Pornography as an issue in Canadian public policy
Date
1987
Authors
Rapaport, Frances S.
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Abstract
The federal government is being pressured into formulating new policy on pornography. The government has tried on several occasions to draft legislation which would meet the requirements of lobby groups, the pornography industry, the justice system and the general public. Each attempt at draft legislation has met with considerable criticism and, to date, the 1959 legislation remains in place. The former Liberal government had appointed a task force in an attempt to, locate a public consensus and a resolution to the problem. Recommendations of this task force were met with some reservations and were not followed by the Progressive Conservative government which had taken office in the interim. Instead, both of the Justice Ministers under the current administration have introduced bills which reject the liberal approach taken by the appointed task force and, instead, have adopted a far more conservative, puritanical approach to the issue.
This paper presents evidence to support the thesis that the only policy which can effectively resolve the government's dilemma is one which is predicated on the analogy between pornography and hate propaganda, and thus deals with pornography as a human rights issue. This approach attains legitimacy for the legislation by presenting itself as a compromise position between essentially contestable concepts, since no public consensus can be reached. Moreover, the human rights paradigm is one which is fundamental to the ideology and principles of liberalism, and is therefore consistent with the Canadian public philosophy.
Chapter I presents a discussion of the pornography controversy within the context of Canada's public philosophy. Relying on the writings of Robert Presthus, A. Paul Pross and Ronald Manzer, this chapter argues that public policy in Canada must remains within the parameters of liberalism in order to maintain legitimacy. There follows an analysis of the liberal dialectic and the place of the human rights model within liberal ideology.
Chapter II explores the philosophical arguments underlying the pornography controversy and demonstrates how each of these arguments is rooted in a distinct political ideology. It goes on to argue that, with respect to pornography, the human rights approach provides a philosophical compromise between the three major ideologies represented in the debate, and is consistent with current patterns in Canadian public philosophy.
Chapter III explores the conceptual and legal frameworks for hate propaganda legislation in Canada. There follows a discussion on the relationship between the regulation of hate propaganda as a policy instrument in preserving social harmony and our multi-cultural heritage, and the protection of civil liberties, in particular, freedom of expression. This discussion takes place within the context of liberal theory and public policy.
Chapter IV explores the hate propaganda model with respect to pornography issues. This chapter looks at the history of obscenity legislation in terms of both public policy and legal principles. The chapter goes on to explore recent jurisprudence on obscenity as compared with policy issues and legal interpretations of hate propaganda legislation. The two are again compared in a constitutional context, with respect to both policy considerations and legal interpretation of the recently entrenched Charter of Rights and Freedoms. The conclusion arrived at is that pornography legislation, if based on the hate propaganda model, would address the major issues raised by all three philosophical perspectives, and in addition would achieve a high degree of congruence with both the technical requirements and the underlying policy of the Charter. The Conclusion presented in Chapter V seeks to relate the approach herein proposed for pornography with social policies in related areas over the past decade.