I used to think that obscenity and pornography were much the same. Apparently, they’re not. In Canada, adult pornography is legal unless it’s obscene, whereas child pornography is illegal even if it’s not obscene.
Although it defines and prohibits obscenity and child pornography, the Criminal Code doesn’t even mention the adult variety. Maybe our lawmakers don’t know what it is. Oh well, they needn’t worry. If it becomes an issue, they can count on our judges to enlighten them. Our judges are expert at reading in what our lawmakers leave out.
Why, when the Supreme Court read in an obscenity test that legalized group sex, the ruling was widely enlightening. I know, because as soon as they saw it, Canadians in every province recognized that the new test was obscene.
The Criminal Code defines obscenity as the undue exploitation of sex. The trick, of course, is to interpret the meaning of undue. Because judges are trickier than lawmakers, they get to do the interpreting. Often, the implications are difficult to see. As the idiom has it, the devil is in the details. But when the Supreme Court upheld the legality of a private club in which members and guests met for what used to be called orgies, many Canadians easily recognized the devil.
The pornography definition, which our lawmakers added to the Code in 1993, concerns youngsters who are actually or apparently under eighteen. It targets media that show or describe them engaged in explicit sex, real or simulated; that predominantly display their sexual parts for a sexual purpose; or that advocate or counsel sexual activity with them.
You can run afoul of the law if you make, access, possess, publish, distribute or trade in child pornography. But you won’t be convicted if your activity is legitimately judicial, scientific, medical, educational or artistic and doesn’t unduly risk harming youngsters.
In a case that ended in 2001, the Supreme Court ruled that the law is mainly constitutional. To make it completely so, the judges read in two exceptions to the offences of making and possessing child pornography. Well, they called them exceptions. Some Canadians would have called them loopholes
At one point, the lawmakers considered invoking the notwithstanding clause to protect the legislation, but settled for amendments in ensuing years to further protect children.
As for protecting adults, Canada is hugely unsuccessful. This is especially so because of the ease and anonymity of accessing adult pornography through the Internet.
Research indicates that pornography dehumanizes both women and men and undermines families, the basic cells of society. It turns women into sex objects and exposes them to violence. It is addictive and makes men dissatisfied with their wives and more tolerant of promiscuity and rape. It is a pathway to infidelity and divorce.
Critics may contend that the research lacks scientific proof based on concrete evidence. But courts don’t require such proof to show that possessing child pornography can be harmful. So it seems reasonable that they shouldn’t require it to establish a risk of harm in possessing the adult variety.
In the 2001 Supreme Court ruling, Chief Justice Beverley McLachlin acknowledged that complex human behaviour may not lend itself to precise scientific demonstration. She added that the courts can’t hold lawmakers to a higher standard of proof than the subject matter allows. Rather, she said, a reasoned apprehension of harm will suffice. To support her argument that possession of pornography increases the risk of child abuse, she appealed to experience and common sense.
The appeal was surprising, no doubt because I’m used to a lack of common sense in post-Charter judicial decisions.
Be that as it may, it seems to me that the ruling provides a sound basis for lawmakers to specifically criminalize adult pornography, both its possession and production. If, in judicial fashion, you were to read in adult where the Chief Justice wrote child, you’d see what I mean. Here is what some of her statements would look like:
Banalizing the awful and numbing the conscience, exposure to [adult] pornography may make the abnormal seem normal and the immoral seem acceptable. Applying this test [of a reasoned apprehension of harm] the evidence establishes several connections between the possession of . . . pornography and harm to [adults]: [adult] pornography promotes cognitive distortions; it fuels fantasies that incite offenders to offend; [adults] are abused in the production of … pornography … Criminalizing possession may reduce the market for … pornography and the abuse of [adults] it often involves … attitudinal harm to society at large (may justify) the law’s intrusion on the right of free expression.
The part about making the abnormal seem normal and the immoral seem acceptable surprised me more than the appeal to common sense. In light of recent landmark rulings, I thought our judges had lost sight of the abnormal and the immoral. I wondered whether it’s no longer metaphorical to say that justice is blind.