COVER

THE BATTLE OVER CENSORSHIP

BRIAN BERGMAN October 24 1994
COVER

THE BATTLE OVER CENSORSHIP

BRIAN BERGMAN October 24 1994

THE BATTLE OVER CENSORSHIP

COVER

BRIAN BERGMAN

For the star of such off-the-wall comedies as Ghostbusters and My Stepmother the Alien, it was an appropriately bizarre homecoming. Decked out in black pants, a black shirt and a black leather jacket, Dan Aykroyd pulled into Ottawa’s downtown World Exchange Plaza last week on a Harley-Davidson motorcycle with Ottawa Mayor Jacquelin Holzman gamely in tow. In a ceremony attended by 1,000 admiring fans, the 42-year-old Ottawa-born actor was given a key to the city that he left two decades ago to seek comedy fame and fortune in Toronto, New York City and finally Hollywood. But he was also swarmed by reporters wanting to know his thoughts about last week’s decision by Saskatchewan censors to ban his new comedy, Exit to Eden, about a sadomasochistic holiday resort. While dutifully decrying what he called “an infringement on rights,” the actor could not conceal a certain glee at the turn of events in his home country. “It’s great publicity for the film,” he said.

As it turned out, Exit to Eden opened in Saskatchewan as well as the rest of North America last Friday—to decidedly lukewarm reviews. Following intense media scrutiny, a rarely assembled provincial review panel hastily overturned the Oct. 11 ruling by the Saskatchewan Film and Yideo Classification Board. But that flip-flop did little to quell an increasingly acrimonious debate over the right of government censors to determine what Canadians have the right to see or read. Indeed, last week’s events in Saskatchewan simply underscored the quaintly archaic nature of much of the official censorship that goes on in Canada, as one group of largely anonymous, unaccountable provincial appointees overruled another group of equally obscure officials—without engaging

in a nanosecond of public debate. “There is something very Canadian about this,” said Robert Payne, who served as chairman of the Ontario Film Review Board between 1989 and 1992, and who personally supports stripping censor boards of their power to ban films. “It’s a paternalistic attitude. In other parts of the world, like Scandinavia, they snicker at the idea that we have such problems with sex.” Foreign snickering aside, the debate over censorship in Canada remains deadly earnest. And with two landmark cases winding their way through the courts last week in Vancouver and Toronto, the issue of who decides public morality promises to remain near the top

of the public agenda for some time to come. In the Vancouver case, the owners of Little Sister’s Book and Art Emporium, Western Canada’s only exclusively gay and lesbian bookshop, were asking B.C. Supreme Court Justice Kenneth Smith to strike down the entire system under which Canadian customs officers routinely inspect incoming materials—including videos, magazines and booksto determine whether they are obscene. Little Sister’s, which has seen hundreds of its imported books detained or seized by customs officials since it opened in 1983, claims that it is being unfairly singled out because it deals in gay material.

In Toronto, meanwhile, Justice David McCombs of the Ontario Court’s general division is being asked to rule on an even more explosive aspect of the censorship debate: is it possible for artistic renderings, if sufficiently perverse, to provoke individuals to commit criminal acts, including sexual assaults against children? In the first major test of a tough new child pornography law passed by the House of Commons in June, 1993, McCombs must decide whether five life-size paintings and 35 smaller drawings by Toronto artist Eli Langer violate that law by depicting children in sexually compromised positions. Langer’s paintings, cast in eerie hues of red, yellow

and orange, include one that depicts a man with an erection lying on a bed while a naked, prepubescent girl straddles his shoulders. Another shows a young boy in bed with a man, but only the boy’s anguished face and the man’s large feet protrude from beneath the covers. The case adjourned late last week, with McCombs reserving judgment.

Together, the Vancouver and Toronto cases illustrate the fast-changing nature of the censorship battle in Canada. Traditionally, the state intervened to

uphold what it saw as the public mores of the day. Over the years, that meant that customs officials, for example, felt justified in seizing everything from girlie magazines to literary classics (including James Joyce’s Ulysses in the 1920s and Norman Mailer’s The Naked and the Dead three decades later). More recently, the stated purpose of censorship efforts has been to protect women, children and vulnerable minorities from potential harm (page 30).

But whatever the rationale, the debate continues to arouse deep— and divisive—passions on both sides.

For civil libertarians and those in the arts community, the central issue is freedom of expression. “Art has to be able to show the evil in the human condition,” says Alan Borovoy, general counsel of the Canadian Civil Liberties Association. “The whole point of art is to hold up the human condition for us to examine it. Art cannot be confined to the portrayal of virtue.” On the other side are those who believe that some form of censorship is essential to curb the dark forces in society. ‘The police just broke the back of a child pornography ring in London, Ont., and >¡ Toronto that was selling videos,” % says Doleena Smith, president of | Canadians For Decency, a national anti-pom organization. “And yet there is an element of the artistic community that says those videos have to be shown because they are artistic. Where do we draw the line?”

The Little Sister’s Book and Art Emporium is located in a small building near the corner of Thurlow and Davie streets in Vancouver’s densely populated west end. The

Little Sister’s needs all the money it can get. Last week, four years after the store’s owners, along with the B.C. Civil Liberties Association, filed suit against Canada Customs, the case finally went to court. The suit claims that Canada Customs’ practice of detaining material before it has been deemed obscene violates Charter of Rights guaran-

civil liberties are,” she says. “It’s like poison ivy—scratch once and it spreads.”

The inspection practices of Canada Customs do represent one of the oldest and murkiest forms of censorship in the country—predating Confederation itself. Starting in 1840, customs was given the power to block entry of material it considered to be

IT’S ENRAGING AND APPALLING THAT CUSTOMS PEOPLE SHOULD ACT AS CENSORS’

main store is on the second floor, up a flight of creaky wooden steps. To the casual visitor, it is quickly apparent that this is no mainstream bookseller. For one thing, sexual aids and an array of condoms are on display, as are raunchy videos and magazines. And while the bookshop boasts the usual sections—art, travel and so on—the fiction area contains such eye-grabbing titles as Butch II, about a lesbian “looking for Ms. Right,” and Fag Hag, about a woman who loves a man who loves a man. Downstairs, the purple walls are covered with posters heralding art openings and seminars. There is also an ad for a “video release bash” of explicit films, the proceeds of which are to go to the “Little Sister’s defence fund.”

tees of freedom of expression. It also states that customs officials violate the charter’s guarantees of equality by unfairly discriminating against writers, readers and distributors of gay erotica.

The evidence for the latter claim, says Little Sister’s manager Janine Fuller, is that many of the titles recently detained by Canada Customs—including Herotica, a Penguin collection of women’s erotic fiction, and a biography of Noël Coward—have been successfully imported by more mainstream stores without incident. She believes that customs officers select which packages they search based on whom they are addressed to. “Once identified, you’re going to experience a different sense of what your

immoral, indecent, seditious or treasonous. Those powers have changed little over the intervening years—and have often been applied in ways that critics say have failed to keep pace with legal precedents on obscenity. For example, when they are dealing with questionable material, Canada’s 4,000 customs officers use a form that divides obscenity into a checklist of categories. One of the categories that has routinely ensnared material destined for gay bookshops like Little Sister’s was a prohibition against the depiction or description of anal intercourse. Although a landmark obscenity ruling by the Supreme Court in 1992, R. vs. Butler, made it clear that such a prohibition was invalid, it was not until Sept. 29—just 11 days before

the start of the Little Sister’s trial— that Revenue Canada issued a memorandum removing anal intercourse from its guidelines.

The little Sister’s case has attracted the attention of prominent anti-censorship figures across the country. Among the witnesses being called by the plaintiffs are such distinguished authors as Pierre Berton, Nino Ricci and Jane Rule (whose novel, The Young in One Another’s Arms, was seized by customs in 1990). Berton told Maclean’s last week that he was preparing for his testimony by reading one of the books recently detained by Canada Customs before it could reach Little Sister’s. “They had no business seizing the book at all,” said Berton. He described it as a serious treatment of issues facing the gay community. “It’s enraging and appalling that customs people should act as censors.”

The Langer case, if anything, highlights an even more bizarre aspect of Canada’s censorship wars. For two weeks ending last Friday, reporters, artists and curious onlookers crammed into a downtown Toronto courtroom—at times spilling over into the jury and prisoners’ boxes—to watch the unfolding spectacle of art on trial. The criminal charges that were originally laid against the 26-year-old Langer and Mercer Union Gallery director Sharon Brooks following a police raid last December were subsequently dropped. Instead, the sole defendants in the case are Langer’s stark creations (the case is described on court dockets as being between “Paintings, drawings and photographic slides of drawings” and “Her Majesty the Queen”).

If Justice McCombs is persuaded by the Crown’s arguments that Langer’s art is pornographic, he can order them destroyed.

The prosecution relied heavily on the testimony of three experts in the field of pedophilia and other sexually deviant behavior.

Peter Collins, a forensic psychiatrist at Toronto’s Clarke Institute of Psychiatry, testified that it was his “clinical hunch” that the more graphic such depictions like Langer’s become, the more likely they will trigger deviant fantasies among pedophiles. Psychologist William Marshall, director of the Kingston Sexual Behavior Clinic, echoed this view, pointing to his own 1988 study that found that 36 per cent of sex offenders reported that use of pornography helped remove inhibitions to committing an offence. However, Marshall later conceded that the sample size—51 men—was small and that, to date, “a demonstrated causal relationship” between

pornography and sexual offences has not been established.

Defence lawyers, by contrast, concentrated mainly on establishing that Langer’s work has “artistic merit”—one of the chief defences against conviction under the child pornography law. A number of his fellow artists testified that, however disturbing his images, they were just that—products of the imagination that the state has no right to destroy. Another key defence witness, former CBC chairman Patrick Watson, impishly suggested that under the strict wording of the law—which restricts the explicit depiction of the genitalia of those who are 18 or younger—Michelangelo’s masterpiece, the statue David, could be banned in Canada. “Personally, I don’t know how old he [David] is,” said Watson. “He’s a young man. Is he 17,18, 20?”

One of the clearest ironies about the censorship debate is that many of those who oppose state regulation are, at the same time, among the most vocal advocates of the kind of people that the anti-obscenity laws are supposed to protect. Take June Callwood, the 70-year-old feminist author from Toronto who has spent a lifetime championing the rights of the disadvantaged. Yet, Callwood was one of the first to speak up on behalf of Langer when he was arrested; she was also one of the sharpest opponents of Ottawa’s child pornography law when it was introduced. To Callwood, many of the censorship initiatives are simply smokescreens for government inaction on the real problems facing society—including child sexual abuse. ‘We have adequate laws in the Criminal Code against abusing children,” she says, “if only they were enforced.”

Others are still groping for a middle way. Bonnie Sherr-Klein is a Vancouver-based film-maker who directed Not a Love Story, an award-winning 1981 National Film Board documentary that was extremely critical of the pornography industry. “Censorship is not the way to go,” said Sherr-Klein. “My film was censored in Ontario. It’s very clear how things can be taken out of context by people who are anti-sex and very literalminded.” On the other hand, she is supportive of anti-obscenity legislation that is better defined than the current offerings—and would go after those who are producing truly exploitive material. “The real first step,” added Sherr-Klein, “is to have a public discourse—we need an intelligent airing of different points of view.” Thanks to the two widely disputed obscenity cases now before the courts, and last week’s interventions by the Saskatchewan censors, Canadians may finally get just that.

With LUKE FISHER in Ottawa, ROBIN AJELLO in Vancouver and PATRICIA CHISHOLM and TOM FENNELL in Toronto