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Another viewpoint.

It seems almost impossible that I am writing the editorial for the first issue of out twenty-ninth year of production, at first as Resource News and more recently, for many years, as LawNow. It was about eight years ago that we arrived at a motto that satisfied us all, "Relating Law to Life". That is the line we think about each time we choose Features and Special Reports, each time we assign particular articles, and each time I edit the articles.

This issue is an example of our relating law to life. The Feature deals with some of the very high costs of marriage breakdown. This is not an uplifting topic; but as one writer points out, four marriages out of ten now end in divorce. So it is a very real part of everyday life for a large percentage of out population.

The Special Report is a more hopeful relationship of law to life, describing four different projects that Canadian lawyers and law students are involved in on a voluntary basis, helping people internationally, nationally, and locally. It provides a very different look at lawyers, and as well as perhaps reducing cynicism, it also might inspire a few of the students who read LawNow to consider a legal career.

The columns, as usual we hope, provide a kind of potpourri where at least one or two columns will relate directly to what's happening in each reader's life. And in School's In for this issue, I developed a simple mock trial about freedom of expression during elections for upper level elementary students, based on the Harper v. Canada case about advertising by groups other than political parties.

Freedom of expression is one of those Charter freedoms that we tend to only think about when ours is limited or someone else's ought to be. The tragic Holly Jones story came to court this week, as I write, and during the interview in which the offender admitted killing the young girl, he explained he was looking at child pornography all day and became so aroused that when he left his house, he was determined to take the first child he saw and act out his fantasies. Offender Briere's comment about being aroused by child pornography will obviously again raise the question of whether there is any valid defence for possessing it.

The definition of child pornography in the Criminal Code currently includes any child (under 18) involved, or appearing to be involved, in sexual activity; any visual whose dominant characteristic is showing, for a sexual purpose, sexual or anal regions of the child; and any material that advocates or counsels sexual activity with a child.

The very first person charged under this section of the Criminal Code was a painter, Eli Langer. The result of this case was the discharge of the artist and the creation of the defence of artistic merit. This has created much scorn among those whose sole purpose is to protect children. However, when Romeo and Juliet could be caught within the Act without the artistic defence, it does raise the question of what happens when someone writes or paints about young love in an artistic fashion.

On the other hand, I don't know that anyone argues very hard, even for art, when the medium is photography, video, or these days, someone's cell phone since all of these seem to require a child to be involved. In the R. v. Sharpe case, (the BC man who argued his right to possess child pornography up to the Supreme Court) the Court did make a distinction between sexual nudity and "nonsexual nudity" such as "photographs of a baby in the bath." Frankly, I'm not certain I agree with the Court on that issue. Nevertheless, that is the state of the law for the moment

When Parliament was shut down for the election, it also killed a bill that would make any visual representation of children's sexual regions or activities require a defence that it was for the public good. For example, such representations could be used for education of children, for assisting the police or social workers to talk with children about assault, and so on. We can only hope that the new government can find a way to protect children without destroying all possibility of children as a subject for art. After all, the protection of children without paralyzing the rest of society is as close to relating law to life as one can get.
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Author:Mildon, Marsha
Geographic Code:1USA
Date:Aug 1, 2004
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