Justice Minister John Crosbie has introduced tough new amendments to the Criminal Code which would outlaw child pornography and protect children from sexual abuse and exploitation.  In addition, the proposed legislation precisely defines pornography, replacing the vague obscenity offences which made it difficult to obtain convictions against pornographers.

Immediate reaction to Mr. Crosbie’s proposals was predictable, weighted to the point of view of those who are against censorship of any kind.  For may people, the pornography issue has become one of “choice,” if you do not wish to see it, you do not have to, but the opportunity must be there for those who do wish to view such material – regardless of the effects it has on society.

Although no criticism was leveled at measures to stop the use of children in pornography, opposition critics immediately opposed the Crosbie proposals for “adult” pornography.  Liberal John Nunziata commented that the proposals would “make Queen Victoria very happy.”  NDP Ian Deans said, “Is the depiction of normal intercourse pornography?  Most people would say not.”

Newly-appointed president of the National Action Committee on the Status of Women, Louise Dulude, called the proposals “obscene.”  Calling the proposals censorship, she said “it doesn’t limit itself to what we [NAC] wanted, which was to control women-hating material showing harm and degradation.”  Ms Dulude observed that the federal conservatives seemed to have “listened much too closely to the religious and fundamentalist groups that are against pornography…because they think sex is dirty.”

Also joining in the chorus against “censorship” was Alan Borovoy, general counsel for the Canadian Civil Liberties Association.  “It delegates to police the effective power to determine what people can watch or see,” Borovoy said, adding that the language used to define pornography is “vague and subjective.”

“I don’t know any good people in the porn business”

Criminal lawyer Edward Greenspan, chairman of the criminal justice section of the Canadian Bar Association, called the proposed legislation “the ugliest form of censorship proposals I have seen.”  Mr. Greenspan went on to define what he thought the public found acceptable, “In 1983, Judge Stephen Borins, in a leading case, said that contemporary community standards would tolerate standard run-of-the-mill sexual intercourse…group sex, lesbianism, fellatio, cunnilingus and anal sex.”

Police spokesmen, however, had a different perspective.  “I don’t know any good people in the porn business,” said Clare Westcott, chairman of the Metro Toronto Police Commission.  Greg Cahoon of Moncton, New Brunswick, president of the Canadian Chiefs of Police Association, said, “We applaud the legislation as a good step in the right direction.  The grass-roots opinion is that something like this was needed.”

Church groups are being credited with playing a large part in persuading the government to bring out such tough proposals.  The Inter-Church Committee on Pornography initiated lobbying of the Tory caucus and a letter-writing campaign to MPs.  Their concern was that the government would draft legislation along the lines of the recent recommendations made by the Fraser Committee on Pornography.  These recommendations would have permitted sexually-explicit material, as long as those participating were “consenting adults.”

Mr. Crosbie acknowledged that many of the Tory caucus members were opposed to the Fraser report and he joined them when he viewed the kind of material that would have remained legal.

“When I started to get into this myself,” he said, “and had a selection of the material that’s available in Metro Toronto given to me and I saw what would become legal, what would appear to have the approval of the government if we left it, if we said this was permissible to sell, I couldn’t bring myself to go that far.”

The Inter-Church Committee, which includes representatives from Evangelical denominations, the Anglican Church of Toronto Diocese and the Roman Catholic Archdiocese of Toronto, Is happy with the legislation.  Although Rev. Hudson Hilsden of the Pentecostal Assemblies of Canada chairman of the committee, is concerned about the defense of artistic merit which he feels could be exploited by self-interest groups.

However, other Church spokesmen are not so pleased.  United Church and Anglican spokesmen have said that, although they support the child pornography provisions, they will not support the broad definition given to adult pornography.

The proposed legislation on pornography now goes to the committee stage in the House of Commons.  Although committee members have yet been announced, the committee will most likely start meeting to study the legislation once the House is back in session in the fall.  This will give members of the public the opportunity to tell the committee whether or not they support the current proposals.

Penalties

Harsh penalties are proposed for offences related to child pornography, at present not prohibited by the Criminal Code.  Under this proposed legislation, it would be an offence:

  • Punishable by a 10-year jail term to involve children under 18 in the production of pornography or to import, make, broadcast, print or possess such material for the purpose of distributing it;
  • Punishable to a 10-year term to distribute pornography that advocates child sexual abuse or presents it as normal;
  • Punishable by a 5-year jail term to sell or rent child pornography or to display it for sale I a public place;
  • Punishable by six months in jail and a $2,000 fine to possess pornography that depicts anyone under 18 involved in sexual conduct.

The Criminal Code section dealing with child pornography will make it an offence to produce pornography showing a child under 18, or who appears to be under 18, participating in sexual conduct.  “Sexual conduct” includes actual or simulated acts of vaginal, oral or anal intercourse, bestiality, masturbation, sexually violent behaviour, exhibition of the breasts or genitals for a sexual purpose or any act referred to in the categories of “degrading pornography” or “pornography that shows physical harm” (see below).

There is no defense of “artistic merit” or “educational material” available for those accused of producing or possessing child pornography.  The inclusion of possession as an offence is an important provision in this legislation.  Most child pornography is not produced for commercial, money-making, purposes: it is of the “home move” or “amateur photography” genre, created by the individual pedophile for his own “enjoyment” or for underground circulation amongst pedophile groups.

“Adult” porn defined

The proposed new definition of pornography is extremely detailed, covering much material that is often called “soft porn.”  It specifies four categories of pornography as follows:

  • Pornography: any visual material showing vaginal, anal, or oral intercourse, ejaculation, sexually-violent behaviour, bestiality, incest, necrophilia, masturbation or other sexual activity.
  • Degrading Pornography: depictions of one person defecating, urinating, ejaculating or spitting on another, bondage, lactation, menstruation, penetration of body orifices with objects, people treating themselves or others “as an animal” or “any act in which one person attempts to degrade himself or another.”
  • Pornography that show physical harm: any real or simulated portrayal of one person physically hurting another.
  • Sexually violent behaviour: depiction of sexual assault and “any behaviour shown for the purpose of causing sexual gratification to or stimulation of the viewer in which physical pain is inflicted.”

Penalties for those convicted of producing, distributing or selling such materials would range from two to five years.  Selling such materials to those under 18 would mark the person liable to six-month jail terms and fines of up to $2,000.

Persons prosecuted for producing distributing or selling pornography would have to prove that the material had “artistic, scientific or educational merit” in order to be acquitted.  Such books as Joy of Sex would be considered to have “educational merit,” while magazines such as Playboy and Penthouse would not normally be banned because they do not show actual sexual intercourse.  They could not be sold to minors, however, and the law would require that they be wrapped in opaque material for display in the store.

In introducing the legislation, Mr. Crosbie said “the pin up has now become depictions of sodomy, incest, bestiality, sadism, masochism and degrading sexual conduct, and society must act to prevent this going any further.”

Mr. Crosbie has already indicated that he expects a lively debate on the proposed definitions of pornography.  “What we are attempting to do is to end excessive permissiveness,” Mr. Crosbie said.  “We’re trying to achieve a balanced between freedom of expression and then need to protect human dignity.”

He believes his proposals have the support of the majority of Canadians.