Oh, Canada: Canadian authorities charge American with Obscenity over drawn material

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If you've been reading this blog with any regularity you might remember that coverage of international incidents which ridiculous steps backwards in terms of freedom of expression and then hi-jack criminal justice systems to exact a punishment, violating all kinds of common sense and (in many cases) their own legal limitations which define what the law can and can't do. Now this kind of censorship with criminal penalties thing happens on a very regular basis in places like China, Iran, Myanmar, Saudi Arabia, and so on, which has sadly led to a general malaise dragging down any motivation to actually care about what is the status-quo for these countries. But when Canada does something like that, the "red flags" should go up.

PAPERS PLEASE, EH.

Before we get into the rest of the article, a bit of nomenclature clarification.
For the purposes of this piece:

"American" = USA "Canadian" = Canada

Please see the footnote at the end of this post for further explanation.

Canada. A country that is definitely more awesome than non-awesome, but still has committed a few acts of a special brand of stupid when it comes to touting the protection of "freedom" and "human rights" while clearly violating the hell out of them at the same time. They may not be very high profile, but Canada actually has their own actual thought-police who can actually put you in actual jail for saying or writing things that they deem worthy of criminal punishment. Canada's history as a country only very recently untethered from European colonial bonds, could be responsible for its adopting the very European style policies of banning and criminalizing unpopular speech under the guise of protecting human rights often leaving said "right-violating speech" so ill defined, that it is only by the whims of the political flavor-of-the-month that violations are prosecuted or ignored. In America, freedom of speech and press is almost bullet-proof thanks to a huge pile of Supreme Court decisions like National Socialist Party of America v. Village of Skokie, Cohen v. California, New York Times v. Sullivan, and the hot off-the grill Brown v. EMA. These decisions are Judicial applications of American Constitutional protections, roadsigns to local/state/and fed levels of legislative government guiding them as to what they can and can't regulate. These roadsigns don't exist in Canada because Canada has a different system of government and history, and path of legal development, which is normal because Canada is a whole separate country. But, the unfortunate result is a group of Commissioners who get together and decide if something you said hurt someone else's feelings, and if it did, they can send you to jail... because fuck you, that's why. I've been wanting to poo-poo on the CHRC for years, but could never connect to a theme that this blog covers... until now, mwa hahahaha!

Most people don't end up caring about this when it happens, because most of the people who end up on the business end of this misguided criminalization of speech are racist homophobic right-wing fucktards who most of the world would love to see get stomped in the nuts with golf shoes and left for dead. This is why I don't like calling out as bullshit these Human Rights Commissions that dole out criminal penalties for offending someone's sensibilities, since it often comes with inclusive labeling: That by criticizing these entities, such criticism is an ipso-facto defense of the distasteful actions and positions of the "offender." It's easier to let these racist/bigoted/crazy/whatever people get hung out to dry, even when the mechanism used to do so is antithetical to constitutional guarantees. But, it's from here where the dangerous infection spreads to places it shouldn't, because if you can reduce Section 2 to tissue paper when you don't like the potential protection it gives to batshit Ann Coulter or Geert-Wingnut-Wilders, then you can pretty much turn it into play-dough for anything; like a guy at an airport who may or may not have a drawing on his computer that you don't like.

These drawings maybe?

That's where we start to get specific - with the recent case of an "American" being held at a border crossing, searched, then arrested and charged with the possession and importation of child pornography, now being defended by the CBLFD. It's been reported by the CBLFD and Publishers Weekly. The story also goes on to mention that there are no photographic images involved in this case, they are all created via artistic mechanism. But the reports are vague in a number of ways. One indicates that the "American" had printed images adorning the outside of his computer, prompting the agent to examine the content of the hard drive, while another makes it seem as if the digital devices were looked into as part of a customs inspection. There is no information about which border crossing this happened at, or where this person is now. There are 2 main issues for legal contention here:

1) The search: A warrant was obtained, which would seem to indicate that it was needed in order to access files on this person's digital devices.  But being an international border they don't really need one, they can search whatever they want.  Customs inspection areas are not the same as just walking down the street, and if they want to look in your bag or search digital content they can. What is a problem however, is the digital lengths that searches can go before The Canadian Constitution's Section 8 functions as a barrier to such a search (like access to a cloud server that is located in Brazil and not crossing the border at all). Quite the recipe for a mess.

2) The content itself: OK so, what did they really find? Who fucking knows...  but every source states that what was found was artistically created, and not photographically generated. Now, courts should really know that the difference between a photograph and an artistic representation of something is significant and very real difference indeed. I've gone into this at-length before talking about the Christopher Handley case and the (then) ongoing Schwarzenegger v EMA case (both in the USA), so I don't need to go on at length here. Simply stated, there is a difference, one is criminal and the other is not. It doesn't matter what you think of it, it doesn't matter if you like it, it doesn't matter if you're "offended," the drawn art-function-produced version is not a crime because of that difference.

UPDATE: We now know it was something that most reasonable people would consider innocuous and not a cartoon portrayal of children. That chibi Kama Sutra thing... yeah that.  See the image here. Contains mild cartoon humping.  Who looks at that and says "oh yeah, totally child pornography"?

Many courts in the world have given a tangible value to that difference, and the value that produces in differentiating real photographs from other deceptions of events. Otherwise this image would be prohibited for violating the myriad of "camera in the courtroom" regulations. But it doesn't because because a drawing is not a photo. Endoffuckingstory!

The real photo of whatever the hell this is? It's just too intense man!
Seriously, what the hell is going on here?

Point #2 up there, Content Regulation, gets us back to the "thought-police" notions of the state deciding what subject matter in media is permissible, making this an impossible decision in this case, as the images themselves have not violated the human rights of minors nor are they the product of a criminal activity. The Ottawa Citizen weighed in on June 29th, 2011 noting that:

"This puts the courts in the bizarre position of determining what is a work of art. Citizens cannot hope to know in advance what the law really forbids, and whether the judge will share their opinion of what is art."

-The Ottawa Citizen

Hey touchy Canadians, ....where is Ottawa again?  Yeah.. shut up.  So the fact is, that such a broad spectrum of interpretation and different judgments could be reached, it goes to the extreme point where no two instances are ever going to be alike. Combine that with a wholly subjective need such a judgment would have to draw on to define "what is art," and the American sensibility is to error on the side of caution, call it free speech, and let the rest of the world call you a messed up weirdo for liking it. But what about Canada? Canadian sensibilities in general may fall into the same vein, but without the same history and legal traditions that Americans have, those Canadian feelings may have less quantitative examples to resonate with, and reaching the same decision will depend more on the qualitative conclusions of common sense.  Again, this is normal because Canada is a completely separate country, but it does seem to clash with Canadian values.  With a lack of bullet-proof style case law to be applied, the notions of common sense fall on the emotional whims of Canadian judges who are participants (or at least silent collaborators) in the limitation of free speech (oops) I mean free expression... because that's totally different:

"Freedom of speech is an American concept, so I don't give it any value. It's not my job to give value to an American concept."

-Dean Steacy, Canadian Human Rights Commission
(Quote from Wikipedia, but it seems legit).

Obviously, this American Idiot whoever he is, is facing an actual court and not going before the CHRC, and definitely not going to be judged by the person responsible for the above quote. But that doesn't matter because I want to talk more about it. The fact that the CHRC even exists as a real government agency, populated by unelected officials, and able to expound sentiments all with the complicit support of Canadian Jurisprudence, means that there's a high chance this guy is totally fucking screwed unless some drastic change happens in this case. The depth of the power afforded the CRHC to criminalize unpopular speech speaks volumes about a Canadian willingness to forgo absolute protections of expression in favor of the more invasive knee-jerk European style approach. If I were in this guy's position, I'd be picking out apartments in Argentina right now.

In the dozens of times I've crossed the US/Canada border, I have only ever encountered a problem once. It was almost Christmas in Dec of 1999, (the day after the arrest of Ahmed Ressam), at 3:45AM on the Rainbow Bridge in an unregistered Honda Civic being driven by an immigrant Philippino with no Green Card while I sat in the back next to a guy from Pakistan named Mohammad and we were both wearing military surplus... yeah that went about as well as you'd expect it to.  After this manga mess though, I will think twice about going to Canada at all the next time it comes up (no, not really but I might just leave my laptop at home). ...Tim Hortons in America just isn't anywhere near as good as Canada so that's worth the trip alone.

Good Stuff.

Is it fair to assume Canada is going to convict this guy and slam another nail in the coffin of free speech expression in the "offended" age based on the blatantly overbearing antithesis of said free expression; the CHRC? No, no it's not. But I already had to apologize to the whole fucking world for Bush getting reelected in 2004, so fuck off.  Canadians can't poo-poo on the USA for all that stuff and then tell me I can give a little back.

And before anyone wants to get wise and mention that Section 13(1) of that Hate Speech code went belly-up in 2009, the other shoe hasn't dropped (the Royal Canadian Thought Police still exist).

UPDATE:

In the case of Ryan Matheson, Canadian authorities have dropped all charges. 

Footnote:

American/America terminology:

I know people get hung up on this, but let me 'splain something to you using hypothetical role-play (This conversation is totally made up and totally didn't happen to me, a Canadian, and some guy from Brazil while staying in Okazaki Japan back in 2002... totally):

American: Blah blah blah, American agricultural policy regarding exports blah blah.
Canadian: Ahem, ya'know... "America" is two whole continents, not just one country...
Brazilian: Yeah.
American: So... you want me to start calling you both "American" now too?
Canadian & Brazilian: No.
American: Oh... you mean you have come up with a more useful term that we can all use do denote citizens of The American States United. Wow, it's a good thing you did that, since that's been an issue for well over a century, you must have had to really think about that hard because we've all been waiting for this word, don't make us wait any longer...
Canadian: Um...
Brazilian: ...Either of you know when the night-clubs open?

So as far as this post goes, that's how the terminology is, and don't leave comments that parrot the above "hypothetical" conversation if you don't want to be called American too, or if you don't have an alternative word to fix this situation.