy right cases arise under s. 8. My reaction to that, well so what, the Charter protects privacy and we're into that with a vengeance here.

MR. SCHULTES: Well for this reason My Lord. You're quite correct to say that a search issue can and will arise, but the ability of the state to search, under HUNTER and THOMPSON and everything else, is based on a credibly based belief that there exists material which would afford evidence of a criminal offence. If this is harmful, and (he seems to say illegal to possess), then search is thereby reasonable.

THE COURT: Oh, I follow exactly what you are saying. And I don't doubt that proposition. But in order to get to that proposition of the charge of possession of a nude photograph of a boy for a sexual purpose is a crime I have to, it seems to me, weigh that in the context of the full implications. And the full implications include the law as it is now written being the police can walk into his home and arrest him and seize the photographs.

MR. SCHULTES: (agreeing to all of the above). And you have to be satisfied on the basis of the material that the fact that a child is depicted in a sexual way, nude, that the fact that if someone has this material encourages other people, and that he will use it for all the ways that Dr. Collins says some pedophiles use them, that the Crown's fundamental assessment is that they are parallel in harm and...

THE COURT: (after a digression about "the unfortunate exchange in cross-examination about the child in the bathtub" by the prosecutor) ... taken for a sexual purpose.

MR. SCHULTES: Well, I'll say as candidly as I can, yes the law is interfering-Parliament is preventing the private use of by persons with an interest in this material.

THE COURT: Yes, and here we come back to my assessment, amongst other things, of Dr. Collins evidence. And the material he has provided. (Schultes agreeing) I'm left, I think, with an overall unenviable problem here, but it's mine.

"My Safety Valve Theory"

MR. SCHULTES: The one particularly significant thing was Mr. Sharpe's spin, if I may put it that way, on the release theory or the safety valve theory, the idea that in some cases the material that is used by pedophiles in a way which releases sexual tension and thereby prevents offending, and his characterization of that was based on his exchange with Dr. Collins. (I also felt that the catharsis concept was rather ordinary common sense) And as Dr. Collins said in his evidence that in some cases people may fantasize and masturbate, but others will fantasize, masturbate and offend. And the difficulty is the answer to Your Lordship's question, is knowing which ones are going to do that. There isn't any evidence available that would suggest that there is some social benefit to the pedophile having his material in substitution for a real child, but what we have is some strong, and I submit compelling evidence, that some pedophiles use the material in a way that harms children... And the big point is to say that there's no evidence that the catharsis through masturbation goes on to necessarily prevent offending. So in my submission, it doesn't substitute, or it doesn't in any way supplant the very strong opinion of Dr. Collins accepted in LANGER.

THE COURT: What is the compelling weight then, if he says in some cases it can help and in other cases it can harm. Where's the compelling case that that makes out?

MR. SCHULTES: Well, it's never been said in LANGER or here that all pedophiles do anything.

THE COURT: I've got that point. You've got a group of pedophiles. And some of them use sexually explicit material to masturbate? In some there will be a catharsis effect. In some there will be an inciting effect. (Schultes agreeing) All right. Now, you seem to choose to look at the inciting aspect of it, and say there it is, there's the harm, let's run with it. What I'm concerned about is that you've got something that runs in two directions... And we've got an expert witness, Dr. Collins, who is unable so far as I can tell, to shed any light on which side of that weighed more. Because let's put it this way, suppose you got a group of 100. And it incites two to go seek out a child and abuse that child. And it prevents 12 from doing that, they're relieved another way, do you say then that the proscription of possession is justified?

MR. SCHULTES: I'm going to say yes and I want to explain that the contest here is very important. You've got to refer to Dr. Collins' portrait of the difficulty of obtaining-well, pedophilia is a diagnosis primarily of self disclosure and we know that he knows about pedophiles he knows who have been caught. (A rather inconclusive discussion ensued with the prosecutor claiming that Parliament had a reasonable basis for prohibiting possession, and he refers again to Mr. Justice McComb in LANGER. That concluded his rebuttal.)

THE COURT: (turning to me) There were new decisions brought to my attention by Mr. Schultes. I don't know if you have any comment on them and whether you wish to say anything more? I think you must be reasonably satisfied that whatever point you're trying to make that I, whether I agree with you or not, that I grasp your point.

MR. SHARPE: Well My Lord, I think Mr. Schultes did a good job. I would point out that there is currently a concern about airbags because they kill children when cars are in accidents. But I haven't much more to say here Your Lordship.

THE COURT: Is your point that airbags kill children, but they save a lot of children too?

MR. SHARPE: Yes.

That was the end of the voir dire. The Court announced that we would adjourn until February Ist, 1999, and that he would endeavour to hand down a written ruling before then.

I knew I'd made some points, maybe a few good ones, but my general feeling was that my performance had been a series of failures, missed opportunities and omissions following one after another. But I knew I couldn't have found a lawyer to do what I attempted. I felt that I had done the right thing, taken the right tack, but hadn't done it very well. My only consolation was that Prosecutor Schultes had not seemed convincing, relying doggedly on the Langer decision and Dr. Collins' insubstantial and dogmatic testimony. There were even times when I almost felt that Mr. Schultes was on my side but this was probably due to his commitment to fairness and justice rather than any innate sympathy for me or my cause. It was also encouraging to have one friend or another sitting in court for part of most days. On the last a friend of many years whom I had met in his teens was the only spectator there at the end. It was late, after 7:30, we went out for falafels on the Granville Mall and then walked down to a coffee house in "Little Amsterdam" by Victory Square to play backgammon and smoke a joint. I really needed it.

PART FIVE:RULINGS AND REACTIONS

I tried to take it easy, resume my normal routines and nurture my health. The respite from my near total preoccupation with my case was very welcome but I knew it wouldn't last. The voix dire with its publication ban had attracted absolutely no publicity and it was like nothing had happened. Friends dropped by and we speculated on various outcomes of my challenges but basically it was limbo time. I retained some hope, particularly on my challenge to the written material definition which covered my more serious charges. If I could win on that and get the search warrant thrown out I might be free. Facing up to a ten year penalty for my writing seemed more bizarre and obscene than any of my stories. I think the last time a Canadian was jailed for his writing was Tim Buck, the Communist Party leader, back in the 1930s. I wasn't sure if that put me in good company or not.

Of course, if convicted I didn't think I would get more than a few months in jail. The judge didn't seem disturbed by my photographs. But my writings? There was Dr. Collins' sight unseen prognosis on the basis of reading some of it that I am untreatable. I could be made out as some sort of dangerous perverted monster and an aggressive attorney general might order tests, order treatment and then if I failed to "respond" to treatment, try to have me designated a dangerous offender and put me away indefinitely. I did not see this as all that far fetched and I could see it as being politically popular. That was freaky to think about. I remembered the case of Robert Noyes, the non violent pedophile teacher, who was so designated on his first conviction. This may have been partly due to the lingering outrage over the deal that serial child killer Clifford Olson had worked out with the prosecution. The crimes were vastly different but the two men were linked in the public mind and the sentences were similar. I was also aware that Britain was bringing in laws where people considered posing a risk, even if they have never been convicted, and pedophiles in particular, could be put away indefinitely by psychiatrists with minimal recourse to the courts. The British are also giving psychiatrists the power to drug kids over their own and their parents' objections. Additionally the British do not have a written charter or bill of rights and judges are selected with more democratic input. I had learned a lot about how psychiatrists think from Dr. Collins and my readings. I knew that if I were sentenced to treatment, like a dissenter in the old Soviet Union, and I did not play along with their games they could label me uncooperative, and therefore at risk to offend. I have few illusions about the new state priesthood of psychiatrists. I wondered what would Dr. Collins, given the chance, have done to me?

I went over the early REPORTS TO CROWN COUNSEL and looked at the police descriptions and interpretations of my writing. They had divided up the BOYABUSE collection of short stories among three investigators. Detective Noreen Wolff at the time, makes many silly factual errors and does not appear to have more than scanned the stories, merely mining them for evidence. She takes irony literally and misses obvious humour. She appears confused and persistently decontextualizes the material while commenting on matters of artistic merit. Yet at the preliminary hearing she claimed she spent months reading them. In the evidence of the other two, Marc Everitt and of Mary-Louise Causland I found no significant errors. The heart of the evidence given in the particulars is that my stories counsel or advocate illicit sex with children under 18 years. Each of the three people reviewing the stories in BOYABUSE makes this point in their summary of the evidence. They interpret my fiction as advocacy or counselling within the definition of the law.

This is based on the absence of long term adverse effects ascribed to the fictional acts of abuse which is construed as to make such acts acceptable, and thus counsels abuse. This interpretation would seem to have many implications for writing dealing with children and sex. Must fictional adult/child or man-boy sex be portrayed as having at least some negative consequences? [What about the Rind study, is it child pornography?] Is the child pornography legislation in effect attempting to legislate fictional plot lines in the way that the old Hollywood movie code of the 1940's and 50's insisted that good always triumph over evil? In this case harm would have to triumph over benefit. What about detailed autobiographical material recording juvenile sexual experiences with adults that one found rewarding? There would seem to be a big question as to whether fiction or biography can be regarded as a medium of advocacy without creating a lot of other problems. Another point is what about writing about things which are legal in the described jurisdiction but not in Canada. Suppose I describe meeting a twelve year old boy in Madrid or Amsterdam and this is what we had to eat at MacDonald's and this what we did in bed back at my hotel. The communities both real and imaginary that I describe in several of the stories have radically different values from our own. Some are fantasy worlds with bizarre economies and rituals. Their community standards may seem perverse to most Canadians, and not meet the test of their own. On the other hand some stories are set against the traditional values and fears of our own society. Fiction unlike clinical research allows the discussion of acts within social and cultural contexts. Where otherwise potentially disturbing things, such as minor sports injuries, occur within a supportive context such as a team, long term adverse effects are highly unlikely. The widespread condemnation and severe punishment of man/boy sex is part of its context which is why the exposure of illicit affairs can be so damaging to kids. The question of exposure and the reactions of men and boys to it is a topic that has been explored in boylove romances and novels.

But it was so nice to relax and allow my mind to focus on other things. Occasionally I puttered on my case going over the details of my arrest by Detective Waters and how the police entered my apartment. I expected to be challenging the search warrant at another voix dire which would precede my trial proper. But I did very little, the fight was gone out of me although I knew I could psyche myself up when the time came.

On January 16th when I got a call from the court house informing me that the ruling was ready, I was not excited. I put on some better clothes, bought a paper to read on the bus and went down to the courthouse and picked up the ruling. I went to the Hornby Street soup and sandwich shop I had patronized during the voix dire, ordered a coffee and opened the envelope. I quickly scanned the ruling looking for what it had to say about my challenge of the written word provision, s. 163.1 (1) (b). I found it had been upheld and Justice Shaw even quotes a statement of Dr. Collins that written material posed a risk of harm to children. That was the subsection that pertained to the more serious charges of possession for the purposes of distribution. I was disappointed but not surprised. I recalled Ritzker's statement, "They will listen to what you say but they will do what they would do anyway." I continued to read as I drank my coffee. Then I discovered that the simple possession subsection, ss. (4) had been struck down. That was something I thought, my photographs were not an issue, I might even get them back and any potential embarrassment of the boys would be avoided. I remembered my relief when at the preliminary hearing when Detective Waters in reply to one of my questions had said they were unable to identify any of the boys depicted despite showing them to youth services agencies.

I did not realize the profound significance of the ruling immediately. It didn't seem to mean that much for my situation. To use an analogy: How much comfort is it to a man charged with murder to learn that theft charges against him have been dropped? I was still facing the same maximum sentence. My thoughts turned to the possibility of a literary merit defence but my gay literary friends with one exception avoided me and I could expect no help there. I had no idea who I could turn to.

Mediamanic

I took my time getting home but as soon as I entered my apartment the phone rang. I forget who it was, probably a request for an interview. The phone kept ringing and I tried to answer questions as best as I could but I had only scanned the ruling and could not say that much about it. When I checked my voice mail I found it was full; 21 messages - three supportive ones from friends and the rest from media requesting interviews. I was overwhelmed. It took me hours, what with new calls, to go through them. I made a list but I could only pick out the numbers to call back on about half the messages as they were repeated so rapidly. I tried to be polite and helpful but some of the media callers were prying and accusative. It was a couple of days before I was able to sit down and read the ruling and then there was much I didn't understand that well. I was of course pleased that I had won something but after the near total lack of interest in my case I was surprised at all the attention. I knew I had made legal history, I had planned, plotted and gone in fighting to have the laws I was charged under struck down. I knew exactly what I wanted to do. I had a clear conscience which enabled me to be honest and consistent in my arguments. Winning was a long shot friends would remind me, but I persisted through ups and downs which I could not share and had to bear alone. I made many mistakes but I was not alone in that. I was the first Canadian without a lawyer to mount a successful Charter challenge. I got a law struck down. I had worked hard for this and I was enjoying some satisfaction. This point was not of much interest to the media however.

Although I have always been somewhat cynical about the media I had little experience with it and I was colossally naive and stupid in dealing with them. When I got a call on my intercom from, I believe, someone from CBC, I said I would think about an interview. He explained that he had his TV crew with him and that it would be awkward for them to come back again. I relented and let them in. Shortly after the interview began the intercom rang again - another TV crew downstairs. I explained that I was busy. That was no problem, they knew the other crew was there, and again I relented. Soon there were half a dozen strangers in my apartment whom I couldn't keep an eye on, some poking around noting my possessions, checking the books on my shelves and looking at the pictures on the walls. Things were out of control and I became apprehensive. It was like when the police came to arrest me. Then one reporter became aggressive, I can't recall who, and demanded to know if I had ever hurt a child. I gave an evasive answer: "I don't know." I don't think anyone can say that they have never hurt a child. Does anyone know of a child that has never experienced hurt? The context however was devastating. Then I noticed the CTV cameraman taking close-ups of family photos on the wall, I was outraged and ordered him to leave. The journalist with him explained that he was only doing his job and promised the close-ups would not be broadcast. I insisted that they both leave anyway. I knew I had blundered by my answer which made me look like some predator, I had been stupid and exposed my family to harassment and friends who saw the programs told me how bad it looked. I sank into the deepest depression of my life.

I did not however refuse all interviews, I felt I couldn't just back away, and I had some fairly positive telephone interviews with journalists across the country and a couple from the United States. Then Jane Armstrong of the Globe and Mail called and having some, perhaps unfounded, respect for that paper, I agreed to let her come and interview me. She was very pleasant and seemed reasonable and we talked for quite a while but when I read what she had done with the interview I was furious. I learnt that if you give reporters information they may use it imaginatively. I remembered the police warning: Anything you say may be used against you. I began noting the by-lines of articles in the press for my education as to who seemed trustworthy and fair. The producer for Ricky Cyr's talk show on CHAD in Montreal phoned me about a radio interview. Over three calls I worked out guidelines with her - a list of possible points and a no personal questions qualification. After a few informational questions Mr. Cyr launched into a series of accusative personal questions, I protested and mentioned the guidelines that had been agreed to but he simply repeated, "People want to know, the people want to know." I blew up and then hung up. I don't know what he made of it.

Personal Harassment and Curious Callers

Someone started postering the neighbourhood. Some with a bold headline WARNING!! showed a large photo of me and a quote from a national newspaper. Beneath it stated:

HE IS ACTIVE IN YOUR COMMUNITY AND LIVES AT (my address). HE SHOPS, EAT, WALKS AND LIVES WHERE YOU DO AND PROUDLY ADVOCATES SEX WITH CHILDREN. FOR THE SAKE OF YOUR FAMILY AND CHILDREN, WATCH FOR HIM BECAUSE YOU HAVE TO KNOW HE IS WATCHING YOU.

Others had a smaller picture and copies of press clippings and letters expressing outrage against the ruling, the legal system and myself. I wrote letters to the Vancouver Sun and Province explaining I had lived in the neighbourhood for over thirty years with no problems, but two weeks later they had not printed them. A TV news crew went around the neighbourhood interviewing people about me. The proprietor of a nearby deli/coffee house, too upscale for my means, was shown a poster and asked if he'd serve me if I came in. Not many merchants allowed the posters on their premises and I only found two, on power poles. Friends tore down a number and brought some to me. A tenant I know brought me several he'd found in the stairwell of my building and offered his support. Beside my picture and a clipping it was noted in felt pen: THIS PERVERT LIVES IN THIS BUILDING.

I began getting threats, and with Justice Shaw receiving a death threat, I decided to report any serious ones. I received my first one over the intercom, "John?... You're not going to be around very long." I phoned the police and they said the statement was ambiguous, he could just mean the building, and took no action.

I had a visit from a man in the neighbourhood who was very sympathetic and supportive and proud to meet me. He told me that there was a man accosting people entering the building with: "Do you know a child pornographer lives here?" We went to check but he was gone. This was Don Ray who soon became a good friend. A woman phoned and said, "I hope you rot in Hell." A man phoned and screamed: "Fucking pedophile!" and hung up. A little girl sounding as if she was being prompted repeated: "You bastard, you bastard" but didn't hang up. I waited for her to say more and tried talk to her but I hung up after twenty seconds. After the second postering a man, I'm not sure if was the same as the first one, phoned and smugly asked, "Did you like the posters John? We're not finished yet." (*69 - 682-9394) Again friends and sympathetic neighbours went around to tear them down but found few.

I represented pedos, I embodied evil, I was the bogeyman, hide your children and teens. I was fodder for journalists, I was there for the righteous to scream at, that was my unchosen role. I had that responsibility, but I had no means to groom myself. One friend advised me to get a good suit and dress respectably. That would have been nice but it would have taken a day to find an appropriate one and probably cost over fifty bucks by time I had it altered. And I'd need new shoes and a tie. Perhaps I should have been seen in trendy boutiques, fancy restaurants, at Canuck's games and culture scenes. Unfortunately I had to price shop, cook, clean and do the laundry, and entertain a stream of visitors.

Not all the calls were abusive. A Christian, a genuine one, not a righteous jesushater, phoned me and we talked for maybe ten minutes. He was sincere and wanted to help me towards salvation. He quoted LUKE 15: 10 "Likewise, I say unto you, there is joy in the presence of the angels of God over one sinner that repenteth", and he suggested I read ROMANS 12 and MATTHEW 5. ROMANS 12 is about conduct, about renewing one's self and serving God, and some good Christian advice about getting along with your fellow man. MATTHEW 5 is Jesus' Sermon on the Mount. I take comfort from Verse 10. A young sounding man phoned and simply blurted: "I support you." Another man phoned and congratulated me but soon wanted to know where he could get some "whatever", implying kiddieporn. I asked him if he had a credit card and suggested he try the Internet but I couldn't suggest any good sites offhand. A cop? I don't know. A worried, but polite man in the neighbourhood with two small daughters called. We talked for a few minutes and he expressed relief when I told him my interests related to teenage boys, not little girls.

A week or so after the ruling came down I was politely accosted by a well dressed elderly man near the north end of the Granville Mall. He said, "I know who you are, but I can't remember your name." We only spoke briefly, he just wanted to shake my hand. Another time at a sidewalk pizza slice place on Burrard a young bicycle courier asked me how things were going. He related a gripe he had with certain laws. Anonymous support like this is very comforting and reassuring.

I also got calls from three gerontophiles, men who are sexually attracted to the elderly. They had seen me on TV and I turned them on. A Toronto man in his late twenties phoned about ten times. He told me that when he was thirteen he deliberately befriended a man my age who took him up to his hotel room. He was thrilled. He likes men in their 60s and 70s. With me he mainly wanted me to talk so he could listen to my voice. Another young man who continues to call has similar tales of early teen encounters, and moans "dirty talk" as he masturbates to the sound of my voice. He talks about getting together. None of the gerontophiles were particularly interested in the details of my case but I feel very flattered being a sex object and I wish them well.

After all the publicity and postering following Justice Shaw's ruling I became highly recognizable especially in my own neighbourhood. I customarily shopped locally, walked for exercise and used public transit. For several days I felt I was a prisoner in my apartment and only went out in the company of a friend. Friends also shopped for me. One friend gave me a Tilley style hat and when I did go out I wore it, black jeans and a black Vancouver Canucks jacket in contrast to the open shirt, tweed jacket, grey flannels, "pensioners" attire of most media coverage. I shaved my moustache and long sideburns, got my hair cut short, the shortest since my brush cut days of my teens and dyed it. Lady Clairol hair dye does not work on beards anyway. I was complimented on how young I looked. I cautiously resumed my normal routines. One merchant who had been following my case welcomed me back. While I was seemingly unnoticed anyone who watched TV and cared to look would have no difficulty recognizing me. Many did I'm sure.

My mental depression was becoming all consuming, my media blunders and the harassment left me feeling empty and worthless. I was guilty of hurting people close to me. I was entertaining suicidal thoughts. Then I escaped to Victoria for a couple of days to visit friends. I met with Jim Heller, the lawyer I had consulted informally from time to time and he reassured me, emphasizing my unique legal accomplishment, and urged me to continue the struggle.

The ruling, and perhaps more the attendant publicity, had other effects. Two people who had been close stopped seeing me. One a closeted, suburban businessman, who had provided regular and valuable moral support and kept up my spirits before and during my voir dire, became very apprehensive after my acquittal. He may have been under pressure from a boyfriend, I don't really know, but I felt hurt. It struck me as ironic that just as my decision to plead not guilty lost me support so did my acquittal. The latter however brought me new support, allies and friends.

Foremost among these is Don Ray, a left libertarian anarchist with a strong interest in civil liberties especially as they relate to speech and sexual expression. He has an extensive library on these subjects and a huge file of clippings related to adolescent sexuality and related legal cases. He possesses a keen analytic mind and is familiar with most of the social science and feminist literature and theories in the field. He had previously been active in the prisoners' rights movement and had been a friend of the late Claire Culhane. He had known of me for several years through my letters to the editors in the local dailies and the gay paper which he had collected in his binders. He visited me shortly after my name became prominent in the media and we quickly established a close social and working relationship. We had lived in the same neighbourhood for fifteen years but had never met although we knew some people in common. I regret that I did not meet him sooner as he could have been of immense assistance in preparing for the voir dire.

Even with my altered image I couldn't really work. The maintenance, repair and minor carpentry work I occasionally did all involved contact with tenants. While one or two already knew me others might have been bothered so I lost maybe a hundred odd a month from that. I didn't get any money from the interviews. I was poorer than I had been since I was a student in the 1950s. On top of that a friend with a drug problem wracked up a huge long distance bill, debts were not repaid as promised and I couldn't pay my Internet Server and lost my connection. But then friends came through with a few hundred dollars and I got in a small amount of work.

THE RULING:

Findings

It took me a while to understand Justice Shaw's ruling. Privacy rights per se were unfamiliar. After reviewing the legislation he discusses the evidence offered by the Crown's expert witnesses particularly Dr. Collins and lists his theories of the harm of child pornography. He then takes the two articles submitted by Dr. Collins, the one by Dr. Marshall and one by Carter and Prensky, and by using quotations from them he shows of the limitations on the conclusions that can be logically drawn. He makes a very careful and logical analysis. He points out that Dr. Marshall's study used "hard core" visual pornography and that Marshall himself admits that "the present findings cannot be construed as relevant to any broader issues concerning pornography in general." My material is not what would be considered hard core nor would much of the material likely to be caught by the law's definitions fall into that category. The other study while purportedly showing a link between pornography and molesting made reference to findings that "mildly erotic stimuli" inhibited aggression while "highly erotic stimuli" increased aggression in laboratory experiments. While I don't think either study should be taken seriously they were the evidence available and they inadvertently qualified and to some extent contradicted Dr. Collins' claims. He points out that under cross examination Dr. Collins "was unable to say whether the relieving effect or the inciting effect (of child pornography) was greater". He gives minimal weight to the concept of cognitive distortions. Then however he says that while there is no evidence there ii is reasonable to assume (common sense) that the dissemination of material which counsels or advocates illegal sexual acts with children does pose some risk of harm to children. While Justice Shaw is cautious, he does not reject or doubt any of the Crown's evidence including Dr. Collins', he reveals how little it actually proves. I believe that my wide ranging cross-examination of Crown's expert psychiatric witness made a significant difference in that I was able to expose some of the limitations of his expertise. Shaw lists 9 findings of fact based on the evidence:

1. Sexually explicit pornography involving children poses a danger to children because of its usepedophiles in the seduction process.

2. Children are abused in the production of filmed or videotaped pornography.

3. "Highly erotic" pornography incites some pedophiles to commit offences.

4. "Highly erotic" pornography helps some pedophiles relieve pent up sexual tension.

5. It is not possible to say which of the two foregoing effects is the greater.

6. "Mildly erotic" pornography appears to inhibit aggression.

7. Pornography involving children can be a factor in augmenting or reinforcing a pedophile's cognitive distortions.

8. There is no evidence which demonstrates an increase in harm to children as a of pornography augmenting or reinforcing a pedophile's cognitive distortions.

9. The dissemination of written material which counsels or advocates sexual offences against children poses some risk of harm to children. Given his minimal value of cognitive distortions this could drastically reduce the definition's scope or application.

Simple Possession

He generally accepts the findings in LANGER and McComb's reasoning as he leads up to the final proportionality test in the OAKES test which involves weighing the legislative objectives against the deleterious effects of the legislation. However a Supreme Court decision just prior to the Langer decision modified the proportionality test by saying that it must also measure the salutary effects of the impugned law against its deleterious effects. This was DAGENAIS v. CBC where a more holistic was allowed. Not only must the legislative objectives of a law be important enough to outweigh its harmful effects, but its harmful effects must be balanced against its beneficial effects. If a law's beneficial effects do not justify the harm it causes then this must be considered. For example, a law requiring that all vehicles entering the country be searched for drugs might have some salutary effects in reducing the amount of drugs entering, but resultant traffic tie-ups might cost many millions and place an onerous burden on many innocent people. The DAGENAIS modification is perhaps similar to a cost and benefit analysis of laws.

The learned trial judge then proceeds "in the present case to consider the proportionality between the deleterious effects and the salutary effects of the prohibition of simple possession of child pornography."

The salutary effects include combating "practices and phenomena which, at least arguably put children at risk." He repeats Dr. Collins' concepts on child pornography but qualifies them with the absence of evidence in some cases and his findings of fact in the case which are partly inconclusive. He says "There was no evidence which demonstrates any significant increase of danger to children related to cognitive distortions caused by pornography. There is no evidence that 'mildly erotic' images are used in the 'grooming process'. Only assumption (his own) supports the proposition that materials which advocate or counsel sexual crimes with children have the effect of increasing the occurrence of such crimes." Noting the Carter and Prensky study entered by Dr. Collins he says, "a person who is prone to act out his fantasies will likely do so irrespective of the availability of or exposure to pornography." He sees no evidence of a market link in that making possession a crime will reduce production. He sees the salutary effects of the possession offence as fairly limited.

Turning to the detrimental effects of the possession provision he starts with freedom of expression which he says plays an important role in my case. He says, "The personal belongings of an individual are an expression of that person's essential self. His or her books, diaries, pictures, clothes and other personal things are intertwined with that person's beliefs, opinions, thoughts and conscience." He examines how freedom of expression has been interpreted in several Supreme Court decisions. Some of his references and extracts are given below:

FORD v. QUEBEC (dealing with the right of people to use the language of their choice) "It is also the means by which the individual expresses his or her personal identity and sense of individuality. That the concept of 'expression' in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter goes beyond mere content is indicated by the specific protection accorded to 'freedom of thought, belief and opinion' in s. 2 and to 'freedom of conscience' and 'freedom of opinion' in s. 3. That suggests that 'freedom of expression' is intended to extend to more than the content of expression in its narrow sense."

R. v. KEEGSTRA "Another component to the rationale underlying s. 2(b) concerns the vital role of free expression as a means of ensuring individuals the ability to gain self-fulfilment by developing and articulating thoughts and ideas as they see fit."

R. v. DYMENT (quoted previously at length and only excerpted here) "privacy is at the heart of liberty in a modern state... Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual." Shaw sees the search of my home and seizure of my materials as relating to an important aspect of privacy.

Shaw examines the prohibitions relating to hate propaganda and points how that the Court in KEEGSTRA only upheld the ban on the wilful promotion of hatred because the prohibition expressly excluded "private conversations" which indicated "Parliament's concern not to intrude upon the privacy of the individual." He also points to Justice Sopinka's ruling in BUTLER (which upheld and broadened obscenity laws) where he says: "I would note that the impugned section... has been held by the court not to extend its reach to the private use or viewing of obscene materials." I quote at length the core of his ruling:

First and foremost, the invasion of freedom of expression and personal privacy is profound. Further, the prohibition extends to all persons including those who make no harmful use of pornography. They may be collectors of pornography, whether out of prurient interest or simply out of curiosity, but with no harmful intent. The prohibition also includes pedophiles who, instead of preying on children, use pornography for very private purposes, such as relief from their affliction by masturbation. As noted earlier, sexually explicit pornography is used to relieve pent up tension or otherwise potential aggressors. Whether or not this cathartic effect outweighs the harm caused by the possession of pornography is not known, but it is nevertheless a significant factor to take into account. The ban includes "mildly erotic" pornography, such as include in s-s (1)(a)(ii), although evidence indicates that "mildly erotic" pornography has the effect of reducing sexual aggression against children. As for materials that counsel or advocate sexual offences against children, there are no doubt collectors who are not affected by such literature, but who are nevertheless subject to criminal sanctions arising from mere possession. A magazine or a newspaper may contain some material said to be pornographic. Although the balance of the publication may be quite within the law, the offending material will make possession of the magazine or newspaper illegal. Purchasers of such publications will have to become their own censors.

I turn then to weigh the salutary effects against the detrimental effects. In my opinion , the detrimental effects substantially outweigh the salutary effects; the intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of prohibition.

As pointed out earlier, an individual's personal belongings are an expression of that person's essential self... The simple possession prohibition deals with a very intimate and private aspect of a person's life and, in my view, that fact should be considerable weight. (This may reflect my argument that rights denied be assessed on their value to those exercising them.) I find the limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects.

In arriving at this conclusion, I have taken into account that the Criminal Code contains what I consider to be powerful measures to tackle the problem of harm to children arising from pornography. Under s-s (2) and (3) of s. 163.1, the making, printing, publishing, importing, distribution, selling or possessing of child pornography for the purpose of publication, distribution or sale, are made criminal. These measures aim not only at the sources but also at the means of dissemination of child pornography. In addition, the obscenity provisions under s. 163 provide an element of protection of children.

In conclusion, I find that s-s (4) fails the "weighing of effects" proportionality test formulated in Dagenais and is therefore not saved under s. 1 of the Charter. As s-s (4) is in violation of s. 2(b) of the Charter and is not justified under s. 1, s-s (4) must be and is declared void.(My two simple possession charges were consequently dismissed.)

Written Material

On the other two counts, possession "for the purposes of distribution or sale" under s-s (3) related solely to material I had authored, a fact I never denied. It is in the context of this subsection that Justice Shaw examines my challenge. He agrees with the Crown that is justified under s. 1. He does not go into the same detail as his analysis in respect to the simple possession offence but lists some considerations that he finds significant: (I have put them in list form)

1. The dissemination of materials that counsel or advocate sexual abuse of children must pose some risk to children. Possession for the purposes of sale or distribution of such material can hardly be justified on any level of reasoning.

2. (Prohibition of) Possession for the purpose of sale or distribution is far less invasive of an individual's freedom of expression and right of privacy than a total ban on possession.

3. The type of material covered by s-s (1)(b) is strictly limited to that which advocates or counsels sexual crimes against children. Mr. Sharpe is concerned that the ban might interfere with advocacy by pedophiles to persuade Parliament to change the age of consent laws and other matters of concern to pedophiles. I do not read s-s(1)(b) as outlawing that kind of advocacy. (My concern was far broader than he suggests.)

4. There are numerous protections available to ensure minimum infringement of freedom of expression. (He quotes from LANGER):

"Section 163.1 includes a number of defences designed to ensure minimum infringement of freedom of expression. Section 163.1 (6) provides for a defence based on artistic merit, or educational, scientific or medical purpose... Moreover, the legislation imports from the obscenity provisions, a defence based on the public good(s. 163.1 (7), and s. 163 (3) and (4).

5. Additional protection arises from the principle of reasonable doubt which is applicable to all elements of a criminal offence including, in the present case, the issue of whether any given materials fall within the s-s (1)(b) definition.

6. Mr. Sharpe relies on IORFIDA v. MacINTYRE which deals with a provision of the Criminal Code prohibiting the distribution of "instruments or literature for illicit drug use." The prohibited literature was defined in part as that which promotes, encourages or advocates the production, preparation or consumption of illicit drugs. The court held that the words "or literature" must be severed from the offence provision as being in violation of s. 2(b) of the Charter and not justified under section 1.

7. In my opinion IORFIDA is distinguishable from the present case. In IORFIDA the court said:

The enactment of s. 462.2 expanded the prohibition to include all literature which promotes or glamourizes illicit drug use. This takes the prohibition beyond what was already covered in a counselling offence. It must also be remembered that the express objective of s. 462.2 is to prohibit express expression. Its objective is not to prevent imminent criminal conduct. The purpose of the statute is to prevent the free flow of information touching on the wisdom of Parliament's own laws.

8. As noted earlier I do not consider that the prohibition in the present case prevents "the free flow of information touching upon the wisdom of Parliament's own laws."

(He concludes): For the foregoing reasons, I find that despite violating freedom of expression under s 2(b) of the Charter, the definition in s-s (1)(b) in the context of s-s (3) is justified under s.1.

My Comments

Viewed as a whole the ruling is conservative and very astute. Nowhere does Shaw contest Justice McComb's decision in LANGER which was the basis of the Crown's case. He merely applies the precedent established in DAGENAIS to arrive at a different conclusion. He does not rule on the constitutionality of definitions and sections of other parts of s. 163.1. He avoids, deliberately I suspect, defining what "advocates or counsels" might mean. He has no need to. He only states that it excludes "advocacy by pedophiles to persuade Parliament to change the age of consent laws and other matters of concern to pedophiles." and "information touching on the wisdom of Parliament's own laws." He carefully hews to the wording in IORFIDA which could be interpreted very narrowly to exclude only material with a clear political purpose. Would this include the NAMBLA Bulletin? Can fiction or fantasy advocate?

On point 7: The pertinent section in IORFIDA, s. 462.2 defines "literature for illicit drug use" in the terms "promote, encourage or advocate". This appears weaker than the terms, "procure, solicit or incite" used in counselling offences, s. 22. I question McComb's claim that "This takes the prohibition beyond what was already covered in a counselling offence" which Shaw quotes. Also both are stronger than the common meanings of "advocates or counsels" in s. 163.1 (1)(b). The definition in the child pornography laws is broader and would appear to include less obvious and forceful ways of communicating meaning. The Court in IORFIDA ruled that the law was directed at freedom of expression with the objective of restricting debate about drug use. But what was the purpose or intent of prohibiting expression? That ruling briefly mentions that according to parliamentary records "the bills objective was to protect vulnerable children and youth and reduce the influence of organized crime". It also quotes the testimony of the RCMP's director of drug enforcement relating that "it (the drug problem) preys on youth" and that "literature for illicit drug use" promotes "the actual use of illegal substances." Protecting children was apparently not the focus of the Crown's case as in LANGER and my voir dire. Who can say what effect the testimony of a forensic psychiatrist who treats drug offenders might have had?

I had argued that political advocacy must include a wide range of material to flesh out and develop ideas and make them broadly available to people. If community standards, which were imported into the child pornography laws by Justice McComb, are the reference for judging impugned pornography, then any material affecting, even indirectly, community standards has an aspect of political advocacy. Is the purpose of changing community standards a political purpose?

I would note that had the Crown chosen to charge me under the obscenity laws in s. 163 instead of 163.1 (3), and been able to prove "for the purpose of distribution" of my writing, I would almost certainly have been convicted.

MEDIA COMMENT

The ruling striking down the possession offence shocked and outraged almost everybody. Justice Duncan Shaw himself was subjected to unprecedented public vilification and death threats.There were strident demands that he be removed from the bench. While some journalists noted that he had a reputation for careful decisions there was no attempt to explain the findings and reasoning in the press. The decision was beyond the pale of rational consideration. It was seen as a momentous event. It somehow created an "open season" on children. In my neighbourhood there was apparently a move to have special patrols at the nearby elementary school but I never heard if anything was done. After over thirty years in the neighbourhood my presence was a suddenly a matter of some urgency. I assume the pupils were warned about me and made to feel endangered.B.C. Report reporter Sue Careless said that "pedophilia's path to acceptance is open" as if the ruling heralded some sea change in attitudes. Child pornographers would be flocking to the province like shrewd investors to an underpriced stock.

Neal Hall and Lori Culbert in the Vancouver Sun, January 19th quoted CKNW radio talk show host Peter Warren as saying, "The bonehead should be removed from the bench." On the same day a letter in the National Post referred to Shaw as "a judiciary joker". Kit Krieger, president of the B.C. Teachers Federation, in January 20th Province: "This outrageous ruling must not be allowed to stand." Chuck Cadman, M.P. for Surrey North was quoted in the Victoria Times Colonist of January 17th: "I never thought I'd feel ashamed to say I'm from B.C." He was quoted elsewhere as saying: "This (the ruling) puts us in the company of the child sex brothels in some parts of Asia." Another Reform Party M.P. John Reynolds said in the Vancouver Sun of February 6th: "Thedecision gives pedophiles the right to abuse children." Kathleen Mahoney of LEAF , described as an expert in child pornography cases claimed in an article by Derek McNaughton in the VANCOUVER SUN of January 27th: "Every time [the porn] is used, that child is injured in its dignity, its reputation, its identity. The harm is multiplied several times. The child is offended against time and time again." Shirish Chotalia, an Edmonton lawyer and northern director of the Alberta Civil Liberties Association was quoted in the Globe and Mail of January 18th: "I think this decision is just wrong and makes people question what the Charter is all about... I hope the decision is appealed and overruled." My misgivings about civil libertarians were confirmed. Political cartoonist Krieger of the Province drew a thumb sucking infant clutching a teddy bear with the heading: OPEN SEASON. Mayes of the Edmonton Journal showed a judge in a movie director's chair shouting "ACTION!" to a "Kiddie Porn Productions" camera crew. An official of Tourism B.C. worried that Vancouver's reputation as a tourist destination was in danger.

I received my share of vilification. A letter in the January 20th Globe and Mail stated: "Robin Sharpe and his ilk are pathetic excuses for human beings who bring further degradation and danger to our society." A letter in the Times-Colonist of the same day asked: "How can this man call himself a grandfather? He could be drooling over pictures of his granddaughter's friends." Another letter mentioned infants as young as 6 months. A twelve year old wrote a letter to the Province on January 19th saying: "This perverted 65 year old man should go see a shrink." As a matter of fact I recently had - Dr. Collins. Another cartoon by Krieger showed a recognizable caricature of myself.

In typical journalistic fashion Justice Shaw's ruling was "mined" for quotes to back up the writer's stance. Neither of the two national newspapers nor the two Vancouver papers attempted an objective analysis of the decision. It was the conclusion not the facts or reasoning that mattered. Surprisingly the most rational editorial and the one that may have come closest to the truth was in The Province.

Descriptions of Justice Shaw.

Peter Ritchie, a prominent Vancouver criminal lawyer said, "Judge Shaw is regarded as a very careful, conservative, analytical judge. He likes to make sure everything is done with a high degree of particularity." A partner in his former firm, Ross Ellison described him as a cautious, by the book kind of man and judge. "Doesn't smoke. Drinks moderately. He would never go through a red light." Ellison said he would be surprised if his ruling was overturned by the Supreme Court. "He hasn't been overturned very much."

POLITICAL FALLOUT

After the media circus and my depression I became quite ill suffering from bronchitis and becoming out of breathe from the slightest exertion. Stress and too many cigarettes. I was basically bed ridden for almost a week. I realized with the Crown's appeal that I was way over my head and needed a good lawyer. Feeling better I began talking to the some of the lawyers I had got to know about possible candidates. I spoke to Clayton Ruby and contacted the CCLA in Toronto. I wanted to go ahead with the other charges. I would do that myself, it was my writing and I couldn't see finding a lawyer would who would read and understand it and defend it word by word if necessary. If convicted, as seemed likely, I would cross appeal on my losing challenge to the written word provision. Then I would need a lawyer. But I knew I could not be ready to defend myself when the trial resumed on February 1st. With Terry Schultes' co-operation the trial was put off to March 1st. Once again he had to arrange to have his list of witnesses available.

Fast tracking

On January 18 three days after Justice Shaw's ruling was handed down Ujjal Dosanjh, the Provincial Attorney General filed a NOTICE OF APPEAL to the B.C. Court of Appeal against my acquittal on the simple possession charges claiming that the trial judge had erred. Ujjal Dosanjh saw it as an urgent matter. He also announced that in future child pornography cases, in order to speed things up, he was prepared to use direct indictment to the B.C. Supreme Court which would deny the accused a preliminary hearing. This would have effectively denied me the opportunity to defend myself. By then reading comments in the press and talking to lawyers I expected an appeal. Dosanjh even announced that he was considering personally arguing my case before the courts to show his commitment. In 1998 he became the first attorney general of B.C. in history to personally argue a case at the Supreme of Canada. This was a case of a man who had murdered his wife after extreme and persistent provocation, and the trial judge taking this into consideration had imposed a lenient sentence. Dosanjh apparently to appease certain feminists who had expressed outrage at the sentence appealed it to Ottawa. He lost. Lawyers I spoke to felt he had demeaned his position in doing so especially as it was not an important issue. Then on February 2nd the Attorney General made an application for a NOTICE OF MOTION to have his appeal fast tracked. The appeal had originally been scheduled for June when presumably my trial would be over. It is extremely unusual for a trial to be interrupted in order for an appeal to be heard. Dosanjh claimed dire urgency and publicly implied that the children in the province were at risk as a result of the ruling. He claimed that already a dozen cases were on hold because of the ruling. This view of imminent danger was nurtured by the media. A hearing before Chief Justice Alan McEachern was set for February 5.

I was opposed to fast tracking. One thing at a time, I had more than enough to work on getting ready to defend my writing. I didn't want to think about an appeal. I was hoping at my trial to make enough points to make my own appeal of the ruling which upheld the "written material which counsels or advocates" definition of child pornography outside of simple possession. I thought that if the crown appealed one part of the ruling that it might be easier for me to appeal the other. It was a foregone conclusion that the Dosanjh would get his fast tracking but I would present my objections anyway. Dosanjh was also making a request to introduce new evidence at the appeal level, something not normally permitted, especially dealing with a point of law. Thus before it began the appeal was subject to two extraordinary legal circumstances.

Parliament

At the same time my case became a political cause célèbre when on February 2nd Preston Manning, the Leader of Her Majesty's Loyal Opposition moved in the House of Commons that the notwithstanding clause be used to uphold the existing child pornography laws. The notwithstanding clause, s. 33 of the Charter, allows Canadian legislatures on a majority vote to suspend almost all of the rights and freedoms guaranteed by the Charter including Fundamental Freedoms, Legal Rights, Equality Rights and due process of law among others. The right to vote, if it would mean anything in the absence of other rights, is exempted. The notwithstanding clause allows governments to trash most of the Charter. It was included in the Charter at the insistence of some provinces. A determined legislature can make whatever laws it pleases, but the notwithstanding clause was deliberately made awkward to use in that declarations made pursuant to it shall cease to have effect to have effect after five years. It is like a sunset law in that it expires. It may however be re-enacted. It has only rarely been used most notably by Quebec's National Assembly to give priority to the French language in that province.

Petitions including one with over 100,000 signatures collected by the Canadian Family Action Coalition were submitted to Parliament in support of the existing legislation. One report said a total of 300,000 people signed petitions. This was an impressive show of strength. All opposition parties supported the resolution to invoke the notwithstanding clause and 70 members of the governing Liberal Party signed a petition supporting this. However the government declared it would be considered a vote of confidence (meaning the government could fall and a federal election could be called if they lost the vote) and managed to bring enough of its M.P.s into line to survive by a narrow 143 to 129 vote. An editorial in the February 4th National Post proclaimed: "section 33 is the Charter's most democratic clause. B.C. will become a sizzling vacation spot for child porn connoiseurs long before this case works its way up to the Supreme Court." The law, it said, was merely "struck down due to its technical overreach." We should not expect more from the National Post.

PICKING PECK

A lawyer referred by the CCLA, Robbie Fleming phoned me and told me he wanted to handle my case at the Crown's appeal. He had not read the ruling but insisted that he would be in charge. I was certainly not interested in another Larry Myers. I felt he was arrogant but I suggested that he attend the Crown's application for fast tracking and discuss things with me over coffee after. He was not interested.

I couldn't find the right courtroom and I was a few minutes late getting to the Crown's fast tracking application. It was already underway. Chief Justice Allan McEachern immediately told me not "to waste my breathe". He did however allow me to make a submission. I noted the unusual circumstances surrounding the fast tracking, argued in favour of waiting until the inflamed passions of the public had a chance to cool down and questioned the use of administrative expediency to justify expediting the appeal. The Crown announced that it wanted to enter new evidence, a very unusual procedure at the appeal level. The new evidence was an affidavit from Inspector Bob Matthews, the head of Project P, Canada's largest anti- porn squad. He is a more polished and probably effective advocate than Detective Waters. He was the other police witness at the 1993 hearings of the Standing Committee. After the hearing was over I was approached by David Butcher who was the counsel for Viktor Schlick who was trying to appeal his conviction on possession of child pornography. I subsequently met Mr. Schlick and we talked about our respective cases which seemed very different. Dr. Collins had also been an expert Crown witness (and practically a prosecutor) at Schlick's trial. I later read the transcript of his testimony in SCHLICK which reveals how deeply moralistic and doctrinaire he is.

The Federal Government through the Attorney General of Canada announced that it was joining the appeal and it soon became clear that there would be a number of intervenors supporting the Crown. I canvassed my growing number of legal contacts for suggestions and met with a few of them. There was now a fair amount of interest in representing me. I spoke to Clayton Ruby, the high profile Toronto criminal lawyer who encouraged me to continue my aggressive course. I also spoke with Frank Addario who had defended Eli Langer's paintings but in a way that didn't help my case. I tried to contact Alan Borovoy, head of the Canadian Civil Liberties Union and someone from his office said they see what they could do, Mr. Fleming, I presume. I knew I had to be very careful in making a decision. I continued checking with my legal contacts who were doing some checking themselves. One firm in the Marine Building had me talk to an unbriefed junior employee. Soon Richard Peck, of Peck and Tammen emerged as first choice.

At our first meeting it was clear that Peck had a genuine concern with the issues involved in my case. We talked extensively about the case and what had happened. Peck is a thoughtful man with a wry sense of humour and more or less a libertarian. His associate Gil McKinnon is a quiet, somewhat older man whom I found difficult to relate to. Peck's assistant, Nikos Harris is a most impressive, keen, sharp minded young man handsome in the manner of Versace fashion models. He became my main contact and we got along well.

Church Meeting

On April 8th, 1999, along with Don my libertarian friend, I went to a community forum on the Justice Shaw'schild porn ruling held at the Canadian Memorial Centre for Peace, There were about twenty in the audience. The panellists were; Ann Clarke from the Attorney General's Department, Craig Jones for the B.C. Civil Liberties Association, Christine Boyle a professor in the Faculty of Law at UBC and defence counsel with Smart & Williams. All three speakers spoke of child pornography in terms of visual depictions of real children, and repeated the often quoted description of child porn as "a permanent record of the sexual abuse of a child." This phrase is found in the Bagley Report, U.S. Senate reports and perhaps initially in the writings of Catherine McKinnon about Linda Lovelace. It is widely used as an additional reason to condemn kiddieporn. Discussion concentrated on visual material. In contrast to the coverage in the media the meeting was calm, orderly and debate was fairly rational given the speakers' assumptions. I kept quiet and was unnoticed. At the end of the meeting we met Dany Lacombe, a professor of criminology at SFU and the pro-sex feminist author of BLUE POLITICS: Pornography and the Law in the Age of Feminism, a book I discussed earlier. She audio taped the meeting as part of her research for an academic article on the social construction of pedophiles where she was using media coverage of my case as an example. We met her again on several occasions and provided her with some material from our files.

Ann Clark gave an interesting exposition of the law's background. She claimed that changes in law driven are driven by technology. She explained that that there were no legislative changes relating to pornography between 1917 and the 1970s because pornographic technology was stable. The laws were adequate to deal with the problem. However two recent technological developments required changes in the law. These were: First, the videocam, which meant that people could make their own porn without having to use professional photography services which could attract attention, facilitated porn making. Secondly, the advent of the Internet created "prosecutorial difficulties". Society must combat this. In this way she defended the law without getting into the principles involved.

Craig Jones, who subsequently became president of the BCLLA, claimed that the law was overbroad. To illustrate this he asked the audience to imagine the most distasteful, morally abhorrent examples of child porn and contrast this with obviously innocent material. He played with extremes and did not suggest any distinctions in terms of either practice or principle. He supported Little Sister's challenge and the ruling that returned Eli Langer's art, not mentioning that this was the ruling that had given a powerful judicial seal of approval to the entire law. At the most I believe he is a "vanilla" civil libertarian. He supported, as had the BCCLA, the prohibition of possession because users create demand for production. His remarks indicated that he has no understanding of the non-market nature of Internet. He specifically condemned computer generated porn where no real children are used.(Would it matter for the consumers?), He reasoned that people may not know it isn't real. He used the analogy of a bank teller facing a robber with a toy gun - the teller may believe it is real. I couldn't see how the analogy was pertinent. I wondered if he would also considered it to be a "permanent record of the sexual abuse of a child". He finished his speech by saying, "The core value we (the BCCLA) are trying to protect here is the protection of children. And (that's) really what it comes home to because it's the protection of their innocence. And innocence is such a valuable thing. And that can be seen in a broader context because there are other innocent people that are covered here. And these are the people we want to speak for. Thank you very much." It all sounded very platitudinous. What did he mean by protecting innocence? Like most users of the term in the context of child pornography he does not define it.

Christine Boyle said the Crown would argue that child porn violates the s.15 rights of children. She saw s. 15, Equality Rights, as a shield against porn abuse. The state protects the most vulnerable groups. She quoted from BUTLER and LANGER. In addition child porn violates the privacy rights of children where real children used. She refers to children being turned into pornography, as if they were transmuted and would never be the same again.

No one had said anything about works of the imagination. No one mentioned causality or questioned the axioms of the child abuse industry. After Craig Jones' banal presentation at the meeting I was surprised to read his thoughtful article in The Advocate, a legal journal relating to my case. In his article he deprecates the type of reasoning he used at the public meeting.

While I suppose it looks good to have an intervenor on our side I have doubts about how useful the BCCLA can be. They fundamentally oppose the decriminalization of possession of child pornography, which is the whole basis of the appeal. They reject the privacy argument. If Mr. John McAlpine sticks to the public position of the BCCLA the Crown can argue, "Why even civil libertarians believe that possession of child pornography should be prohibited." If he doesn't the BCCLA is open to charges of hypocrisy or inconsistency. Isn't this like asking a fox guard the chicken coop?

Is innocence a lack of sexual knowledge or experience? Is he saying that innocence is something that the child loses through involvement in sex or pornography. Are the child or its values, self image or equanimity changed? Has the child become a damaged good? Or treated as such? Is its involvement subjectively harmful or traumatic? Is Jones really saying anything at all or merely mouthing platitudes?

What is innocence? Does it transcend culture? Many Third World kids know about and take part in sex from well before puberty. Have they lost their innocence? What exactly is the innocence that's lost? What quality if any of childhood is destroyed through sexual knowledge and experience, what knowledge? what experiences? Can old people have any innocence to lose?

Starting to Write

It was also around this time that I began writing this book. Having lawyers allowed me to relax a bit and to see things with more detachment. The idea of a book had been in my mind from near the beginning of my troubles. Michael Ritzker had joked about me writing a book as a sort of consolation prize. I had already assembled a considerable amount of material in preparing my case; an intermittent journal of events and reactions, lengthy letters to lawyers, notes on cases and related articles I had read, a collection of newspaper clippings and photocopied excerpts from books and professional journals, notes I had prepared for the voir dire much of it unused, and various polemical writings I had been inspired to set down. I decided on a candid, up front approach based on my personal involvement. It was much more work than I originally thought especially as I saw the need for more research.

PREPARING FOR THE APPEAL

There was actually very little new evidence in Detective Inspector Matthews' affidavit. The message was the urgency of their claim; the possession law was needed in order to gain entry to premises and seek evidence of other offences involving pornography or sex abuse. Kids are becoming at risk. Matthews is skilled at putting things very immediately with references to local children on the sidewalk and lurking neighbourhood pedos. From the police enforcement point of view there is a compelling case for possession laws. Perhaps more interesting than Matthews' affidavit is his resumé. He is a successful police officer and a crusading activist with impressive credentials. He cultivates the media having given over a thousand interviews and appearing on numerous talk shows. He has given many lectures and pornography presentations mostly within the criminal justice system. He has attended Dr. Peter Collins' training sessions. He was already head of Canada's largest anti-porn unit, Project P and his interest in promoting child pornography laws began well before he was a witness before the Standing Committee. He advised both Chris Axworthy, M.P. for Saskatoon, and John Reimer, M.P. for Kitchener on their own private member's bills for child pornography legislation. This was part of a campaign to persuade the government to bring in legislation. In May 1992 he went to Washington D.C. to discuss child pornography with U.S. Customs and the FBI's Violent Crime Unit. He boasts that four of the five amendments he suggested to Bill C-128 were adopted.

While it is true that the simple possession law helps the police enforce others, in legal terms a law must be justified in its own right, not as an administrative expedient. Peck said there are precedents for this. It was not a serious legal move but rather gave the police a bigger role. He did not think the appeal court judges would take the new evidence seriously.

I had become aware of a lot of interesting, and I felt useful, new social science material through the knowledgeable Don Ray. I was able to get a discount senior's library card for the UBC libraries. We spent a few days out there, borrowing books and selecting and copying a number of journal articles dealing with porn and the question of risks to children. Among these was a study of the alleged criminogenic effects of pornography on pedophiles and another was the soon to be highly contentious Rind study. I felt if the Crown could introduce new evidence, why couldn't we. Peck had hired a social science researcher, Chris Nowlin, a recent, social science SFU doctoral graduate who was trying to get his dissertation published at the time. I was anxious to meet him. Mr. Nowlin is one of the most persistently talkative people I have ever met and I was not able to say much of what I wanted. I did get a list of the articles he was interested in and I gave him photocopies of some academic studies I could see being useful including the two mentioned above.

I agreed to try to help Chris Nowlin find one particular study he'd seen on the Internet but couldn't find again. It was, he said, a "phenomenological study" which he thought was important. I didn't know what it meant. I managed to locate the South African university where the study was done and wrote and e-mailed them. The paper, "The Psychological Life of Paedophiles: A Phenomenological Study" in the South African Journal of Psychology by Gavin Ivy and Peta Simpson was based on a tiny atypical sample of only six white child molesters in therapy. From this sample the authors drew sweeping generalizations which contradict almost all other studies. For example they claim that pedophiles do not have sexual or gender preferences. This may simply be due to the fact that their subjects were probably all incest offenders, the authors don't say. The authors set out to disprove "traditional stereotypes of child molesters" which incidentally have not been accepted in professional literature for decades. The phenomenological methodology used, which is what seemed to interest Nowlin, is merely a trendy technique to rephrase respondents' replies into ideologically correct "insights" or stereotypes. I could not see how this badly flawed piece of research could assist us. Another article he article he selected, "Intimacy deficits, Fear of Intimacy, and loneliness Among Sex Offenders" by Kurt M. Bumby deals exclusively with incarcerated incest offenders. I could not see that it was relevant to anything we wished to establish or refute. The matters it seeks to investigate may be the effect rather than the cause of their incarceration. It bore no relation to porn and incest offenders are least likely of any sex offenders to use porn in any case. Another of his choices dealt with prepubescent female victims. I began to doubt if Nowlin knew what he was doing.

The Howitt study

The article "Pornography and the paedophile: Is it criminogenic?" in The British Journal of Medical Psychology by Dennis Howitt, a Senior Lecturer in Social Psychology at Loughborough University in the U.K. looks at the role of pornography and fantasy in the lives of sex offenders. This study is based on the case histories of eleven "fixated" (preferential) criminal pedophiles well into a treatment program. All had a long history of offending. While this sample is too small to be considered representative a case history approach can provide details and insights for interpreting other studies. It gives a series of close-ups as opposed to an overview such as the Rind study.

The authors begin by noting that in general both sexes report having fantasies which have little to do with their real life sexual practices and desires. Fantasy and reality are separate for everybody including pedophiles. They say this is in line with common sense theories, but when it comes to debate on the effects of pornography and legislation it is typically regarded as a precursor of action. They quote the well known feminist slogan, "Pornography is the theory, rape is the practice." Pornography it is claimed, is harmful, and "exposure to pornography makes men commit sex crimes".

They note the lack of research focusing on the relationship between fantasy and offending. Existing studies they note, fail to show a link between the amount or earliest exposure to pornography and sex crime, or that offenders consume more porn than others or that it is a factor in offending. They conducted long detailed interviews with the men examining the role of pornography in their fantasy and offending. While they had usually experienced abuse as boys they had little exposure to commercial porn. Child pornography was probably not available. Some collected "collateral material" or made their own from ads and catalogues. One liked boys in uniform. Fetish appeared more important than nudity. Only one man was an avid collector of child porn, and Walt Disney movies with young boys. Some of the men had never seen child pornography and most had never used it. For pedophiles they say that there is a vast amount of material that can serve pedophiliac fantasy. A very interesting finding is that most of the men in their sample did not have orgasms while committing their offences. And, "Sometimes, the offence may be a means of generating sexual fantasy rather than reducing it. Few of the paedophiles actually reported orgasm while offending. However some would masturbate to fantasy of the offence at a later time." Pity they couldn't have used child porn instead? This possibility stands Dr. Collins' theory that child pornography fuels fantasies and incites sexual assault theory, on its head. Catharsis with a vengeance.

They suggest that child pornography is not an important feature of the lives of pedophiles, consumers are idiosyncratic and there are many legal substitutes. They do not see prohibitions of child pornography as an effective way of reducing sexual assault. The Howitt study published in 1995 did not attract media attention. I wanted Chris Nowlin to read it.

The Rind Study

The very contentious Rind study attacked the assumption of harm, the assumption that grievous and almost inevitable harm flows from adult/child sexual contacts. The assumption is the bedrock for much social work and therapeutic practice. The Rind study asks: "For people who have experienced CSA (child sexual abuse), does the experience cause intense psychological harm on a widespread basis for both genders?"A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Examples (Bruce Rind, Department of Psychology, Temple University, Robert Bauserman, Department of Health and Mental Hygiene, State of Maryland and Philip Tromovitch, Graduate School of Education, University of Pennsylvania) was published in the July 1998 issue of the Psychological Bulletin, a journal of the APA, the American Psychological Association.

The Rind study is a meta-analysis. That is, it's a study of previous studies which uses statistical procedures to examine, compare and synthesize their assumptions, criteria, methodology and results. A meta-analysis may rework existing statistics and extract new conclusions. They do not involve primary research but rely on data already there. The authors begin by pointing out that in the psychological literature the term CSA is used to describe "virtually all sexual interactions between children or adolescents and significantly older persons, as well as between same-age children or adolescents when coercion is involved." It often includes non contact acts such as exhibitionism. Researchers often fail to distinguish between "abuse" as harm done to a child or adolescent and "abuse" as a violation of social norms. Wrongfulness is equated with harmfulness. They claim that problems of scientific validity arise when dissimilar events, such as "the repeated rape of a five year old girl by her father, which undoubtedly produces harm" and "the willing involvement of a mature 15 year old boy with an unrelated adult" are both defined as CSA. They say, "the latter may only involve a violation of social norms with no implication of personal harm." "In cases like this the authors say in their paper they say that the use of the term child sexual abuse, "whether by media, legislatures or mental health professionals, conveys the meaning of harm to the individual as opposed to violation of social norms. This in turn reinforces, incorrectly, the notion that the adolescent in such an episode really was harmed psychologically or emotionally. This adolescent is then perceived to be a victim and treated as a victim, which can become a self-fulfilling prophesy in that he will become the victim he is supposed to be." The cases of Gramlick and Jewell illustrate this phenomena. There is considerable debate in the field with some researchers such Dr. David Finkelhor, as mentioned earlier in discussing "consent", who argue in favour of the scientific use of socio-moral based terminology.

The authors took the data from fifty nine college samples found in studies which examined the correlation between CSA and various measures of adjustment. In their overall samples 14 percent of males and 28 percent of females had experienced CSA. Sixteen CSA samples reported their immediate (at the time) reactions to CSA. Thirty seven percent of men and eleven percent of women recalled positive reactions. A third of the men reported negative reactions while almost three quarters of the women did. Boys, according to the studies, are more positive about sex generally, typically feeling excited, happy and mature about their first experience of sexual intercourse while girls often feel afraid, guilty and used. Girls were involved in CSA at an earlier age, were over twice as likely to have been involved in incestuous relations than boys and were almost twice as likely to have experienced force or threat in CSA. Both incest and the use of coercion had significant correlations with adjustment problems. The studies showed pronounced gender differences in relation to ideas and values relating to sex. A few decades ago this finding of gender differences with regard to CSA would have been unremarkable, but now this conflicts with entrenched concepts of gender equality. It is of course true that boys are also sexually abused, and that they are as capable of suffering as girls, but CSA differences are not explained by saying that boys have been conditioned to control their feelings, or some such nurture nostrum. Sex is different for boys. It poses awkward political problems. The authors conclude that willing boys should not be grouped with girls in discussing the effects of CSA.

The study found that frequency, duration and nature of sexual acts had no significant effect on relationships but willingness and knowledge did. Willingness, meaning freedom to participate or say no, appears strongly tied to positive reactions. Ignorance and a sense of shame about sex are associated with negative reactions. There were findings that family environment is many times more influential on current adjustment than CSA. There was however a correlation with neglect and physical abuse. One study examining children with adjustment problems looked at combinations of abuse, and concluded that maltreatment rather than CSA impacted on adjustment. Verbal abuse was specifically mentioned. It is easy to see how parental verbal abuse, which can directly attack the child's self worth, could be more damaging than a nonfamily person fondling its genitals. By considering a variety of factors and explanations and exposing the unreality of basic assumptions the Rind study was seen as a threat, perhaps more a threat to the child abuse industry than to children. There was actually little new in its findings.

The Rind study first received intense publicity when it was attacked by Laura Schlessinger, a syndicated columnist and the host of America's most popular talk show host know as Dr. Laura. Her Focus on Family slant is strongly critical of the American Library Association and homosexuality. While technical aspects of the Rind study were allegedly faulted they were clearly secondary. The conclusions were the problem, not so much that they were unsubstantiated or false but that they conveyed the wrong message that sex with children might in some cases be less than an unmitigated evil. They offered comfort to boy lovers in particular who felt vindicated by the findings that willing boys, if not girls, generally viewed their sexual involvement with older people as positive, and that there was scant evidence it led to adjustment problems. NAMBLA had a favourable review on their website. The problem was the message

Dr. Laura called it "junk science" and referred to Dr. Finkelhor who disputed the conclusions. According to an article by Susanne Hiller in the May 6th, 1999 National Post the study made Dr. Laura sick, it was "non-scientific trash", she feared it "could be used to normalize pedophilia" and, "The point of the article is to allow men to rape male children." A Calgary pediatrician questioned the motives behind the research and said it served as justification for pedophiles. In the U.S. the panic over the article led to intense lobbying by the child abuse industry which has a huge professional and psychic investment in the assumptions.The study was denounced in the U.S. House of Representatives as "the emancipation of pedophiles." Both houses of Congress waded into the controversy and passed unanimous resolutions condemning the study. A few abstained. In an article, "Unpopular Psychology" in the February 2000 issue of Lingua Franca Bill Berkowitz reports that in a move unprecedented in its 107 year history the APA wrote an apology to Congress for failing "to evaluate the article based on its potential for misinforming the public policy process." The APA promised in the future to consider not only the scientific merit of articles but also their "social impact". The message was the problem. An independent re-evaluation of the article was ordered. Although the APA was only facing the threat of funding cuts one thinks of Galileo recanting before the Church to save his life. This little protested government assault on academic independence is reminiscent of the old Soviet Union, and demonstrates the depth of public hysteria over what is termed pedophilia. No principle, including academic freedom it seems, is too precious to sacrifice in the name of protecting children. Perhaps not since Darwin's ORIGIN OF THE SPECIES with its, "we evolved from apes" implications, has there been such moral outrage over a scientific publication.

I see some interesting parallels between the Rind study and Judge Shaw's decision. Both relied on existing documents for sources, both followed carefully detailed methods, both triggered moral panics and both led to unprecedented votes in their respective parliaments. And of course both challenged assumptions of the child abuse industry.

Getting back to Chris Nowlin. He did not, would not read the studies that Don and I had located and copied for him. I confronted him about his own selections. I told him I could not see their relevance to the case. He dismissed the criticism by saying his "first responsibility is to follow instructions". In his consulting role, it would be reasonable to assume that he would be the one deciding on what materials to use, so it was his own instructions he was saying he must follow. If he wasn't deciding which articles to use then it would have to have been Gil McKinnon. I think this is highly unlikely. To argue that his instructions left him no time to read the journal articles that I gave him stretched reason. I wrote to McKinnon, whom Nowlin was reporting to, that I was seriously concerned about the quality and general drift of the social science articles selected for inclusion in our factum. I said it was not clear just what points they are intended to establish. I also enclosed a brief article for him to look at. When I expressed my concern to Nikos he tried to make excuses for Nowlin. I didn't want Nikos in an awkward situation defending him as I relied on Nikos to pass my concerns along to Peck and McKinnon. I didn't get a reply from McKinnon.

I could only understand Nowlin's attitude as simple arrogance, an intellectual arrogance. I felt he refused to treat me seriously, he wanted me to help him but he didn't want to discuss ideas. Or was the material I suggested to be automatically discounted because of what he deemed me to be? Was it tainted? I wondered if he had some profound but unrecognized moral block? I was told after that Chris Nowlin is not comfortable dealing with matters of sexual behaviour and that he has little curiosity or sympathy to do with sexual heresies. The fact that he primarily selected articles dealing with female victims and incest which are only marginally relevant to the issues and testimony of my case may be indicative of his ignorance. That may be his perspective on child abuse. Nor did his articles deal with the relationship between child porn and sex offences. This was a key point raised by Justice Shaw and it seems short-sighted to ignore it. I was not able to find out on what basis Nowlin selected the articles. I felt he was eroding some distinctions I had established at the voix dire and believed his selections were not particularly helpful to my case.

Some of Chris Nowlin's other work, his analysis of Dr. Collins' testimony in relation to Shaw's ruling for example seemed well done. In his report to McKinnon it is evident that he did a large amount of legal research analysing the Appellant's factum, clinical studies, legal writings and case law albeit from a very narrow legalistic viewpoint. He makes a number of good points some of which found their way into our factum.

I had very little opportunity to speak with Gil McKinnon during the preparation of the appeal. I provided him with some material and references often dropping off envelopes and letters for him at the desk in the luxurious office tower where his office is located. I am not sure if he welcomed me volunteering material for him to consider. I doubt if McKinnon studied them and it probably didn't matter. The situation was more or less resolved by irrelevancy. Peck didn't think social science evidence would be much of an issue. He didn't think the appeal court judges would be interested. Decisions such as Butler and Langer had said it was inconclusive and that was that. It seems that Peck was right.

Appellant's Factum

Harm, harm, harm. Harm flowing from the mere possession of child pornography was the reoccurring theme of the Appellant's factum. That was the basis of the case against me in all the opposing factums. While harm is clearly apparent in the making of some child pornography, the case for indirect harm is tenuous at best.

I tried to get my lawyers to consider bringing in the catharsis theory beyond the some vague and inconclusive evidence in some of Dr. Collins' statements in the transcript. They basically ignored it although it is clear from his ruling that Justice Shaw gave it some weight. The catharsis concept can also be approached through common sense which is a permissible line of reasoning in judicial proceedings. I advanced the following proposition:

There's a pedophile living down the street from you and you have school age children. Would you prefer that the pedophile had child pornography that he can use for his masturbatory fantasies? ... Or would you prefer he fantasized about your own kids?

In terms of a rational connection direct harm can only be indisputable if evident from the image itself. Otherwise it must conjectured. A basis for abuse or exploitation must be indicated. If an image of a child depicts an illegal or distressful sexual assault, or age inappropriate sexual behaviour then it would be clearly abusive. The Appellant takes the view that abuse or exploitation must be assumed in any image meeting the definition. If a court determines that an image is child pornography then the child depicted in the image has been abused. Pornography defines abuse. What does this do to the child who may have innocently posed or simply been there? Now they may need treatment as victims. Child pornography is very subjective and can be many things. It makes more sense to have abuse define pornography. You start with a victim rather than making one. It would require a clearer definition of what abuse is for the subject

In their factum the Appellant makes a number of economic arguments to justify the prohibition of possession. They refer to "basic market principles" in a situation where it is arguable that economic motivations are extremely weak. For the most part their arguments are ignorant and incredibly naive although they have simplistic appeal. Their factum states: "The demand for child pornography is created by the users." This is a truism. It doesn't even have a deceptive subtlety. This leads them to the profound observation: "if there is no demand there is no market." As a college economics instructor for four years I flunked kids for less. There are three main ways to reduce demand: reduce the number of buyers, reduce buyers' incomes or raise prices and indoctrination. We see attempts at these methods in government policies dealing with drugs, alcohol and tobacco. Society could jail or kill pornography users, tax child pornography or promote it as uncool and bad for people's health. In view of the emphasis on "economics" in the Appellant's factum I suggested that we should counter them with our own economic reasoning. I suggested to Peck, who was already familiar with him, that some quotes or references to Richard Posner, a respected American conservative judicial philosopher might be appropriate to embellish the arguments below. I had recently read his book, SEX AND REASON where he applies economic concepts to legal issues.

The Appellant claims that "the trial judge drew conclusions which are at odds with basic market principles and said that he erred when he stated: "there is no evidence that the production of child pornography will be significantly reduced if simple possession is made a crime." They quote an early child pornography decision where a market was simply assumed. However, "basic market principles" do not apply to the Internet, by far the major source of child pornography today. Viewing/downloading or possessing is free with no marginal cost involved. Posters/uploaders or distributors do not get paid although others may express their appreciation, or condemnation. Posters motivations are primarily altruistic, egotistic and sometimes messianic. There is no market in the traditional sense in which "basic market principles" can operate. Production only relates to possession where men produce for themselves. Production, as I have argued before, is more related to the difficulties and risks of acquiring child pornography by other means than to whether or not possession is an offence. I said that with the current abundance of child pornography there is little incentive for men to involve more children in its production. Using common sense it is reasonable to argue that prohibiting possession encourages production rather than discouraging it.

Even in the pre-Internet days of the Fraser Committee when some semblance of markets still survived the idea that sanctions against possession would attack the market, reduce incentives and act as some deterrent to production was questionable. It was the very success of the measures that crippled commercial production and markets (at the end of the 1970s) combined with effective sting operations that stimulated widespread, small scale amateur production. It was precisely the stifling of the market that increased new production, along with the number of children involved. This was the situation the committee faced. Amateur porn produced by pedophiles and youth lovers who have strong non economic motivations may be affected by harsh penalties aimed at production and circulation but not to possession. Even in the heyday of commercial kiddieporn in the 1970s much of the actual photography was amateur.

Intervenors' Hearings and Factums

In late March we went to court to watch potential intervenors make their applications before Madame Justice Southin in the B.C. Court of Appeal. Intervenors are supposed to provide legally drafted arguments with a special point of view or perspective. The Canadian Police Association speaking also for CAVEAT and others claimed possession laws were necessary for police work. Possession in the Internet era cannot, they said, be separated from distribution and making. And their lawyer reminded the court that the police worked hard to get this law enacted in the first place. The court was also reminded that Collins's testimony is only the "tip of the iceberg". He made it sound like bread and butter issue. All applicants were granted intervenors' status except for the politically active Sexual Assault Centre of Edmonton. Their lawyer claimed they represented the rights of children depicted in child pornography. The successful intervenors included: Canadian Police Association, Beyond Borders/ECPAT, Focus on Families/Evangelical Fellowship of Canada and the BCCLA. The intervenors time would be limited to fifteen minutes each. The Attorney General of Ontario would also submitted a factum. The opposing factums had much in common and many of the arguments were necessarily tied to the OAKES test. I emphasize their distinguishing features.

The Canadian Police Association: Their factum also spoke for their political allies CAVEAT (Canadians against Violence Everywhere, Advocating Its Termination) and CRCVC (Canadian Resource Centre for Victims of Crime). I thought their presentation was weak and repetitive. They relied on Inspector Matthews' affidavit to argue that with the Internet possession, making and distributing are closely related and can no longer be treated as separate things. The CPA emphasized the practical usefulness of s.163.1 (4) in investigating distributing offences. Matthews is more skilled with words than Detective Waters' whose testimony they quote extensively repeating her concerns about NAMBLA and the Mike Diana comic, Boiled Angel. Dr. Collins' testimony is mined for supporting evidence. The factum on several occasions speaks of child porn as analogous to drugs on several occasions. The GRAMLICK and JEWELL cases are seen as triumphs of the child pornography laws. For scientific evidence the police factum relies on discredited laboratory experiments by Donnerstein and Malmuth to show a correlation between porn and harm. Donnerstein in his book THE QUESTION OF PORNOGRAPHY strongly criticizes the use of his work for law reform purposes such as the criminalizing of pornography. Things like "slasher movies" are far more dangerous he says. [For a critique of study methodology see William A. Fisher, "The Emperor Has No Clothes" in REGULATING SEX, an anthology of comments on the Bagley & Fraser reports, SFU, 1986. Also BLUE POLITICS by Dany Lacombe.]

The Attorney General of Canada's factum argued from the Fraser, Badgley and other previously mentioned reports. BUTLER and LANGER, are quoted extensively and they use ROSS to suggest parallels between hate literature and child pornography. The factum relies heavily on the testimony of Dr. Collins to justify the need for and provide a rationale for the law. In common with most intervenors they claimed that the trial judge erred by not giving sufficient weight to the protection of children. They brought up "Canada's International Obligations" under the U.N. Convention on the Rights of the Child, various congresses and summits, and Interpol.

The Evangelical Fellowship of Canada's factum argued against the importance of hypotheticals, the real purpose of the legislation was to protect children from pedophiles. It is an argument of faith from the heart. As they have done in othercases they argued that the preamble to the Charter: "Whereas Canada is founded on principles that recognize the supremacy of God and the rule of law", embodies certain shared values that should be applied to fill in gaps and indicate fundamental values. [Justice Southin said the preamble has no weight in law.] They would use the preamble, with its "supremacy of God", as a general morality test for legislation.

Beyond Borders and ECPAT who are mainly identified with crusading against child prostitution in the Third World wanted the court to consider the international repercussions of trafficking in child pornography particularly on the Internet. Their factum stresses Canada's international obligations and comes very close to saying that any "international obligations" that Canada undertakes can override any rights and freedoms of its citizens. Following their logic it would appear that our federal government need only to sign a reciprocal agreement with Singapore so that we too can outlaw the Jehovah Witnesses.

Or consider petunias. Suppose certain clinicians have theorized that petunias are criminogenic. Some people even conjecture that petunias are part of an elaborate oppressive cultural construction that justifies the degradation of vulnerable groups in society. Newspaper reports on academic articles detailing laboratory experiments involving first year college students clearly indicate a correlation between massive exposure to petunias and anti-social behaviour. Victims are obviously involved and society turns to those claiming to speak for the victims of petunias. Concerned citizens including the loved ones of victims and a few recovered survivors are convinced that punishment of the guilty will protect vulnerable groups, provide needed closure and satisfy retributive justice. The police demonstrating their own concern for society's victims call for new laws including making simple possession of petunias an offence. Unfortunately it is difficult to make rational and persuasive arguments to support the need for prohibition, and any law attempting to do so might be found unconstitutional. However all is not lost. A responsive and resourceful government signs a treaty with Paraguay to ban petunias in their respective countries and create a joint agency to suppress international trafficking in petunias. The government points to its international obligations under the authority of article 17© of the Canada-Paraguay Petunia Control Convention and experiences no difficulties in enacting the Petunia Control Act with the unanimous support of Parliament. Canadians have reason to be proud of their participation in the international community. The new laws are soon vindicated by a large number of convictions which demonstrates how serious the petunia menace had become. Such reasoning is more potentially dangerous than preposterous.

Their factum submits that prohibiting possession of child pornography is a specific obligation that Canada undertook when it signed the United Nations' Convention on the Rights of the Child. They are able to point to Supreme Court decisions including KEEGSTRA where Canada's international obligations were weighed. They would use international conventions much as the evangelicals would use the preamble - as a substitute for the notwithstanding clause.

The BCCLA was the only intervenor on my side and I was a bit apprehensive about their support. It's a difficult issue for those desiring to avoid opprobrium. After a few platitudes their factum rejects the libertarian position of freedom of possession and argues for a much narrower definition of prohibited material. They are not going to question any assumptions of harm, or look at it other than through the lens of precedents and expert testimony. They are concerned about the abuse of real children and virtual ones who might be real. They would allow possession of products of the imagination. They use a number of hypotheticals and discuss the question of 14 to 17 year olds who can legally engage in sex but its depiction is prohibited. The problem is overbreadth and it's curable, maybe just "reading down" the law.

My Counsel's FactumMarch 12th, 1999.

Although our factum was meticulous I was disappointed with its narrowness. It excluded, I thought, a great deal of useful argument. The Crown and the intervenors in their factums had used a variety of assumptions and arguments which I felt could be effectively countered with ordinary reasoning. I felt on the basis of the transcript that we could point out inconsistencies in the testimony of the Crown's two expert witnesses, particularly Dr. Collins's. I thought his arrogant prognosis of me in his letter of November 3rd, 1998 to Prosecutor Schultes that was entered as evidence: "I have never examined John Robin Sharpe, therefore I cannot offer a diagnosis. Based on my review of the material, however, in my professional opinion he would likely be extremely difficult, if not impossible to treat given the extent of his cognitive distortions thereby placing him at high risk of reoffending." That should be brought to the Court's attention. I am not an offender, I have never been charged or even warned. Dr. Collins was already assuming I needed treatment.

In terms of hypotheticals I suggested one that I had prepared for the voix dire which dealt with ss. (1)(b), advocating sexual offences against children: Let us say an Aboriginal argues that his tribe should recreate the berdache custom in his tribe. The berdache or two spirited people were often men of influence and shamans. A contemporary Aboriginal sees problems of broken homes, child abuse, adultery, jealousy and abusive husbands among his people. He believes that Native society is disintegrating. He has studied traditional Aboriginal culture and believes that it may offer solutions to contemporary problems. He believes that the berdache were an important part of the cohesion of traditional culture. Among other things the berdache helped educate youth in a number of things including sex so that when boys became interested in girls they would not be so clumsy sexually as many boys are today in Canada. They also provided a sexual outlet for adolescent boys which helped protect girls from unwanted attention. This latter function of the Berdache would inevitably include "sexual activity with a person under eighteen years that would be an offence under this Act". He might even argue that the berdache custom would be a good thing for the whole country. The theories of our clinicians and police would have us reinterpret the berdache and their contacts with boys in terms of "offenders", "abuse" and "victims" so that no cultural understanding of the custom would be possible. Newspeak does just that. It forestalls ungood thought. I said that the berdache advocacy has no artistic merit, it has no medical or scientific purpose, and unless it is interpreted very broadly, no educational purpose. It is political advocacy. My hypothetical required some ethnographic understanding but I had good academic sources available. In another situation I asked how intimately can we discuss the Japanese samurai tradition which commonly included man-adolescent sexual bonds? And what do we do with all those sonnets and Arabic poems extolling the love of boys? There is a wealth of positive historical and ethnographic material, particularly about what is loosely called man-boy love or intergenerational relations, which challenges conventional morality and community standards. The cultural anthropology section of the UBC Library is full of it. It can serve as porn and lead one to look at one's own culture differently.

All the opposing factums stressed the harm that might flow from mere possession of child pornography. This was presented as a common sense proposition utilizing the Collins' theories. It pre-empted the field making common sense arguments against harm difficult. To overcome this I suggested that instead of looking at harm flowing from possession, we should in a common sense manner look at the potential harm of an effective prohibition, in other words, of a scarcity of child pornography. The picture I submit is quite different. Let us assume that child porn is much more risky to obtain and even possess due to strict laws and vigorous, effective, proactive law enforcement measures. Let us even assume that child pornography can somehow be purged from the Internet. The situation would, I submit, be similar to the situation in early 1980's after overseas sources were eliminated and before the Internet became a factor. This is the situation that the Badgley Report described and which is still relied upon by several of the intervenors as authoritative. Child porn was difficult to find and very risky to acquire due to extensive sting operations. What could we reasonably expect if we could again achieve effective prohibition? What were consequences for children? I would suggest that once again we would get an exponential increase in the number of children involved through self made materials even if the total amount of child pornography including copies of images were drastically reduced. Video camcorders, digital cameras and computer technology make porn easy and cheap to produce. Would men see using willing street kids as less risky than answering some advertisement which might be a sting?

Obviously fewer men who wanted to would possess child pornography. Some men would have their collections seized and be fined or jailed. They would certainly be more careful in the future but would this experience make the men more or less likely to offend in the future, and if so, would they behave more desperately out of fear? Other men out of fear would discard or destroy their collections. Would being deprived of porn, or simply fresh porn make these men more likely to assault children, perhaps as a basis for subsequent fantasies as some studies suggest? As a substitute for porn? Would the suppression of child pornography lead it to acquire mystical, semi-magical properties, an ultimate taboo which could make it more dangerous for children and society? Indeed it may already have through demonization. I felt that a reverse approach would allow the construction of common sense harm arguments to counter those of the Crown and its allies.

Another argument I used at the voir dire and suggested to my counsel was that the right to possess allows the citizen, the activist and the politician an objective basis for assessing other questions, laws and arrangements relating to child porn. Selections from police collections tend to unrepresentative and misleading and are used in an inflammatory manner.

My counsel did not comment on any of these suggestions perhaps because they implied that possession of child pornography might be less than an unmitigated evil, a position which they felt was morally and legally untenable. And if harm is axiomatically assumed they are useless anyway.

Almost all the other factums used market arguments to justify the offence of possession often basing their arguments on the obsolete information in the FRASER and BADGLEY reports. At the voir dire I had tried to point out that a normal, supply and demand type market doesn't exist with homemade porn and the Internet. Only the CPA factum acknowledged this as part of their claim that possession could no longer be distinguished from distribution and making. I wanted my lawyers to argue that market logic, the suppression of demand through possession laws, was no longer a significant rationale. Justice Shaw had already cast doubt on the connection.

The factum and the later oral submissions make much of the law's invasion of privacy. However by not questioning the line that the form of possession in question was of low value they, in effect, denied the possession right much substance in my case. Their privacy arguments despite the rhetoric were reduced to privacy for privacy's sake. I did however note that some of the privacy arguments in the factum could be used to challenge Canada's drug possession laws and that the Charter might be the only way to end this holocaust.

As for remedies, judicial measures to resolve conflicts in law, my lawyers considered the idea of reading in "publicly" before the phrase "counsels or advocates". While an improvement I thought it too restrictive. I reminded them of my interest in ss. (1)(b) in relation S. (3), possession for the purposes charges. I suggested as one remedy that "advocates" be severed from the definition with "counsels" being given a meaning similar to s. 22. My counsel was not interested.

The factum's single minded emphasis on overbreadth made it awkward for them to advance other arguments. Their thinking was cacooned within the artificial realities of constitution law, the Shaw ruling and the social constructions of Dr. Collins' theories. It was an abstract exercise into which ordinary observations, common sense and non legalistic explanations had little place.

In March an accused child pornographer in Alberta by the name of Vallee attempted to challenge the possession law using my case as a precedent. I do not know anything about the evidence and arguments in his case, but the Alberta court was not bound by the ruling on my case and upheld the law. A few cheered, like the score was now even, but we knew the decision was unimportant in B.C. This was the case where Stockwell Day wrote a letter to the editor condemning Vallee's lawyer, Lorn Goddard and was successfully sued.

I had my only meeting with Gil McKinnon shortly before the Appeal Court hearings. We met in a glass jewelbox interview room overlooking West Georgia Street in the opulent two storey suite where he has is office. I answered his questions and communicated my concerns about the direction the case was going. There were several areas which we did not get around to and he scheduled another meeting, which he subsequently cancelled.

B.C. COURT OF APPEAL(April 26th, 1999)

The Appeal was held before Chief Justice Allan McEachern, Madam Justice Mary Southin and Madam Justice Ann Rowles.

I had allowed my hair to grow back and return to its natural light grey by the time of the appeal, and again dressed like the poor pensioner I am in my best tweed jacket and flannels. Don, who perhaps alone of my friends was not concerned about media exposure at my side, accompanied me. It made things a lot easier and more pleasant. The appeal merited a large courtroom along an upper terrace and attracted good crowds. Each intervenor brought a cohort of supporters. Detective Waters showed up when the evangelicals made their oral submissions. I was recognized and pointed out. A woman who had come from Winnipeg to be at the Beyond Borders submission spoke with me. I mentioned some of the points I had made in my brief to the Standing Committee when they were considering Bill C-27, legislation designed to apply extra-territorially to Canadians purchasing sex from underage prostitutes overseas. She seemed earnest and pleasant but she was quoted later in the media demeaning me, perhaps it's a necessary formality for some.

The Canadian Police Association lawyer, Timothy Danson was, I thought weak, it was like the association was lobbying for more police powers. The police were emphatic that they needed the law to get a foot in the door. John Gordon for the Attorney General was devoutly more effective. He was methodical and conceded nothing. I could not hear what his assistant Kate Kerr said. While there may be something valiant about a person with a voice impediment being a lawyer there is also a problem if a an accused cannot understand what is being said. I would note in this context that oral arguments made in the Court of Appeal are not recorded so unless one hears what is said, it is not possible to find out after. The reason I was given was that the Appeal Court bases its decisions on the evidence from the court below. New evidence is not customarily allowed and oral submissions are merely "invitations to consider". In my case however new evidence, Detective Inspector Matthews' affidavit entered by CPA, was accepted by the Court of Appeal.

McKinnon was quite impressive the first time he spoke. His victory at the Supreme Court of Canada in an aboriginal sentencing case had just came out. There was maybe a dozen reporters and cameramen trying to ambush me when I left the court house. We bantered at them and I disdained their questions.

John McAlpine's oral submission for the BCCLA was weak. He did not sound convincing; it was as if he was pushing his libertarianism beyond its limits. It reminded me of Frederick March's performance as the near senile William Jennings Bryan in "Inherit the Wind", a famous old movie about the Scopes' "monkey" trial in the 1920s where Bryan successfully defended creationism against the teaching of evolution. McAlpine was advancing the BCCLA as arbiters, not defenders of expression. I had expected very little from them anyway.

At noon break that day Don and I, unimpressed with the previous day's pricey lunch at the court house restaurant, headed towards the north entrance of the vast, glass enclosed, plaza like terrace on the west side of the court house. Outside we could see at least two camera crews and reporters so we turned towards the south entrance. Two burly cameramen and their handlers entered and dashed past us to wait outside the south entrance. (They are not allowed to film inside.) We reversed our direction again and the cameramen lugging their heavy equipment dashed past us again. I briefly thought of going back to the south entrance again, it seemed like a fun game, but I was hungry. The cameramen, sweating from their exertions were right there as we exited. They walked backward in front of me with their lenses often less than a foot from my face as we crossed the large outdoor terrace. It was annoying but apparently legal. I unsuccessfully tried to steer the cameramen into trash receptacles and railings. Don held his hands in front of their lenses and comically acted up bringing protests from their handlers, Terry Milewski of CBC and an Asian woman from Global TV. I became impolite because of their invasive tactics. The gross unshaven gorilla like Global TV cameraman called me: "the scum of the Earth". I protested to his handler. They finally gave way when we came to steps leading down to a lower terrace. We both snacked for five dollars at the soup and sandwich shop.

McKinnon spoke again on the second day but less effectively, at times he seemed unsure and was repetitive. There were points that I was led to believe would be made in oral arguments that never were. Peck used the "recording of one's own thoughts" argument well. In their oral submissions they did not attempt to refute the arguments of the Crown and it's allies, this was in the factum. They stressed overbreadth repeatedly emphasizing hypothetical examples involving 14 to 17 year olds, a bit of overkill I thought. I believe the idea originated with Nikos Harris, at least he was the first to lay it on me. It is clever, and as one of several examples it might have been useful, but as a principal prop for my case I thought it was rather peripheral.

It wasn't until I heard McKinnon's oral presentation in the Court of Appeal hearing that I realized that they had backed down on the principle that the possession of all expressive materials should be legal. They only wanted to defend products of the imagination. I was stunned. That was the core of my victory at the voix dire. It never occurred to me that they would consider such a thing. I had just assumed they would argue for freedom of possession period. I had trusted them. Peck had told me that the Crown wanted to limit the appeal to s. 2 b, freedom of expression considerations. Peck wanted the appeal to consider s. 7, privacy rights too. I agreed. Peck referred to Semayne's case which in 1604 set out the basis in common law for the right to privacy: "That the house of everyone is to him as his castle and fortress, as well as his defence against injury and violence, as for his repose..." It is from this case that we derive the expression, "a man's home is his castle". The concession was in the factum, their defence was limited to products of the imagination, images of youths 14 to 17 engaged in legal sexual activities in the hands of the participants, and in circumstances where simple possession does not create a risk that children will be sexually abused or exploited, or what they termed Category B materials. This concession was by far the most important decision they made in the case and Peck never discussed it with me. I feel that he was professionally derelict in not making this clear to me. It was in the factum and I had read the factum but I had assumed it was a conditional point, something to fall back on, I never dreamt that they would scrap the basic freedom of possession and privacy arguments we had talked about. I knew the BCCLA was taking this approach but I had concentrated on the Appellant's and intervenor's factums, I was not watching my back. They had decided to limit their legal attack on the law to simple overbreadth of the possession offence. I was disappointed and depressed, I was not pleased with the performance of my legal team but perhaps I was expecting too much.

My lawyers Concession

My counsel had decided to second guess the Supreme Court and the politicians and appoint themselves as the arbiters of what should be child pornography for the purpose of simple possession. It was like my lawyers were arguing that the trial judge went too far in acquitting me. I felt betrayed. I almost regretted that I had gone to so much effort to challenge the law. The case was not just about me and I felt that I would have been far better off to have pled guilty at first opportunity and everything would have been over and largely forgotten.

Sellout?

They were proposing a category A and category B classification. I did remember discussing different types and degrees of child pornography. I even prepared samples of various naturist, erotic and clearly obscene material that I found on the Internet in order to give them an idea of what was out there. We discussed various aspects of images. We even speculating on a two tier classification if the law was to be rewritten. Suggestions for changes are a common procedure in constitutional cases. Afterwards I felt that by advancing the idea of categories my lawyers were basically abandoning the privacy argument. Privacy? Why certainly! Now if you will just let the police examine your personal possessions we will check to make sure that they're in a category protected by your privacy rights. Categories implicitly supported the Crown's contention that s. 7 arguments be scrapped. Their Category A would still allow search warrants and in no way restrict the state's ability to invade people's privacy. That principle, the one big thing that Shaw's ruling gave hope to, was unceremoniously trashed. At the hearing Robert Matas of the Globe & Mail noticed my dismay and questioned me about it during the lunch break. Tactically I had to deny any rift but he picked up on the retreat from total freedom of possession in his column next day. Again I was depressed and angry.

I was furious and phoned my lawyers in the morning. Nikos Harris answered. I vociferously castigated him: You have abandoned principle. You have postulated an untenable mishmash. It is a compromise begging further compromise. You are arguing for a dog's breakfast. I had made it clear to them from the start that I was not particularly concerned about any legal penalties I might suffer. Things had gone well beyond that. My honour and my ego saw their position as a sellout, an unnecessary and dangerous sellout. They had suggested a compromise where I felt none was needed. They were being arbiters like the BCCLA. They invited nit picking which everyone would feel entitled to contribute to, promising endless work for lawyers. My Lawyers were supporting a precedent that could be applied to all other forms of offensive expressive materials. What little freedom of possession that was left after the assaults on liberty by BUTLER and KEEGSTRA was now vulnerable to attack. McKinnon and Peck's libertarian oratory was all show, it made their protestations against the police arguments of convenience an exercise in pure hypocrisy. I was upset and furious.

Of course I had to blame myself for not being more careful, for not clearly understanding our own factum. I had become complacent and lazy. But even if I had protested beforehand, I do not think they would have backed down. Failure to condemn "the worst" as they could define it in a legal context was just too much. Unlike me they had to defend their righteousness. I believe that they should have made the retreat clear to me. To understand their retreat, which I felt was a blunder, I point to the toxic nature kiddieporn in our society. McKinnon and Peck may have felt innerly, and also on some professional, social or moral grounds, that they could not go all the way to absolute freedom of possession including "the worst", as did Justice Shaw. They had to keep some distance from the imagined reality of child pornography. I did not think it was stupidity.

We met later that day and talked things over. I repeated my points in a cooler manner. I do not recall Gil McKinnon being there and from that time forward I never had a conversation with him. Peck argued in terms of realpolitick, it was what they saw as an attainable goal. They were trying to second guess the Supreme Court. Peck felt that there simply had to be a possession law covering the worst stuff like violence and twelve year olds fucking. Peck wasn't quite that blunt and I realized that prohibiting anything less could expose him to moral accusations of condoning such material. This fear was given substance by a case in Alberta where a provincial cabinet minister, Stockwell Day had implied that a lawyer defending a man accused of child pornography sympathized with pedophilia because he had his client plead not guilty. I could see Dosanjh being tempted by the idea. As for the possession of the worst examples of child pornography there are other laws dealing with the evidence of a crime that already cover most of this, although not necessarily twelve year olds fucking in all situations. I had come to distrust realpolitick by then. I repeated my arguing from principle argument. Peck agreed that when the question went to the Supreme Court, as they anticipated, that they would change the factum to read that "If" there had to be some sort of possession law that it should be limited to sexually explicit material involving real children. The problem as I see it is that lawyers have an overriding loyalty to the legal system. I suppose they have no choice. It was the same problem I had with Michael Ritzker. Peck simply believed their compromise stood a better chance of being accepted by the court than an unqualified defence of freedom of possession. Realpolitick, see what I mean?

I wanted to dismiss my counsel, I felt betrayed, and I felt that the cause of freedom of expression in Canada had been betrayed. I discussed the idea with a few supporters but I could see no way out. Finding new lawyers to take over at this stage was a daunting prospect. I decided to at least wait until the Appeal Court decision came down. I was disillusioned, my priorities shifted and my book, this book became my main concern. I would continue my generally amicable relations with my lawyers.

May 20, 1999. Loss of Friends

When you're involved in and identified with an unpopular cause, and in the public's mind child pornography is perhaps the most extreme example, you can be expected to be abandoned by many of those closest to you. Most practise a gradual withdrawal, often unnoticeable at first. Excuses are heard. Some no doubt experience ethical quandaries but succumb to the myriad social and cultural pressures to adopt correct moral stances. There is no real point in trying to argue with them or confront them. They will grant you your points and go on to make excuses, and if you expose these they only get embarrassed which helps no one. Unfortunately it is not just phoney and casual friends that you lose but close and substantial ones too. Some make pathetic apologies. The demands of other friends, wives, young friends, clients etc. must be respected. I am sure it was painful for some of them too.

Many are afraid. It is an act of courage for some people I know to be seen in my company, such is the fearful impact of current popular, pedophobic hysteria. Many assume my phone is monitored if not tapped. Some paranoid individuals, with nothing I would consider worth hiding in their closets have cut off all contact. But then it is not all that unreasonable to fear even if one is not guilty of any summary or indictable offence. Others including some who I count as friends, I must never use my own telephone to contact. It is chilling. Friends have hidden or destroyed my books which the prosecutor cleared and returned to me. However the same books were seized by the police from another friend on one of their fishing warrants. I have deleted files and references in my records, unnecessarily I hope, to play it safe and allay peoples' concerns. Tales about the lives of dissidents behind the Iron Curtain with their codes and secretiveness seem contemporary and real. Many Canadians, certainly among my acquaintances, seem to accept the possibility of zealous police intruding into their private lives with fatalistic resignation. Nobody really criticizes the cause of their fear. I feel sorry for them but I cannot apologize. I have not however suffered from lack of moral support or company and people have gone out of their way to defend me.

It is easier and probably more rewarding to confront strangers, people who really believe you are some sort of monster. They often don't know how to react to simple statements about the obvious and arguments which confound their preconceptions. Most will not listen, they merely want to express their contempt and be gone like the husky, hairy young man who came up to me in a gay bar and blurted, "I hope you rot in Hell." I asked him to sit down and talk but he turned away and hurried towards an exit. Occasionally others make muted comments on the street, "You creep" or "Pedophile!" when you have no chance to confront them.

THE APPEAL COURT RULINGS

The Appeal Court rulings did not take long. Peck had thought that Justice Southin would probably rule in our favour and that Chief Justice McEachern would almost certainly side with the Crown. He was right. I went with Don and my lawyers to the courtroom to hear it. It was over in a couple of minutes. We were of course delighted by the two to one decision in our favour. I was surprised. Although this victory was very important we knew that it would be appealed to the Supreme Court. The reasons given however would be significant.

Honourable Madam Justice Mary Southin

Justice Southin unequivocally supported freedom of possession. She is critical of the fast tracking of the appeal saying that the trial should have been completed so that both challenges could have been dealt with. She comments on Justice Shaw's ruling which "generated a great deal of outrage in the media... What, in their ignorance, they conjured up in their minds was the spectre of a judge giving judicial approval to sexual exploitation of the prepubescent... contrary to the will of Parliament." She notes the contradiction that (1)(b) does not prohibit the advocacy itself but the possession of materials that advocate, and this cannot be a reasonable limit in terms of s. 1. In effect one could speak publicly what one cannot record privately. She reviews prohibitions in other laws including s. 22. "Counsel" in this section does not address encouraging criminal sexual activity generally, propaganda for illicit acts as does (1)(b) in the context of ss. (4). After reviewing Shaw's findings and reasoning, and the testimony of the Crown's expert witnesses she observes: "As I understand, Dr. Collins goes beyond factual issues into issues of morality, and issues said to be of 'fact' but which may be issues of opinion... To believe that a child could not only not be harmed by premature sexual contact, but take pleasure in it, seems to me an absurdity, and, therefore a cognitive distortion." She points out the morality of his statements. Dr. Collins' equation of morality with psychiatric science is clearly evident at several places in the transcript. It colours his entire testimony and I wonder that my counsel did not bring this to the attention of the Court. On the "grooming" theory she points out that it applies to a 20 yr. old using the KAMA SUTRA to seduce a 17 year old.As for child pornography "fuelling sexual fantasies" as per the Marshall study she points out that Collins' statements would implicate all kinds of pornography. P. 51. She picks up McAlpine's 14 to 17 argument. p. 56. "social science" "are more a matter of opinion than fact." She notes how Bill-128 changed. She refutes the evangelicals use of preamble. p. 67. She notes that no other Canadian legislation (with a WW1 exception) ever made possession of expressive materials a crime. She points out that material advocating genocide or that is seditious is legal to possess. She notes some of the things that have done in the name of the greater good and says: "Even if the possession of material which advocates or counsels crime may lead to the inference that the possessor has had bad thoughts and thence to the conclusion that he might or even will commit the crime thus advocated, it is not within our political ethic to make the possession itself a crime. It is this notion which goes deep in our history which is at the root of the requirement that proof of treason requires proof of an overt act. I conclude, therefore, that legislation which makes simple possession of expressive materials a crime can never be a reasonable limit in a free and democratic society. Such legislation bears the hallmark of tyranny." Any prohibition would require the most compelling evidence of necessity. I agree wholeheartedly, I just wish my counsel did. Justice Southin concludes: "I am saying that some other way than making simple possession of this sort of material ought to be found to attack it." The section she says has "an air of unreality". She decides that ss. (4) fails the proportionality test and she dismisses the appeal. Madam Justice Southin seems to have a relatively libertarian outlook. She also relates her points not just to case law and the documents before the Court but draws on history and common observations about the world.

Honourable Madam Justice Ann Rowles

Justice Rowles agrees the appeal should be dismissed. She looks at "need to protect children" as expressed in government reports and UN conventions. She recognizes a potential for indirect harm from possessing child pornography and does not think that the nature of the expression restricted is close to "core" values. I had wanted the phrased issue in terms of the "right to masturbate" rather than the vague term "self fulfilment". She discounts the usefulness of social science evidence but seems to assume the logic of market arguments. There is a rational connection between the means and the objectives, overbreadth is the question, it is what the challenge hinges on she implies. She refers to the concession which tended to limit our arguments to overbreadth, tying one hand behind our backs. The concession undermined the privacy argument. She examines "The concept of overbreadth and accepts the use of reasonable hypothetical examples to illustrate overbreadth which she defines as "the unintended reach and potential effect of such a provision." She notes that the Respondent doesn't claim overbreadth of s. (2) & (3), only (4). She notes our use of the term "continuum" which she exploits. Stigmatization by the "use of (the) evocative and clearly emotive phrase 'child pornography'" is a factor in assessing overbreadth. She defines "The inclusion of written material is particularly troublesome in the context of possession, where thoughts are not shared". She speaks of the "profound violation of freedom of expression and privacy which results from making the private possession of works of a person's own imagination a criminal offence. She points out that the Canadian definition of child pornography is broader than the U.S. and most other countries. She develops a series of hypotheticals demonstrating the law's overbreadth. She is strongly opposed to the state ever regulating a person's private recorded thoughts. The defences in ss. (6) don't apply to hypotheticals she gave. The defences do not protect a wide range of unintended materials. She lists other legislation that also protects children and does not think the additional protection due to (4) is that great. Using DAGENAIS as did Shaw she decides that "the salutary effects of s. 163.1(4) are insufficient to outweigh its manifest detrimental effects." Madam Justice Rowles is much more cacooned in the universe of the law and her decision is thick with legal and governmental references. She is however incisive and her examples are convincing.

The Honourable Chief Justice Allan McEachern

The Chief Justice upheld the appeal. He says he will attempt to explain his decision in the plainest possible language. In his factum he avoids lengthy quotes from well known decisions, he gives the counterarguments as he sees them and gives his reasoning which is written as common sense. He states the case is different because with the concession the question is one of overbreadth not freedom to possess as it was at the voir dire. McEachern stresses the importance of Matthews' affidavit and claims that the possession offence is "an essential police tool." He articulates the "underlying question" of the case: "The underlying question of this appeal is whether the simple possession of child pornography (as defined) that may have been created without abusing children and which may never be published or sold creates a sufficient risk of harm to children that it should be an offence for anyone to possess such material, for any purpose or for no purpose at all." This phrasing was subsequently accept as defining the case by all parties. He is shrewd.

He reminds the Court of the salacious nature of the evidence: Flogging Fun and Fortitude and photos of nude boys displaying their genitals. And, he adds, a product of the imagination, a sketch of a nude boy probably under 14 with an erect penis. He does not think that s. 7 dealing with "liberty" in my case adds anything not already protected under s. 2. When the question of distinctions such as hard core or highly erotic arose in Shaw's ruling McEachern claims that such distinctions "are not necessarily relevant or useful for analysing definitions." The characteristics are only relevant to the extent that they define the material as child pornography or something else. He feels that Shaw ignored the market. McEachern says simple possession creates a market, he claims that profits from distribution and sale would be greatly reduced. He assumes "the fact that the prohibition against possession reduces the abuse of children involved in making child pornography". I don't know whether he is simply ignorant or just using the economic arguments for effect. He reviews Shaw's weighing of the detrimental and salutary effects of the possession offence says that he concentrated on the possessor's perspective rather than the protection of children. The inadequate weight given to the protection of children was a legal error. He rejects the claims of overbreadth. He dismisses the rush and last minute amendments because Parliament decided, during the debate, that these amendments were necessary. During what debate? I ask. In dealing with the overbreadth hypotheticals advanced, Justice McEachern resorts to enhancing cognitive distortions and possible escape of material as justifications for even self authored material. He conceives of dangers in the most improbable circumstances, not reasonable apprehensions of harm but the remotest possibility of harm. Child pornography as defined is highly toxic. On the same logic axes should be banned to prevent murders. He sees important distinctions between private thoughts and recorded thoughts. He argues that given my counsel's concession that proportionality is a question of the definition of child pornography. He stresses the low value of porn and that privacy is hardly threatened. Any real (conceivable) risk of harm to children is enough to tip the scales in favour of the legislation. He does admit that there is a remote possibility that "extremely few persons" could possess child pornography without any intention of harming children. Presumably then an overwhelming majority of those who possess it intend to harm children. He would allow the allow the appeal and send me back to trial. Chief Justice McEachern conscientiously defends the law as is and I believe sincerely. He explores hypothetical situations. Any real, or it would seem any conceivable, risk of harm is all that is needed to justify the law. His arguments depend on pushing emotional buttons.

The Appeal Court decision was a victory, although a further appeal to the Supreme Court of Canada was inevitable. I no longer thought of dumping my lawyers, I couldn't argue with success, and I didn't see any options. I felt like a passenger on a plane that had taken off who couldn't very well head for an exit. My case seemed to be out of my hands, I had clearly lost any control. I did argue with Peck that Justice Southin had closed the gate, her decision permitted us to take a clear stand on freedom of possession. He promised to modify the stand in our Supreme Court factum, so that IF there had to be a possession law it should be limited to their Category A classification. This mollified me but I had lost my enthusiasm and I became more interested in working on my book than the case. I continued to pass on ideas and information and reviews of material, and the factums when they arrived, but their course seemed narrowly and rigidly set. I began to wonder if I wasn't interfering in my own case again.

More Threats and Calls

I again began getting threats right after the rulings came down. The second was a very explicit death threat, "You fucking pedo, I'm going to kill you." I star 69ed and got a local number. Two police constables came and took a report and said they would get back to me. I bought a little suction cup mike so I could connect my rotary phone to my tape recorder to record any threats. It was never needed. Then at the end of May I was assaulted in the lobby of my building. I was returning from the corner store mid afternoon and unlocked the front door of my building. I held it open to let out two men, one carrying a small blond girl about three. The man carrying the girl recognized me, I was the "Fucking pervert". He handed the child to his companion and went for me. "Are you still living here?" He shoved me repeatedly until I was against the wall in the lobby. "You better get out of this building." I try to calm him, I suggested we talk. He said he'd seen me bringing prostitutes in the back. He's said he'd seen the rubbers (condoms) lying around. He grabbed me around the throat, not trying to choke me and threatened, "If I see you so much as look at my daughter I'm going to kill you." Seeking assistance I headed for the managers office nearby. However the elevator door was open and he shoved me inside. As soon as I got into my apartment I phoned 911 to report the incident to the police and phoned the managers office. The man apparently lived in the building but I could not find out who he was and didn't see him again. Two different constables came and took my report about an hour later. They said they would get back to me but never did. I left messages but got no replies.

It seemed from the man's comments that he thought I was involved with prostitutes and little girls. Perhaps he had not read the basic facts which were prominently in the media. I wondered if he connected me with little girls through Suzette Meyers' three day special on child pornography. In early June a crude scrawled note was pushed under my apartment door: KILL ALL DIDDLERS. Again I dialled 911. An officer came to take my report. I gave him a copy of my statement about the previous incident which he said he would put in the other constable's mail. He seemed a reasonable person but said I had to be aware that people get upset and advised me to relocate and get an unlisted number, essentially to go into hiding. I tried to explain why I couldn't and didn't want to. Relocation would be an act of timidity and could be seen as an admission of shame if not guilt. Despite the assault I felt secure in my building. There were people in the large building who had expressed support and could perhaps provide assistance or refuge in an emergency. I am sure others didn't like having me around. A couple with a small boy in a neighbouring apartment, apparently fearful, reputedly asked welfare for money so they could move away from me. But I had no absolutely no problems with other tenants although I kept a lower profile to give less opportunity. The building managers were supportive. After another incident which I reported a constable warned me not to try playing one police officer against another. He also said he would get back to me but like the others he didn't. I became depressed again. I only went swimming in the pool when I had someone with me. In late June a man with two brown labs started screaming at me in front of the Arbutus Buy-Low: "You fucking piece of shit". He wouldn't talk and just kept screaming the same thing and threatened to sic his dogs on me. I walked away and didn't bother reporting it. After more threatening calls where *69 didn't work I phoned the telephone company to get a trace. They told me I needed three calls before they would tell me the number assuming they all have the same source. The threats were starting to get to me but then I couldn't afford to take them very seriously without impairing my peace of mind and normal routines. It seemed clear that the police were not taking them seriously anyway. I guess I was not a priority "to serve and protect".

Sometimes incidents were more amusing than threatening. In mid July I was waiting at a bus stop when I overheard two youths talking: "Hey that's the kiddieporn king. Pretty wild eh? John Robin Sharpe." I nodded. They did not get on the bus. Another time near the derelict Woodwards building a man in his forties congratulated me for standing up to the government and mentioned he'd spent many years in the Kingston Penitentiary for murder.

In July I managed to get a bit of renovation work. It was only a few hundred dollars but it made an enormous difference, I was able to pay my bills, get back on the Internet, have my computer monitor repaired and buy a better printer for it. I also started to look for a publisher for my book and sent out inquiries. The two large eastern companies recommended to me weren't interested and I heard I was regarded as "radioactive" in the business. A small West Coast publisher expressed some interest but let me know they were already very busy. Despite the book's very Canadian content I enquired about the possibility of an American publisher. It was discouraging, I was told it might help if I could find some well known personality to write an introduction. I also decided I wanted to go to Ottawa to hear the submissions before the Supreme Court. I was under no legal obligation to attend but I was curious and felt I should be there, I had a few supporters and old friends in the East whom I wanted to see, and it would contribute to my book. I didn't want to go through another media circus but it was unavoidable and didn't mean much in the long run anyway. Initially a supporter who'd had his near new car confiscated by Canada Customs over a magazine allegedly depicting underage girls offered to pay for my trip. However his health failed and he soon financial problems of his own.

In late September I was asked by Tom Snyder to take part in the Small Press Action Network, SPAN forum at SFU's downtown Harbour Centre on "Pushing Boundaries, the Law and Censorship". I was officially there as representing Kalayaan Publications, the label I use for my poetry and other small books that I have put out over the last ten years. There five other small publishers: Michael Cormer of Insomniac Press who published PAUL'S STORY, a fictionalized account of Paul Bernardo, Don Larsen who puts out Cannabis Culture, a glossy Vancouver pro pot magazine widely distributed in Canada, Ninja of the zine Infiltrator, Janine Fuller of Little Sister's Bookstore and Teresa Dulce, a stripper who puts out a small professional magazine for sex trade workers. I was the most controversial and spoke last, a deliberate move by Tom Snyder who chaired the meeting. I counted just under 50 in the audience which was double the media reports. Three camera crews were there but left fairly early. They were only interested in obtaining video clips, not what was being said. The press had reported protests about me appearing on the panel and false statements that I was receiving a government grant were given headlines but there was no coverage of anything said at the meeting itself. Three people from the audience spoke against me. One man about my age in a track suit spoke of hate and how he and his buddies in the bar talked about knives, presumably to castrate me. A youth stating he was 19 said he couldn't imagine what it would have been like to have been photographed nude when he was eleven. I would likely have faced more protesters but that evening most of the regulars were at the Vancouver Public Library protesting the rightist Free Speech League meeting where Doug Collins and Doug Christie were speaking.

At the meeting Don Larsen said that the police sometimes seize his magazines from stores despite the ruling in IORFIDA which, because the Crown never appealed it, technically applies only in Ontario. While challenging seizures under s. 242.2 in other provinces would almost certainly succeed in court, this would be very costly, and in effect allows the police to harass his distributors. Similarly the decisions in my case applied only in B.C. until the Supreme Court ruled and people were convicted of possession in other provinces.

In mid October we received the Appellant's factum for the Supreme Court hearing and I discussed it with Peck and Nikos Harris. It is awkward working from decisions where you have to assume as proven things you know are false simply because some judge has accepted them as fact. A reporter for the gay press (Pink Triangle press) wanted access to the Crown's supplementary books which contained a selection of my photos. These were unrepresentative, badly photocopied and were among the least artistic except of course for the naughty one. I can say naughty because I know the circumstances of taking it and the conservation I had with the two boys at the time. I said to Peck that it would be better to let the reporter see all the original photos in the exhibit if he was going to be commenting on the exhibits in my case. I spoke to the reporter after and his article was reasonable. I read and made written comments on the various factums for myself and my counsel. There was little very interesting or new in any of them including our own. The Appeal Court was a preliminary skirmish. I was not optimistic. I speculated that there might be some changes and that I'd walk, but I was disappointed and disillusioned about the direction my case has taken since my lawyers' basic concession.

I was also very broke again, and had to cut back on my modest lifestyle staying home and drinking less. I suffered from lethargy for months until I was prescribed a medication to control it. And then a new friend gave me money for a ticket to Ottawa and I bought one immediately and over time other friends contributed more. I read, tried to relax and work on my book. Fortunately I do not celebrate Christmas or things would have been worse. My health was a problem but I was able to get down to Gastown for an hour or so to hear the Dayglo Abortions bring in the new millennium.

PART SIX: THE SUPREME COURT & BEYOND

OTTAWAJANUARY2000

My red eye flight didn't arrive until 8:AM on the day my case began. It was bitterly cold even for Ottawa and I was unprepared for it. It went down to -25 Celsius with a wind chill of -56 while I was there. Even taking taxis to and from my Rideau Street hotel/motel I was still maybe twenty minutes late for the start of the hearing which began at 9:45. The Supreme Court is in a severe chateaux style building in contrast to the more frivolous neogothic of the adjacent Parliament Buildings. The marbled interior is in a muted traditional style with a few gestures to the art nouveau style of the 1930s. It is distinguished only by bands of a beautiful red marble along the stair balustrades. The high red and dark panelled courtroom is not all that big and only seats about sixty spectators. I found a seat at the back. John Gordon was speaking, but the room's acoustics and sound system were such that I missed much of what he was saying. This was true of most speakers and it wasn't until I was able to watch the Canadian Public Affairs Channel video of the proceedings almost two months later did I get a full appreciation of what went on. I had very little contact with my lawyers in Ottawa except for brief conversations during breaks. I felt they avoided me.

A Toronto man who had been convicted of child pornography accosted me at lunch break the first day and we went out to a Sub Stop for a snack. He had come all the way to meet me and I was grateful for his support. He told me he had been caught in an Internet sting set up by American police agents, served five months in jail but managed to keep his family including two teenaged daughters together. They had been supportive throughout.

The media as I expected was on to me at every opportunity and I refused several requests. I tried to come up with "sound bites" to feed the media. It's not that easy. NO EVIDENCE OF INDIRECT HARM FROM CHILD PORNOGRAPHY. I would quote Detective Waters' TIDAL WAVE of child pornography but no EVIDENCE of INCREASE OF ABUSE. And, WE NEED THE CHARTER TO PROTECT US FROM IGNORANT AND CAPRICIOUS POLITICIANS, READ THE RECORD AND YOU WILL SEE. I did an interview with the CBC TV morning show. I had never watched it and did not know what to expect. They wired me up and left me alone in the studio. I was waiting for at least the cameraman to return when I began hearing questions over the earphones. I was live on TV. The lights were in my eyes but it wasn't as bad as at VTV in Vancouver where I was almost cringing from the glare. A friend thought it might be deliberate to make me look ill at ease. Manipulating subjects is part of the cameraman's art. I wasn't pleased with my interview although I never saw any of it or most of my coverage. I should have kept the hostile media scrums in the Supreme Court lobby briefer. Don't be nice to them if you're pariah.

R. v. SHARPE: The VIDEO (I mainly rely on CPAC videos as I could not hear much of the actual proceedings.)

John Gordon for the Appellant, the Attorney General of B.C. began by listing 6 essential areas he wanted to discuss:

1. the low value of the nature of the expression prohibited;

2. the issue is one of balancing exercise, that is the whole case;

3. the legislation is a significant step removed from

thought control;

4. private possession of child pornography is not

the same as private conversations allowed in KEEGSTRA or private use and viewing allowed byBUTLER;

5. prohibiting the Category A materials in respondent's and CCLA factums would not do an adequate job of protecting children. The law is meaningless without Category B materials which covers material of risk to children and society;

6. 14 to 17 year olds are too young and vulnerable to deal with the power imbalance of sexual activitywith adults.

Gordon pointedly noted that contrary to Madame Justice Southin's assertion, the respondents and the BCCLA have conceded that the possession of expressive materials is not an absolute right. I can remember vainly trying to get my counsel to adopt Southin's position, it closed the gate, it backed the original ruling that was appealed, and it was clear and meaningful. They could, I argued, fall back on their categories if necessary but they should not be advanced as our first choice.

As for privacy Gordon mentions other laws that reach into the home notably s. 172: "Every one who, in the home of a child (under 18) participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice, and thereby endangers the morals of the child or renders the home an unfit place for the child to be in" can get two years imprisonment. He mentions a recent case where a conviction was obtained where a child found and played a video that their parents had made of themselves having sex, thus he claimed, endangering the child's morals. Gordon submitted that this law sets a precedent for the state to invade the privacy of the home. The child probably boasted to his buddies at school.

He claims law needs to be broad to catch material that puts children at risk. He says the law was not intended to catch material such as images of teenagers kissing, Norman Rockwell's famous painting of a boy shown naked above the waist bathing in a kitchen tub or written descriptions of sixteen year olds having safe sex. He says that drawings and sketches must be included because there is a "continuum of harm" from photographs depicting explicit sex to crude drawings of children where the genitals or anal region are dominant. He also argues that some sketches might be made from live models. How are we to know? He defends the outer reaches of the definitions because children are unable to distinguish differences, and refers to what Dr. Collins said about the kinds of material appealing to pedophiles. In terms of "advocates or counsels", he quotes the definition of "counsel" in s. 22 and he says written material must go beyond mere description to presenting the illicit sexual activities depicted as good and valuable for the participants. The Court asks him if a badly written (no artistic merit) novel similar to Nabokov's LOLITA would meet the definition of child pornography. Gordon feels it is a borderline case. When asked by the Court about a teenage girl's explicit diary where she describes a (presumably prohibited) sexual experience in positive terms he has problems deciding if it should be covered. Material can fall into the wrong hands. He argues that the writer, even if she had not intended it to be seen by others, creates a risk that it might be shown to others with resultant harm to society and children. Gordon in his zeal to push the continuum to the limits of conjectural harm invited claims of overbreadth. The invasion of privacy is being justified by the possibility that material may escape, be lost or stolen, and fall into the hands of a pedophile. The importance he attaches to escape seems to assume that child pornography is both toxic and rare, something like surviving smallpox specimens. Porn is however abundant and any lost will likely end up in the garbage or in the hands of the police. Gordon argues that if material were stolen the original possessor would be guilty of possession (mens rea) and should be prosecuted because his possession created the risk of dissemination through theft. I thought the argument was far fetched but some members of the Court seemed to take the point seriously. Gordon says people should be able to advocate lowering the age of consent but they should not be able to advocate sexual activities that would become legal if the age was lowered. I suspect that this would make it illegal to argue that certain prohibited sexual activities are beneficial to the participants which is a rational way to argue for changing the age of consent. Presumably by his reasoning, one can argue a point but not give examples and the advocacy of legal changes could not be fleshed out by literary exploration.

In cases where images show two participants who appear to be 14 to 17 he asks how do we know the activity is legal? He applies this argument to the only picture of mine showing explicit sexual activity. While the activity depicted may appear to be lawful he says it is not possible to know without the history of production such as whether or not the boys were coerced or given cigarettes or intoxicants. If pictures show a child 14 to 17 with someone over 18 we cannot tell if the adult is the child's teacher or coach so we cannot tell from the picture if the activity is legal or not. Therefore the possibility must be covered. He says that if we exclude apparently lawful activity we lose the ability to capture the actually unlawful. This is like saying it is better that a dozen innocent men be hanged rather than allowing one guilty one go free. John Gordon made his points, all consistent with a very conservative social position, on the continuum. At times he seemed unprepared and spent much time shuffling his papers looking for references, and questions from the Court made him uncomfortable. His presentation may have been stilted by his personal moral viewpoint. He argued the risk of harm to children in the most far fetched hypothetical situations. In contrast to this his continuum has no perspective, he allows no distinctions, he argued as a believer. He was more diligent than brilliant. I watched him a few times on the video.

Cheryl J. Tobias for the Attorney General of Canada has an emotionally inflected voice which added urgency to her submission. She argued that the possession offence is part of a scheme for eradicating child pornography. She relies on the Badgley and Fraser reports and their pre-Internet assumptions about the prevalence of child pornography and markets. Badgley had postulated the ambitious goal of total eradication. She argues a possession offence is needed to cover the use of porn in grooming because that falls short of distribution. Fiction must be prohibited because some of it might actually be true accounts and there is no way to tell. This reasoning speaks for itself. And she claims it could lead to cognitive distortions and be used in grooming. I saw her as a sincere lawyer with apparently little practical understanding beyond official and obsolete reports.

James H. Flaherty, the Attorney General of Ontario was clearly unprepared and seemed unsure of himself and his arguments were superficial. The press picked up on this, unflatteringly. Given his other responsibilities his personal appearance before the Court would seem to be a political gesture. He sees all sexual offences against children as being committed by pedophiles. Even Dr. Marshall puts the figure at about 30% and a recent Canadian Government report had estimated that non incestuous pedophiles were responsible for less than 7% of sexual offences against children. He argues that because Interpol has requested Canada to enact child pornography possession laws we should do so. He says that because there's an international trend towards possession laws that Canada should do the same. It seems that we should rush to give up whatever sovereignty we have left. He emphasizes that if any possession is allowed the material might by theft or loss fall into the hands of pedos. The man is a goof.

Timothy S.B. Danson for the Canadian Police Association described himself as speaking for the police and victims community. He divides the harm of child pornography into production harm where real children are used and consumption harm. He speaks rapidly. He uses an equality analysis approach claiming that all porn sexualizes, objectifies, marginalizes children to the point that their human dignity is violated. Children are an historically subordinated group and child pornography, getting close to hate literature, is the equivalent of group libel. To him, child pornography is like a fifth horseman threatening populations of children. A friend who was in a few sex videos in his teens got a laugh out of Danson's claims about harm. Danson emphasizes effects and makes dramatic but unsubstantiated claims of millions threatened. He stresses the extreme nature of some material. Then he says, suppose I am Paul Bernardo and not John Robin Sharpe and asks if the Bernardo video tapes are worthy of Charter protection. The Chief Justice advises him that his remarks could be seen as inflammatory. He says that the Matthews affidavit is the most important evidence before the Court. Danson is not a good speaker and tended to get bogged down on minor points.

Robert W. Staley for the Evangelical Fellowship of Canada and Focus on Families argued that child pornography is a violent form, or akin to a violent form, of expression that does not deserve Charter protection. He substantiates this by claiming, "The purpose of a collection (of child pornography) is so that they will ultimately be incited to act out what the material depicts." He makes it sound inevitable. Collecting porn is seen as analogous to gathering strength for an assault. He exceeds Dr. Collins's fanaticism.

David Matas for Beyond Borders and ECPAT argued that international obligations impact our criminal law and that striking down the possession law would put Canada in violation of the U.N. Convention. He also argues that the onus should be on the citizens to prove that their rights are infringed before they challenge the law. Placing the onus on the accused would be an effective way to prevent people like myself from using the Charter. His weakly reasoned arguments did not seem well received by the Court.

Other Provincial Intervenors Selections

Josua B. Hawkes for the Attorney General of Alberta emphasized harm and spoke as a champion of harm resulting from cognitive distortions, particularly written material. Like several other intervenors he turned McKinnon and Peck's concessions of indirect harm against their position. He claims that the legislation is not thought control. People are still free to think and say what they want but: "The creation of a record transforms thought into action". With a risk of harm, as in my case, the state has an obligation to intervene. He repeats the standard economic arguments claiming their validity has been established by court decisions.

Mary Elizabeth Beaton for the Attorney General of New Brunswick spoke in a soft modulated voice. She reminds the Court of the importance it has placed on indirect harm through attitudinal changes in other cases, notably BUTLER and MARA which dealt with indecent public performances. She presumes that people viewing images they have made, or reading material they have written, could lead to sufficient attitudinal harm to prohibit possession. (All of the material in my case was self made or authored.) She stresses that in finding attitudinal harm it is not necessary to require any proof, only that something violates community standards and the Canadian public does not want children portrayed as sexual objects. She points to our drug laws, ironically I thought, as an example of why possession laws are needed in a scheme of eradication. She argues that just as the law must consider the harm of a single person having one marijuana plant for their personal use so it must extend to written materials that are never circulated. I find the analogy ludicrous given the huge body counts and social devastation flowing from our drug laws.

Sean Greenberg for the Attorney General of Manitoba concentrated on the question of the use of hypotheticals. She reminds the Court of their previous rulings on their use noting that they should not be trivial, far fetched and remote from everyday life. She also points out that the hypotheticals used must fall within the definition and points out that it would be highly unlikely that my counsel's example of a reporter doodling an obscene sketch while covering a trial or the schoolgirl's diary would meet that requirement to begin with. I had made similar arguments to Peck earlier, I thought his hypotheticals too improbable but he insisted on their validity in law. Ms. Greenberg also raises the question of police and prosecutorial discretion claiming that nothing like the Respondent's hypotheticals has been prosecuted and saying that the history of the law points to its restrained use. This is refuted by SCHLICK.

My limitations prevented me from understanding the Quebec submission. Nova Scotia raised no new points that I could discern although they claimed that community standards give Parliament the right to legislate morality.

My Counsel's Submissions

Gil McKinnon who concentrated on technical questions of law spoke first while Richard Peck who is more of an orator followed. McKinnon began by claiming that Parliament had gone too far with the legislation. His submission was weak and appeared ineffective. While his attention to detail may have been appropriate in the factum it did not help his oral presentation. He got bogged down in convoluted exchanges with the Court and appeared thrown off stride by some of their questions. On the question of the statutory interpretations of the terms in the law the definition of "person" was most significant. The OED restricts the meaning narrowly to a human being with lawful rights. This is also generally the case in the Criminal Code and in s. 163.1 except where it is used in the three definitions. Here in the context of the law a broader interpretation, which includes fictional persons and visual and computer generated representations, is clear and were assumed by the parties in my case. Without this broad definition neither my writings nor Eli Langer's paintings would have been charged, both cases involving works of the imagination. A member of the Court observed that the narrow interpretation of "person" might well avoid the whole constitutional question. I am not sure if this was a serious suggestion. McKinnon did not take it up and persisted with a broad definition that supported his overbreadth arguments. For similar reasons he argues for a broad interpretation of the "explicit sexual activity" to include kissing and other innocent acts in a sexual context.

The question in the case advanced by the Appellant, and agreed to by my lawyers, was that defined by Chief Justice McEachern in the Court of Appeal decisions. This was whether simple possession of child pornography not using real children creates a sufficient risk of harm to children that it should be an offence. It was about the alleged indirect harm of child pornography.

McKinnon makes it clear that he supports a wide range of prohibitions on the private possession of child pornography. The case for any meaningful legal possession, the kind that would provide some level of security to the tens of thousands of Canadians harmlessly using suspect material, collapsed. At least two judges indicated their satisfaction with this concession. McKinnon's comments make it clear to the Court that he accepts the basic assumptions and mechanics of Dr. Collins' theories of harm. He speaks glibly about grooming, incitement and cognitive distortions as if their validity was proven beyond doubt. Justice Shaw in his ruling saw cognitive distortions as controversial and pretty well discounts them. Once McKinnon conceded the essential theories of harm, of indirect harm, there was, I suppose, no point in questioning cognitive distortions and the risk of indirect harm. In our factum, however, McKinnon had written, "The Respondent submits that neither reason, logic nor common sense, nor the evidence before this Court, establishes this indirect risk of harm." This was now abandoned in near complete capitulation to the Crown's arguments. He contradicted his own factum. Clearly at some point between entering their factum and the Supreme Court hearing they decided to make another fundamental retreat from freedom of possession and protection of privacy, and to do so without informing me. I could see no reason for this except in terms of defending their personal moral rectitude.

As if desperately trying to find something to defend, something to save face, something with an absolutely minimal potential for indirect harm in accordance with Dr. Collins' theories, my counsel postulated an entirely new concept of possession, a new unprecedented legal form of possession where one could not, for example, show the material to your best friend of forty years. This is patently unrealistic and unenforceable. Possession of anything has always included the assumption, not the government granted right, that possession includes showing it privately to others. Can anyone think of an exception, where something is yours but you can't show it even in private? I felt it was dangerous for my counsel to defy common sense and common law tradition. While people may want to keep their diaries completely private anyone who writes creatively, writes with a reader in mind. It is absurd to assume that a serious writer writes only for himself. It is a most improbable and essentially dishonest hypothetical. I had argued the point with Peck vigorously. He was inventing a novel classification of possession. I call this pioneering legal concept "occulted" possession, because the item or material must be hidden from others.

In this last redoubt of possession McKinnon felt there was only scant evidence in the record that there would be any indirect harm to children through the maker's retention of products of his imagination. But even here the question of whether or not one could reinforce one's own cognitive distortions was raised. A new theory of "self-abuse" based on writing to oneself was advanced. As if to make even this seem bold McKinnon conceded that a vast majority of Canadians might well be upset that someone is writing such stories for themselves. But he submitted, the government is not to be permitted to intrude on that sphere of autonomy without evidence of significant harm. He drew a face saving line just short of complete capitulation. Mendacious or egoless authors might also find some solace. The weaknesses in the expert testimony that Shaw had noted in his ruling were forgotten, its contradictions ignored. McKinnon was a believer. Peck dramatically claims that "To proscribe recording is to proscribe thought." He's right of course. He makes impressive claims for freedom to possess self authored solo works. As for prohibiting them he states: "I defy the state to do that!" He refers to John Stuart Mills' "inner domain of consciousness", he refers to George Orwell quoted in the factum. I thought it insulting. But materials produced through collaboration, which would inevitably involve communication would presumably be excluded. People presumably could talk about what they were writing but not let others read it. Sorry my friend, I can't let you see my novel, the government thinks that anybody who does will start assaulting kids. It was becoming a farce.

McKinnon appeared anxious to demonstrate his rectitude. After all as he was technically defending an accused child pornographer. It was too much for McKinnon, he avoided contact with me personally and any but the most distanced arguments about child pornography. I have reason to feel he disliked me, or what I stood for, and avoided me. He never replied to any points I raised in letters to him. I believe I was a moral problem for him. Perhaps he should have withdrawn from the case. He had devised the Category A child pornography, he had scrapped everything but overbreadth. The petty and improbable hypotheticals "we" used did not, I believe, help. The Manitoba factum had concentrated on our use of hypotheticals and I felt we should have countered it. I had tried to get Peck interested in Viktor Schlick's case partly because he had been convicted on the basis of an absurdly broad interpretation of 163.1 (1)(a)ii for photos of his daughter where her breasts can be seen, but Peck refused. As it was, our hypotheticals had little plausible substance and could easily be discounted. The retreat from principle and protection of innocent users was accompanied with much grandiose oratory.

Peck

Peck postulates "no harm to children" hypothetical situations which he claims should not be covered by the law and proposes specific exemptions or defences for them. Towards the end of his submission Justice Gonthier says: "Both you and Mr. McKinnon have conceded that there is a constitutional validity to some sort of possession offence". Peck in a somewhat jocular manner replies: "He's more keen on that concession than I am." The justice observes: "All right, one half of the team says that there's a concession on this." That concession was central to my lawyers' submission. That concession was the major point of contention that I had with them. That concession undercut the whole principle of freedom to possess expressive materials. Until that moment I had not known that my lawyers were in basic disagreement. It explained a number of things. Peck's promise after the appeal hearing to qualify the Category A proposal with an "IF" not only came to naught but category B as well. He may have been sincere when he made the promise but he had obviously capitulated to McKinnon. Richard Peck, the lawyer I retained, had told me that McKinnon was a "legal draftsman" was now admitting before the Supreme Court, that contrary to what he led me to believe, he was not in charge.

At the end of his oral argument two members including the Chief Justice raise the question of remedy, and bring up the question of the extent of the law's inconsistency. Under s. 52 of the Constitution Act which includes the Charter, the Court may strike down a law to the extent of its inconsistency. (This was the case in IORFIDA.) Given the very limited nature of the inconsistencies raised by my counsel's hypotheticals this was a valid point. There was some discussion of exemptions being tacked on to the legislation. I was disappointed and angry. After hearing Chief Justice McLachlin's comments about the risk of harm from mere possession I concluded that my cause was doomed. Peck was at least pretending to be pleased.

I have to wonder at my lawyers' well nigh complete retreat from freedom of expression at the Supreme Court. At the end their position was only marginally different from the Appellant's. They were prepared to accept two minor exemptions, one for self authored works that would never be shown to anyone else and two, that young people could possess sexual images of themselves provided the action was legal. Neither of these exemptions in themselves covered my material; my counsel was no longer defending my acquittal. They were trying to score points for themselves. The materials they spoke of would only in the remotest circumstances be likely to come to the attention of the police anyway. Their diary example, even assuming it was that of a schoolgirl who was rapturous about sex with her teacher, would almost certainly fail any reasonable interpretation of "advocacy" because anything written solely for oneself cannot logically advocate. McKinnon and Peck were captives of their own silly hypotheticals. They had successfully maintained their distance from the evil of child pornography. Lawyers can and do get tainted by the cases they take unfortunately. I told Peck right after the Appeal Court hearing their position simply invited nit picking and this is what they got. They shifted attention away from principles towards details, of where lines might be drawn, of weighting factors and always being on the "safe" side. There was no longer any point in objecting to the police view of the need for possession law. The privacy argument was irrelevant. At the end there was little worth honestly defending or fighting for.

As long as they could not tackle the question of harm, they could not make a common sense analysis of the correlates and the mechanics/dynamics of harm. Except for vague euphemistic references about self fulfilment they could not question the assertions coming from most intervenors about the negligible, almost inconsequential value of the right impugned. They could not talk about masturbation. That topic may still be a taboo in the Supreme Court of Canada. Prudery has traditionally been a way of obscuring injustice and abuse. For example, the inability of the Victorians to have useable names for parts of the anatomy served to obscure the savagery of judicial and school beatings of juveniles. (see THE ENGLISH VICE by Ian Gibson) It is difficult to discuss things if there's no accepted vocabulary. It was impossible to escape the low value ascribed to masturbation without talking about it. I made this point a number of times with Peck, but I suspect it was too "dirty" for him to deal with. They could not acknowledge that deviant sexual fantasies could be of substantial value to people whose rights should be respected. That value of possession is reflected in the users willingness to accept the risk of prison. The hypotheticals they laboured hardly seem worth Peck's noble words and evocations of John Stuart Mill and George Orwell. They were simply not worth fighting for and from that point of view the whole exercise was a waste of time. Despite the rhetoric my lawyers' submissions were practically an invitation to trash possession rights. Twice I broached the idea of submitting my own factum. I certainly have a unique and informed view on the situation. Peck was not interested and it probably would not have been allowed by the Supreme Court anyway. I felt that I and my particular interests were not represented at the hearing. My case had been appropriated by lawyers for their own purposes. I had become irrelevant and did not feel welcome. I was interfering in my own case, it was like Larry Myers all over again. I felt betrayed. I felt they had also betrayed free speech in Canada. I had pointed out to Peck that the factum of the Attorney General of Canada had restricted "advocates or counsels" to "horatory and not merely descriptive or approving material." I believe this interpretation would exempt my writing. This is a very significant concession but he chose to ignore it perhaps because it weakened his overbreadth arguments. They had retreated into a situation where legality depended on who possessed an item. We were back to something like Dr. Collins and the bathtub photos where porn was in the presumed eye of the beholder, only here it was the hands of the creator. Something legal in my possession could be illegal in yours. At the voir dire the Court, the Crown and myself agreed to the idea that pornography should be intrinsic to the work, an easy to comprehend, workable rule.

My own thinking on the question of self authored materials is that any possession law provides a strong incentive to archive and distribute material widely to ensure that some copies survive if there is state intervention. This is a common sense reaction. It is quite likely that a prohibition on the possession of written material would be counterproductive by encouraging distribution. The Internet offers a chance at instant immortality for authors.

BCCLA John D. McAlpine

John McAlpine appeared much more confident and effective than he did at the Court of Appeal in April. He began by stating that the issue is the protection of a law, not children. He discusses how the law was passed with good intentions but hastily and with no dialogue with the Court. He asks why the Court should defer to Parliament when Parliament doesn't dialogue with the Court. He challenges the concepts of cognitive distortions and attitudinal harm, so blithely accepted by McKinnon, as not being consonant with freedom of thought and freedom to express moral judgement. It was almost as if he accepted my definition of cognitive distortions as simply sexual heresy. McAlpine supported as an absolute right the recording of one's own thoughts. Justice Gonthier interjects: "So you take the position that the freedom to record thoughts is an absolute freedom that cannot be restricted whatever the harm it causes?" McAlpine: "Never. That is my position." To which Gonthier replies: "That is a very radical position, is it not?" Madam Justice L'Heureux Dubé reminded McAlpine that this is, "not the first time that this court has said that no freedom is absolute", as if this were something obvious. Prior to 1993 Canadians had enjoyed absolute freedom to possess any expressive material they cared to and the matter had never been debated or legislatively questioned. Seven years later a Supreme Court justice considers possessing even one's own recorded thoughts a "radical position." I found this frightening and extremely ominous, but then the Court has consistently ruled against freedom of expression. However McAlpine, who had adopted some of Dr. Collins' theories of harm, seemed to think it was almost inevitable that harm would flow from written child pornography. McAlpine does point out the unprecedented nature of the possession offence, and suggests that prohibitions in the name of protecting children could be a precedent for other expression prohibitions. What next? When a member brings up the "artistic merit" defence, McAlpine points out that this is irrelevant to the protection of children and submits that a work with artistic merit might more effectively endanger children. Interestingly a member, perhaps not realizing its significance, said that artistic merit would be balanced against protection of children. This was not the case in LANGER where the paintings were returned not because of their artistic merit but because they did not present a significant risk of harm. Except for his vanilla libertarianism I was impressed by McAlpine's oral submission.

Patricia D.S. Jackson for the CCLA

Patricia Jackson examines the "artistic merit" defence pointing out that "merit" as opposed to "purpose" does not incorporate the fundamental legal principle of mens rea, or intent which establishes guilt. The legislation criminalizes lack of merit. She points out that art is often deliberately controversial and provocative, that is one of its purposes, and that to judge art on the basis of public opinion or community standards involves contradictions. Community standards tend to protect works that least need it. In effect she rejects McComb's decision in LANGER. She submits that the legislation has a chilling effect and this makes it not worth the risk to attempt controversial works like Eli Langer's or "The Boys of St. Vincent's". With something as stigmatizing as child pornography even the laying of charges, without a conviction can have serious effects. She notes that child pornography can have various effects on the viewer; it may confront a person with his own behaviour, it may lead him to question the law, it may cause him to abhor such activity and it may attract him to try such activity. She then looks at harm and says that the evidence for it in terms of possession does not warrant a frontal assault on freedom of expression. The possible influence of materials on attitudes is no basis for prohibiting possession of expressive material. She doesn't take cognitive distortions for granted like McKinnon and Peck do. She raised the question of creativity and the need to possess thoughts and writing them down. A member of the Court expressed concern about people possessing other people's thoughts. While she said that the Court did not have to make that decision, she personally and the CCLA supported absolute freedom to possess expressive materials. That was the original ruling, that was my position, but it was far beyond what the BCCLA and my counsel could support. Ms. Jackson was a strong, organized speaker who used common knowledge to develop her arguments. I appreciate her unequivocal stand on freedom of possession. It was a welcome message coming after my lawyers had abandoned any substantial defence of freedom of possession.

Frank Addario for the Criminal Lawyers' Association

The Criminal Lawyers' Association intervened because of my case's implications for criminal law policy and its effect on freedom of expression, thought, belief and the right to privacy. Frank Addario submitted that the Court should not make a broad pronouncement about laws that criminalize possession of expressive material because my case lacked supporting records. For example, I called no expert witnesses and entered a limited amount of evidence. There is he claimed insufficient evidence to rule on whether the possession of expressive materials can place children at risk and whether any prohibition is permissible. In this case it is only necessary to determine if the legislation is overbroad. He argued that much of the potential material caught by the definitions was "close to the core values" of freedom of expression. In their factum they state: "The law is an exercise in overkill." They note that "child pornography" is a very stigmatizing term, as I well know, and the definitions cover much material that cannot be justified under s. 1.

The Factum strongly criticizes the arguments given by Detective Mathews in his "fresh evidence" affidavit. Criminalizing possession must be justified on its own, not as means to enforcing other laws. They use the hypothetical example of criminalizing the possession of balaclavas in order to obtain search warrants which in turn could lead to the discovery of balaclava users who rob convenience stores. They point out that privately possessed pornography can be seized if it is "evidence" and it does not have to be made contraband.

"The CLA's position is that there is no justification for proscribing the private possession of expressive material." This libertarian position is also in sharp contrast to that of my lawyers and the BCCLA. Addario argues that if there is to be such a provision then the materials in question must have the capacity to produce harmful effects in order to justify the prohibition. The Factum states: "If harm is the constitutional justification, it can and should be made the touchstone of the proscription as well." He notes that this is the situation in the obscenity laws where the Crown must establish a risk of harm, "an articulable risk of harm in the context of a particular case". The case of Matthew McGowan discussed earlier is a good example of the approach. He alludes to a similar provision in s. 351 of the Criminal Code which deals possession of burglary tools. While possessing a screwdriver is not generally an offence it may be an offence "under circumstances that give rise to a reasonable inference that the instrument has been used or was intended to be used for" the purpose of burglary. It works in practice with convictions commonly obtained. This would avoid the problem of innocent possession which is a large part of the law's overbreadth and certainly not limited to my counsel's petty hypotheticals. He suggests a requirement similar to the one in s. 351 be added to s. 163.1 (4). He gets several questions from the Court which unsettle him temporarily. I strongly support this approach because it tends to focus on real rather than conjectural problems. I believe anything that emphasizes the nature of the evidence in a specific case, the objective facts rather than mythologies based on mantras and the constructions of supposed experts, tends to serve justice. I argued in relation to the cases of Gary Gramlick and Thomas Jewell that the sex videos should have been shown and discussed in detail in court suggesting that this might have led to a less morally outraged sentencing.

Frank Addario also claims that the defence of "artistic merit" is flawed in that it penalizes young and unknown but sincere artists who could be convicted because of a lack of recognition by the artistic community. As Eli Langer's lawyer he unsuccessfully tried to appeal this elitist approach, claiming purpose rather than merit should be the criteria. The factum concludes by pointing out that upholding the possession law would permit Parliament to criminalize the private possession of "hate literature', "obscenity" and other self authored materials held by the Court to have low constitutional value. No doubt many would applaud such prohibitions.

John Gordon in rebuttal

John Gordon seemed more effective in rebuttal than in his submission. He points out that Peck's interpretation of "advocates or counsels", as evinced by his hypotheticals is broader that the Crown's. Peck's interpretation, Gordon says, would clearly include my stories while he pretends he is unsure. A member asks why I have been charged then. Mr. Gordon sees that as something that would have to be determined by the trier of fact. He later says my stories pose a very real risk of harm to children. Peck's broad interpretation was no doubt intended to support his claim of overbreadth. With a similar purpose at the voir dire I submitted the NAMBLA Bulletin, Brongersma's works and other boylove materials in support of my contention of overbreadth. And Schultes was careful to limit the material he charging me with to avoid overbreadth claims. Gordon effectively mocks Peck's girl's diary hypotheticals and states, correctly I think, that his diary example would not likely be covered by the definition. He also correctly points out that Peck erred in his diary hypothetical by not distinguishing sexual activity that would be an offence from that which would not be. As to the criticism that the artistic merit defence penalizes inept works he claims that poorly crafted works can be just as dangerous, a doubtful claim I believe. He refers to my stories and doubts, incorrectly, that I would contend that they have artistic merit. He does not believe that the NAMBLA Bulletin would qualify as having artistic merit. I had argued that it had political merit. He ignores the main points raised by Jackson and Addario. Gordon fervently exhorts, "Written material that advocates the commission of sexual offences against a child under the age of 18 years is so noxious, so pernicious, so seriously offensive to the values fundamental to our society that it has no place in society, let alone the marketplace of ideas." He concludes with an emotional appeal for the protection of society's most vulnerable members, its children.

Around the time I was writing up the above I came across a story on the Internet that most emphatically fits the definition of written child pornography. It was a thoughtful, although not technically well written, sexually explicit love story. It was about a forty year old man who was a volunteer in a home for handicapped children, and a crippled boy of eleven whom he befriends. The boy like many in his situation was lonely, unhappy and unloved. As he was unable to walk he would be considered as particularly vulnerable in the standard legal/social jargon. The man was not only many years older and generous but in a position of authority over the boy. All the usual elements for a worst case scenario were there. The story however was sensitive to the boy's special needs and dignity as well as recognizing him as a sexual creature with urges unlikely to be met in the normal course of institutional care. It also made clear some particular problems that the handicapped have with sex. While the man's behaviour was compounded and driven by lust it was presented as commendable. Both partners benefited from the affair. So what if it advocated what would be an offence. How should we judge acts? Can we not as Gayle Rubin suggests judge sexual acts by the pleasure they provide to the participants? The handicapped are often limited in terms of conventional sexual relationships and would probably welcome affairs where they are objects of desire. The story was hardly in Mr. Gordon's words, "noxious" or "pernicious". The story is one I believe that anyone interested should be free to read. I recommend it. People should be able to advocate sex rights for handicapped children and to be effective that would have to include literary exploration of possibilities. Children need much more than protection.

The hearing was over. Gil McKinnon winked at me as he walked by. I had a very brief talk with Peck and Nikos and a few words with Frank Addario. I asked him why the Court dismissed the Langer appeal. He said he thought the Court wanted to wait until there had been more cases in order to assess how the law was working. I never met any of the other intervenors. I descended into the high marbled lobby and dealt with a large media scrum for a few minutes, too long perhaps. Cameras are allowed inside the building. Cameras were also waiting for me on the steps and I was silently followed through the barren snowy grounds of the Supreme Court building as far as Wellington Street. It was about -15 Celsius with a good breeze, perhaps the cameramen hoped I would slip on the icy sidewalks. I tried to get a bus back to my hotel but after missing one and getting quite cold I hailed a taxi.

LEGAL LIMBO

After the Supreme Court hearings I had little to do but wait for their decision. My lawyers assumed the case would be fast tracked with the decision probably coming down in April and then June. And then nothing, I felt let down, for the first time in years my life had no compelling focus. It was frustrating, I wanted to get on with things and make personal decisions but I had no idea when I would be free to do so. A trial date had been set for early November for any charges I might face. The court might decide to deal only with the possession charges leaving the charges of distributing my stories.

After his performance at the Supreme Court I could not see Richard Peck handling my defence at a trial proper. He would give me the type of defence that he felt I needed, in fact there is a professional ethic he could choose to feel bound by. However it would probably not be the type I feel is needed. The law is almost as outrageous as the drug laws and in certain subtle ways worse. It needs to be confronted in its substance, not just the peripherals, the hypotheticals. I expected that I would represent myself again but felt I needed advice.

I followed other child pornography cases in the press and on the Internet. My acquittal had not affected enforcement outside of British Columbia. Some cases involved ordinary men who liked looking at pictures of young girls who got caught in a sting. Some cases seemed rather pathetic. I was curious if there were any cases where child pornography actually led to the uncovering abuse but was unable to tell. This was the main police argument for the law. Some child pornography charges appeared to come out of cases that came to the attention of the authorities in other ways. Child pornography was merely an additional charge they could lay.

One reason for fighting on that I hadn't thought of until I met other victims of the law is the harm that the child pornography law inflicts on the families of those charged. This is much more the case than with charges like drugs, robbery, assault or manslaughter. So your father robs banks? Big deal. But when daddy's little vice, or the son's downloads become exposed to the community's primed opprobrium the strain is enormous. The entire family is attacked. The kids face their peers', teachers' and social workers' suspicions that they've been abused. Can you imagine what it would be like for their children at school? Moral charges are much more serious for the family, especially the kids. Many will assume that the kids have been victimized and treat them as such. The neighbours' kids will also get interrogated and they may have to convince parents, police and social workers they haven't been abused. And who knows what other "dirt" the authorities may pick up and use to subject kids and their families to more stress. This reinforces community hostility towards the suspects. A wife who stays with her husband may be seen as both inadequate and a fool if the husband is charged with kiddie porn. Some families break up, others move and a few survive by courageously facing down the community and trying to live normal lives.

I was anxious to know if I would be free after the decision or whether I would be going back to trial in November as scheduled. I wanted to keep the comfortable Kitsilano apartment I'd had for nine years, at least until the decision came down, and I could make plans. But I simply could no longer afford it, I could not find any work as no one would hire me because of my notoriety, and my health had deteriorated to where I lacked the physical stamina to do much sustained renovation work. My only option was to reduce my expenses by finding a cheaper place to live. At the beginning of May I moved into Vancouver's Downtown East Side, Canada's poorest urban census district. Despite being holocaust central with several hundred War on Drugs deaths annually I found it a congenial and tolerant area to live in. Initially I stayed with a friend while maintaining an official residence in the West End, but after a while I moved into a cheap lodging house where I paid half the rent for a room less than a third the size of my previous place. I gave away most of the furniture I'd crafted and tossed out most of my possessions adopting a simpler life style.

THE DECISION

Shortly before the decision came down in January 2001 I made the mistake of allowing a CBC Radio reporter to interview me at my place. He assured me of his fairness, was courteous and seemed interested in what I had to say. I didn't hear his broadcast but friends did and reported that he slagged me, my home, repeated other peoples' inventions and said I was drinking scotch at the time. I hadn't had a drink in months as I was on heavy medications for my hep C at the time. I was however drinking a glass of diet ginger ale when he arrived which he somehow assumed was whiskey. I demanded and got an apology (and a transcript) from him when I told him that I didn't want to take the matter further. Anyway, it was through him, I suspect, that everybody else got my address. The day the decision was announced three TV crews arrived at my place. Some managed to get into the building and started pounding at my door. I wouldn't let them in. Inside I was fielding dozens of phone calls from the media and gave several short interviews. I prefer live interviews as they make creative editing difficult. I have given three interviews with a local talk show host in spite of his rabid right wing reputation for this reason. He is professional and fair to the extent that a person like me can expect in the mainstream media. A friend who had to come back later said that soundmen had their mikes to the crack beneath my door trying to record what I was saying. The building manager had to threaten to call the police before the TV crews would leave.

The Supreme Court's decision upheld the law, voiding my acquittals, read in a couple of minor exemptions as crumbs for professed libertarians and it reassured the arts and academic communities. The media seemed pleased with the decision which they only looked at in political terms as a balancing of interests, ignoring what the decision meant in terms of law, privacy and implications for other issues. It was seen as carefully balancing freedom of expression and, the presumed opposite, the protection of children. It would still get the pedos but others could feel a little less threatened. Politically it was an astute decision although it vandalized several fundamental principles in theory and common law. It took me a few readings and only months later did I come to the assessment I give below. As it was intended for separate publishing it is partly redundant with the text.

MY ASSESSMENT OF THE R.v.SHARPEDECISION

Definition of child pornography in the Canadian Criminal Code[added in 1993]

Section 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 sexual activity,

or

(ii)the dominant character of which is the depiction, for a sexualpurpose, of a sexual organ or the anal region of a person under the age of eighteen years;

or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen that would be an offence under this Act. [sexual offences]

A penalty of up to five years in prison is prescribed for the simple possession of child pornography. Other subsections of 163.1 cover the offences of making, importing and distributing child pornography and the defences of artistic merit and educational, scientific and medical purposes.

HOW THE LAW EVOLVED

The idea of a special law to deal with child pornography law had been advocated for some time although after the Butler decision explicit material, except for simple possession, was specifically covered by obscenity laws. The Conservative government facing an election was anxious to impress the public and amongst other legislation a child pornography law was drafted. It is unlikely that the government was concerned about the details of the law, they primarily wanted a law to point to as an accomplishment in the coming election campaign. As originally submitted to the Standing Committee on Justice the child pornography bill would have been not much more restrictive than American laws which generally restrict their concern to the depictions of actual children. The draft bill was limited to depictions of sexual activity involving children. Prohibiting depictions of sexual organs and written material were not mentioned.

The broad and highly restrictive law which emerged is primarily due to the efforts of certain members of the Standing Committee on Justice, notably Tom Wappel, then Liberal Party Justice Critic. Family values conservatives of all parties dominated the committee. Chris Axworthy who had earlier sponsored his own private members bill on child pornography was one of the two NDP members. Tom Wappel was behind the invitation of Detective Noreen Wolff (later Noreen Waters), whom he knew through church connections. The other police witness was Inspector Bob Matthews of Project P who had taken a course on child pornography with the FBI and had helped draft Chris Axworthy's private member bill. They were the heads of Canada's two largest anti-porn squads and the only police witnesses to appear. Bob Matthews later boasted that he got five out the six things he asked for, one of them being the inclusion of simple possession as an offence. Noreen Wolff's great crusade was to criminalize written material that "advocates" sex with children, the NAMBLA Bulletin in particular. This and another provision which could be used to prohibit depictions of almost all childhood nudity were never included in the draft bill, and as far as the public and the witnesses appearing before the committee were aware, were not part of the proposed legislation. It was only on the last day after people in the media, entertainment and the arts were finally allowed to speak that the two new provisions were added to the Bill One dealt primarily with prohibiting the written word and the other was an attempt to come as close to a total ban of childhood and adolescent nudity as they could. Interpretations of "sexual organ", "dominant characteristic" and "sexual purpose" can easily be extended to material which has no sexual content whatsoever. These definitions which can include almost all the material covered by the other section vastly expanded the range of targeted material.

Parliament which had no opportunity to consider the additions gave the bill its Third Reading later the same day. It was a triumph of deception. Canadians didn't really know what they were getting but they didn't complain. I find it difficult to believe things just happened that way. As I see it the moral zealots like Tom Wappel deliberately and deceitfully manipulated the committee and the bill was essentially snuck through Parliament at the last minute. Ian Waddell, the other NDP member on the committee was the only M.P. to suggest that there was a civil liberties aspect to the legislation and in a speech in Parliament came out against prohibiting written material. But he did not vote against the bill which passed unanimously.

The Western World's most restrictive pornography laws had arrived with barely a critical argument heard in the media although a few certainly tried to raise their voices. And most Canadians probably smugly felt that they had something new to be proud of. Canada, like Afghanistan under the Taliban but in a different way, has become a world leader in moral correctness. Strident anti-porn crusaders in other countries now clamour for "Canadian style" laws.

UNIQUEANDUNUSUALASPECTSOFR.v.SHARPE

It was the first, and only time that a defendant acting on his own without a lawyer has successfully challenged the constitutionality of a section of the Criminal Code. This fact was barely noted by the media.

It was the first, and only time that Parliament voted on using the "notwithstanding clause" to overturn a court decision by suppressing the freedoms respected by the Charter of Rights and Freedoms. A record number of more than 300,000 of names on petitions demanding this were presented to Parliament. Parliament was confronted by a well organized wave of moral outrage and liberal indignation. The motion to implement the clause was only narrowly defeated after dissident government M.P.s were pressured to tow the line.

It was reportedly the first time in British Columbia that a judge received death threats as a result of a legal decision (e.g. not a conviction). The defendant also received death threats.

There two other quite unusual aspects. The Crown insisted that the appeal on the constitutional question be heard before the trial proceeded. Chief Justice McEachern agreed, telling me to save my breath. Had the trial proceeded in the normal fashion I would have either been convicted or acquitted on the more serious distribution charges and any other appeals arising out of trial could have been heard at the same time. Fast tracking to the Court of Appeal put me at a considerable disadvantage. The more detailed understanding of the arguments and trial evidence were not available. If Judge Shaw had ruled that the possession offence was constitutional I would likely have changed that plea to guilty on at least one photo and argued that my erotic boy stories did not "advocate or counsel", whatever those words are found to mean, and that the stories had"literary merit".

The other highly unusual thing at that time was that the Crown was allowed to submit new evidence at the appeal level. The Court of Appeal is not a trier of fact, and new evidence is seldom considered. The appeal was over points of law, I was not on trial, the possession law was. The new evidence was an affidavit from Detective Inspector Bob Matthews, the Head of Project P Canada's largest anti-porn squad. He was not so much concerned about the possession offence as such but as a way to get his foot in the door to seek out actual sexual abuse. He reasons that where there's porn there's likely to be abuse. The law is needed to make it easier to enforce laws against sexual abuse. He argues that a law can be justified not so much on its own merits but as a means of facilitating the enforcement of other laws. Another example could be a law to require mandatory, frequent and universal urine testing to make it easier to enforce other drug laws. If the Crown was allowed to submit new evidence I wanted to do the same on the question of harm but my lawyers strenuously opposed this.

THE LAW'S PIONEERING ASSAULTS ON LIBERTY

This law pioneered two major extensions of state power into the privacy and freedom of the individual. For the first time the simple possession of expressive materials was criminalized. Never before had written material or images of any sort been prohibited. This was unprecedented in our legal tradition but it was all but ignored at the time. And for the first time written advocacy was specifically prohibited. Even mere possession of material deemed to advocate illicit sex involving children became illegal. For example a statement such as: I think most sixteen year olds would benefit from having sex with their teachers becomes patently illegal to even possess a record of. I assume its use in an illustrative context is allowed. All this happened with barely a whimper from Canadians. They didn't know what was happening. Not since the criminalization of recreational drugs in the early Twentieth Century has there been such a huge extension of state power into the individual's right to be left alone. That failed experiment in repressing liberty has claimed over a million Canadians as casualties and cost more than the total national debt, and it continues to add several hundred annually to its hefty body count. It may be more than ironic that the period since the proclamation of the Charter of Rights and Freedoms in 1982 has witnessed an accelerated erosion of personal freedom largely as a result of Supreme Court decisions.

The law also marked the first time that courts were expected to rule on, or deem material which is legally unknowable for the ordinary person. Unlike obscenity, people have no way of knowing what constitutes child pornography beyond the vague words of the legislation and what the police may say. Materials banned by obscenity laws and anti-hate laws can be possessed. While not commercially distributed they may enter the country as personal possessions or be written or created by people. They can be privately viewed, lent or given to others. They are knowable.

THE DECISION

I was of course disappointed by the Supreme Court's decision but I was not surprised. The Court's decision in my case is first of all a very socially conservative decision that places minimal emphasis on freedom of expression. In this it probably reflects the judges' own conservative values and opinions as much as any deference to Parliament. If they were bothered by the law it was probably more due to the law's flawed drafting than any burden it imposed on the public. The decision was also consistent with most of their previous Charter rulings involving freedom of expression. Our Supreme Court judges are fond of saying that unlike the U.S. there are no absolute rights in Canada. They are in a unique position to ensure this.

Chief Justice McLauglin begins the majority analysis by claiming: "Until it is known what the law catches it cannot be determined if the law catches too much." While this sounds reasonable it belies the fact that there had probably been over a hundred possession convictions which could have provided a very clear picture of what was being caught.

The law as affirmed by the Court envisions child pornography as a highly toxic material the mere possession of which of which creates a significant risk of harm to children. In a widely quoted excerpt they state: "Child pornography is inherently harmful to children and society,... This harm exists independently of dissemination or any risk of dissemination, and flows from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children." This statement smacks of mysticism. Child pornography is broadly defined and it may include videos, photos, drawings, paintings, sketches, books, articles, jottings and diaries. In the hands of the "pedophile" it may incite them to commit sexual assault. It is seen as capable of warping men's thinking and a tool for the seduction of children. In a statement which reveals their thinking and their toxic vision of what it is they say: "exposure to child pornography may reduce paedophiles defences and inhibitions against sexual abuse of children. Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem accepted." Any children actually involved in the making the photos and videos are assumed to abused degraded by the experience. They describe their vision of the horrors inflicted on the children: "The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone." In fact most teen porn actors are recruited from hustlers, not the other way around. Their latter point accepts the notion that the abuse is repeated every time the material is used. The Court envisions the child being abused again every time the pedophile masturbates to the image. Some child TV and movie stars must have been abused millions of times if this is true. It is as if child porn is something like a magic voodoo doll you stick pins in. This is mysticism passing as legal wisdom. The decision by upholding the prohibition and accepting the most far fetched speculations about a reasoned risk of harm reinforces the idea that child porn has powerful toxic and mystical properties. This is akin to the Taliban's belief that the sight of women's bare heads or naked ankles incite men to infidelity and rape. If women's heads and ankles are always covered in public it makes it plausible that their exposure would indeed incite rape. The fact that Western women survive with bare heads, wearing short skirts and even nude at some beaches is as irrelevant to the Taliban as the lack of evidence that porn functions as the Court claims. The Court's ultra conservative minority holds that there is a reasonable apprehension of harm to children from a person being in possession of one's own recorded thoughts about certain illicit acts. As mullahs the minority would no doubt try to ban nudity in private. The Court accepts the most hysterical claims about the capacity of child porn to put children at a significant risk in the face of its growing abundance and easy availability. It must be miraculous that any child has survived unscathed.

PROOF OF HARM

The Court recognizes that harm is a "pivotal question" and asks what standard of proof of child pornography's harm is required. Quoting themselves in the Butler decision they say only "a reasoned apprehension of harm" is needed. What is a "reasoned apprehension"? The term has no boundaries in terms of likelihood and the connection need only be a theoretical construct with no relevance to the situation at hand. Everytime I ride in an automobile I could be killed or injured by a collision with a speeder. The way the Court seems to use the term "reasoned apprehension" it can include the "remotest possibility". Compare this with the standard of proof in criminal law where, at least in theory, the test is "beyond a reasonable doubt". This requires a high degree of likelihood that approaches certainty. In civil law the standard of proof is the "balance of probabilities". This implies deciding or choosing which of two claims is the more likely. However, when the law itself is on trial, as it is in a constitutional challenge such as mine, the standard is mere plausibility. The raison d'etre of the law, in this case harm, can be purely speculative. For a "rational connection" to exist the Crown has only to claim that the law in question could advance its own intent. Applying this standard to criminal proceedings it would mean that the flimsiest of alibis could get an accused acquitted. For example, the prohibition of drugs is based on the reasoned apprehension, cum assumption that it will reduce their use and the problems associated with their use. This rational connection is demonstrably untrue as the prohibition has provided strong motivation to spread the use of the prohibited substances. But it is enough to justify the prosecution of hundreds of thousands of Canadians and the indirect deaths of many thousands.

The evidence they use is the testimony of Dr. Collins which I tried to challenge but which my lawyers glibly accepted. I have analyzed the five part theory extensively elsewhere. The Court discounts the trial judge's reservations about cognitive distortions and inaccurately accuse him of demanding scientific proof. The transcript would have been useful. The court, equating pedophiles with child molesters which even Dr. Collins avoids, focuses their arguments on them and their presumed thinking. They clearly see pornography, probably especially its written forms, as persuasive and want to reduce whatever messages it might convey. Isn't this thought control?

The Court sees no need for proof for the contention that child porn incites men to assault children. The trial judge had been aware of the catharsis theory of child porn that it acts as a substitute for actual assaults and he gave some weight to this countervailing view and could not say one way or the other. At this the Court has the audacity and generous hypocrisy to claim: "Absent evidence as to whether the benefit from sublimation equals the harm of incitement ... this conclusion seems tenuous." Suddenly they demand for a more rigorous approach than applies the other way around. The Court follows Dr. Collins lines of reasoning on grooming. I conceded it happens, but adolescents anyway would be much "vulnerable" to legal adult porn, alcohol or drugs. They conclude that there is ample evidence, buttressed by experience and common sense to validate the law. The Court affirms that the relationship between the law and the good that it is supposed to do can be quite tenuous and does not require any empirical evidence. The "reasoned apprehension or risk of harm" used to justify laws can be as little as concerned speculation.

WHAT THE COURT SAYS ABOUT IMAGES

The Court sees the law as only targeting "blatant pornographic material". The law deals with both "sexual activity" and "sexual organs" and the Court, agreeing with Dr. Collins, makes no distinctions between depictions of actual children in photos and videos and works of the imagination such as drawings, paintings and comics.

The term "explicit sexual activity" [section 1.(a)(i)], they suggest, only catches "depictions of sexual intercourse and other non trivial sexual acts." They rule: "The law does not catch possession of visual material depicting only casual sexual contact", like kissing and hugging. "Certainly a photo of teenagers kissing at a summer camp will not be caught." The law is only intended to catch material "at the extreme end of the spectrum" and they contend that "explicit sexual activity" should be given a restrained interpretation. However "a video of a caress of an adolescent girl's naked breast" if "graphic depicted and unmistakably sexual." might be caught. Fondling is presumably not trivial and can presumably be blatantly pornographic and at the extreme end of the spectrum of sexual activity. The ruling fails to clarify just what is "explicit sexual activity".

When it comes to images where the "dominant characteristic" is the depiction of a "sexual organ" for a "sexual purpose" [section 1.(a)(ii)] the Court is even less specific. They deliberately avoid defining "sexual organ", and although they again suggest a "restrained interpretation", they only specifically exempt eyes and lips. The definition is to be left to case law which can reflect values and circumstance. Certainly female breasts will be sexual organs. There could be a question with little girls who don't have breasts as to whether they would still have sexual organs on their chests for the purposes of the law. And what about boys? They don't say if bare bums are anal regions. The Court says: "a child in the bath will not be caught" and: "Families need not fear prosecution for taking pictures of bare bottomed toddlers at the beach or children playing in the back yard, given the requirement that the dominant purpose be sexual." The meanings of "dominant characteristic" and "sexual purpose" depend on whether "a reasonable viewer" looking at the depiction objectively and in context would see the sexual organ as the dominant characteristic of the image and that it is depicted for a sexual purpose. A reasonable viewer who's unfamiliar with pictures of nudity or who has only seen nudes in the context of legal porn could honestly equate the two, and see them as "intended to cause sexual stimulation to some viewers." "Some viewers" are presumably pedophiles. What the Court seems to be saying is would a reasonable viewer think that the image would arouse some pedophiles. An expert Crown witness such as Dr. Collins could testify that almost anything might arouse a pedophile and it would not be unreasonable for a reasonable observer to agree. Or is the reasonable viewer a mind reader? All this puts an enormous weight on the court's perception of the defendant. The "character" of the accused rather than his behaviour may determine his fate.

At the voir dire the prosecutor, the judge and myself had agreed that pornography is intrinsic to the material itself. The Court however abandons this concept and rules that child pornography unlike obscenity can be a relative thing. The Court supports the idea that the same image could be pornographic in one context but not in another. By placing a photo in an album of sexual photos it could acquire sexual purpose. This supports the theory of collateral materials which has been used against men by arguing such things as that the expressions and poses of a depicted child are similar to those found in pornography. Or, that similar material has been found in the homes of convicted pedophiles. This can be used to weave a web of suspicion around a defendant as happened in the case of Viktor Schlick. The decision invites the absurdity that certain materials would cease to be child pornography if they passed from the possession of someone thought to be a pedophile to someone not so labeled. It also invites the persecution of people based on perceptions. It invites the lower courts to subvert the basic principle that laws apply equally to everyone. Obscenity on the other hand is intrinsic to the material itself and independent of where it is located or who has it.

The provision about depictions of sexual organs is so broad that it almost makes the provision about depictions of sexual activity redundant as the former would catch almost all of the latter. The only exception would seem to be where the subjects engaged in the sexual activity are clothed or the sexual organs are concealed by the composition of the image.

Probably most of the images that will be involved in child pornography prosecutions will come from he Internet. Much of this is basically nudist material with little or no sexual activity but capable of having some sexual purpose read into it by a Crown expert. A conviction may only require one in a hundred images to be so interpreted. The Court's rulingdoes very little to clarify what images people may feel free to possess. Teenage girls trading some commercially available Japanese manga comics which depict sexual organs and activity could be subject to ten year sentences. The first criterion of an offence is that it must be "proscribed by law" so that people know what is a crime. The first two convictions in B.C. following the decision involved no sex of any sort but only the depiction of the immature breasts of the accused's daughters. In both cases the girls and their families suffered. Children were victimized by a law that is supposed to protect them. For some psychiatrists like Dr. Collins it is axiomatically impossible that exposure is harmful. In addition publication bans in small communities are ineffective and stigmatization is particularly acute.

The Court's refusal to clarify the definitions generally and the weight they give to context probably means it will be many years before there will be any standardized approach to deeming material as child porn. In the meantime people will have to careful with any problematic images or text they possess. With the help of junk science wielded by Crown forensic psychiatrists and others in the caring professions the police and prosecutors will probably be able to convict most of those they set out to.

WHAT THE COURT SAYS ABOUT WRITING

The Court gives mixed messages about what "advocates or counsels" [section (2)(b)] means. They say that written material must "actively induce" or "encourage" certain sexual offences with children. "Mere" descriptions of criminal acts are not caught. This seems fairly clear and would not catch much material if defined as obvious attempts to facilitate criminal acts. But the Court also sees the prohibition as applying to material that "viewed objectively, sends the message that sex with children can and should be pursued." This is anything but clear. We all know that messages can be subtle, many of the most effective ones are. We also know that messages can be cleverly contrived where none exist by reading meanings into things and psychologizing people. A determined prosecutor and clever Crown witnesses could find all sorts of positive, sex with kids is OK, messages even in some commercially available material. Some advertisements have been condemned for this reason. Who knows what a "reasonable observer" might see if he thinks that the accused may be some sort of deviate. This "sending messages" definition is extremely broad and no doubt subtle or contrived positive messages could be seen as "actively inducing".

However the Court cannot blatantly offend the arts community and much of the public by criminalizing classic works of literature whose acceptance gives lesser talents some latitude to explore things. Lolita, The Decameron and Plato's Symposium can't be touched, at least not yet. The works of cultural anthropologists and political activists employing rhetoric in seeking a lower of age of consent also get specifically excused. By analogy, broad discussion of child and adolescent sexual behaviour in polemics and fiction should be possible. But who can predict what a "reasonable observer" influenced by junk science might conclude? However all expression beyond the boundaries set by culturally accepted works could be problematic. At my lower court hearing Dr. Collins stopped just short of advocating that academic studies fundamentally challenging his assumptions, "pseudoscience" he calls them, should be prohibited.

There is a vast quantity of erotic stories of various kinds and qualities involving children available on the Internet. Many would not technically violate the law as they do not deal with criminal sexual acts. The many stories where children are flogged, often severely by teachers, fathers, police officers, slave masters etc., would appear to be perfectly legal masturbation fantasies. Stories of children having sex amongst themselves are common and probably would not be caught. Material that would clearly be caught include stories where a man abducts, tortures and rapes children. So would sensitive loving stories such as between a caretaker and a handicapped adolescent who has no normal sexual opportunities. And some stories of all kinds would have significant literary merit.

The Court did not comment on political expression such as the NAMBLA Bulletin, which probably triggered the prohibition of written material in the first place, except to say it would be legal to advocate lowering the age of consent. For a court in a democracy to say that people have the right to advocate changes in the law is hardly reassuring. It should go without saying like a person's right to breathe. For advocacy to be meaningful it cannot be restricted to rhetoric if ideas are to be made broadly available and comprehensible. They need to be fleshed out in other forms such as fiction and art so that they can be explored.

Under the "sending messages" criterion the courts will be able to make what they want out of the "advocates or counsels" provision so long as they don't tread too heavily on the sensibilities of the arts and academic communities. For the ordinary person their fate may depend more on how the court views them rather than what they possess or have done.

WHAT THE COURT SAYS ABOUT THE DEFENCES

The defences provided in the law, which the Court very clearly backs up and strengthens, are often diametrically opposed to the main thrust of the law. As defined by the Court the defences, particular that of artistic merit, rip the law to shreds for any one with a pretense to smarts, creativity or respectability. The artistic merit defence is apparently open to everybody. Artistic merit is almost democratic as talent doesn't have to be that great. "Any objectively established artistic value, however small, suffices to support the defence." In theory this could legalize some, but certainly not all, of the most erotic and explicit boy porn videos ever made. Or a beautiful Japanese manga drawing I found on the Net showing two young boys in frenzied sexual action where the erotic power of the image flows from the artist's generous talent. Case law may tend to set a higher standard for artistic merit especially for material downloaded or e-mailed. The ordinary guy or gal who downloads some teenage action and gets caught somehow, and those males specifically targeted as pedos are in most danger. Entrapment and stings should prosper. The decision on artistic merit leaves things open to prosecute, if not to convict, underground culture zines which contain expression many find bizarre. This means they would at least face the costs of mounting a defence and of witnesses to certify the work as having "artistic merit". Financial persecution is very effective against the poor.

The Court suggests that therapeutic purposes might meet the requirements of the "medical purpose" defence. Suppose a man suffers from an enlarged prostrate and is advised to masturbate to treat the problem. Some doctors advise this therapy. He has no partner so he tries pornography to inflame his desire in order to ejaculate. The only stuff that seems to work is child pornography depicting ten year olds. The man is clearly a pedophile of sorts. Should he have his therapy? The "public good" defence is a claim that the illegal act was beneficial. Breaking into a cabin to make an emergency phone call is one example. The police and prosecutors, and possibly some clinical researchers, could use this defence to justify their possession of child pornography. It is not clear if "materials that promote expressive and psychological well-being" would cover those that a person might require for successful masturbation regardless of the health of his prostate gland.

THE INCONSISTENCY

The most obvious inconsistency is the reinforcement of the "artistic merit" defence in direct opposition to the main thrust of the decision. This makes a mockery of the harm theory used to justify the law. If a photo, drawing or text is so egregious, so toxic that mere possession of it creates a reasoned apprehension of harm to children then how can the same thing if it has "artistic merit" be reasonably construed as legal to possess and presumably distribute? It doesn't magically become benign. The Supreme Court's decision has the "protection of children" trump freedom of expression and then they have "artistic merit" trump the protection of children. If a photo, drawing or writing has artistic merit it is likely to be more persuasive or more effective in abetting whatever evil child pornography supposedly promotes. Unless one believes that child porn is harmless to begin with the defence creates an absurd situation.

THE EXCEPTIONS

While the Court is able to perceive a "reasonable apprehension of harm" in some of the most far fetched situations a majority had problems when it came to justifying the prohibition of one's private journals and self created works, although even here they see some risk in allowing people to possess what they have created. They also recognize the anomaly of teens not being able to record their own legal sex activity. They read in specific exemptions for these categories. The minority sees these exemptions as a potential menace to children. In both cases the material could not be shown to others and presumably they could not survive their creator and would have to be destroyed. These materials the majority conceded posed only a nominal risk of harm to children and were a deeply private form of expression. This is the basis of the exceptions they read into the law.

THE DECISION'S PIONEERING STEPS

In addition to the pioneering nature of the law the decision also breaks new ground in legal history. In defining the exceptions the Court enunciates the completely new and novel legal concept of "occulted possession" where something can be possessed by its creators but never shown to anyone else. Heretofore possession has always included the right to privately show, share, give or bequeath the thing possessed. The Court's radical innovation in fundamental legal concepts went unnoticed at the time. The decision was silent on whether a person could convey the fact that they held something in occulted possession so presumably one could. One might legally write a friend, "I've written this great story about a teacher and his twelve year old student and they spank each other before they have sex, but I can't let you read it." While the decision only applies the concept of occulted possession to certain kinds of child pornography it could be a precedent for other things such as hate literature. However it should still be legal to produce and sell do it yourself books which provide instructions on how to make your own child pornography, or hate literature.

The decision endorses junk science. The Court adopts questionable psychiatric concepts and lends legitimacy to dubious applications oftheories such as collateral material and cognitive distortions. By boldly venturing into an area where materials are judged by the context of their location and perceptions about the possessor the Court is saying that the law is partly based not on what you do but what the court thinks you are. Equality before the law is compromised.

THE BIAS

The Court also chose to rule on the constitutionality of the law withvery incomplete and lopsided evidence available on the pivotal question of harm. At the voir dire I represented myself with scant financial, research or legal resources. I had some misgivings at the time about taking on the ambitious task of challenging the law by myself. Failure could make it more difficult for others. But then no one else was trying or interested. I tried but was unable to get any support or encouragement from Canada's libertarian establishment. The British Columbia Civil Liberties Association wrote me that they supported the possession offence and that included written material such as the NAMBLA Bulletin. The Crown suffered no such limitations and without warning brought in Dr. Peter Collins, a high powered psychiatric expert witness who had an impressive string of victories in child porn cases. At the appeals this imbalance was further skewed by my lawyers who stubbornly refused to develop significant evidence favourable to me in the exhibits, testimony and findings from the voir dire. When the Crown was allowed to enter new evidence they also refused to do the same. This imbalance in evidence was noted at the Supreme Court hearings by Frank Addario speaking for the Criminal Lawyers Association. He submitted that for this reason the Court was not in a position to consider the law's constitutionality. The Court however had no such qualms and saw the uncontested evidence of Dr. Collins as adequate.

The imbalance was further augmented by the references selected to inform the decision in the "Authors Cited". The two case comments from legal journals cited read like private factums for upholding the law. Jack Watson's "Case Comment: R. v. Sharpe" begins his analysis of Judge Shaw's ruling by stating, "the judgment (my original acquittal) is just wrong." He appeals to democratic consensus and accepts all Crown assumptions, theories and basic arguments. He clearly did not read the transcript. He equates child porn to drugs and argues that it can simply be prohibited as contraband.Any more favourable academic comment such as Wayne MacKay's, "R.v.Sharpe: Pornography, Privacy, Proportionalityand the Protection of Children", for example, were ignored.

All three social science references cited not including government documents assume the Crown's theories of harm and suggest more severe measures to deal with sexual abuse. The first of these was Nicholas Bala's article, "Canada: Recognizing the Interests of Children". He had appeared before the committee that drafted the law to encourage more restrictive provisions. The second was Roger Levesque's book, Sexual Abuse of Children: A human Rights Perspective". This is a plea to impose current Western concepts regarding child sexuality and abuse throughout the globe, even specifically to the remote mountain villages in New Guinea using the United Nations and other international organizations. He never questions conventional harm theories and sees abuse in cultural rituals he disapproves of. He champions moral imperialism. The third was Julian Roberts, "Sexual Assault in Canada: Recent Statistical Trends" in which he consistently argues that sex abuse rates are under reported, that the criminal justice system favours those charged, and that enforcement should be stricter with the accused. He relies on radical feminist sources and ideology and biases his interpretation towards the "victim". I don't know if the Court selected these references themselves or whether they were chosen by their clerks whose biases have been questioned before. There is a disturbing consistency in the ideological positions of the sources. Recently Supreme Court judges have complained of insufficient resources.

MY CONCLUSIONS

The decision does very little to clarify the law. It is minimalist. The Court deliberately left refining the meaning of many terms to case law. In doing so they imply that lower courts should, more or less, do what they think appropriate. Within the extremely flexible terms of the decision they are given considerable latitude in deeming what is child pornography. Applying the Supreme Court approved junk science concepts of "cognitive distortions" and "collateral material" judges and juries could convict on the basis of the most marginal material if they didn't like the defendant. The decision provides no general guidelines as to what people can feel secure in possessing, including some commercially available art, magazines and books. The decision could seem to allow these materials to be deemed pornographic in the possession of some particular accused, but not generally. Cognitive distortions are modern heresies, and include opposition to certain accepted theories and contemporary conventional wisdom. Interpretations, deemings and penalties can and will vary not only from case to case but also from region to region reflecting local media and sensitivities. The ruling invites the police to continue pursuing the most marginal of cases in terms of the material. Liberal families with sex positive values will remain open to persecution for their lifestyle. The law will continue to function as a family wrecking instrument.

Viewed one way the decision is a confused piece of junk law. It is logically inconsistent and intellectually dishonest. It can be seen as the work of narrow legal minds with no more concern about principles than the politicians who appointed them. Only politically, and perhaps in a rather cynical manner, does this inconsistency make sense. One might say the decision is logically absurd yet politically astute. Social conservatives and hysterical liberals get their morally satisfying law, the criminal justice system gets a supply of people to arrest, convict, imprison and therapize and the artistic and academic communities get their interests protected. The law becomes a very flexible one that can and will be applied in highly discriminatory ways.

One way of understanding both the law and the decision is to see them as basically targeting "pedophiles" as they are now mythologically constructed. This can explain leaving the definitions open to very broad interpretation in order to convict and harass suspected deviates while at the same time strengthening the defences to assuage and protect respectable groups. This allows the police, prosecutors and courts considerable latitude to apply the law selectively. It would be a mistake to think that a particularly invidious defendant could easily get off on an artistic merit defence. Looking at it this way the inconsistency largely disappears. The purpose of the law is to get the pedophile. In order to accomplish this objective the criminal justice system is prepared to sacrifice the welfare of many supposed victims whether they be street kids or children in families. Kids have already been unintended although at times necessary victims of the law. Both the law and the decision are offender centred rather than child centred. Given the accepted theories of harm children are supposedly protected by denying pedophiles access to child pornography and discouraging masturbation. The idea is to stop pedophiles from having fantasies, which are believed to incite them to commit offences. This is the basis of the sex offender treatment pursued by Dr. Collins. This the rock on which the law is built. The law and the decision are falsely reassuring. Even evidence submitted by Dr. Collins suggested that a large majority of child sex offenders are not preferential pedophiles, but rather incest offenders and those who opportunistically assault children and who would have little interest in child pornography.

Despite this I believe that the Court's affirmation of the law was sincere. It is likely that its members share the pervasive moral panic about kids and sex which intensified with the "open season on children" hysteria that followed my original acquittal. It is also true that the decision was astute. The public was reassured. Both the populist and corporate right, the PCs, mainstream feminists and most human rights types would have been outraged had my acquittal been upheld. The government would have had to redraft the legislation, this time under intense scrutiny from the media and interests groups. It would be awkward, it would be difficult to sneak in measures without public discussion. It would be potentially divisive and would strain relations between the Court and Parliament. From this perspective upholding the law was the civicly responsible thing to do.

While the police, prosecutors and courts have commonly been discriminatory in practice, race is an excellent example, the law itself including high court decisions has avoided this. However the SCC in my decision by venturing into the concepts of collateral materials, where material is to be judged by the context of it location and perceptions about the possessor. The .law is partly based not on what you do but who you are.

The decision repudiates the idea that pornographic quality of material is intrinsic to the material itself. They opted to adopt the idea that whether or not something is child pornography can depend on where it is found and who possesses it. For example, if a picture was found on the same shelf as books of erotica it may be deemed child pornography but if the same picture were found in a family album it may not be. If the person possessing the picture is suspected of being a pedophile it may be child pornographic but if the person is not then the image is innocent. From the words of the decision it is unclear if the Court knew what they were doing when they opened up deemings to contextual considerations. The Court boldly adopts the speculations of certain psychiatrists and legally validates them.

I read through the decision several times trying to make more sense of it. I could not understand how Chief Justice McLauglin could see the breadth of the law as being so limited. In spite of it being the most inclusive law in the Western world she states: "The primary definition of 'child pornography' does not embrace every kind of material that might conceivably pose a risk of harm to children, but appears rather to target blatantly pornographic material." [para.74] It was only when I realized that the Court was viewing the law's definitions in relation to the total range of child images that might be arousing to some pedophiles that it made sense. Given that everything from fashion illustrations to photos of crime victims or boy soldiers might indeed be of interest to some pedophiles the law is indeed limited in scope. Against this standard the law captures probably less than ten percent of the material that is used as child pornography. Only a total ban on images of children could come close to succeeding. McLauglin provides a deep insight into the Court's thinking. Their basic conceptual definition of child pornography relates to their understanding of pedophiles' thinking, it is offender oriented. The fundamental evil is the moral revulsion shared by many at the idea of children being used, "violated" by men using their images for sexual titillation, arousal and orgasm. It's about Sex. The law's covert purpose is to prevent pedophiles from masturbating. So what if evidence submitted by the Crown suggests that only a quarter of child molesters are pedophiles, so what if enforcement sometimes harms kids, a law which targets pedos ipso facto protects children.

THE NEW MORALITY

The mystical theory of child pornography is part of the New Morality that our youth has been indoctrinated with for over a generation. This New Morality is based on particular concepts of equality, sees situations in terms of offenders and victims paradigms, focuses on presumed offenders at the expense of possible victims. It includes such things anti-racism, anti-sexism, anti-homophobia, anti-violence groups and most greens. It believes in the moral power of propaganda or sending messages, and effectiveness of therapy, and the efficacy of legislation.It emphasizes personal rather than social and historical factors. The old Left concern about economic equality is forgotten amid a plethora of perceived social and cultural minor inequalities. Clinical psychology is a natural ally of the New Morality and cultural anthropology is its nemesis. This is the morality that is taught as applied science in the post secondary institutions that supply us with police officers, social workers, health and childcare workers, and court clerks who may do research for and provide Supreme Court judges with expert advice. It is the ideology that pervades popular media which sets and answers questions for the public. This New Morality is propagated globally by the UN, international agreements and NGOs which act as moral missionaries to the Third World. It seeks to rescue other societies from their moral underdevelopment by applying Western standards, free trade, uniform laws, and extraterritoriality. They will be cajoled, bribed and shamed into line.

OTHER REACTIONS TO THE DECISION

Most people seemed to welcome the decision seeing it as striking some sort of meaningful balance. The minor exemptions raised the ire of social conservatives who claimed children were put at risk. Craig Jones, then head of the BCCLA was enthusiastic. He is quoted in a book on my case [ON KIDDIE PORN - Sexual Representation, Free Speech & the Robin Sharpe Case by Stan Persky and John Dixon] as saying, "It's almost overwhelmingly a positive decision. I know some people are saying it's giving too much to the civil libertarians, but I can't see a scenario in which a child is actually abused and still not captured by the law as it stands." Myself, I can see many situations where children are abused. Mr. Jones adheres to the principle that any conceivable risk to children warrants the suppression of traditional freedoms. I thought of his earlier remarks about "innocence". Other so called civil libertarians hailed the decision as a "real achievement". Only the more extreme social conservatives claimed to be dissatisfied. The decision appeared to be a legal and political triumph for the Supreme Court of Canada.

MY COMPLAINTS AGAINST MY LAWYERS

I was unhappy with my lawyers' performance, something that goes back to the Court of Appeal hearings as I've already made clear. I felt that Peck had deceived and betrayed me. I believed that the way he had handled me was unethical although I could see why he chose to defend himself at my expense. The idea of making a formal complaint was already there and when I spoke to him on the phone just after the decision was announced, Peck congratulated me on My victory, I decided to go ahead. It may have been his victory but it was certainly not mine. I began researching the process at the website of the B.C. Law Society. On February the 9th I wrote the Law Society, attention the Professional Conduct Department. Using the widely accepted CANON OF LEGAL ETHICS I alleged that my lawyers failed to provide me with a full and vigorous defence. [The relevant sections of the CANON are: 3.(2), (4) & (5)] I explained that when I retained Peck he spoke as a strong defender of privacy and free expression principles and was enthusiastic about defending my freedom to possess of expressive materials. I provided a brief history of our relationship and listed the alleged breaches of legal ethics by my lawyers.

At the voir dire I contested the theories of harm and some of my points were acknowledged in part in the trial judge's ruling. Their concession on the question of harm rejected a substantial part of the basis of my acquittal in the lower court ruling. This decision to basically abandon the basis of my acquittal and concede the main thrust of the Appellant's Factum was a dramatic change in the conduct of the defence. They had an ethical professional responsibility to inform me of this with all candour. I would have asked them to withdraw from my case and sought other counsel as I felt the concession prejudiced my entire case.

According to the Canons I felt that they did not defend my interests "resolutely and without fear of ... public unpopularity." or that they tried "by all fair and honourable means" to obtain for my benefit "any and every remedy and defence authorized by law".

Finally I drew attention to some of Mr. Peck's closing statements in his oral submission before the Supreme Court where he revealed that he and McKinnon had basic differences over conceding the Crown's theories of harm. His failure to discuss this disagreement candidly with me may possibly be explained, but not excused, by his own lack of enthusiasm for the concession. I felt that this was a breach of ethics and bordering on incompetency. I discuss this in more detail below.

Quite simply my lawyers were in a conflict of interest situation. On the one hand they had their professional responsibility to defend me in all legal and honourable ways. On the other hand they had to defend themselves from the widespread opprobrium attached to the topic of child pornography, especially if they were perceived as supporting it in any way. The well known Lorne Goddard/Stockwell Day defamation case in Alberta illustrates the problems suffered by lawyers challenging child porn laws. I was informed by one of his associates that Mr. Peck also suffered through his association with my challenge. I have some sympathy for their dilemma having been exposed to widespread stigmatization and vilification myself. It was a difficult, "between a rock and a hard place", situation and they chose to drastically compromise my defense by generally limiting their arguments to "arms length" hypotheticals based on the question of overbreadth. They did not tell me that personal factors were strongly influencing their approach to my case. There was a clear conflict of interest and, I feel, they irresponsibly gambled with my rights and interests to protect perceptions of their own moral rectitude.

The Supreme Court's decision basically gave Peck what he asked for. It was a victory for him. But the exemptions he agreed to certainly did not seem to cover much of my material and would not have secured my acquittal. Peck as my defense lawyer was supporting a remedy that would likely lead to my conviction, and ultimately did. My very real interests in the case were ignored or sacrificed in his quest for a narrow legalistic "win". I clearly lost as a result of the decision and had go back to trial on the original four charges. However when I spoke to Peck after the decision came down he chose to congratulate me on MY victory. I see no elements of ill intent in my lawyers' conduct, but errors of personal weakness, an inability to listen and a profound lack of candour.

Ramifications

My lawyers' conduct raises the important question of how people like myself, who become the object of organized moral outrage and public vilification, can find lawyers with the courage to defend them by all legal means. In addition to most clients' desperate desire to avoid further publicity, this reticence, I believe, explains many guilty pleas and tends to erode fundamental justice. If Peck, and to a lesser extent McKinnon and Harris, have breached legal ethics it was for very human and understandable but inexcusable reasons. When popular repugnance for certain offences and/or certain types of defendants make it difficult if not impossible for defendants to receive a full and vigorous defence, fundamental justice is impaired. In my own case, if my lawyers breached legal ethics and this compromised my defence, then the entire appeal process right up to the Supreme Court level may be seen as tainted.

I provided the Law Society with a review of the evidence available and waited for a reply. Six months later after many more letters the Staff Lawyer writes me that he sees no breach of professional ethics and encloses a copy of Peck's letter rebutting some of my allegations. Peck in his eagerness to excuse himself implausibly reinvents a statement he made before the Supreme Court. I appealed the Staff Lawyer's assessment to the Complaints Committee and filed an additional complaint against Peck. In my letter of August 26th to the Law Society I say:

In his letter he (Richard Peck) states: "Concerning the fourth point in your letter, there was no difference of opinion between Mr. McKinnon and myself concerning the concession. In my comments about the concession, I only meant to express my general reluctance as defence counsel to make concessions. My comments were unclear and did not accurately reflect the unanimity of opinion between Mr. McKinnon and myself."

The comments he refers to are the ones he made before the Supreme Court of Canada when he was acting as my counsel defending my acquittal. Mr. Peck is being very charitable to himself when he says they were unclear. He does not explain how his remarks could be construed to mean other than that he disagreed with Mr. McKinnon on the concession. See below. Peck was making a plea for exemptions when Justice Gonthier from the bench observes "that both you and Mr. McKinnon... conceded that there is constitutional validity to some sort of possession offense". Practically interjecting, Peck jocularly remarks, "He's keener on that concession than I am." He relates his remark directly to the previous observation of the justice. There is no way that the phrase "that concession" refers to his "general reluctance as defence counsel to make concessions" rather than the validity of possession offences. The meaning of Peck's remark is clear from both the video and written transcripts. It is in context. And it is obviously the interpretation Justice Gonthier gave the remark when he retorted, "Well all right, one half of the team says there's a concession on this..." IfJustice Gonthier misunderstood him, Peck had the chance to clarify himself then and there, but chose not to and started to leave. Mr. Peck is simply not telling the truth when he says "there was no difference of opinion between Mr. McKinnon and myself concerning the concession".It is my contention that any reasonable observer, or for that matter a jury, viewing the transcripts could come to no other conclusion than that Peck was referring to a disagreement with McKinnon when he used the phrase, "that concession". His rationalization that he was referring to some general reluctance to make concessions is a palpable untruth. It is an untruth that prejudices my interests and denies me justice.

My complaints were processed very slowly. As I had very little contact with McKinnon, and Peck was supposedly in charge, my complaints focused on him. In early November, 2001 they went to the Complaints Review Committee of the Law Society of B.C. It was an internal hearing where I no chance to confront Peck. Later that month they sent me a letter stating they could find no basis for further action. The Law Society demonstrating its solidarity accepted contradictory excuses. While I don't like letting the matter drop I am told I might have to study administrative law in order to take it any further on my own. I don't think I care that much.

COMMENTARIES ON THE CASE & THE SUPREME COURT DECISION

My case has led to several articles and at least one book. Kegan Doyle and Dany Lacombe wrote a long article inthe academic journal, Studies in Law, Politics and Society, entitled,"Scapegoat in risk society, The case of pedophile/child pornographer Robin Sharpe". The two SFU professors describe the slanted media coverage of my case which they see as part of a moral panic about children and sex. The current child abuse panic is in part due to the decline in traditional social relationships, such as marriage, friendship and class solidarity, which were once meant to bring security, interdependence and trust. People find in the child, the "iconic status of the child", the last repository of their identity, their last attachment to collective life." The authors explain how the image of the "pedophile" is constructed in the media and defined as a monster by conventional psychiatric theories that conflate pedophile fantasy with abusive acts. The testimony of Dr. Peter Collins at my voir dire is used as an example. They claim that society paradoxically eroticizes the innocence of children in advertizing and the arts but that anyone who explicitly make the link, such as myself, are "doomed to demonization". They conclude that sexuality plays a significant role in moral panics because it is mystified in Western societies. I am reminded of the testimony of Dr. Collins where he condemns pedophiles because they "demystify" sex.

The Fall 2001 issue of Constitutional Forum, a journal published with the support of the Alberta Law Foundation, has three articles relating to my case. Lise Gotelle of the Women's Studies Program at the University of Alberta contributed an article. "Inverting Image and Reality: R. v. Sharpe and the Moral Panic Around Child Pornography."Lise Gotelle examines the child pornography laws against contemporary political developments. One is the post Keynesian, "neoliberal" state which seeks "to retreat from the economy; to reduce social spending and to eliminate budgetary deficits." With the dismantling of the welfare state Governments tend to emphasize law and order to provide social stability in place of the security of the welfare state. She says, "criminalization became an increasingly preferred response to social anxieties." And, "Criminalization is politically attractive because it simplifies conflicts, stresses moral outrage over reason, allocates blame, and offers concrete goals." In a period of growing child poverty concernabout children is shifted to criminals, perpetrators of child abuse thereby absolving government of responsibility.

While she credits feminists with breaking the silence surrounding child sexual abuse she claims that they have redefined it as a political and gendered problem. They see sexual abuse in terms of power imbalances between men and women and between adults and children. Child sexual abuse becomes rooted within the concepts of masculinity and feminity and within the patriarchal nuclear family. This was supported by research that indicated that in 75% of the cases the accused was a family member (incest) or someone well known to the child. However, the complexities of child sexual abuse have been reduced to the most simplistic terms through the equation of child sexual abuse and child pornography. [which is unlikely to be a factor in family situations.]Child pornography becomes child abuse in itself. This she sees as slippage from image to reality. Politicians and the mainstream media saw the lower court decisions in my case as creating an "open season" on children or as one M.P. put it as giving "pedophiles the right to abuse children." One could logically infer from this that pedophiles had that right before the law was enacted in 1993.

The "symbolic figure" of the pedophile/pornographer as constructed by experts, advocates and the media becomes the focus of danger to children. She contrasts the media coverage of me, an accused pornographer, with the much more sympathetic coverage given a former RCMP officer and Reform Party M.P. who was convicted of the attempted rape of a fourteen year old native girl. Shifting attention to representation, "child pornography",portrayed as an external threat, she claims, denies the systemic nature and characteristics of child sexual abuse which is overwhelmingly a heterosexual (and family) crime. Child pornography is described as an epidemic. She sees the emphasis on external threats as a backlash against the feminist insight that child sexual abuse is usually incestuous. This slippage from reality to representation is reinforced and legitimized by the Supreme Court decision in my case.

Shannon Bell, a professor in the Political Science Department at York University and pro sex feminist author, conducted three lengthy interviews with me and wrote an article, "Sharpe's Perverse Aesthetic" which also appeared in the Constitutional Forum. As a potential literary merit witness for the defence she was allowed to read my BOYABUSE collection. She takes a deconstructivist approach to the Supreme Court decision where she focuses on "the inconsistencies of a text - its ambiguities, gaps, silences, oddities and overindulgences - to show how the internal logic of the text subverts itself and what/who is excluded from the text." Her main interest is the exceptions and the artistic merit defence. The first exception, where people can possess their own creations "for his or her own eyes" only, she sees little that might be covered by it. She asks if unpublished material similar to some of the works of de Sade, Swinburne or Burroughs would be deemed child pornography particularly if only people in the criminal justice system, with their particular perspective were to read it. She quotes a passage from de Sade, far more bizarre than any stuff I wrote, which could not meet the criteria of "advocates or counsels" simply because it is so extreme. She points out that the defence of artistic merit only comes into effect after the material is charged as child pornography. At this point major damage to the accused's status, employability, marriage may have already been done. It could prohibit authors showing their unpublished manuscripts to anyone. She discovers a number of contradictions. She analyses Chief Justice McLauchlin's wording and seems to think that my writing would be protected by the artist merit defence. She describes my stories as having a "perverse aesthetic" and puts them in philosophical and literary contexts. I was encouraged and flattered.

In the same issue June Ross of the Faculty of Law at the University of Alberta contributed the article, "R. v. Sharpe and the Defence ofArtistic Merit".Her arguments are dryly legal based on precedents and she did not, or need to read any of my writing. She resoundingly and uncritically affirms the Supreme Court decision which borrowed generously from a previously article she had written. She correctly notes that the breadth of the definitions can only be justified by bringing in attitudinal harm and the attendant reasonable apprehension of harm. She sees the defence of artistic merit as ensuring that according to the Court, only expression "far from the core" of expression rights is affected by the law. Artistic merit "rests at the heart of freedom of expression values". After alluding to the Court's generous interpretation of the defence she examines the question of the community standards approach as it applies to obscenity and concludes that there is a problem that it deflects attention from expert evidence. Otherwise "adjudicators will be influenced by their lack of appreciation for a particular work or for art generally." To resolve the problem of harm versus artistic merit she advances the idea that the defence should be restricted not merely on the basis of a risk of harm but only on the basis of "proven harm". The employment of children in the production of pornography would by her definition be an example. If we return to the previously discussed McGowan case (in Part Three) where youths produced the porn themselves and McGowan was acquitted under the obscenity laws this could be problematical. I could see the question of "proven harm" being a basis for appeal.

Canada's civil libertarians however were generally not bothered by the decision upholding the law. The two exemptions were a welcome crumb as if they really served freedom and liberty. None mentioned what was lost. The book, ON KIDDIE PORN: Sexual Representation, Free Speech and the Robin Sharpe Case by Stan Persky and John Dixon (New Star Books, Vancouver, 2001) claims to provide an insider's view of Canada's child pornography laws. Stan Persky, an acquaintance of many years, is an old 60s radical from the U.S. He writes columns and books about politics, places and young men. John Dixon is a lawyer and currently (late 2001) president of the British Columbia Civil Liberties Association which again wants to intervene in my case. Both teach philosophy at a suburban Vancouver college. The authors are at their best in explaining the political considerations behind the introduction of our child pornography laws. At the time John Dixon was a senior policy advisor to the Department of Justice and directly involved in the early stages of drafting the child pornography laws. According to them the law was intended to restore unity in the governing Conservative Party government by offering the social conservatives something to placate them after the government had introduced various liberal initiatives which they opposed. The bill, originally narrowly focused on depictions of sexual activity like American legislation, was hijacked by the social conservatives of all parties on the Justice Committee. With cabinet shuffles and the exigencies of a forthcoming election the government lost control and the bill ended up as perhaps the most restrictive in the Western world. The "libertarian" authors, while lamenting that the law went too far, nevertheless support in principle the law's unprecedented incursions into individual privacy and freedom of expression. They are unable or unwilling to challenge the "protection of children" shibboleth and implicitly accept the rationales of the law's proponents. The biggest weakness of the book is the authors' analysis of the Supreme Court decision. They become entangled in legal undergrowth and fail to see the forest for the trees. For all the "close scrutiny" they apply they fail to understand the significance and implications of the decision. They fail to note that the decision's acceptance of contextual considerations muddies the basic principle that offences must be "proscribed by law" and also violates the fundamental principle that people are equal before the law. The authors tend to put a benign face on the Supreme Court decision. They are disappointed, and while they would have drawn the line in a different place, they do not fundamentally criticize it. They may have felt bound by the stated position of the BCCLA. At the appeals the BCCLA, while ostensibly on my side, repudiated the basis of my acquittal in the lower court. Asthe authors point out the association's brief "gingerly navigated between the lower court decisions to completely overturn the possession clause, and the demand of right wing political forces that the possession clause be left absolutely intact." (p. 174) How political can you get? These "libertarians" felt that Justice Shaw and the B.C. Court of Appeals had gone too far in protecting freedom of expression. The BCCLA may also have helped persuade Peck to abandon his original libertarian stance and fall back on arguing overbreadth using implausible hypothetical situations. I wrote a critical letter to Toronto gay paper, XTRA which has a libertarian tradition going back to the old Body Politic newspaper in the 1970s. I said that in the end the only thing that the authors, like my previous lawyers, defend is their own moral rectitude.

PART SEVEN:THE TRIAL

After the self righteous, and tragic for expression rights, decision of the Supreme Court I was back facing trial on the four original charges. A date had been set for June 2001. As a result of all the publicity and contacts I had made, some anonymous libertarians offered to pay the costs of a lawyer to handle my trial. Through an intermediary they suggested Paul Burstein, a Toronto lawyer who had worked under Alan Young and had been involved in freedom of expression cases dealing with S&M and marijuana. At the time I heard about the offer I was entertaining the idea of representing myself again although I certainly didn't want to. I was trying to stay on top of my case as I saw it, and prepare myself for the ordeal. I knew artistic or literary merit would be an important factor in my trial and I made an effort to find experts who would say that my impugned writing had some literary merit. I wondered if there were ways of measuring literary quality by examining the vocabulary and the meter and complexity of sentences. I put together folders of individual stories with appropriate disclaimers to show to prospective literary experts. At the suggestion of people at Little Sister's Bookstore I wrote to Lorraine Weir of the UBC English Department but got no reply. I approached a friend, a poet who teaches English at a suburban community college, and made a copy of one BOYABUSE story available to him. I didn't however, think that he would be a particularly suitable expert witness. I was very wary of lawyers at the time and had recently filed a complaint against my previous lawyer, Richard Peck with the B.C. Law Society.After talking to Paul Burstein on the phone, and some hesitation, I decided to accept the offer and was soon glad and relieved.

Near the end of April I flew to Toronto to meet with Paul Burstein in his small office on a higher floor of a huge office building at Queen and Yonge which featured a vertigogenic open inner court yard which might be worth its void in legal action. He is an impressive man with a rugged, dark featured face and a build that suggests he works out. He is involved, disciplined, bright and smart, tough, and he has a magnificent ego. I've heard him compared to Frank Addario who spoke forcefully for the Criminal Lawyers Association at my Supreme Court hearing. Addario was Eli Langer's lawyer.

We discussed the SHARPE decision and in particular the artistic merit defence. On the basis of my anti-elitist and libertarian principles I preferred to base my defence on the question of the "advocates or counsels" definition but the idea of a literary merit defence certainly appealed to my writer's ego. I believe in my ability as a writer and a thinker. I try to craft words as I craft wood. I believed that my impugned writing has literary merit, a lot of irony and sardonic black humour. Previously I thought that if I ever had some public success with other writings, BOYABUSE might eventually achieve some underground notoriety, much like Algernon Swinburne's robust and graphic, schoolboy flogging poems. I hardly expected that it would become the work I'd be known by.

I do not deny that BOYABUSE is also gross, offensive and frankly pornographic, it is as I say in a subtitle, "kiddie kink". It is full of sex, sadomasochism and boys. It is consciously transgressive but obeys its own ethical rules. But according to the Supreme Court's decision all this is irrelevant if the work has "artistic merit". As the decisionreads, the most speculative or tenuous risk of harm to children trumps freedom of expression, but artistic merit, "any objectively established artist value, however small, suffices to support the defence", trumps harm. The decision, and the law the Court could not bring itself to send back to Parliament, are perversely flawed.

Arguments about whether my writing would be child pornography under the "advocates or counsels" definition could be a risky semantic venture. The standard depends on what a "reasonable observer" would think how a pedophile might respond to the material in question. Realistically, the most extreme and bizarre of my stories might be the least likely to "advocate or counsel" illicit sex with persons under eighteen. This argument has been used to defend the writings of the Marquis de Sade, and the art of Eli Langer. But might not a respectful, affectionate, playful and sexually explicit tale about a man and a boy of thirteen be more likely to "advocate" and thus invite conviction? Certainly, non artistic loving descriptions would have no protection because they would convey the idea that sex with children is something that could and should be pursued. This thinking derives from the outraged logic of feminists who particularly resented pornography depicting women enjoying their rape or abuse. It is less degrading if women are depicted as resisting their abuse. If a depiction, taken literally, is too outrageous to contemplate doing in reality, it can hardly advocate or counsel.I found it deeply ironic that the question of harm was no longer relevant although the Crown would continue to labour it.

In Toronto I met several people in the media and law who were generally supportive and encouraged me in what I was doing. Some I already knew through their work or correspondence. I also met two people who had been convicted of child pornography charges and got some understanding of their treatment by the system and the therapy they are induced to undergo. Their particular therapists did not see child pornography as a serious offence and their sessions were described as congenial. Compared to Vancouver there seemed to be more concern about civil liberties in Toronto. Here, aside from isolated individuals, I have found only found a few social libertarians, some from the fringes of the old left and others among the property libertarians on the fringes of the right. In Toronto there had been organized protests against the child, youth as they saw it, porn legislation at the time, and the so-called "London porn ring" scandal hadled to questioning about how the law was enforced. There has been a series of freedom of sexual expression cases in Toronto, going back at least as far as the old Body Politic, that have sustained awareness. And Gerald Hannon who wrote the controversial "Men loving boys loving men" article survived as a public figure. MatthewMcGowan's video, Eli Langer's art and Terry Bedford's dungeon have kept the issue of sexual expression alive.Before my case exploded on the scene with convulsions of outrage Vancouver only had Little Sister's neverending trials revolving around Canada Customs prejudices and practices. In Toronto I was treated generously and had an interesting and exciting time. I also had time to explore the city which I hadn't seen since 1973 when I spent four months there. After I spent several pleasant days with friends in Montreal before returning to Vancouver.

PREPARING FOR TRIAL

As Paul Burstein was busy in June, and in order to accommodate Crown witnesses, the trial was rescheduled for late January 2002.We studied the Sharpe decision, particularly the artistic merit defence for the stories and the second exemption (para. 116 in the decision) in respect to my photos. While the decision also allows an exemption for self authored works that are never shown to anyone else, this is meaningless as no serious author writes without an audience in mind, even if it's only posterity. Although I did not distribute my BOYABUSE stories in the usual sense I would not deny that I gave copies to other people, and sought their comments as writers do. In addition to the artistic merit defence I would claim that my writing does not "advocate or counsel" illicit sex with persons under 18. I question whether fiction ever can. The exemption was designed with the unlikely scenario of teenage girls' diaries containing revelations of positive accounts of sex with their teachers in mind, but could be made to cover other situations. This meaningless exemption covered one of the petty hypotheticals that Peck and McKinnon laboured with their heroic libertarian rhetoric. It was their "victory". The other exemption was intended to package the hypothetical situation of teens, preferable married, who videotape their licit sexual activity. It was an awkward anomaly which even many conservatives recognized. The wording of the Sharpe decision can be interpreted to include any situation where photographic or video images of sexual activity involving persons under 18 years are in the possession of either the photographer or the subject, provided that the sexual activity was not illegal and no one else ever viewed them. I hoped the broader interpretation would apply to my case

I found Paul willing to explain the workings of the system, what was legally relevant and what was not. On a couple of occasions he explained how things I thought were against me actually worked in my favour given the peculiarities of my case. I often wondered at his approach and learnt by offering him my ideas. I gained some legal insights. I had been concerned about the report of the Crown's psychiatrist, Dr. Shabehram Lohrasbe, painting me as a monster on the basis of my writings, and that such a monster could not be artistic. Paul assured me that his testimony was irrelevant to the legal issues of the trial. But on the whole the law is more stacked in favour of the police and the prosecution than most people probably think.

I had admit guilt on one of the simple possession charges relating to photos as some of them were clearly not taken by me. A former roommate, who later died of AIDS, had a seedy collection of old 1970s kiddie porn. The videos, and a few tattered old kiddie porn mags from the same era, were of great comfort to him in his illness. When he moved out he left behind a few worn pages and some photocopies. They were scraps but rare items these days, and being a frugal man I saved them. There was no way out on them. The other photos relating to the border charges I wanted to fight, as did Paul, but it was a side issue. Under para. 116 exemption of the Supreme Court's decision the accused would have to point to evidence that the possession was covered by the exception. The activity depicted, which went no further than arousal, was legal, and the depictions were legal where I had come from. As they had been intercepted at the border and they could not have been viewed by others in Canada, and the fact that the photos from the other bust were stored together privately in a suitcase suggested intent to keep them private, I felt that they could be covered. I did not see all of this clearly until it was over. However, interpretations I received suggested that I might have to involve identifying the boys in the pictures. I had no way of contacting one of them. Knowing what boys involved in child pornography charges are put through, the humiliation and ordeal of their privacy being violated by the criminal justice system as happened in the Gramlick and Jewell cases, I could not consider that course of action anyway.

The literary merit defence required that it be objectively established. However art is highly subjective and what constitutes art can be very contentious. The question becomes critical when the stakes are ten years prison for the defendant on one side versus fame or mere infamy on the other. Courts which have evolved to determine guilt or innocence of defendants seem ill suited for ruling on the artist merit of products of the imagination. However as law has ventured into the realm of art, courts must devise legal methods for determining its presence. Under the Sharpe decision the Crown has the more awkward task of proving a negative, an absence. It raises problems of a philosophical nature. But the immense administrative, material, legal and moral resources of the Crown give them an advantage over poor and ill equipped defendants. And the solution is to reduce it to a technical problem..

The obvious approach is to employ experts. The expert witness system becomes part of the adversarial system. Experts testify on people's mental condition, on the paths of transactions and leaky condos, generally relevant to assigning blame. Experts are officially and culturally viewed with awe. It is an elitist approach and unfortunately people learn not to trust their own common sense and experience. After Dr. Collins I knew that when experts are involved truth and common sense are plastic. And art is more objectifiable than the deviant fantasies of men which experts like Collins and Lohrasbe claim to understand well enough to play god. Art must be legally defined. Perhaps equally obvious in dealing with written material is that university English professors with their with their credentials and reputations would be rational choices. They could create categories, advance theories and models, give examples and make comparisons, all to establish a context for objectively establishing merit.

It is patently absurd to have courts dealing with criminal matters getting involved in judging the artistic merit of stories, comics or paintings, but if we both prohibit expression and protect merit we have little choice. It would also be help if the author had some previous recognition or commercial, or any publication. I had minimal recognition. My five chapbooks were all self published, Manilamanic was reprinted in an American gay travel magazine for which I got $100, I had excerpts in the Sodomite Invasion Review,and was the subject of a pedophobic review in a gay newspaper. THE MOON EYED BEGGAR'S TALE had one politically correct and one sympathetic review. I had taken part in two large public poetry readings. As for BOYABUSE I couldn't think of a dozen people outside the criminal justice system who might have read it. And I couldn't really call on any of them to attest its literary merits or mine. I was a poster boy for pedophilia, and the people I knew in the gay lit scene, some who have young friends to protect, feel courageous just greeting me on the street. Perhaps I am a skeleton in their closet. Few would appreciate the stories anyway, or want to admit that they did, after what they've heard. Sometimes I feel like a character in an old Iron Curtain dissident novel.

I was fortunate to get Professors James Miller and Lorraine Weir to testify about literary theories and apply them to my work. After repeated media reports based on the lurid descriptions of my stories put out by the police and the Crown, it was satisfying to hear them discussed as literary works. It was promotion of a sort, perhaps negative promotion just as I've been told I have negative marketability. However I will always be the author of BOYABUSE whose notoriety is assured. I entertain the fantasy that the publicity from the trial might help me publish other works. I joked that copies of BOYABUSE would be rarer and sell for more if I lost the decision. But one must be careful joking, or using satire or parody and leaving a record of it because the police have little sophistication or sense of humour which is why they have to tell jokes.

The Crown Expert Witnesses

Dr. Shabehram Lohrasbe is a forensic psychiatrist who is regularly employed by the Crown as a psychiatric expert witness in sexual assault cases and has testified at court trials over 400 times and in more than 30 dangerous offender hearings. He testifies on "current mental state, fitness for trial, mental state at the time of offence, psychiatric perspectives on intent, amnesia, malingering, the role of substance abuse, future treatment needs and future risk to the community.". and sexual offender's hearings. He treats offenders and does pretrial assessments of the accused, pre-sentence reports for the convicted, pre-release assessments and is a member of the review committee which rules on parole applications by sexual offenders. In his capacity as a forensic psychiatrist he has assessed over 5000 individuals including about 1500 sexual offenders. He has made numerous presentations to mostly dealing with police work, stalking and violence. Like Dr. Peter Collins Lohrasbe is psychocop for the criminal justice system. He is a very powerful man. He claims that his interviews with sex offenders long after legal proceedings have been completed has educated him about the development, progression and therapeutic management of sexual violence. He appears to do well. According to a B.C. government website he received over $300,000 in disbursements for his services from the Province in 1998, the only year for which I could find figures. In addition he works for the National Parole Board.

However the Crown in B.C., as far as I know, had never employed an expert witness on artistic merit. They had to go shopping for a literary expert to testify that my impugned writing had no artistic/literary merit. In a letter of inquiry to prospective literary experts Prosecutor Schultes states their basic position: "The theory of the Crown in this case is a simple one: The stories do not have artistic merit because they were never intended to be art. Their purpose and nature was always non artistic. They were written and distributed as pornography for those who are sexually attracted male children (pedophiles) and who enjoy an element of extreme sadism as part of their sexual arousal. They were intended to sexually arouse pedophiles with these particular preferences in order to facilitate masturbation. The accused was not producing art when he wrote the stories, he was producing what he himself called 'SMFKP' - 'sadomasochisticfaggotkiddieporn'. The accused's own words reveal the appropriateness of this characterization." As evidence for this they quoted excerpts from seized correspondence where I admit the bizarre and extreme nature of the storys' contents and their pornographic qualities. They quoted from a letter that I attached to a copy of BOYABUSE mentioning, "a good friend advised wearing gloves when you read it." My attempts at wit totally escaped the Crown. I also tend to be totally candid with people I trust, as in my correspondence with Edward Brongersma, the encyclopoedic boylove scholar, with whom I discussed intimate details of my personal history. Like many people I have operated on the assumption that my personal communications were private. Any other assumption impairs free association and fosters paranoia. The ancient principle of granting protection to private and personal correspondence was discarded with the unprecedented assault on privacy condoned by our child pornography laws. I do not recall any official civil libertarians protesting. Schultes quoted me saying that my stories "could easily be interpreted as child pornography". And they were. They mined my letters, notes and musings for evidence that my only intention was to produce pornography and that I was trying to distribute my writing. They took my humour and facetious quips literally and quoted things that they thought were shocking such as, "Writing about puberty 'sex is not something to be saved'". They also looked for anything suggesting that I had illicit sex with underage boys. Agreement with their insinuations and speculations were implicitly a condition of the witnesses' employment.

I don't know how many literary experts the Crown approached but I do know that they approached Lorraine Weir who later testified for the defence. In fact it was only after they had approached her that she contacted me about testifying. Months earlier I had left a message for her as I knew she had testified for Little Sister's at their trial. When Professor Delany expressed interest the Crown sent him copies of my stories with the comment that they were "...the cruelest sort of pornography imaginable and are intended solely for the sexual gratification of paedophiles." After quoting from the Supreme Court of Canada decision in SHARPE the prosecutor stated in his letter, "We need you to read these stories and give your opinion whether they may be reasonably viewed as art. If you conclude that they may not, we will likely call on you as an expert witness at the trial." The letter noted, "The Crown expert witness fee payable for this type of evidence is $126.00 per hour for preparation and $126.00 per hour for court attendance." It was clear to me that the Crown was seeking to purchase testimony. To the extent that the testimony of expert witnesses determine outcomes, defendants who lack, or can't afford well credentialed experts are at a severe disadvantage.

Professor Paul Delany, Chair of the English Department at Simon Fraser University agreed to work for the Crown. He has impressive credentials and has written or edited several books and published many articles in journals and anthologies.

THE TRIAL

The first week of the trial was taken up with a voir dire on the search warrant which I announced my intention to challenge at the preliminary hearing in 1997.It was my belief that arresting me at my residence, rather than issuing me a summons as originally stated, was essentially an attempt to find grounds for a search warrant, what is called "a fishing expedition". The issues involved in my challenge of the search warrant are not central to the main issues of the trial, although they were personally important to my case, and I omit a detailed discussion of the arguments. My challenge failed and the material seized from my apartment was admitted as evidence although ultimately it made little difference.

The Report and Testimony of Dr. S. Lohrasbe Crown Expert Psychiatric Witness.

Using his clinical observation and experience, and various articles and studies, Dr. Lohrasbe prepared a 21 page report on me based on reading my stories, correspondence, notes and musings. To support the Crown's case on literary merit as a psychiatrist he attacks my intent. If the Crown can establish that I only intended to write porn for pedos, and perverted ones at that, then I never tried to write literature to begin with. They tried to make intent a key point, and they used my own flippant comments about my writing, my "sadomasochisticfaggotkiddieporn".In respect to pornography, Lohrasbe makes a rather remarkable claim that pedophiles react differently from non-deviant individuals. This claim is necessary to the theory that my works are the product of perversity, and not of talent or artistic intent. It also separates my stuff from commercial porn which, catering to non deviants, presumably doesn't cause problems. When most people masturbate, he says that they go on to other things after, but pedophiles he claims are very different, sexual release does not free them, "and the desperate pursuit of even more stimulating fantasies or behaviour continues."I saw it as so much psychiatric monster building painting pedos as unablr to control themselves.

Dr. Lorasbe has probably prepared hundreds of reports but few if any focused on the artistic merit of alleged child pornography. Much of his report's contents appear to have been borrowed or adapted from typical reports dealing with offenders, particularly pedophiles. He speaks in generalized and conventional terms about pedophiles and pornography, and repeats cliches with the implication that these things describe me. I am diagnosed. He ties me to his expertise about offenders by concluding from reading my writings that I am a child molester which makes me "similar to a large number of sex offenders who routinely come to the attention of courts". There is a blatant presumption of guilt. He feels free to regard me as a proven sex offender creating the kind of innuendo that Dr. Collins used so effectively in Schlick's case. While he can find no evidence in my letters and my "journals" that I ever acted out any sadomasochistic fantasies he sees it as a possibility. He sees escalation and claims that clinical experience tells us that there is a progression from mild fantasies to "complete behavioural actualization". Unlike other people the sex drive of sex offenders becomes stronger as they age. Dr. Lohrasbe claims that I am a dangerous man, as clinical experience "suggests that Mr. Sharpe will not remain satisfied with fantasy alone". In two years when I reach 70 I should be a raging monster.The point might be relevant to some younger men. With arrogant and presumptuous clinicians like Dr. Lohrasbe giving expert advice at hearings it is easy to see why there is such a high level of false convictions in sex assault cases.

Dr. Lohrasbe rehashes the child porn theories advanced by Dr. Collins and seems to re-opening the question of harm. Porn makes men offend. A common sense argument about porn being used by offenders to incite themselves to offend, usually ignored, is that the intention to offend precedes the use of the porn.Compare with an armed robber who does some cocaine before committing a robbery to steel himself, does coke incite him to do the crime?

Dr. Lohrasbe, who claims to have seen a great deal of child pornography, did a clinical review of my material. He found my photos typical. From this, and knowing my pictures, I would gather that most child porn charges relate to fairy mild and marginal photos. I know from other cases that much of what is deemed to be child porn by courts today is similar to photos in coffee table books and galleries a few decades ago. They portray no signs of harm or suffering. The legal definition of visual child pornography has inflated from depictions of explicit sex to practically all underage nudity.

My written stories however, are "another matter altogether." They are to be read through the prism of the offender/victim paradigm. This forensic reading reduces the characters in my stories to abusers and victims, and victims who become abusers. A literary discourse with characters, plot and nuance is thus replaced by a clinical description of deviant and criminal acts. And while they're only fantasies they record things which, he claims, might incite Mr. Sharpe or others to sexually and violently assault children. In his clinical practice Dr. Lohrasbe has read many fantasies written by offenders for their therapists as a requirement of their treatment programs and he insists on seeing my stories in this context. These stories apparently have unhappy and remorseful abusers as would be expected given the offenders' situation. Many of my stories have sadomasochistic themes and, Lohrasbe, displaying his ignorance of sadomasochism simplistically equates sadism with violence and cruelty. Interestingly he suggests that my stories are not even successful as pornography as they wouldn't appeal to most pedophiles, the run of the mill non violent kind, and kiddie porn's presumed phantom audience. While Lohrasbe may have thought that I was writing for some secret market of superdeviants, he was in effect testifying that my stories were not very good or sensible porn. While this may have been intended to deny my work even pornographic merit it raised the question of what my stories are about. Paul seized on this in cross examination.

Dr. Lohrasbe's literary analysis was confined to quoting excerpts and labeling them in terms of violence, cruelty and sex without any reference to the plot or setting of the stories themselves. In his report and testimony he seemed particularly disturbed by the story, "Ninja Option". This was an alternative resolution to the novel, NINJA by the best selling author Eric Van Lustbader. The villain, the ninja hitman, arranges the sacrifice of a young boy as an offering to ensure the success of his next assassination. In Lustbader's novel the ninja kills the boy and a girl. In my story, which takes off from a specific point in the novel, the boy through his grit and hatred goads the ninja into committing hari kari instead. Like the novel it is a cruel and violent story, and even more graphic. The doctor quotes several extreme passages from Ninja Option. It is "one of the most graphically violent portrayals of sadistic sexuality that I have ever read." He ignored the context noted at the beginning of the story and had merely scanned it, picking out objectionable details, and proceeds to generalize from this least typical of my stories. For good measure he also sees racism and sexism. While he claimed to have read all my impugned stories he makes little mention of the others. He finds the lack of remorse by the abusers in the stories disturbing. His clients are at least ambiguous. Later Paul Burstein used this to my advantage by claiming that Lohrasbe's testimony reinforced the "transgressive nature" of my stories, a factor in their literary merit. Lohrasbe saw my stories as fantasies that could serve as blueprint for action for myself and any other pedo that might get hold them. I was a dangerous man who, unlike straights or gays, was likely becoming increasingly dangerous as I got older.

In some of his analysis or interpretation of my writing Lohrasbe seems to be acting as a police investigator seeking evidence of possible crimes, rather than as a psychiatric opinion giver. He uses quotes to imply that I may indeed have committed offences. In my notes and musings there are a number of story fragments. I often write down ideas for stories few of which progress any further. Rummaging through my papers he came across a fragment and seized upon it as a journal entry revealing plans to seduce a boy in a Tamil Tigers' suicide squad. Other fragments of the same story make it clear that it's fiction. However this interpretation was useful to back up his claim about escalation; it was an attempt "to actualize in reality the fantasies he has written about."

At times Dr. Lohrasbe's report is just plain silly. On the cover of The Moon Eyed Beggar's Tale there is a portrait of the disfigured, blind in one eye, beggar boy. In his report he states, "Why a deformity is considered cover-worthy can only be addressed through a direct interview with Mr. Sharpe."He repeated the observation in verbal testimony. Apparently he did not consider that the book's cover might relate to the title of the book and the story itself. The boy's deformity is central to the character of the protagonist and the development of the story which Lohrasbe appears not to have read, nor felt any need to. He arrogantly claimed that only a psychiatric interview could explain the cover.I suggested he was judging a book by its cover, a phrase my lawyer borrowed and used effectively in cross examination, but actually he was proposing to judge the book's author, not the book itself. I believe he felt no need to read the book in order to offer this arrogant and silly "professional" opinion.It certainly begged the question of how diligently and honestly he readBOYABUSE. On cross examination he admitted that he only did a professional scan of most of the stories. While I'm curious I don't know how many hours he billed for reviewing my various writings or how much he was paid but his evidence is shoddy. It is conceivable that he was so blinded by his moral certitude and reactions that he abandoned his, hopefully normal, professional approach. However for one who claims to be so experienced in dealing with sexual deviates one would be inclined to believe that this was unlikely. Sheer sloppiness is a more plausible explanation.

Conventional clinical treatment of sex offenders focuses on fantasy engineering, either to refocus them on appropriate subjects or suppress them entirely. Dr. Lohrasbe says he is interested in how men indulge in fantasies and how to change them. Clinical theories assume that offenders operate on the basis of fantasy and that fantasy leads to action. This explainswhy professionally they are so opposed to pornography, it undermines their efforts, it fuels bad fantasies. And of course, "clients" who put in long hours avoiding and repressing certain sexual fantasies may be particularly vulnerable to porn at the end of a wearying therapeutic day. Whether or not pornography on the whole increases or reduces sexual assaults doesn't enter their therapeutic concerns. It is the enemy, it is what they are fighting against in their struggle to control their clients' fantasies, it is the competition.

Dr. Lohrasbe at least thinks of porn in terms of purpose - how it is used. Having conceded that not all "pedophiles" are "child molesters" or vice versa he justifies using the terms interchangeably because they use child pornography the same way - principally to masturbate. He tends to prefer the term "child molester". Why a non pedophile child molester would use child porn for fantasies, and why a non molester pedophile's use of porn should be of concern, is not clear. He also says it is used for validation and mutual support among pedophiles which seems reasonable but in itself is no threat to children. Beyond that he rehashes the theories of harm advanced by Dr. Collins discussed at length in Part Four.

Staying within the legal scientific parameters set in BUTLER and reaffirmed in SHARPE, that while there is conflicting social science evidence about causality, the opinions of clinicians are valuable, Dr. Lohrasbe stresses the theory of cognitive distortions which is most pertinent to text. He admits that a cause and effect relationship between child pornography and child molestation has never been established which may not be possible. Researchers have certainly tried.Lohrasbe stresses the idea that the use of child pornography reinforces the cognitive distortions of child molesters. They can create the impression that sex with a child is something that can and should be pursued. As I see it cognitive distortions can be to establish the "advocates or counsels" definition of child porn. The theory of cognitive distortions enables positive text descriptions to be transformed into advocacy.

He says that many sex offenders report using pornography to confirm their deviant sexual beliefs. This reply would be one that offenders might expect that the therapists would like to hear, and it would conveniently displace some of their own culpability, the "porn made me do it" rationalization. As examples of cognitive distortions he offers that pedophiles tend to view children as more responsible, more sexually active, more likely to enjoy sex with an adult, and less likely to be harmed by such activity. These beliefs contradict the basic assumptions of the child abuse industry and are treated as a form of heresy. The crusade against these sexual heresies is carried out in the guise of the theory of cognitive distortions. Child pornography encourages sexual heresy. Without denying the possibility that child porn may reinforce such beliefs there are far more persuasive reinforcements of such beliefs in coming-of-age novels, historical, ethnographic and anthropological studies, and personal accounts and autobiographies.

The hysterical media and political reaction to the Rind Study, which challenged official assumptions, and its condemnation by sex abuse scientists and therapists suggest that research questioning orthodoxy may be seen as evil as child porn itself. He seems to share the view of Dr. Collins that people holding ideas, beliefs and theories contradicting his own are suffering from cognitive distortions. In my case the police deemed Dr. Brongersma's studies to be child pornography. The Crown did not charge me for them but would not return them. Lohrasbe says many sex offenders report acting out scenarios they derived from pornography. This does not mean it causes them to act out. Many sex offenders obviously do act out scenarios which originate somewhere. The most common example is probably the "copy cat" offender who picks up his scenario from crime reports in the mainstream media. Others may construct their own scenarios or use movies or novels, or involve a particular fetish. Even history is not absolved.

In his report Dr. Lohrasbe spends expends some effort reviewing research which supports the contention that pornography leads to harm. In particular he relies on "A Meta-Analysis of the Published Research on the Effects of Pornography" in the book, THE CHANGING FAMILY AND CHILD DEVELOPMENT, 2000. The authors were attempting to examine specific negative attitudes, beliefs, actions and adjustment in relation to exposure to different forms, frequencies and types of pornography by different people in various contexts. The authors admitted that their results were statistically nonsignificantbut went on to speculate, that alternatively, "theeffects of exposure to pornography may be so great and powerful, that it is irrelevant who, when or how often you are exposed to it, what your gender or SES [social-economic status] is, or how explicit it is and what medium you experience it in. Therefore, regardless of these factors, persons exposed to pornographic stimuli may be at an increased risk of displaying deviant and offensive behaviours, attitudes which are accepting of the rape myth, and difficulties in intimate relationships." If true it would imply that pornography has toxic and magical powers. (The Supreme Court of Canada in the Sharpe decision apparently believes this. New legislation dealing with Internet child pornography criminalizes even fleeting glances at downloads and if asked the Courtwill no doubt uphold it under the "reasonable apprehension of harm" criterion.)Dr. Lohrasbe quotes the study at length. At the end the authors state, "It is recommended that psychologists and other scientists, and the public attend to the present findings and raise concerns with policy makers and politicians." They are also activists apparently who presumably want their speculations enforced with the weight of the law.

The Catharsis Theory

Dr. Lohrasbe is emphatic in his opposition to the idea that child pornography can be cathartic, that it can be a substitute for actual sexual assault. It is an idea "much cherished by pedophiles" he claims. To support his contention he claims that neither he nor his colleagues have ever met a child molester or pedophile who have used child pornography for cathartic release. However they only deal with offenders or those accused of sexual crimes against children in coercive legal situations so this is not surprising. There are advantages in blaming porn. It should be noted that the catharsis theory questions the theoretical foundations of their professional existence. At the original voir dire neither Detective Waters or Dr. Collins could point to any increase in child sex abuse despite the "tidal wave" of child pornography due to the Internet. This would imply a cathartic effect. Recently I came across an interesting article online at the site of the American Office of Juvenile Justice and Delinquency Prevention, OJJDP. It documents a 31% decline in substantiated CSA cases from 1992 to 1998. This greatly exceeds the declines in child physical abuse and neglect. In this article by the influential child sex abuse theorist, David Finkelhor, he was unable offer much in the way of explanations but he only looked within the operation of the system, the child abuse industry, minimizing the influence ofexternal economic, social and cultural factors. To me it is interesting that the period of decline in CSA corresponds with a proliferation in the quantity and availability of child pornography.

Dr. Lohrasbe does not deny that "hormonally overcharged teenagers" relieve tension through using child (sic) pornography but claims it is misleading to draw parallels with pedophiles. It would however, seem common sense that teenagers would need porn for this purpose a lot less than older pedophiles. But for Lohrasbe child molesters are unique anyway, with their likelihood of assaulting increasing as they age.

I was originally bothered by Lohrasbe's report, I do not like being painted as a monster, but the more I read this report the more I saw it as irrelevant. My lawyer agreed, it had no real relevance to artistic merit, and he saw no point dealing with his evidence. I deny nothing that I have written and people are free to read into it whatever they wish. My bizarre stories can have multiple meanings. I do not deny that I am a heretic in many areas. I have always held a lot of unconventional, and to many distasteful, ideas about politics, government, drugs, youth, city planning and sex.

The Testimony of Professor James Miller - Defence Witness on Artistic Merit

Professor James Miller of the English Department at the University of Western Ontario testified as an expert on literary merit. In direct examination by my lawyer he explains that he studied the decision and is familiar with the definitions of "artistic merit" set out by the Supreme Court in the Sharpe decision. Apart from the subjective intentions of the author these include whether the impugned work has "any objectively established artistic value". The Court mentions the form and content of the work, whether it is part of a tradition or style and the mode of production, display and distribution. Miller states that my works may be reasonably viewed as literature. From the point of view of a literary critic he pointed out that for a text to have literary value it must have rhetorical or structural form, a shopping list or ordinary e-mail would not, for example, qualify. Aside from the material form this would include such things as genre (e.g. epics, tragedy, allegory or a sonnet), rhetorical or structural form (e.g. narrative and plotting), content (e.g. theme or argument, setting, characters, conflict, resolution and intertextual reference or allusion). He says that these elements are found in the BOYABUSE collection and in the separate story, Stand By America, which are the written materials I am charged with. He sees my stories as parodies of non transgressive genres. Stand By America is a parody of the movie Stand By Me which has several initial parallels. It also involves the theme of solidarity but in the different context of patriotism and fortitude. Lucy's End is a parody of orthodox therapy for juvenile offenders.Other stories such as Suck It, where the boy is the master and the man is his slave, involve inversion of convention assumptions. Ninja Option twists the plot of the novel, THE NINJA so that the intended victim triumphs over his tormentor and would be executioner.The Rites at Port Dar Lan stories, which I wrote as a consensual, free market version or parody of the Marquis de Sade's classic 120 DAYS OF SODOM, he sees as a sacrilegious allegory where success in business substitutes for Heaven. He also sees it and some other stories as a critique of globalization. As an allegory he draws parallels with Dante's PURGATORY which he teaches at university. Miller points to the irony in stories like Let This Be a Lesson where a moralistic father savagely beats his son for refusing to say where he got a hard core pornography magazine found in his room. After insisting on the truth the father laments that he has to fabricate a lie to cover up the injuries he inflicted on his son. It is also a complex parody where an explicit "S&M" scene occurs within the context of a strict religious family. Professor Miller also notes the irony of the story's title.

Dealing with Professor Delany's criticisms of my story characters he points to the development of the protagonist in Timothy and the Terrorist who becomes radicalized through his experiences and the satiric portrayal of Benito Laguardia as a corrupt, sleazy Hollywood producer in The Cameraman. In respect to Delany's claim that all the stories had the same basic plot, and were presented without skill, without complexity or significant variationMiller refers, for example, to the porn movie plot within the main story in The Cameraman, and the elements of conflict in this and several other stories.

In respect to "traditions and styles" Miller would place my stories in the Sadean tradition which focuses on transgressive sexuality. He described the literature as representing the defiant breaking of the very taboos controlling sexual relations and practices established by holy books. It is an imaginative literature rather than a journalistic report of criminal acts. This tradition is recognized by scholars and gives the example of the French feminist Simone de Boeauvoir who wrote the introductory essay when 120 DAYS OF SODOM was published in English. De Sade's works are available in bookstores and are studied in universities. In addition to de Sade he places Jean Genet, George Bataille, Dennis Cooper and William Burroughs within the tradition. Professor Miller agrees with Dr. Lohrasbe that my stories were "extraordinary in the degree of violence that they incorporate in the sexual acts", and says that this is what one expects of works in the Sadean tradition. Compared to 120 DAYS my writings are only about half as extreme. He says however, that they rigorously conform to the Sadean tradition with a special emphasis or twist on stoicism and the ethos of fortitude.

Cross examination of Professor Miller

In cross examination Mr. Schultes stressed the sadomasochistic, and in particular the sexual content of my stories. Using On a Cold Winter's Evening as one example he asks ifmy stories are not just a series of sexual and violent acts implying that they are purely pornographic in intent. In dealing with the question of intent Miller points out that if I were merely trying to write masturbatory material I would not have introduced the detail and literary devices not normally found in pornography and which presumably would detract from that purpose. He explains that Sadean literature creates a re-awareness of taboos being violated and because it is so provocative and controversial it upsets reflexive conformity. He believes that there is some merit because it paradoxically reinforces the taboo of child sex abuse.

Schultes tried to attack Miller's credibility by suggesting that his testimony was prejudiced because he is a cultural activist having worked with the gay community and people suffering from AIDS. Schultes also tried to trap Miller by asking him if he agreed with the definitions of child pornography in the law. Professor Miller being a bit evasive replied that as a Canadian citizen he had no choice but to follow the law which was not the same as saying he agreed with it. He pointed out he agreed with the Supreme Court ruling that there should be "a broad and generous" interpretationof artistic merit. I personally felt that to some extent Miller overreached in comparing some of my stories to literary masterpieces and that Prosecutor Schultes scored some points in this respect. But it wasn't relevant.

The Report and Testimony of Professor Paul Delany - Crown Expert Witness on Artistic Merit

Professor Paul Delany defined literary theory as the philosophical basis for making literary judgements, and literary criticism as the history of judgements made about literature. He said he reviewed about 1000 pages, including duplications of my stories and other seized writings. He also reviewed the Supreme Court's judgement in my case. After accepting the job of literary merit witness, Paul Delany submitted a report to the Crown: Expert opinion on "literary merit", with regard to Regina v. John Robin Sharpe. He claims that there is no consensus in the community of literary studies on the definition of literature and merit. The cynical argument holds that "artistic merit" is simply a label attached to objects or writing by an organized group. Thus, "If you are a violent pedophile, then Robin Sharpe's writing will have artistic merit for you".

However Delany chooses to argue, "that the definition of art is embedded in social practices and standards and, further, that art is not automatically exempt from ethical judgement." He favours the Institutional Standard definition of art. "This is the dominant, and default, definition of art in literary studies today, for the good reason that it meshes nicely with the actual practices of literary scholars and critics." He favourably quotes a critic who said: something is a work of art as a result of its being dubbed, baptized or honored as a work of art by someone who is authorized to make it an artwork by her position within the institution of the Artworld. In other words, merit is not intrinsic but arises from the opinions of experts. It is a clear definition, however his Institutional Standard sets a very high bar for what constitutes artistic merit, one that would exclude most would be writers, and one that would not seem to conform to the wording of the Sharpe decision. It is an elitist definition whereby merit depends on admission to a special club by those already in it. Delany sees himself as a member of that club and I don't think I would be invited to join. He admits that it is difficult to define the borders between art and non-art. Alluding to the world of fashion he says, "it is not the case that 'anything goes'. Experts and connoisseurs - said to have 'taste' or to be skilled at evaluating quality - are widely understood to be capable of judicious and rigorous criticism". The expertise of experts is recognized, widely understood, and presumably courts should too when the issue arises.Delany may see himself as a pioneer in the budding field of forensic literary evaluation.

Turning to artistic merit and ethics Delany claims, "Even where merit exists, this does not mean that ethical issues automatically become irrelevant."This is not however, how the Sharpe decision seems to read in respect to "harm". He supports this contention with some curious and far fetched statements and comparisons: "Society regularly decides that artistic properties should be subordinated to ethical or legal properties. For example, we do not allow speeding drivers to avoid punishment by appealing to the 'aesthetic' of an intense, thrill seeking experience...Many spectators derived a kind of aesthetic pleasure from viewing the destruction of the World Trade Center towers; but this in no way excused the immorality and illegality of the act. It would be faulty reasoning... to suggest that the 9/11 terrorists were 'artists'. Nero did not make himself an artist by burning Rome." He conjectures "art' where no one else sees it, and then clobbers it with outrage. He implies that these examples are relevant to my writing. The thrill of the speeder is equated to the presumed use of my stories, "the sexual gratification of paedophiles", which becomes the context for assessing the literary merit of my writing. He claims, "Sharpe's work is not immune to consequentialist (ethical) thinking, because one of the implied goals of his work is to encourage pedophilia."Professor Delany is, in effect, incorporatingthe "advocates or counsels" concept into the definition of merit. Content, the direction of an argument, is part of merit just as theologians and commissars have always maintained. Conformity earns merit. He says that because we regulate hate literature, art is not exempt from consequentialist or ethical thinking. He uses one law limiting freedom of expression to justify limiting the meaning of art in another. There is a neo-liberal logic to it.

When he gets into talking about my other writing, my poetry books, my correspondence, and my notes and musings, he says some of it is "relatively innocuous. Some materials discuss political issues, economics, social welfare, the nature of globalization and similar questions... though occasionally they offer justifications for pedophilia." He sees himself as an investigator. "There are a number of poems... Some are innocuous, but several might be considered obscene by the legal definition, or to contain justifications for producing pedophilic materials."The latter is clearly a reference to my satirical novelty song-poem, Good Old Danish (kiddie porn) in PIPS. Perhaps he thinks that I should be charged for my poetry too? I often write long rambling letters where I use sarcasm, whimsy, tongue-in-cheek, self deprecation and black humour to express myself. I try to be funny, but it provides rich pickings for humourless literalists such as Delany. As evidence of my lack of philosophical or intellectual substance he selects two aphorisms from the 38 included in PIPS. The first was: THE ONLY GOOD THING ABOUT MILITANT FEMINISM IS THAT IT TURNS A LOT OF CUTE BOYS QUEER. It's far from my best but I think most readers could find more than one meaning in it. Delany only saw only sexism, hatred and maybe homophobia in it. In the second, after downplaying the need for my poetry, I say, "it's a decadent lifestyle/ not ideas/ that keep you free" If not enough people smoke tobacco it will be made illegal for example. When I write aphorisms I grant immunity to no one.

He describes my stories: "There is no significant philosophical speculation in BOYABUSE or Sharpe's other works that give them intellectual merit or redeeming social importance." As for "irony, humour and metaphor. None of these qualities are present in BOYABUSE... Its prose style is flat, amateurish, and without distinction." He backs up his opinion with factually untrue statements which strongly suggest that he did not carefully read the stories, which is what he was paid to do. I can readily believe that some rigidly righteous people would be incapable of doing so objectively. This could help explain Detective Water's confusion about the stories. It is very understandable, imagine the difficulty that many Jews would have trying to objectively analyze virulent anti-Semitic propaganda. Professor Delany's factual inaccuracies about the stories would appear to be due to his lack of diligence and comprehension, not to any attempt to advance his arguments, and can only reflect on his credibility as an expert.

In his opinion my stories cannot be reasonably viewed as art. Most of them he claims are captivity stories in which young boys are kidnapped, tortured and sexually abused with this creating sexual excitement in both the boys and their tormentors. Actually only two of the seventeen stories in BOYABUSE involve kidnapping as my lawyer later pointed out. The major theme he sees is how much pain the boys can tolerate without crying or complaint. While he says that this a legitimate literary theme, my stories treat it in a most crude and rudimentary sort of way. My style is crude and almost childish in its simplicity. The characterization is completely shallow as far as he is concerned and the characters motivations are simple and implausible. To his knowledge there is no philosophical inquiry in the stories, just rationalizations, not a consistent philosophy like one finds in the works of de Sade. While I may criticize globalization and the exploitation of the Third World by rich countries he says, implying hypocrisy, that in my sexual stories there is a constant justification for buying sexual services from Third World boys. He also found spelling errors: "aerolesshould be areolas".I pity his English students.

In his testimony Delany claims that the story characters are "crude", "not represented with any significant formative experiences or psychological depth" and their "emotional responses are shallow". In his zeal to deny any literary merit to my stories he labels them "fascistic" and as reflecting "redneck attitudes". He sees no merit in my other writings either, it's all bad. Prosecutor Schultes however did draw a distinction between BOYABUSE and other works. In part he had to as there was evidence that I was not charged with the other stories or the poetry initially because the original prosecutor saw them as having artistic merit, and this was before the defence was strengthened in the Sharpe decision.

Delany applies the Institutional Standard, where social institutions that identify art assess its artist value and merit, to my work. The institutions he mentions include, in part, universities, critical published journals and the publishing industry generally. This is a way to get beyond mere subjective judgements by appealing to the collective institutions which deal with these questions in society. He cleverly, I thought, added, "just as courts decide what is truth and guilt, so there are institutions which decide what has literary merit."If a book has been accepted for publication that would indicate literary merit and that, he mentions, is a criteria for membership in the Canadian Writers' Union. If a text is placed on a university reading list, this would also indicate merit. My work does not meet these tests. In going through my seized correspondence he erroneously claims that I failed to get BOYABUSE published in Europe. It was never submitted. There is however a letter from a publisher rejecting MANILAMANIC which I did submit. A rejection becomes a demerit under the Institutional Standard. Further, he says, I am not an established or recognized writer and self publishing does not meet the Institutional Standard. Although I may be known as a writer it is only because of the importance of my case. He said that if I was an accomplished writer on innocuous subjects it could be assumed that my erotic writings also had merit, but this wasn't the case. The Institutional Standard does not provide a basis for objectively establishing literary merit from a writer's work itself. It is relativistic in the post modern tradition that denies the existence of objectivity. The Standard makes it very difficult for a new or unknown writer to pass its tests regardless ofhow good their writing is. In the market, public and critical response is as good a measure of literary merit as any, but in courts?

The fact that the writings of the Marquis de Sade are accepted and validated by the Institutional Standard is awkward for the Crown. In his testimony Delany acknowledges that de Sade's 120 DAYS OF SODOM contains "endless, anatomically detailed scenes of torture of adults and children of both sexes typically ending with the murder of the victims." He feels that he must distinguish my works from his. He justifies de Sade by explaining that at the time he wrote the moral and social foundation of French society were destroyed by the Revolution and the Terror. Sade created a kind of morality in reverse: nihilism, a nothingness where almost anything was possible. In this context social relations are about nothing more than imposing power on those weaker than yourself. De Sade's work is a philosophical epic of nihilism and crime, an immense and comprehensive treatment of these issues in society. He goes on to say that we can read de Sade in three ways: as psychopathology (a description of people with no moral restraints), black humour (at a certain point you almost have to laugh at the excessiveness of the world which de Sade described) and a kind of poetry (he is recognized as a fine stylist), and that de Sade expresses a complex imagination on many levels. My stories on the other hand contain no philosophical inquiry, just rationalizations.

He deals with Vladimir Nabokov's LOLITA, a widely read and acclaimed novel, about a man pursuing and seducing a twelve year old girl. He extols the book's merits and complexity, relating it to the works of Dostoyevsky and Henry James. As a novel about pedophilia LOLITA lacks sexual cruelty, avoids four letter words and literal sexual description. My work is pornography, and pornography cannot have literary merit. My work is not even in the same category of erotic literature as Nabokov's novel. He also discusses THE STORY OF O, a novel about a woman who submits to whippings and being raped by her lover and his friends, and how we come to understand why she likes abuse. He defends it because of the artistic merit of the prose, the lack of pedophilia and the pleasure and instruction afforded female readers, and the book sold 100's of thousands of copies. There are none of these qualities in BOYABUSE.

Professor Delany does not see my stories as transgressive, calling them that is an attempt to create merit by association. On the contrary, my stories uphold traditional Victorian boyhood values, an assessment I found interesting and insightful. Generalizing from one story, Ninja Option, he says my treatment of gender is highly conservative and extremely fascistic. He finds the most narrow kind of conservatism in my prose style. He sees neither parody nor allegory in my work, and even if there is, it is incompetent or contradictory. He has absolutely nothing good to say about my writing, in fact he can't, because that wouldundermine the Crown's tenuous case.

Cross Examination of Paul Delany

In cross examination Paul Burstein began by attacking the professor's elitism. He had Delany agree that I am not as good a writer as de Sade, that BOYABUSE is no LOLITA or comparable to THE STORY OF O, or that I am likely to win a major award. He points out that thousands of very good writers will never receive awards and thousands more will never receive recognition. He asks Delany ifI am one of, if not the worst writer he has read. Delany seems unsure. He has the professor admit that he has never taught or written about gay or transgressive literature. After mentioning the various definitions he discussed in his report he asks him what definition of art the Court adopted in the Sharpe decision. Delany has read the decision which reads: "Any objectively established artistic value, however small, suffices to support the defence." It hardly sounds like the Institutional Standard which requires the recognition of his clubby Artworld.

Delany said that I had no recognition as a writer. And he had claimed that the other works of a writer were relevant to assessing the merit of an impugned work. Paul Burstein asked him if he had read my other prose; MANILAMANIC, THE MOON EYED BEGGAR'S TALE, RUPERT UNEXPURGATED and PETER'S PATH. He had not. The Crown which seized copies of all of them, and retained copies of at least two, had not provided him with any. He may not have been aware of them. MANILAMANIC and my poetry was sold in local bookstores with the police purchasing copies for investigative purposes. The first two had been reviewed, albeit critically in terms of their viewpoint, in the small press, and one of them received a positive review in an online magazine. Delany was unaware of this or that Crown Counsel had determined that some of these other works had artistic merit. He was not aware of Shannon Bells favourable review of BOYABUSE in the Constitutional Forum.

Paul Delany is obviously an intelligent and literate person. He may also be a very moralistic man like Dr. Peter Collins, and like him be unable to separate his professional assumptions from his moral beliefs. Being an expert witness is not without its ethical demands. Offering opinion in a professional setting is quite different than in a criminal trial. Having experienced controversies and change in the various vocations I've known, and the psychological professions are riven with dissenters, it requires supreme, godlikeconfidence to testify as an independent expert against a person on trial.His evidence is himself. The hiring of experts by the Crown, more or less conditional on what they say, is very open to abuse. Track records become important, and successful experts like Drs. Collins and Lohrasbe become regular mercenaries for the Crown. While this has come to be expected with psychological experts who can claim clinical experience and studies of various sorts to back them up, the use of experts on highly esoteric matters like art, where an expert opinion may mean the difference between professional recognition and years of imprisonment, strikes me as frightening.

Testimony of Professor Lorraine Weir - Defence Witness on Artistic Merit

When asked by Paul Burstein if there was a method for objectively determining whether a text has literary merit Lorraine Weir replied that a hermeneutic analysis was the most objective because it was based on the text itself. It was the traditional method of literary analysis and is the most objective for both literary and legal interpretations. She briefly discussed deconstructionist and post-modern theories of literary criticism. She said these other theories specifically reject the validity of objective assessments of"value" or "literariness" because these concepts are constantly shifting. Deconstruction, she says, challenges the Western European understanding of liberal humanism. It challenges the notion of fundamental authority. Deconstruction promotes the indeterminacy of texts.

Professor Weir gives a literary, hermeneutical analysis of my writing using the story, "Timothy and the Terrorist" as her main example. In terms of structure she explains how the first section gives the exotic setting, introduces the family characters and their sensitivity to the setting, and details the ruse used by Timothy's kidnappers. She then turns to the concluding section where Timothy is reunited with his family. The boy, not wanting to alarm his parents, gives them a sanitized version of his transformative experiences, he "hasn't changed", and gets his sympathetic parents to agree to adopt his orphan friend, who was one of the other kidnapped sexslaves and incidentally, his lover. She explains how the story operates at different levels through the use of irony which she finds applies throughout the BOYABUSE stories. In all the stories she finds the theme of initiation and fortitude which provides coherence to the collection. She also finds this theme in my novels which were returned by the prosecution. These themes challenge normative understanding of complex relationships involving pain and pleasure. Weir notes the use of dialogue appropriate to the characters, such as the colloquialisms of the boys and more formal language of the adults, and to the situations. She claims I use a combination of literary devices in a consistent manner to express character, situation and mood which requires great skill.

Terry Schultes, in his cross examination of Lorraine Weir, accused her of being biased which she understandably resented. "Your job is to act as Mr. Sharpe's literary warrior in this case?" he asked. He said that in her literary analysis she left out the explicit sexual acts between adults and children implying that moral considerations should be part of literary evaluation. Schultes had a difficult task as he could not question her literary analysis without dealing with the substance of my writing. This would mean arguing that irony, parody and other literary techniques were absent or less than incompetent.

The subject of the trial was fictional writings and the child pornography laws and the Sharpe decision imply that fiction is censurable. To state that you believe that people should be able to write anything they please, is to express contempt for the law which clearly says otherwise. Such beliefs compromise your presumed objectivity if are testifying as an expert witness. If a doctor who is a proponent of total legalization of recreational drugs testifies that a person suffering from some disease would benefit from using marijuana, the court might conclude he is biased. However a person who uncritically supports the law, and profits from its enforcement, as do people such as Detective Waters and the psychiatrists, Doctors Collins and Lohrasbe, their impartiality cannot be questioned.

Summaries

The arguments on the border photos were quite brief. My pictures were described as "photographs of boys, most displaying their genitals." In other words the subjects were naked. They made no effort to conceal their genitals which appear prominently. This makes them "sexual poses" which they use to cover all nudes in my pictures. The genitals, or "anal regions" can thus be considered the "dominant characteristic". Previous decisions have ruled that genitals do not have to be the focus of the image to be the dominant characteristic. While the boys' genitals may be clearly seen, are they displayed? Or when can they be considered as displayed?Display often implies that other parts are concealed. When wearing a long dress a woman may display her ankle, or her bare midriff may display her navel. A person may display various parts of the body to show their condition, an injury, rash, birthmark or sunburn. In taking your penis out your pants you may display it. But can a naked person acting as they would normally attired display their ankles, navels or genitals? Only in a society where nudity is tabooed to a greater or lesser extent could mere nakedness imply displaying the genitals. A naked person can only display a certain body part by bringing attention to it by facial expressions, attitude, posture, movement or indicating with the hands. When does this become sexual? Expression and attitude can easily convey "sexiness" to either or both the subject and the observer. But this is not sex even if intended or perceived as sexy. Looking sexy is usually associated with clothing, adornment and cosmetics, not nakedness. The ankle or navel displayed may contribute to sexiness. A penis hanging out a male's fly may or may not be sexy. It depends. The perceived sensuality of a face can be sexy. The mouth and lips, potential sex organs, can be sexy. When we are in love with someone almost any body part can be sexy. But then none of them may be sexy. To look sexy or to want to, is not the same as inviting sex. Women know this. Sexiness is part of a person's overall appearance and appeal. A person may want to look sexy, to display it. Others do not, sex may not interest them, or they are afraid violating communal standards, or of inviting sexual approach. Some people, perhaps especially adolescents, are bothered by being perceived as sexy, others love it. For the viewer, mood, cues or noticing rather than just seeing, all of which can fluctuate, are important. The condition/situation that draws the concern of many is the sexual arousal of the observer. This makes it "for a sexual purpose". In addition the boys hugged and kissed in one photo which when nude has been deemed to be sexual activity.

I regretted that I was not able to make a better defence on the photos. It was impractical and after the we lost the search warrant voir dire the point was moot. If we are stuck with the law, as we are, interpretation becomes critical. Interestingly going through the vault after the trial I came across an April 1996 memo from Peter Gulbransen, the original prosecutor in my case, to Constable MacDonald, then the investigating officer, that he did not intend to proceed on the border photo charges. Presumably he did not see the photos of the two Caucasian boys as porn. There have been cases like Viktor Schlick's where the police and Crown have gone through several hundred photos and picked a few where something, a nipple, an outline of a labia, or a pubic hair is discernable and deemed the picture, one of a series, as child pornography. Schlick was convicted on a dozen such pictures but the others in the series taken a second or so before or after were returned. The process is absurd. The Crown used the definition where the dominant characteristic of the image is the depiction, for a sexual purpose, of a sexual organ. The key phrase is "for a sexual purpose". In my case I suppose it would be simply assumed. However there was no suggestion that Schlick had any sexual interest in his daughters but the Crown's expert, Dr. Peter Collins through innuendo was able to imply that he was a deviate. All it took was his perfectly legal and mundane erotica for the court to assume that the pictures were possessed "for a sexual purpose". However, in such cases, if you can and are prepared to put the child on the stand, which Schlick understandably was not, you could probably get off. It is a very cruel law where the man may have to offer up his child, or a young friend, to the machinations of the criminal justice system in order to escape legal penalty. I believe that there are precedents for sacrificing one's children to obtain favour in the Old Testament.

As for age there was clear evidence in my correspondence that the Crown entered that I believed the boys to be 17 at the time. The Crown introduced a letter from a pediatrician, Dr. Paul Korn of the Child Protection Team at Children's Hospital, who on the basis of the photos determined that they were between 13 and 15 which I thought stretched credibility but the estimate could ingratiate him with the Crown.However this still averaged out above the age of consent of 14 which was important. Evidence that I intended to keep the border photos in my personal and private possession was weak. In his summary Paul Burstein argued for the exemption and made some interesting points, but he did not sound convincing or seem convinced himself. After, Mr. Schultes pointed out that the exemptions work like the defence of artistic merit which meant that I would have to objectively establish that the photos would not be seen by others. I am not sure how that might be done and I did not expect to be acquitted on this charge.

On the writing the first question was whether my stories "advocate or counsel" Burstein made the obvious but important point that the question relates to the material itself and not any intent the author may have had. Logically he chose to base his arguments on the narrow interpretation given in the Sharpe decision that written material must "actively promote or induce" in order to advocate and that mere descriptions are insufficient. Fiction which may glorify crime, and he gave popular examples such as The Godfather, does not counsel murder and extortion. Paul argued strongly that my stories did not fit the definition, "advocates or counsels", and the Sharpe decision seems to say that. Mr. Schultes of course chose to refer to the broad interpretation given in the Sharpe decision where viewed objectively the written material "sends the message that sex with children can and should be pursued". It is as if the Supreme Court was offering lower courts choices rather than trying to define the law for them. The prosecution argued that child porn is used by pedophiles to aid masturbation and at times offend. According to Mr. Schultes the problem almost seemed to boil down to masturbating pedophiles and the point of the law was to prevent pedos from masturbating.If you take away their porn they won't masturb