From: clewis@ferret.ocunix.on.ca (Chris Lewis)
Newsgroups: news.admin
Subject: Re: "Computers graphic when it comes to porn"
Date: 21 Aug 92 07:50:59 GMT
Organization: Elegant Communications Inc., Ottawa, Canada

In article <_z#nw=l.adamsr@netcom.com> adamsr@netcom.com (Rick Adams) writes:
>Thus spake clewis@ferret.ocunix.on.ca (Chris Lewis):
>>
>>The situation is no different than the US.  Where the Supreme Court
>>can and does permit exceptions to the constitution, even though there
>>are no explicit escape clauses.  One only need look at the exceptions
>>that have resulted in the suspensions of due process in property seizures
>>permitted under the anti-drug and anti-organized crime legislation,
>>or the violations of two contitutional clauses by the seizure
>>of Dr. Alvarez Machain.

>	On the contrary, while I admire many features about the Canadian
>system, your attitude toward censorship *is* unquestionably different than
>our own.

On the contrary, for if your example is true, which I doubt - it's more
likely to be an urban myth, it shows that the situation is *exactly*
the same.

>	Eliminate the most obvious form of Canadian censorship (explicit
>sexual material) for a moment, and examine some of the other materials
>subject to censorship there, most notable among which is material which
>takes a position in opposition to your current legal or political postures.
>As an example of this kind of material - try to purchase or even subscribe
>to a magazine such as "High Times" in Canada. Such magazines have *NO*
>explicit sexual content,

[I should point out that the justification for any ban is based upon *harm*,
not explicit sexual content.  Carl's postings of recent Supreme Court
decisions (eg: the quotes from Sopinka) show how explicit sexual
content is no longer enough of itself for a ban.  And, from a practical
matter, explicit sexual material *is* available in most video or magazine
stores.]

>nor do they specifically encourage the violation of
>any laws. Yet, because they take a political stance rather far removed from
>that of your government, they are subject to seizure. THAT cannot be done
>under US law, and it defines the difference in the two positions rather
>clearly.

Do you have references, time or place?  Do you have a subscription address so
I could test this?

Secondly, if our country was so all-fired ready to suppress political
stances "far removed from our government", why, at a time when America
was arresting thousands of communists in the 20s, that members of the
Canadian Communist Federation were not only tolerated, but were getting
elected as federal and provincial members of parliament?  That even fringe
communist groups such as the Marxist-Leninists have been tolerated all
along?  Even during the McCarthy trials in the US?  That the CCF, now known
as the NDP (New Democratic Party), forms the government in several
provinces, including Ontario, and has a good chance at forming the next
federal government?

Or that promoting Quebec separation isn't an imprisonable offence?

I don't think so.  Canada's track record at tolerating diverging
political views is quite good, probably better than America's
(We've never done anything like a McCarthy or Allende - at least,
not this century)

Thirdly, I believe your posting shows a defect in the understanding of the
role of the Supreme Court and the constitution w.r.t. legislation in
*both* the American and Canadian systems.  Namely, that the legislature
can pass any law that it damn well feels like, regardless of what the
constitution says.  The US could pass a law tomorrow that makes disparaging
remarks about George Bush illegal.  And the police could arrest people and
lay charges.  And lower courts may even be able to convict.

The constitution doesn't come into play until and unless those people
arrested challenge the law they were arrested under as being
unconstitutional.  Then the Supreme Court gets to decide whether the
law stands or not (or a lower court points at a previous Supreme Court
decision and makes a ruling based upon that).  The American system works
that way.  And the Canadian system works that very same way.

Last I heard, admittedly some time ago, political speech had to
advocate violent overthrow of the government before it could be
banned, and that was before the 1982 constitution came in with
a formally enshrined freedom of speech clause.  But, you say that
the magazine doesn't advocate such, so I don't believe that a ban could
stand.  Even if it did advocate violent overthrow, one need only read
Carl's quotes that show that the US Supreme Court has indicated
many times that bans of "violent overthrow" material *can* be
upheld provided that the risk is sufficiently high that the material
could be expected to cause it.

Perhaps "High Times" could (I have no idea, I've never seen one, but
I have heard of it methinks) be considered in violation of the
hate speech (Keegstra) or knowing false news/hatred (Zundel) laws.  But
again, as Carl's quotes have shown, the American Supreme Court
has indicated, time after time, that they *would* uphold bans
of such material provided that the likelyhood of the material
causing nontrivial harm was sufficiently high.  If there's a difference
between Canada and the US here, it's only in how "high" "high" has
to be.

If customs is indeed impounding High Times due to political content,
and High Times isn't even advocating the violation of Canadian
law, all it would take is for one person to stand on their hind
feet and challenge the ban.  There's no way on earth that the
Supreme Court would uphold the ban unless the magazine has things
you're not telling us about.

Frankly, I suspect that if High Times is indeed being impounded
it's not because of content.  You see, if High Times doesn't
want to collect Canadian GST from Canadian subscribers then
High Times can't mail it into the country.  And High Times
is probably one of those rags that would rather rant about
a political conspiracy rather than admit that they simply
don't feel like collecting the tax.  [Yes, foreign GST collection
is indeed silly, but it has nothing to do with free speech.]
-- 
Chris Lewis; clewis@ferret.ocunix.on.ca; Phone: Canada 613 832-0541
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