Feature

Under Attack: An Update on Censorship and Freedom of Expression in Canada

by Sarah R. Evans

In Canada, censorship is often perceived to be an issue of the past. Cold War-era suspicions are a distant memory and Canadians are confident that their right to free expression is protected. However, in 2003, the issue is not as simple as it appears — freedom of expression is often limited by government, community, and business interests. With the intermingling of obscenity legislation, the constitutional rights of individuals, and "community standards," what materials Canadians are free to produce, read, and view continues to be the subject of fierce debate.

Take for example the December 2002 Supreme Court of Canada decision regarding a Surrey, British Columbia (B.C.), teacher who sued his employer, the Surrey School Board. The case began in 1997 when Grade 1 teacher James Chamberlain made a request to use three books in his classroom that depict same-sex parents. As the books were not a part of an approved provincial reading list, he had to submit his request to the local school board as stipulated by the province’s School Act. Chamberlain’s request to use Asha’s Mums, Belinda’s Bouquet, and One Dad, Two Dads, Brown Dads, Blue Dads in teaching a portion of the family life education curriculum was rejected. The board deemed the books not suitable for five- and six-year-olds and also denied the request based on the moral and religious objections by some parents.

In a ruling that upheld a decision of the B.C. Supreme Court, the Supreme Court of Canada agreed that the board had not upheld the broad principles of tolerance and non-sectarianism underlying the province’s education legislation.

Was this censorship? A. Alan Borovoy, head of the Canadian Civil Liberties Association (CCLA), does not believe this case was censorship, despite his organization’s role in intervening in the case. "I’m not sure that was an exercise in censorship," he says. "When I think of censorship, I think of the state [sponsoring censorship]." Although the board used "inappropriate criteria" in justifying its decision, Borovoy believes it is the actions of the state that determine what is censorship and what is not.

Also intervening in the case was the British Columbia Civil Liberties Association (BCCLA). Murray Mollard, the Executive Director of the BCCLA, also views censorship as state-sponsored. However, unlike Borovoy, Mollard believes that the school boards and libraries should be considered parts of the state. In the Surrey case however, the debate was not about censorship, but the separation of church and state, says Mollard. "We make decisions all the time that limit children at that age’s freedom. We are responsible for their education and formation in the world and we censor what they see."

Books in schools and libraries are often challenged according to Ron Brown, Chair of the Freedom of Expression Committee at the Book and Periodical Council of Canada. The council sponsors Freedom to Read Week each year and tracks challenged and banned books in Canada. The most often challenged books include the Harry Potter series and books that deal with black history due to offensive language. "When [books] get pulled, often no one ever knows about it," he says.

Canadians may believe in the idea of free speech, but many are still uneasy with the ramifications of having a truly open society. According to Mollard, today’s censorship is almost always focused on sex and sexuality. Toronto lawyer Clayton Ruby agrees that depictions of sexuality are often targeted. As Legal Advisor to PEN Canada, an organization that advocates for writers and journalists worldwide, Ruby often speaks out on issues concerning freedom of expression. "Free speech implies sex speech as well," he says. "The traditional distinction between thought, speech, and action, with action being prohibitable, has served us well. Every time we move into this sex area, people want to stop thought and speech."

At the heart of the current debate on sex and sexuality is Bill C-20 and the ongoing fight between the Little Sister’s Book and Art Emporium and the Canada Customs and Revenue Agency (CCRA).

Bill C-20

Canada’s child pornography law was drafted and passed by the Mulroney government over six weeks in 1993. Triggered by a request by the B.C. Supreme Court regarding the case of John Robin Sharpe, the Supreme Court of Canada clarified the law in 2001. The court stated that people could not be prosecuted for written or visual materials created for their own use. Visual materials were legal as long as photographs did not show unlawful acts. Sharpe, a retired city planner from Vancouver, was found not guilty for possession of written child pornography in March 2002.

The Sharpe case is a difficult one for advocates of free speech. Although Sharpe was found guilty of two counts of possessing pornographic pictures of children, the not-guilty decision on the written material created a national uproar. Bill C-20 seeks to close the "loopholes" that lead to Sharpe’s partial acquittal.

Sharpe’s defence succeeded in two ways. First, B.C. Supreme Court Justice Duncan Shaw found that Sharpe’s stories had "artistic merit," based on the testimony of expert witnesses. In his decision, Justice Shaw referred, in part, to the testimony of University of Western Ontario English Professor James L. Miller. Justice Shaw said Miller "found evidence that [the stories] had been organized, edited, revised and conceived as publishable works." Further, he said the professor saw one story as "evidence of Mr. Sharpe’s development as a writer."

In keeping with the Supreme Court of Canada’s ruling, Justice Shaw also said that although Sharpe’s writings contained "morally repugnant acts," written material must advocate that committing a sexual crime with a child is illegal. "The Robin Sharpe case was a lot about almost crossing that line into thought control," says Mollard. As Sharpe’s writings were only descriptive, they were legal.

PEN Canada has a number of concerns about Bill C-20. In a recent press release, PEN addresses what it sees as the over-reaching power of the bill. Bill C-20 would eliminate the "artistic merit" defence used in the trial, and any defence that would claim that material has an educational, scientific, or medical purpose. The law regarding the creation of materials for an individual’s own use would also change. In Canada, the legal age of consent is 14 years old — the proposed changes apply to depictions of children up to 18 years old. This could be extremely problematic. For example, teenagers could be charged for writing about or taking pictures of themselves, even if what is depicted is legal. "Any depiction of persons under 18 would be considered child porn," says Ron Brown. "Even Romeo and Juliet."

Another concern for PEN is the potential for writers and artists to be targeted in Canada and by the CCRA at the border. "Canadians might, without even knowing it, be crossing a very fine line," says PEN. Brown feels that Bill C-20 opens the door to frivolous charges, adding "it’s taking away resources from the real fight [against child pornography]."

Once Bill C-20 is passed, the only remaining defence would be that the material alleged to be child pornography serves the public good and "does not extend" what serves the public good.

Little Sister’s Book and Art Emporium

Perhaps the most notorious example of censorship by the state is the "granny" of all cases, Little Sister’s Book and Art Emporium and its lawsuits against the Government of Canada, specifically, the CCRA.

Little Sister’s, a gay and lesbian bookstore, opened its doors in 1983. Claiming that much of the material imported by the bookstore was obscene, the CCRA began a pattern of seizing books and videos destined for the store. Under customs legislation, CCRA employees had complete discretion in blocking the importation of "obscenity" at the border. Although many mainstream bookstores would receive the same books without incident, by 1985, the CCRA was detaining virtually every shipment to the store.

Facing financial problems due to the detention of their orders, Little Sister’s sued the CCRA with the B.C. Civil Liberties Association as co-plaintiff in 1990. Over the next 10 years, the case would go all the way to the Supreme Court of Canada. The second lawsuit focused on the constitutionality of the seizures, specifically that customs legislation infringed on the constitutional guarantees of equality and freedom of expression. The store also argued that the interpretation of obscenity in the Criminal Code discriminated against the gay and lesbian community.

"The interesting thing about Little Sister’s is what is called ‘prior restraint,’" says Murray Mollard. "The government is determining for Canadians what they can read even before Canadians can access the information or see it themselves. Usually there is due process."

In a 6 to 3 decision, the Supreme Court of Canada handed down its ruling in December 2000. Although it did not strike down the existing customs legislation, the court agreed that the CCRA had discriminated against Little Sister’s, and ruled that the onus is on the government to prove that imported materials are obscene. The CCRA now has 30 days to prove that any seized materials are in violation of the law.

The court did not strike down the bookstore’s other argument concerning obscenity. Citing the 1992 Butler decision, where the court held that obscenity was defined by community standards of tolerance, the court majority reiterated that materials would be tolerated so long as they did not create a substantial risk of "harm." The decision focused on the perceived risk to women. "In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative," the court ruled. The Butler decision determined that any representation of degrading sex could be considered obscene — including depictions of sado-masochistic practices.

Little Sister’s argument centred around the depiction of S&M. The bookstore and its supporters argued that the gay and lesbian community should be able to set its own standard and that for many gays and lesbians, sado-masochistic materials are positive — they serve an "emancipatory role." The bookstore’s argument that the Butler test or the "harm-based test" was "morality in disguise" was rejected. The standard set by the court would be applied equally to all.

Little Sister’s will have another chance to challenge the Butler decision. In 2001, the CCRA seized two issues of the Meatmen comic book series. The anthology features the art of popular gay male artists on a variety of themes. The issues in question were S&M oriented. Contrary to the position of the CCRA, Little Sister’s argues that no "harm" can result from comic book art. "The purpose of the new suit is to challenge the Butler decision," says Murray Mollard. He hopes the trial will help to unravel the current thinking about depictions of S&M — including materials made for and by women.

Janine Fuller, Manager of Little Sister’s, is looking forward to facing the CCRA in court once again. "Its putting CCRA on trial for the continued harassment of the Canadian people and their rights to intellectual freedoms," Fuller says. The case is expected to go to court in October 2003.

In the meantime, the CCRA continues to seize books at the border. In October 2002, the agency seized Cherry, a lesbian novel by British author Charlotte Cooper, on its way to the Bleeding Rose bookstore in Victoria.

Looking Forward: The Threat of Libel

Sex may be the focus of the censorship and freedom of expression debate, but Clayton Ruby warns of a more insidious threat for writers in Canada. Although in most countries, the greatest challenge to free speech is criminal prosecution, in Canada, Ruby believes libel is a more significant threat. He holds the government responsible. "It’s not constitutionally a state action, but it’s a state action in a political sense," he says.

In compensating for intangible reputation as well as financial loss, the courts are putting free speech at risk. Ruby points to the 1995 case of Hill v. Church of Scientology of Toronto where the Supreme Court of Canada upheld an award of over $1 million. "We are far too prone to favour plaintiffs," he says. "Libel chill is not from loss of money but loss of reputation."

With the high cost of litigation, perhaps the greatest threat to free speech in Canada comes from fear — the constitutional guarantee to free speech does not apply to civil cases.

Sarah R. Evans is a writer and editor in Ottawa, Ontario. She can be reached at sr_evan@yahoo.com.

Recommended web sites:

Freedom to Read Week

PEN Canada

Little Sister’s Book and Art Emporium

B.C. Civil Liberties Association

Canadian Civil Liberties Association