Confronting
Pornography
by David Kilgour, M.P.
for
Edmonton Examiner
September
1995
Canadians need a sound policy
on pornography. Any attempt at
formulating one largely depends
on what pornography is and whether
the legislative action to deter
degradation and dehumanization
of women justifies some limit
on freedom of expression. Margaret
Atwood once suggested eloquently,
"Those who find the idea
of regulating pornographic materials
repugnant because they think it’s
Fascist or Communist or otherwise
not in accordance with the principles
of an open democratic society
should consider that Canada has
made it illegal to disseminate
material that may lead to hatred
toward any group because of race
or religion. If pornography of
the violent kind depicted these
acts being done predominately
to Chinese, to blacks, to Catholics,
it would be off the market immediately
under the present laws."
While hate propaganda has remained
a small industry mostly dependant
on imported material from the
U.S. and abroad, not even the
most established of democracies,
including Canada, can ignore its
objectives. It promotes hate against
an identifiable group in a society
where we have tried for over a
century to maintain harmony within
a pluralistic context based on
egalitarian social values. By
humiliating and degrading the
members of the target groups,
hate propaganda constitutes a
serious attack on the psychological
and emotional well-being of affected
people. Generally, limiting free
speech or expression in any way
is like drawing a double-edged
sword which can inflict painful
wounds on those one does not wish
to challenge. Our continuously
evolving social values are constantly
engaged in a struggle to overcome
the more ugly aspects of our instinctive
libertarian values, such as those
fostering the right to free expression
with no strings attached.
Not so long ago, two school teachers
from opposite ends of the country
put our national values to a major
test. Jim Keegstra and Malcolm
Ross have interpreted the Charter
as allowing them to publish and
distribute material which promotes
the theory of a Zionist conspiracy
intent on world domination. Their
publications also deny the existence
of a European Holocaust for the
purpose, as our courts have concluded,
of inciting hatred against Jews.
The cases of Keegstra and Ross
illustrate that attorneys general
and crown prosecutors are in no
hurry to use the Criminal
Code to stop the prosecution
of hate. Ross, for instance, spread
his message free of harassment
for fully 16 years. Using human
rights legislation rather than
the Criminal Code might
be a more effective route to proceed
under. The various Charter
arguments which inevitably challenge
hate prosecutions under the Criminal
Code suggest that human rights
statutes are a more appropriate
venue for contesting hate-related
activities.
Quite simply, pornography is
hate propaganda against women.
As one critic, law professor Kathleen
Mahoney of the University of Calgary,
put it:
"Pornography makes a stronger
case for regulation than hate
propaganda does. Pornography
is much more commonplace, socially
accepted, and widely distributed
across class, race and geographical
boundaries than hate propaganda
is, and it exists in a societal
context of pervasive sex inequality.
It follows that the harm of
pornography must be deeper,
wider and more damaging to social
life than the harm of hate propaganda.
When pornography is prohibited,
equality is promoted."
The Supreme Court of Canada’s
1992 ruling in the Butler
decision was a landmark because
it said pornography is an issue
of equality for women. The court
unanimously upheld the obscenity
law in Canada, using a harms-based
equality analysis. It held that
the anti-pornography laws infringed
freedom of expression as protected
by section 2(b) of the Charter,
but it nevertheless passed the
section 1 reasonable limit test.
It noted that the objective of
law is to avoid harm to society
- a sufficiently pressing and
substantial concern to warrant
a restriction on that individual
freedom. This recognition, based
on using human rights principles,
marks a major new development
in the freedom of expression aspect
of our law. Today, most Canadians
would probably accept that rights
are never absolute. Rights are
given strength through the law
and therefore can be regulated
through law. It seems that freedom
of expression cannot simply exist
without a system of redress for
those groups who feel besieged
by a hate-monger’s message.
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