A little bit of justice

The Supreme Court can give us some breathing room

I’m not a bigot. But the sight of Janine Benedet’s wedding band drove me wild.

The York University law professor, representing a US group called Equality Now (that no one has ever heard of), read a snippet of a gay rape porn story to the assembled members of the Supreme Court Of Canada last week in the Little Sister’s challenge. Benedet bludgeoned listeners into emotional shock with an out-of-context few sentences – to argue that gay porn is just as sick and screwed up as straight porn. Benedet wants to make sure that bad, nasty ideas are kept out of the country.

It’s the sort of retrograde “we know better than you” paternalism that you’d think a strong feminist would reject instinctively.

I hoped the justices – a full house, all nine of them, indicating the import of the case – would notice the irony. On one side of the room, lawyers with a noticeable lack of jewellery were discussing how heterosexuals surrounded by homophobia often can’t make thoughtful judgments separate from that pervasive homophobia.

On the other side of the room, a woman with a gold circlet on her left ring finger had the nerve to prattle on about our writings and our pictures.

I know that’s not fair.

Benedet is more than entitled to deconstruct porn however she wants, and her probable heterosexuality has nothing to do with it. Bad politics are not connected to sexual orientation.

But my reaction lays bare my own prejudices. I can rationalize in order to win my point: I don’t believe in censorship.

Unfortunately, it’s a given in Canada. The Butler decision – allowing for the banning of “harmful” porn which causes anti-social behaviour (and no, I’m not going to attempt to figure that one) – will not be overturned by this court. Though a handful of its members have moved on (through death and retirement) since the decision was penned in 1992, the times are not so different.

This certainty is tempered by the fact that the nine justices at the Mar 16 Little Sister’s hearing squabbled amongst themselves. The case is legally complex (our longish report, starting on page 11, only touches at the major points). Each justice, in turn, was snippy with the lawyers presenting their arguments at the lectern. But the judges were clearly trying to score points with each other.

Theirs will likely be a split ruling. And I won’t predict who’ll win. But clearly, the courts – our traditional allies in overturning discriminatory practices – will not help in the battle to bring censorship itself to an end. That’s a political decision.

Lawyers on the Little Sister’s side asked that the current Customs seizures regulations be tossed out. But each one also admitted that censorship would continue, recommending that the Customs rules be sent to the House Of Commons for a rewrite. (This is both a smart reaction to rightwing screeching about “judicial activism” overturning the will of the people, and an acknowledgement that censorship is entrenched.)


Human beings are not blank slates. We are responsible for the decisions we make, and we can’t go around blaming the pictures that turned us on late last night for this morning’s assault or rape.

Regardless, I hope that Butler itself will be modified in some small way by the court.

It’s been misused by lower court judges to criminalize our words and pictures. And that’s why I’ll accept arguments that demand special treatment. Because our media are important; because homophobia is out there; because censorship itself sucks – making Butler a bad law. A little bit of justice is better than no justice.

And allowing a window – an exception for the porn of minority groups like homosexuals and SM fetishists – can help us, in the future, win the ultimate battle against censorship of all kinds.

That one, small, nagging exception will force people to think about the whole. And they’ll come around to the right point of view. And we’ll win the day.

Eleanor Brown is Managing Editor for Xtra.

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