Freedom of Expression Update

A Memo Prepared for the BPC’s Freedom of Expression Committee by R. Franklin Carter, Leader of the Committee’s Issues Group (December 2006)

1. Primary Challenges and Issues

The following issues affect Canadian readers, writers, publishers, librarians, booksellers and magazine sellers. The issues affect books, periodicals, newspapers and Internet sites as well.

Derek Finkle [Nov. 29, 2006] In Toronto, author Derek Finkle appeared in court to contest a subpoena that requires him to turn over his research on the Robert Baltovich–Elizabeth Bain murder case to the Crown. The research, which Finkle used to write a book, includes Finkle’s interviews with Baltovich, Baltovich’s prison journals and Finkle’s confidential interviews with lawyers. Finkle seeks to prevent the Crown from using his research to prosecute Baltovich again; the Crown seeks new evidence that Baltovich committed a murder.

In 1990, Baltovich’s girlfriend, Elizabeth Bain, disappeared; she was never seen again. In 1992, Baltovich was convicted of Bain’s murder. He spent eight years in prison. In 1998, Finkle published No Claim to Mercy which criticized the police investigation and prosecution and suggested that Baltovich did not commit the murder. In 2000, after his lawyers presented new evidence which cast doubt on Baltovich’s responsibility for the crime, Baltovich was released from prison on bail. He is awaiting a new trial.

Action: PEN Canada released a statement entitled “Court Subpoena of Documents of Writer Derek Finkle Raises Concerns for Protection of Confidential Sources” on Nov. 29, 2006. The Professional Writers Association of Canada (PWAC) released a statement entitled “PWAC Objects to Court Pressure on Writer” on Nov. 30, 2006. The Writers’ Union of Canada (TWUC) released a statement entitled “TWUC Deplores Attempt to Seize Writer’s Notes” on Nov. 30, 2006.

An Act Respecting the Profits of Criminal Notoriety
[Nov. 23, 2006] In Nova Scotia, the provincial government’s Act Respecting the Profits of Criminal Notoriety received royal assent. The new law aims to prevent criminals from making money by recounting their crimes in books, magazines or movies. Minister of Justice Murray Scott introduced the proposal as Bill 17 to Nova Scotia’s legislature on June 30, 2006. The subsequent passage of the bill into law received almost no press coverage.

Action: On Nov. 7, 2006, Harry Thurston of TWUC addressed the Law Amendments Committee of Nova Scotia’s legislature. He criticized Bill 17 as an infringement of free expression rights in the Canadian Charter of Rights and Freedoms. He also warned that writers who were wrongly convicted of crimes or merely charged with offences would be prevented from revealing miscarriages of justice in Nova Scotia. Thurston cited Guy Paul Morin, David Milgaard, Donald Marshall and Dr. Martin Luther King as examples of wrongly imprisoned writers.[1] On Nov. 7, 2006, TWUC also released a statement entitled “‘Son of Sam’ Bill May Impede Crime Prevention, Writers Say.”

BlackFlash [November 2006] In Saskatoon, the editors of BlackFlash, an art magazine, decided to publish a story called “The Last Taboo: Child Sexuality and Censorship” in their fall issue but withdrew seven accompanying pictures to avoid violating Canada’s Child Pornography Act. The editors pulled reproductions of two 19th-century paintings, four photographs—including one created by Victorian artist Charles Dodgson and another created in 1991 by Robert Mapplethorpe—and a Calvin Klein ad from 1995. The magazine appeared two months late because the publisher had difficulty finding a printer willing to risk violating the Child Pornography Act. The debate over the article and images also prompted four members of BlackFlash’s board of directors to resign.

Alan Moore and Melinda Gebbie [Oct. 27, 2006] The Canada Border Services Agency (CBSA) authorized the importation of Lost Girls by Alan Moore and Melinda Gebbie into Canada.[2] Lost Girls is a book-length cartoon that depicts the erotic adventures of Alice (of Alice’s Adventures in Wonderland), Wendy (of Peter Pan) and Dorothy (of The Wizard of Oz) in Europe before the First World War. The CBSA had detained the book as potentially obscene.

Canada Post [Oct. 26, 2006] In Vancouver, 60 unionized postal workers refused to deliver a booklet published by the Fundamental Baptist Mission of Waterford, Ontario. The publication, called The Prophetic Word, carried a front-page story entitled “The Plague of the 21st Century: The Consequences of the Sin of Homosexuality (AIDS).” The postal workers described the booklet as “homophobic” and as “hate literature.” But Lillian Au, a spokesperson for the Crown corporation, said Canada Post may not censor the mail. The booklet was eventually delivered to Vancouver homes.[3]

Juliet O’Neill [Oct. 19, 2006] In Ottawa, Madam Justice Lynn Ratushny of Ontario’s Superior Court of Justice struck down three sections of the Security of Information Act. She also quashed warrants used by the Royal Canadian Mounted Police (RCMP) to search the home and office of Juliet O’Neill, a reporter for the Ottawa Citizen, in 2004. Ratushny’s ruling—combined with federal Justice Minister Vic Toews’s decision on Nov. 3, 2006, not to appeal Ratushny’s ruling—freed O’Neill from Crown prosecution for relying on an anonymous government informant and a leaked classified document to write a news story about Maher Arar in 2003.

In 2002, the RCMP suspected Arar—a Syrian-born Canadian citizen—of having ties to al-Qaeda. On Sept. 26, 2002, while in an airport in New York, Arar was detained by U.S. authorities and deported to Syria. In Syria, Arar was imprisoned for more than a year and tortured. On Nov. 8, 2003, O’Neill wrote a news story in the Ottawa Citizen about the RCMP, Arar and the Syrians. On Jan. 21, 2004, the RCMP raided O’Neill’s home and office to discover the name of the government employee who had supplied O’Neill with the information for her story.

Action: TWUC published an open letter to Vic Toews on Oct. 30, 2006. The letter urged him to let Ratushny’s decision stand.

Canadian Librarians [2006] Several Canadian university and college libraries switched from using servers in the United States to using a server at the University of Toronto to protect the privacy of Canadian scholars who research information in U.S. computer databases. Canadian librarians learned that the U.S. government secretly monitors the on-line searches of people who look for information in U.S. databases such as RefWorks.[4] The U.S. government secretly monitors on-line research to detect terrorists; the U.S. government’s authority for monitoring on-line research stems from the USA PATRIOT Act. In 2006, Canadian institutions such as Memorial University in St. John’s, Dalhousie University in Halifax and the University of Alberta in Edmonton switched to Canadian servers.

2. Other Noteworthy Events

Christopher Hitchens [Nov. 15, 2006] At the University of Toronto, famed journalist Christopher Hitchens participated in a formal debate over the decriminalization of hate speech. Hitchens argued, along with two speakers, that free speech should include the legal right to express hateful opinions. Two other speakers defended the criminalization of hate speech.[5] In the end, the audience upheld the resolution to decriminalize hate speech by a vote of 205 to 87.

Contact Franklin Carter at 416-233-0994 or rfcarter@idirect.com for the sources of these stories.

The opinions expressed in Freedom of Expression Update do not necessarily reflect the official views of the Book and Periodical Council or its member associations.

© Richard Franklin Carter 2006

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