If you fantasize about having sex with someone under 18 and write it
down, even if only for your own masturbatory pleasure,
you could go to jail for 10 years.
Welcome to Canada, where the latest victims
of the Catharine MacKinnon-inspired censorship laws
are artists and lesbians.
by Zachary Margulis
Yonge Street in Toronto looks much like any other commercial strip in
the heart of a teeming North American city. It has book shops,
cafés, electronics stores, and boutiques - as well as sex shops
selling anything from back issues of Hustler to spiky leather collars.
Near the corner of Wellesley Street, up a narrow staircase, lies Glad
Day Bookshop, where magazine racks display hard-core gay porno mags
next to lesbian zines, literary mags, and other high-minded stuff.
But at Glad Day, Bad Attitude, a popular lesbian sex magazine, is nowhere to be found.
Nor are hundreds of other titles that the book shop has ordered from US distributors in the last few years: they were seized by customs agents at the border for their "obscenity." Glad Day's owner and one employee were charged as criminals for dealing in obscene material; undercover vice cops browsing through the shelves have become a familiar sight. To the folks at Glad Day, and other members of the sexual counterculture, Canada is going through a wave of repression invisible to the casual tourist and unknown to most Americans.
Unlike in the United States, Canadian laws and the police who enforce them do not distinguish between different kinds of representations: words, sounds, drawings, and photographs can all be prosecuted as obscenity or child pornography. Critics say the courts have left the definitions of these crimes so imprecise that police and local prosecutors can go after almost anything to do with sex. In the last three years, targets have included not just lesbian leather fiends, but virtually all media and a broad range of content. Videos showing ejaculation in a person's face, magazine photos of anuses, a French novel, serious feminist writings, comic books, and paintings depicting abused children have all been outlawed or detained at one time or another. The main battle line is the US border, where most of the material enters: customs agents seized 15,000 books in the two years ending in 1993. But increasingly, provincial and metropolitan police have taken on the responsibility of censoring information they don't like.
And in 1993, for the first time, prosecutors armed with vague new laws brought the war against objectionable material to cyberspace. A total of 18 Canadian BBS operators were charged with obscenity and child pornography; police promise more enforcement will come.
Bad bad boards
Before dawn on October 21, 1993, Joanna Jedlovsky, then 17, answered an insistent ringing at the front door of her elegant, sprawling ranch house in a suburb north of Toronto. Joanna lives there with her mother, a Polish immigrant named Grace, and her 19-year-old brother, Peter. Her father died three years ago of a sudden heart attack at 45, and things have been fairly sullen in the Jedlovsky home since. The early morning visitors, four plainclothes detectives and one uniformed cop from Toronto and the suburban municipality of Richmond Hill, didn't help much.
"Where's Peter?" they demanded, and Joanna, a little vulnerable in her pajamas, led them to his room down the hall. They roused her brother from bed and started going through his computer hardware, which was set up as a BBS he unfortunately called The Out House.
The board was blithely named for the garage behind the house; there was only a small "adult" section, which Peter now says he had planned to get rid of. But Toronto's morality cops apparently took the name as a scatalogical reference -- and a strong indication that obscenity laws were being broken on the board.
The Toronto detectives, burly and gruff, told Mrs. Jedlovsky that her son was a child pornographer. ("But he's not that kind of kid," she tells me later.) They had allegedly found him through a civilian hired by the police as a consultant in their efforts against dirty BBSes. This "consultant" logged in to about 30 boards around metropolitan Toronto over several months. Nine, including The Out House, were chosen as targets.
After futilely searching the Jedlovsky home for media that might hold obscene material or child porn, the officers put Peter in handcuffs and led him away past his mother and sister. They confiscated all his computer equipment, some of which his father had bought him three years earlier. "My dad used to sit there and play videogames all day," Peter told me, nodding to the desk where the machine used to sit.
Peter Jedlovsky was charged with distributing child pornography and obscenity, with a maximum penalty of 10 years in prison. His arrest was part of coordinated raids on nine bulletin boards in private homes around metro Toronto that chilly October morning. Four miles away, cops allegedly told computer salesman Jeff Bolton: "Go ahead, run, we could use the target practice," while they searched his computer for sexual materials readily available in Toronto computer stores -- or over the Internet. Bolton, a tall, softspoken chain smoker, had advertised his BBS, Scruples!, as the first adult computer-mail network service in Toronto. The most extreme postings, he says, featured images of men and women defecating on each other.
Another site was Michael Keating's The Gateway, according to Detective Constable James Sweeney of the Metropolitan Toronto Police, a member of the team that performed the raids. At The Gateway, police officers found a user logged on, downloading the proscribed material despite the early hour. They tracked down the user, whose name I omit because of unofficial police allegations that he was -- besides a naughty BBSer -- a child molester. The cops caught up with him at his home later that afternoon, though Keating, Sweeney says, skipped town, probably to England, after his initial bail hearing. Police believe the user is a pederast because they found lists of the names of children from his neighborhood, complete with ages and addresses. A police source said they believe these lists are kept to track and victimize children.
The October "takedown" in Toronto was, in fact, the second coordinated raid in Canada -- in May, police in Winnipeg, Manitoba, seized eight BBSes, charging their owners with obscenity. Officials are promising more enforcement of controversial obscenity and child-porn laws that led to the raids.
"We wanted to send out a message," says Sweeney. "This kind of material is against the law. Electronic media is subject to the same laws as any other form of media."
Sweeney is an affable, avuncular fellow who wears sneakers around the offices of the Major Crime Squad, which is housed in a neat brick office building in downtown Toronto. Major Crime handles large criminal investigations with serious charges and multiple defendants, though this Tuesday afternoon, it doesn't seem a terribly busy place. Sweeney and I are talking in a long, narrow room that is lined with seized computer systems, the software associated with each offense is piled on top. The machine on which Jedlovsky's father used to play video-games before he died lies gathering dust in one corner; nearby is the one Bolton used to run his BBS, along with his possibly illegal CD-ROM, Busty Babes, which I was able to buy at a Toronto computer store the next day; the 486 that allegedly contained the deviant databases of a pederast is against a wall. At the front of the room, a chalkboard neatly shows the name and status of each case, carefully updated. The name of one defendant, a 17-year-old minor, is blocked.
Speaking with the ever-so-slight Midwestern drawl of an educated Canadian, Sweeney describes himself as an "avid BBSer for years." Indeed, he first proposed to his superiors that they go after BBSes a couple years ago, but found, as he puts it, that the "political will" was not there. But with the explosion of the Internet into everyday life, the political will has materialized.
Constable Sweeney is at the technological forefront of what creative Canadians consider a wave of repression. Along with Canada Customs and Project P (one of two full-time antiporn squads in North America; the other is in Los Angeles, where most porn is produced), even city cops like Sweeney are charged with enforcing a series of recent legal decisions that, critics say, have choked off expression. Morality cops like Detective staff Sgt. Robert Matthews, the chief of Project P, are on a mission to impose their notion of decency in the realm of digital communications: "If you're Canadian and you have child pornography on your computer, you will be prosecuted," Matthews warns. "You can't photograph sex acts of someone under 18 knowingly -- or draw them, or write about them."
Obscenity: noun, singular
Canada's pornography debate thrust itself into the minds of American activists and journalists in February 1992, when the Canadian Supreme Court ruled on the case of Donald Butler, the owner of a Manitoba store selling "hard-core" video tapes, magazines, and sex paraphernalia. Butler had been convicted by a lower court on charges including the possession and distribution of obscene materials. But the Supreme Court granted Butler's appeal of the convictions, ordering the case returned to the lower courts for a retrial and sending along with it a new set of standards for reviewing pornography. In its precedent-setting ruling, the high court mapped out a detailed and far-reaching position on pornography, providing Canada with its first working definition of criminal obscenity.
Two trends in legal and social thinking meet in the landmark R v. Butler decision. On one hand, Butler reinforced liberalizing shifts in the nation's attitudes already underway: in recent years, Canada's provincial film boards (which, unlike any US body, have always had the force of law in their ability to ban anything they didn't like) had been increasingly lenient about explicit sex, long forbidden in the more conservative provinces. Butler said, in short, that images of explicit sex -- or penetration -- are generally protected by the country's 1982 Charter of Rights and Freedoms, which guarantees free speech.
But the Charter also protects against sexual discrimination, and pornography, the court posits, can victimize those -- mostly women -- who tend to be its subjects. Pornography was therefore deemed permissible as long as it is not "degrading or dehumanizing" or coupled with violence. The goal, stated explicitly in the justices' written opinion, was to prevent "harm to society, particularly women." Under Butler, any representation at all of "degrading" sex can bring police action.
The Butler ruling, which has framed the debate over pornography in Canada since it was handed down, was deeply influenced by prominent feminists. It drew explicitly from language of a brief submitted by the women's coalition known as LEAF, the Legal Education and Action Fund. Coauthored by University of Michigan law professor Catharine MacKinnon, a firebrand feminist at the center of US debates over freedom of speech, women's rights, and political correctness, the decision grabbed US headlines.
MacKinnon supporters were exultant at the first time they were taken seriously by a government, even as many feminists squirmed. Lesbians, especially, saw a repressive rule written under the guise of protecting women. Feminists who rejected outdated "morality-based" censorship had, perhaps inadvertently, given the authorities a new justification to repress sexual material that went outside normative bounds. "There is kind of a strange marriage here," says Melvyn Green, a lawyer representing sysop Jeff Bolton, "of neo-conservatism on the one hand and dogmatic feminism on the other."
Besides the raging political contradictions evident in the decision, Butler's more dramatic flaw is that police are left to determine the boundaries between freedom and constraint, between expression and degradation. Case law since then has been so vague and contradictory that morality cops can go after pretty much whatever they can get funding to investigate. And that's not limited to pictures or print.
United States newspapers (that is, The New York Times and a few northern publications) rediscovered the Butler story after Canadian customs seized books like Andrea Dworkin's antiporn polemic, Pornography, or David Leavitt's book of short stories, A Place I've Never Been. After a seizure of The Man Sitting in the Corridor, a novel by Marguerite Duras, author of The Lover and one of France's most respected writers, a New York Times headline pondered, "Canada's Morals Police: Serious Books at Risk?" Of course, for years, serious books like The Joy of Gay Sex had been not only at risk in Canada, but prohibited.
The Man Sitting in the Corridor was released to Trent University shortly after embarrassing publicity about the seizure, but The Joy of Gay Sex had taken several years and cost Glad Day Bookshop C$20,000 (US$14,000) in court costs to release: seizure of the latter hadn't caused an international stir. Gay, lesbian, and alternative bookstores have long argued -- and no one but customs agents really disagree -- that most of the arbitrary seizures are directed against them.
(Michel Cleroux, a spokesman for Canada Customs' parent agency, Revenue Canada, denies the discrimination charge, but refused to let me speak with a customs border agent or a representative of the Prohibited Importations Directorate, a unit in Ottawa that employs 16 bureaucrats to read materials seized coming into the country.)
Too much attitude
But worse was yet to come. The first police action specifically justified by Butler took place a couple of months after the decision came down, when Constable Patricia MacVicar walked up the stairs at Glad Day looking for pederasty materials. According to a source at the University of Toronto, she had been tipped off by two homosexual student leaders on campus who were on a vendetta against Glad Day for selling newsletters from the North American Man Boy Love Association. Instead of pedophiliac publications, however, she found Bad Attitude, a lesbian zine featuring lots of leather and a story about rough sex that was later found obscene.
MacVicar purchased Bad Attitude and took it away. She came back several weeks later with officers from Project P and arrested two men, manager Tom Ivison and owner John Scythes. After a dramatic and protracted trial in which the defense brandished a copy of Madonna's Sex (which, with comparable sadomasochistic content, quietly sold some 40,000 copies in Canada), the Ontario Court found both men guilty of breaking the Criminal Code's ban on distributing obscenity.
In the name of defending what the MacKinnon-inspired courts call "materials which potentially victimize women," the store was fined C$200 (US$140) for selling a lesbian magazine. What was confined to academic shouting matches in the United States had become "sex crimes" in Canada.
And despite the law's manifest harm to many women, MacKinnon did not back down. "Fundamentally," she wrote in her 1993 book Only Words, "the Supreme Court of Canada recognized the reality of inequality in the issues before it: this was not big bad state power jumping on poor powerless individual citizen, but a law passed to stand behind a comparatively powerless group in its social fight for equality against socially powerful and exploitative groups."
"C" is for crackdown
The Bad Attitude decision became final in February 1993. By that summer, the House of Commons -- building on Butler's successes in joining disparate factions against dirty books -- was in the thick of a vociferous debate on what became known as C-128, the child pornography bill. The law provided criminal sanction, up to 10 years in prison, for pretty much anything to do with children and sex in any medium. Text and drawings, as well as photographs of children, were banned. Depictions of adults playacting as teenagers under 18 were banned. (In another contradiction, Canada's age of consent is just 14 for most sex acts.) Unlike with obscenity, in which only distributing or creating the material is illegal, mere possession of "child pornography" became a federal offense in Canada.
Because of its catchall wording, C-128 goes to some absurd extremes. Civil-rights lawyer Green points out that under the new law, for example, a man in a hovel who writes down sexual stories about children for his own masturbatory pleasure could be prosecuted without a single other person being involved.
"The victim is 'the child' of society in a sort of metaphysical sense," says Tom Wappel, a member of parliament who was a prime supporter of C-128. He is speaking to me in his office in a strip mall in the city of Scarborough, just outside downtown Toronto. "It is wrong to have these fantasies and wrong to write them down. Period."
The kiddie porn debate pitted morality cops and grandstanding politicians on one side against artists, writers, and intellectuals on the other. But the morality police had all the momentum, and the bill was hastily enacted into law on June 15, 1993, the last day of the legislative session. In a country where the analog to the Bill of Rights wasn't introduced until 1982, limits on free speech are not so surprising, says CBC producer and anticensorship crusader Max Allen. The difference between the US and Canada, he adds, can be summed up simply: "We never fought Britain." The impulse to trust government runs as deep in Canada as the strains of rebellion run in the US. "You have 'life, liberty, and the pursuit of happiness'; we have 'peace, order, and good government.'"
Wappel got his way. The country experienced a wave of child porn prosecutions, mostly described in the vaguest terms in police press releases. But perhaps the most startling use of the new law came the following January, when Toronto police shut down an art gallery and seized a series of paintings by Eli Langer, a 26-year-old Toronto artist.
How that raid came about is by now a familiar story: a member of the art community - a critic - wrote that the offending material was on display, inadvertently alerting the police. It was, remember, computer hackers who led cops to the BBSes and gay activists who led them to Glad Day. In this case, an art critic named Kate Taylor wrote a scathing review in a prominent Toronto newspaper. Cops considered the work for a few days, then seized it in an armed raid.
Langer's paintings -- mostly harrowing depictions of child abuse seeped in red and bluish tones -- had gone on display at the Mercer Union gallery in late November. The gallery is a weird place: when I was there, the show consisted of a pitch-dark room with some pins stuck in the floor and some backlit 35mm slides stuck on the walls.
Langer's paintings are a lot less weird. They mostly show children who appear afraid of adults, playing with each other sexually, or peeing happily. The artist knew his work would be controversial, but he could not have imagined a police response.
Three weeks after the paintings went up, Taylor's eye-popping review of the show appeared in The Globe and Mail, Canada's premier newspaper. The review went beyond criticizing the work; in calling the paintings "horrible" and denying that Langer was an artist, Taylor unintentionally prompted complaints from readers and handed police a rationale for the seizure. (C-128 includes a vague exception for works of artistic merit; cops decide what that means.)
"Langer is young and he can paint marvelously well," wrote Taylor, who would later publicly regret the police action. "Maybe when he grows up, he'll be an artist."
The next day, cops perused the gallery. Then, on December 16, warrant-wielding police burst into the gallery just before closing, held the director, Sharon Brooks, in the back for several hours, and seized five paintings and 35 drawings.
They charged Brooks and Langer with possession of child pornography and exposing obscene material to public view. The pair faced more than 10 years each in prison. Eventually, charges were dropped, but the paintings remain proscribed and in police custody. Langer sued to have them returned. A decision by the judge is pending. If Langer loses, his paintings technically become the property of Queen Elizabeth.
"What's incredible about this," said Langer, who is so fed up with the incident and the resulting outcry that he says he does not want to show his work again, "is that it occurred over imagined images. They had the power as though they were real events."
The metaphysics of censorship
Confusion between fantasy and reality goes to the heart of Canada's current madness. There is a metaphysical child or metaphysical woman out there whom people like politician Wappel and enforcer Sweeney seek to protect. The victim of these crimes is not a person but a sense of "human dignity" and "community" which Canada "defends" with armed police. That distinguishes the country from the US and from most of Europe, which, in their information laws, emphasize the rights of concrete individuals. Indeed, it is very hard to stop the flow of information in the US without a complainant, normally a libel plaintiff, who is materially hurt by false information.
The Canadian system, in a bizarre twist on notions of justice, is forcing BBS operator Bolton to compensate an imaginary woman he hurt: in return for the release of his hardware and the dropping of criminal charges, he agreed to pay C$2,000 (US$1,400) to the Barbara Schlifer Clinic, a rape-crisis center. He also got a year's probation, during which time he is forbidden upon judge's orders - and despite Butler and the Charter of Rights and Freedoms - from displaying any "sexually explicit" material on his bulletin board. The punishment, though only a chilling slap on the hand, acknowledges the theory behind the law: Bolton was bullied into conceding a link between his little bulletin board and all the potential rapes in Toronto.
Most of last year's BBS cases have so far been settled similarly -- defendants getting small fines or suspended sentences -- and the others are still pending, says Sweeney. Jedlovsky is awaiting trial. The laws, it turns out, are so vague that arbitrary enforcement -- taking away people's computers almost at random -- rather than conviction, has been the government's focus. Rather than test the validity of the laws in court, prosecutors, like customs agents, have chosen to harass computer users and issue stern warnings.
But how, finally, can enforcement work? In a world in which detailed pictures cross borders almost instantaneously, police are reduced to patchwork raids and harassment. They can't stop the private use of pornography -- especially ASCII text -- making its way effortlessly between countries and cultures.
"Electronic communication," says activist and CBC producer Max Allen, "has made censorship regimes futile."
Zachary Margulis (zamnyc@aol.com) is a reporter for the New York Daily News.
Copyright © 1995 by Wired Magazine. All Rights Reserved.