VOL 7, ISSUE 2 SPRING 2013

Fifty Shades of Sex, Gender and Politics The Kids are Alright? “The kids are ther in the book review of take a community to raise your al­right”. While “The End of Men” by Kathryn kid and why the government a popular ti­tl­e Marshall, who points out how won’t do anything about it. of a 2010 mov­ Rosin’s book argues that women All the while, the crumbling ie where the have a newfound power and children of les­ control in their sexual lives institution of , subject bian moth­ers, where they are free to date and to ever declining enrolment, was con­ceived by artificial in­sem­ “hook up” without the pressure opened up to homosexual men ination, bring their father into of being nailed down to the and women in Canada and most their family life, the kids may be institution of marriage or a recently in New Zealand. Many anything but alright today. News relationship even. argue, including Simon Fraser of Rehtaeh Parsons’­ suicide The same feminist move­ University professor Doug Allen after an alleged gang and ments of the 1960s that Mar­ in this issue, that same sex the ongoing harassment at the shall’s book review explores, marriage has changed the legal finger tips of kids her age as which pushed women out of the and social meaning of marriage they texted unflattering photos home and into the workplace, in ways never anticipated. The of her around the community, which has contributed in part results for Allen demonstrate following on the heels as it was to the breakdown in teenager that the children of same sex of other well publicized similar morality as Barbara Kay international incidents, seems to are not doing as would no doubt argue, is being well in terms of education as suggest something is afoul. institutionalized in law. children of opposite sex married In this issue, Barbara Kay, Lawyer Derek James From parents. It may very well be weekly columnist for the explores a recent seminal court Nat­­­ional Post newspaper, time to revisit the “one size decision that is lock step in line fits all” notion of marriage and argues that, “It is an infallible with the prevailing attitude that allow marriages of the same sex rule of human nature that family and child rearing are variety to evolve on their own appetites ungoverned by mor­ responsibilities of society and al boundaries will feed on not those of families themselves. terms. themselves and metastasize Now, women (and men) have In this issue of C2C journal, all uncontrollably”. The result a right to a job that fit the time of these issues and others, are may very well be, among other constraints of their personal on the table. Even for the most things, the pervasiveness of family lives, while employers and the hook-up liberal of readers, it promises to and co-workers are expected to make you question whether in culture on university and college shoulder some of the burden of fact the kids are alright? campuses that we hear so much what was previously seen to be about lately and that is reflected the responsibility of individual in the popular culture of today. families themselves. In short, Chris Schafer, This theme is explored fur­ From explores why it shouldn’t C2C Journal Issue Editor

C2C Journal’s editorial board: Media Inquiries Patrick Callaghan, Adam Daifallah, Sylvia LeRoy, Mark Milke, Mark Milke Email: [email protected] Andrea Mrozek, Joseph Quesnel, and Chris Schafer. © Copyright 2013. Canadian Journal of Ideas Inc. All Rights Reserved. For permission to reproduce an article, please contact the editors. Canadian Journal of Ideas Inc. the editors, or the advisory board members. Website: www.c2cjournal.ca The views expressed in C2C do not necessarily reflect those of C2C, Editor of this issue: Chris Schafer Email: [email protected] Associate Editor: Kathleen Welsch

2 Volume 7, Issue 2 Contents _ Spring 2013 Same-sex marriage and Disneyesque fantasies ...... 4 by Doug Allen Same sex marriage has changed the legal and social meaning of marriage in ways never anticipated. Almost eight years after the introduction of same sex marriage in Canada we now know that i) there are very few and gays in the country, ii) very few of them actually marry, iii) even fewer of them have children, and iv) the children are not doing well in school relative to children of opposite sex married parents. Perhaps it is time to revisit the “one size fits all” notion of marriage and allow same sex marriages to evolve on their own terms.

A brief history of the Book Review: Hanna ideological roots and Rosin’s The End of cultural fruits of orgasmic Men ...... 14 utopianism...... 8 by Kathryn Marshall by Barbara Kay Contrary to what the eye- In this essay Barbara Kay traces the impulse behind catching title suggests, this is "Sex Week" on university not a book about the end of campuses, including U of men. Rather, it’s a book about , with its emphasis evolving gender roles and on pornography, voyeurism and moral vacancy. The the incredible advances women have made, and what theorists taught have served to create a false morality this means for society. Weaving together statistics and based in genital apocalypticism. The result is a "hook- insightful interviews, Rosin presents a case that women up culture", pandemic pornography, erosion of ability to experience intimacy, self-sacrifice of girls and women to haven’t just achieved the equality dreamed of by the unnatural behavioural "norms", and the subversion of feminist movements of the 60’s and 70’s, but they’ve the pillars on which civilized societies rest. now surpassed this goal and have pulled well ahead of men. However, in an age where female CEO’s and It shouldn’t take a political leaders are still somewhat of a rarity, Rosin’s community to raise thesis seems premature and selectively pieced together. your kid and why the government won’t do anything about it. . . 11 Why are Canada’s courts by Derek James From soft on sexual crimes The government cannot be against children? . . . 19 trusted to fully defend its by Bob Tarantino interests against positive rights claims. When a positive rights Our justice system is failing claim is successful against a government defendant, children who have been subject the costs associated with that unfavourable ruling are to the most awful and horrific dispersed across a broader segment of society and of crimes. Toronto lawyer and ultimately borne by taxpayers. In such circumstances, government lacks a sufficient incentive to fully defend C2C columnist Bob Tarantino its interests because it can pass on to others any new explains… (Caution: the following article contains burdens it receives. descriptions of the crimes.)

3 Volume 7, Issue 2 Same-sex marriage and Disneyesque fantasies

By Doug Allen where every possible type of family arrangement is all right, and irrelevant to any social purpose. BC’s television show Modern Family is amazing entertainment. It is brilliantly written and Real life is so much more complicated than a Aacted, and well-deserving of its numerous television show. Contrast any episode of Modern Emmy and Golden Globe awards. It is also post- Family with the strange case of Craig Hutchinson. In modern propaganda. 2006 the Nova Scotian Hutchinson poked holes in all of his girlfriend’s in an effort to get her The show is centered around Jay Pritchett and his pregnant. He was successful, but when she found out immediate family members. Jay is a sixty-something what he had done she went to the police and he was wealthy owner of a construction firm who is married initially convicted of aggravated in to his much younger trophy wife Gloria. Gloria has a 2009. That conviction was overturned on appeal, but son Manny from a previous marriage, and together a second Nova Scotia court found him guilty of sexual they have a newborn son. Jay has a married daughter, assault and sentenced him to eighteen months in and a gay son Mitchell who is married to Cam. The jail. The appeal of that charge was upheld in January latter have an adopted daughter named Lily. of 2013, and is likely to be appealed to the Supreme The over-riding sub-text is that “love conquers all.” Court of Canada. Whether or not Jay will be dead by the time his newest On the surface, the moral of the Hutchinson case son reaches middle school, or whether or not Lily simply seems to be “watch out for untrustworthy will suffer without a mother, are questions with an boyfriends.” But it turns out to be deeper than this, obvious answer: “family” structure - the set of formal and connected to the meaning of marriage and our and informal rules and expectations that regulate our history with same sex marriage. At a first pass, what lives with others - doesn’t matter. A “modern family” makes the Hutchinson case so important are the founded on loving relationships is a happy place implications for the rest of us.

4 Volume 7, Issue 2 Consent, kids, and the family unit Same sex marriage: a difference in kind, not just As noted in the appeal trial, if a woman lies to her degree male partner about her use of pills, is she The point is that same sex marriage was not a guilty of sexual assault? If a child results from a sexual simple addition, but a redefinition. Consider another union in which the male only consented to have sex, example related to Mr. Hutchinson. An ancient is the father liable for child support? The case of legal family doctrine has been the “presumption Mr. Hutchinson cuts right to the heart of consent, of paternity.” This doctrine held that no one could intercourse, and parenthood. That is, where does this challenge the paternity of children resulting from the boundary of consent start and finish? union of a man and woman (with the exception of the It is a new problem for a post-modern world. man himself). If a man was having sex with a woman, Historically, if you had sex you were likely to have and a child resulted, then the man was presumed to be babies (indeed, it still works the parent. The purpose of this this way!), and consent to sex doctrine was to tie together sex was consent to be a parent. and diapers. No man could deny Ours is now a land where we Most Canadians his parental responsibility on the have created a legal fiction that ❝ grounds that he had agreed to separates sex from babies. It think that same have sex, not children. has been a long time coming. sex marriage did But the presumption of Both the widespread adoption paternity makes no sense in a of the oral birth control pill little more than just in the 1970s and the ready “add” another type world of same sex marriage. availability of abortion have of couple to the After all, in a lesbian marriage there is no male, and in all same made the separation possible marriage franchise. in practice. However, it was not sex marriages sex does not lead until the introduction of same In reality, literally to children. So out it went, and sex marriage in Canada in 2005 hundreds of we have ended up a short while that the separation became a laws had to be later with the strange case of Mr. principle in law. Hutchinson where the appeals changed, but more court has agreed that consent to Most Canadians think that same sex marriage did little importantly the sex does not necessarily mean a more than just “add” another entire notion and consent to parenthood. Where this will all end, is anyone’s guess, but type of couple to the marriage meaning of marriage franchise. In reality, literally the consequences are not likely hundreds of laws had to be changed – both in to be good. They won’t be good changed, but more importantly a legal and a social because, unlike Modern Family, the entire notion and meaning way. love is never enough when it of marriage changed - both ~ comes to regulating the selfish in a legal and social way. For behavior of spouses and children. example, consider the meaning Which is why the institution of of “parent.” Historically the legal definition of parent marriage was invented and is ubiquitous across time always began with the biological relation of the mother and cul­tures. and father. Exceptions were made for adoptions, but the concept of “natural parent” was important in The modern marriage: A breakdown in the connecting every child with their biological parent. “civilize us” deal This concept of parent was discarded for what is now I raise the contrast between Modern Family and Mr. generally known as “legal parenthood.” A parent is Hutchinson because on the surface Canadians seem to now the one legally recognized as the parent. This hold a Disney-like view of marriage where everyone may be presumed to be the biological parent, but in lives happily ever after once they have found their a world of same sex parenting, this doesn’t always soul mate, when the reality is sometimes people poke make sense. holes in condoms and otherwise behave badly. Over

5 Volume 7, Issue 2 the centuries, the social institution of marriage has actually married. For gays the numbers are more developed to mitigate the bad behavior and encourage dramatic. There are about 143,000 in the good behavior. In adopting same sex marriage Canada country, but only approximately 11,500 children, fundamentally altered that institution, and the case and only 4.9% of gay men are married. Contrast this of Mr. Hutchinson (along with others) show that this with heterosexuals. About 34.5 million people are change was not without a cost. heterosexual, and of these close to 49% are married. And this begs the following question: if Canada There are approximately ten million children in the radically altered its most basic and fundamental country. institution, what was the reason for? If one pays According to this large, random sample survey, attention to the same debate taking place south of if we add up all gay men, , and bi-sexuals the border, one might conclude that Canada changed they amount to only 1.42% of the population. These marriage for “equality” reasons. households account for less than one third of one However, “marriage equality” is a recent U.S. slogan, percent of all children. Gay men and lesbians have and it was not a large part of the debate in Canada. not flocked to marriage, nor have they experienced At the time it was simply argued that there were i) a baby boom. Indeed, the survey suggests that over large numbers of gay 90% of children in and lesbian folks, ii) these homes come these folks wanted from a previous to marry, and iii) heterosexual union they wanted their It doesn’t matter children to have the which way you slice benefits of marriage. it, the argument for Problems like those the social benefits of of Mr. Hutchinson same sex marriage — that someone seem quite small giv­ could consent to sex en the small numbers without also con­ of gays, lesbians, and senting to the re­ children involved. sponsibility for its results — were not Marriage or an­ticipated, and marriage-like so the small risks unions seemed nothing com­­­ Perhaps the ben­ pared to the po- efits of same sex tential benefits. It marriage come from was practically a no-brainer. providing institutional­ protect­ion to the children in From a social science point of view, one of the these unions. For decades studies based on small benefits of same sex marriage has been the collection biased samples of lesbian mothers have shown that of data on people with alternative sexual orientations. children perform equally well, if not better, in same Statistics Canada now collects information that sex households where a “double dose” of motherhood simply didn’t exist in the past. And the numbers might increases child performance. surprise a few people. As larger, more reliable, data sets have become available the question of child performance can be A fact-based analysis of where we are more accurately estimated. Recent work by myself Let’s just start with the simple question of how and others using the and Canada census many? According to the Canadian Community Health files have shown interesting results that contradict Survey, there are only about 80,000 lesbians in the the above notions of lesbian mother households as entire country. Of lesbian households, there are being superior to heterosexual households. (Until approximately 24,000 children with only a small very recently, no one ever examined gay parented fraction being adopted, and only 12.2% of lesbians households.)

6 Volume 7, Issue 2 In the United States the census allows the match up they ignore such factors, but they turn out to researcher to know if a child has made normal play a minor role in the choice of partner. This makes progress through school; that is, whether or not the some sense because sex between members of the child has failed a grade. In Canada, the information is opposite sex often leads to children, and both parties slightly different, but the researcher can tell if the child have an interest in high quality genetic and healthy has graduated from high school or not. It turns out offspring. As a result, heterosexuals worry more about the health and genetic traits of their sexual partners that the results from both countries are remarkably than do same sex couples. similar. Holding constant a number of demographic variables, including marital status, in the United Differences in matching is just one of the new States a child who grows up in a same sex household behavioral differences that researchers are now learning about. No doubt there are many more. is about 35% less likely to make normal progress Which puts a twist on the original question: why through school compared to a child who grows up should an institution like marriage, which has in an opposite sex married household. In Canada, a evolved over centuries to manage and regulate similar child is only about 70% as likely to graduate heterosexual relations throughout a procreative from high school. Other recent studies have found life cycle be of optimal value to same sex couples results that suggest the children in these relationships who have a fundamentally different relationship are also struggling. with their partner? It is easy Part of the reason for poorer to understand why same sex child performance might be couples would have supported the instability of same sex un­ The genie is out same sex marriage — it was the ions. Married lesbians are ❝ best they could do under the of the bottle, and no circumstances of the time. about three times more likely, one is suggesting and married gays about 1.5 Perhaps a better type of times more likely, to divorce an elimination of marriage exists for same sex compared to opposite sex marriage rights from couples that could handle the married couples. This higher same sex couples. unique circumstances of their divorce rate holds even when unions, without being imposed there are children involved. However, what is the on the unions of opposite sex Social scientists do not case to be made for a couples. It is an important understand why same sex “one size fits all” type ques­tion because, as the marriages are less stable, but of marriage? Hutchinson case points out, the effect of divorce on children ~ changes made to accommodate is well known. Still other same sex couples apply in bad research suggests that fathers ways to opposite sex couples. and mothers are not perfect substitutes for each In other words, about the only benefit of same sex other, and so children benefit from having different marriage is that it allows gays and lesbians to acquire sexed parents. In any event, seeking a justification for the private marriage benefits, without contributing same sex marriage through benefits to children does to the social ones. This would be fine if the current not look promising. system did not impose costs on other married relations. Indeed, it begs the question of redefining Are we sure that marriage reflects most gay and lesbian choices? marriage for individual aims and priorities over larger social benefits and costs. Recent work on matching and sorting behaviors has shown some other interesting differences The evolution of choice for all between couples of different sexual orientations. When a heterosexual is considering matching up with As Canada continues to wrestle through the someone of the opposite sex, one consideration turns changes that will come, perhaps we should not be out to be the other’s genetic fitness and overall health afraid to revisit the entire question all over again. status. This is not to say that when gays and lesbian The Modern Family answer is that loving individuals

7 Volume 7, Issue 2 should be allowed to marry regardless of their sexual unions be allowed to evolve on their own terms? orientation (unless they are polygamous on religious Who knows what these evolutions would be. Some grounds). But marriage based on love is a Disney idea have suggested “term limits,” and different “property with as much depth as an animated feature. Marriage rules.” It really doesn’t matter what the changes are. is actually a complicated social institution intended to The point is only that changes made to suit one type manage the selfish and often bad behaviors that arise of marriage should not be applied to other types of when two people want to live together. If there are marriages. If the changes are not well suited for the no strong numerical reasons for the current form of vast majority of heterosexuals, then why should we run the risk of meddling with one of the most basic same sex marriage and if such marriage is bad for the and bedrock institutions ever invented? rest, then perhaps a different option is warranted. Mr. Hutchinson may strike some as an anomaly and The genie is out of the bottle, and no one is an exception, but I suspect his case is more the tip of suggesting an elimination of marriage rights from an iceberg.♦ same sex couples. However, what is the case to be made for a “one size fits all” type of marriage? If, as Douglas Allen grew up in Langley, British Columbia, and earned his Phd at the University of Washington in 1988. He was an assistant we are learning, same sex unions are different from professor at Carleton University in Ottawa before he moved back to opposite sex ones, then why should their marriage Simon Fraser in 1990, and is now the Burnaby Mountain Professor of regulations be the same? If, as we are learning, same Economics. Professor Allen has published over 70 academic articles, along with five books. His latest book, The Institutional Revolution: sex unions are not very stable under the current Measurement and the Economic Emergence of the Modern World marriage rules, then why shouldn’t these types of (2012), is published by the University of Chicago. A brief history of the ideological roots and cultural fruits of

orgasmic utopianisms

By Barbara Kay on the grounds that the clubs did no harm. n December 21, 2005, the Supreme Court of By harm, they perhaps had in mind physical pain Canada ruled (with two vigorous dissents) or coercion. They did not, as they should have, give Othat for-profit sex clubs could operate legally thought to the social harms their decision opened without regard for community standards of decency, the door to. For thenceforth, it was legal not only

8 Volume 7, Issue 2 to operate group-sex clubs, but to advertise and this matter.” solicit business from young men and women at a In her place I would decline as well. For what is psychologically vulnerable stage of life. there to say? It is clear that the U of T is appalled by And so, it was perhaps inevitable that during its even the thought of students using guns for recreation 2012 “Sexual Awareness Week,” the University of and competitive skill-building, even in a safe Toronto’s Sexual Education Centre (SEC) would underground environment so hidden many people include a deeply-discounted excursion to the Oasis were surprised to learn of its existence, but benignly Aqua Lounge, an aqua-themed where baskets smile on a sex “awareness” week, during which the of condoms are helpfully stationed throughout come-one-come-y’all screening of pornography, the building, where full nudity and voyeurism are the marketing of sex toys and subsidized orgies are encouraged, and sex is permitted “everywhere but the subsumed under the rubric of “education.” hot tub.” The sharp contrast in However, when one enthu­ the university’s values siastic student promoted the – guns, symbolically align­ event as an “orgy” – precise and The sharp ed with patriarchy and pol­ fair comment on the sex club’s ❝ itical conservativism, are line of business – the SEC and contrast in the evil; transgressive sex, sym­ the University administration university’s bolically aligned with female erupted in dudgeon at the values – guns, empowerment and political word’s moralistic overtones. A progressivism, is good – pro­ SEC spokesman blustered that symbolically aligned vides us with a historical it was not an orgy, not at all; with patriarchy teaching moment. rather it was a...“sexy social,” For proliferating campus its purpose “to foster a sex- and political sex weeks – inaugurated positive attitude in the greater conservatism, are at Yale University, then U of T area.” evil; transgressive replicated at Harvard, Brown, This risible euphemism was sex, symbolically Duke, North­western, and oth­ nothing but a sanctimonious aligned with female ers - are not spontaneously bid to transform an invitation con­­ceived projects. Rather to vice into a pious act of social empowerment they are the culmination of virtue. As I mockingly noted and political nearly a century’s promotion in the ’s opinion progressivism, is by left wing intellectuals of blog, Full Comment, “I was what we may call “orgasmic not aware there was a ‘sex- good – provides us utopianism.” negative attitude’” in the area. with a historical The left has changed its I also took the university to teaching moment. centre of gravity over the task for lending its name and decades. In the first half of the money to the event (facilitated ~ 20th century, the left focused by default student dues). its activism on economic rev­ Stung by the public criticism, the U of T’s olution: chiefly on the empowerment of unions communications director informed me (in an and furthering state ownership of the means of unsolicited e-mail) that it was not the University’s production. But during the 1960s counter-culture, policy to “censor, control or interfere with any group the focus shifted to social and as the on the basis of its philosophy, beliefs, interests or opinions,” unless they led to illegal activities. left’s consuming obsession. According to Jeffrey Bell, policy director of the American Principles Project, this I then called the U of T out for hypocrisy, citing the University’s 2007 decision to shut down the campus’ shift in focus wasn’t an innovation so much as a return th 88-year old rifle club on the grounds of “values.” To to the left’s origins in late 18 -century France, when which the communications director responded, “The the left “took the form of an assault on organized University would like to decline further comment on religion and the traditional family.”

9 Volume 7, Issue 2 But the underlying principle that human beings to the allure of Reich’s snake oil: such brainiacs as under capitalism lived in a state of oppression, and Norman Mailer, J.D. Salinger, Allen Ginsberg and Jack wanted liberation through revolution, remained Kerouac, amongst others. Saul Bellow “irradiated” constant. Just as leftist ideologues never considered himself daily in the box. Woody Allen parodied the that, far from being oppressive, private property and Accumulator as the Orgasmatron in his 1973 film reward for individual enterprise were consistent Sleeper. with human nature and the drivers of economic In his book Adventures in the Orgasmatron: prosperity, so they could not imagine that codes of and the Invention of Sex, Christopher sexual , restraint, exclusivity and long term Turner explains how, through the “apocalyptic commitment were not symbols of oppression either, ,” Reich became a prophet of salvation but also accorded well with human nature and were to intellectuals struggling to come to grips with the drivers of social stability. In their eyes, the sexual Communism’s failings. Reich’s theories were hotly revolution was the social equivalent of the worker’s debated along predictable lines. Progressives saw the revolution – a liberation from (ironically claustrophobic) box what they read (erroneously) as liberating; conservatives as servitude. saw it as corrupting. But these are abstract ideas. The Joy of Reich’s timing didn’t hurt. How did the “liberation” trope ❝ Sex cemented the The on human filter down into the general … sexual behaviour – on males population? illusion in the popular in 1948 and females in 1953 The demotic fusion of sex imagination that - had galvanized the nation. and politics is the brainchild of sexual passion and “Frigidity” and wife swapping German Marxist psychoanalyst Wilhelm Reich, who coined fulfilment fall into the were now part of the cultural “the sexual revolution.” Reich, line of purely scientific conversation. Kinsey’s data a disciple of Freud (whom inquiry, with sexual played straight man to Reich’s Freud disowned in a schism razzamataz. Together they over ) believed that satisfaction purely a brought the house down. both political revolution and function of uninhibited Reich influenced many the realization of optimal orgasmic proficiency personal health had to be … other innovators, preceded by the overthrow of Voyeurism was now such as Fritz Perl, who bourgeois sexual morality. As projected as merely brought Gestalt therapy to he declared in his 1927 book, one more clinical tool the Esalen Institute in Big Sur, The Function of the Orgasm, California, and Arthur Janov “There is only one thing wrong in the advancement of who invented “primal scream” with neurotic patients: the knowledge. therapy, during which one lack of full and repeated sexual ~ writhed about and screamed satisfaction.” loudly. (Norman Mailer had Although Reich soon be­ his Accumulator padded so he came an embarrassment to his professional colleagues could scream uninhibitedly while absorbing orgone in Germany, who considered him quite whacko, not rays.) to put too fine a point on it, Americans, especially intellectuals, looked kindly on Reich’s message when It’s difficult, now that the sexual “revolution” he arrived in the U.S. in 1939. So it was in the U.S. is simply a joyless stew of pornography (of which that Reich invented his Orgone Energy Accumulator, Reich disapproved, funnily enough), voyeurism and a telephone booth-like apparatus in which, via the revulsion art (a few years ago a Yale student created absorption of “orgones,” one allegedly achieved an art object out of what she claimed to be blood “orgastic potency,” leading to positive mental hygiene. and tissue from repeated abortions) to imagine how Einstein tried the Accumulator and refuted its spiritually elevated mid-century orgasmists perceived claims, but other cultural elites bought or paid homage themselves to be by their utopian visions.

10 Volume 7, Issue 2 But at the time, when God had passed from was the approved norm (but in which, mysteriously, the intellectual landscape, and the secular god of girls never became pregnant, a biological lacuna Mead Marxism was tottering, intellectuals were scrambling apparently did not question). for a replacement totalitarian vision. In the sexual Decades later, it was revealed that the islanders revolution, they found justification for the extreme, had led Mead a merry dance, telling her what she shame and guilt-free indulgence of sexual appetites seemed to want to hear. In reality, Samoan children by creating a morality of pleasure, with were raised according to what we would recognize ennobled to a form of political activism. as conservative principles of modesty, restraint and Norman Mailer wrote in his 1957 book, The White decorum. Negro, “Man knows at the seed of his being that (In 1928, of course, it would have been unthinkable good orgasm opens his possibilities and bad orgasm to recommend that, for optimal psychological health, imprisons him.” This is American children should errant nonsense, of course, have as much sex as they but it offers a sobering wanted with however many glimpse into the bottomless peers they fancied between capacity for self-delusion in puberty and marriage under support of amorality that can the benign gaze of parents co-exist in perfect harmony and educators. But the with a superior mind. implied message of the book The works of psycho­ would eventually become analyst Havelock Ellis (1859- the precocious vision of most 1939) enjoyed a vogue in the programs in 1950s. Seriously sexually western schools today.) troubled himself, Ellis was Then there was British an orgasmic utopian who sexologist Alex Comfort, believed notions of duty and whose best-selling 1972 morality-based goodness book, The Joy of Sex, made were barriers to true good­ Comfort a celebrity of rock- ness, which naturally de­ star proportions. The book pended on unfettered sexual also cemented the illusion exploration. Ellis broadened in the popular imagination the contours of the con­ that sexual passion and ful­ venient fig leaf “science” filment fall into the line of provided­ for a movement purely scientific inquiry, with that essentially sought to sexual satisfaction purely demolish the behavioural pil­ a function of uninhibited lars of civilized society. or­­gasmic proficiency. Ob­ By 1964, Time Magazine’s serving volunteer couples January edition informed having sex, part of Comfort’s its mass audience, “Gradually, the belief spread that methodology – voyeurism to the unenlightened – was repression, not licence, was the great evil, and that now projected as merely one more clinical tool in the sexual matters belonged in the realm of science, not advancement of knowledge. morals.” Sexologist John Money’s name may ring a bell America was finally catching up with Samoa. Or to those who follow trends in theories of gender rather with the famous anthropologist Margaret identity. He was the genius who advised the parents Mead’s romantic vision of Samoa. A disciple of of twin boys, one of whose penis’s had been damaged Ur-cultural relativist Frans Boaz, Mead did her in a botched circumcision, to have the boy castrated anthropological field work there. Her 1928 best seller, and brought up as a girl, assuring them “social Coming of Age in Samoa described a noble-savagist construction” dictated . His confidence society in which guiltless, freewheeling adolescent sex was based wholly in theory. The outcome was tragic.

11 Volume 7, Issue 2 But Money never accepted blame for the stubbornly on themselves and metastasize uncontrollably. A male-identifying victim’s eventual suicide. second infallible rule is that unregulated appetite Like the other orgasmic utopians, Money believed may produce periodic episodes of pleasure, but our sexually taboo-ridden society was the source of all cannot produce enduring happiness. But the orgasmic unhappiness, and that happiness was within our reach utopians were incapable of seeing that the prescription if only – if only – we broke more taboos! Including for fulfilment was not more transgression, but less. So pedophilia, which, he said, only those in a state of they kept pushing the sexual envelope in search of the “self-imposed moralistic ignorance” could condemn. ever-elusive grail of “enough.” Money is not an outrageous outlier in breaching It was inevitable that once promiscuity became what many people today believe is the last taboo normalized amongst young people, premature standing – sex with children. As I noted in an October jadedness would set in, and new sources of titillation 2012 column about the notorious BBC entertainer would be explored. Pornography is now ubiquitous, and pedophile, Jimmy Savile, “Savile may have and pushing the bounds of voyeurism is the current been emboldened by a group called the Pedophile frontier. Information Exchange (PIE). We saw that in the 2012 From 1974 to 1984, PIE “Sex: a Tell-All” exhibition openly campaigned on behalf mounted in Ottawa’s Science of pedophilia as a culturally and technology Museum, viable practice, arguing that Psychoanalyst whose curators seemed not adult-child sexual relations ❝ Havelock Ellis (1859- to understand that educating were harmless and should be children about legal. Their activists lobbied 1939)…was an to abolish the orgasmic utopian who (as if they needed instruction) and facilitated introductions believed notions of is properly done in private, between adults and minors.” controlled circumstances, not Some university professors in duty and morality- via animated demonstration the U.S. and even Canada (see based goodness on videos watched by under Hannon, Ryerson) have were barriers to true schoolchildren in the company of strangers. They had become openly declared their approval goodness, which of sex with – and/or between – blind to the bright distinction children. naturally depended between what is appropriate The common theme amongst on unfettered sexual behaviour in public and what all the orgasmic utopians exploration. is reserved for intimacy, was – is – that, in the words ~ a distinction on which all of conservative cultural critic civilized, decent behaviour Theodore Dalrymple, “sexual rests. relations could be brought to the pitch of perfection And now we begin to tighten the cultural noose either by divesting them of moral experience around the umbrage of the U of T administration over altogether, or by reversing the moral judgment that the use of the word “orgy” to describe the orgy in traditionally attached to them; all [orgasmic utopians] which the students were invited to participate. believed that human unhappiness was solely the To sexual revolutionaries, giving offense to those product of laws, customs and taboos.” holding the conservative, judgmental view is an This message directly contradicts the conservative entitlement the left cherishes almost as much as view of human nature and society, which regards the “liberation” itself. Turned tables are anathema. How restraint and regulation of all the appetites – through dare anyone challenge any sexual activity at all on the laws, customs and taboos - not only as conducive to retrograde grounds of “morality” or “decency”? personal dignity and psychological health, but as the But even though morality may never under any sine qua non of civilization itself. circumstances be applied to sex, that doesn’t mean It is an infallible rule of human nature that the left has abandoned morality altogether. Morality, appetites ungoverned by moral boundaries will feed judgmentalism and extreme prudishness are very

12 Volume 7, Issue 2 much in evidence amongst progressives when it ­ comes to certain other activities. fensively out of step with the times, simply had to go.♦ was welcome on campus, but the Rifle Club, sadly, of Like shooting guns. Consider the U of T rifle club, so antithetical, as Barbara Kay has been a weekly columnist with the National Post we have seen, to the university’s “values.” What are since 2003, and is a frequent contributor to the Post’s opinion blog, Full Comment. Her writing also appears in polemical blogs such as its hallmarks? Foremost: members’ recognition of Front Page Magazine and Pajamas Media. She has also published firearms’ power to harm others and the inherent essays in various magazines, such as the Dorchester Review and dangers of impulsive and irresponsible behaviour in the Canadian Observer. Her background is in English Litera- their handling. Then: mutual respect for protocols ture. She taught literature and composition for many years in the and boundaries; mature acceptance of personal CEGEP system. She is the co-author, with Aruna Papp, of responsibility for one’s actions; self-discipline; Papp’s memoir, Unworthy Creature: A Punjabi daughter’s memoir serious attention to skills-building with a view to of honour, shame and love (2012). Her new book, ACKNOWL- improvement in performance; trusting, reliable EDGEMENTS, a cultural memoir and other essays has just been camaraderie; and satisfaction in mastery of an exciting released. Barbara is a Woodrow Wilson Fellow. She holds The Na- pastime in a completely safe environment. tional Coalition of Men’s 2009 Award of Excellence for promoting gender fairness in the media. She was awarded a Diamond Jubilee Hmm. Sounds a lot like the conservative view of Medal for “excellence in journalism.” Barbara lives in Montreal. sexual relations, doesn’t it? Which is why, according She has two children and five grandchildren. Her columns and to the ’s stated “values,” the orgy various public addresses are archived at www.barbarakay.ca.

It shouldn’t take a community to raise your kid and why the government won’t do anything about it

By Derek James From though this case has the potential to adversely affect every employer in Canada, many legal experts expect n January 31, 2013, Fiona Johnstone won her that the government will not appeal the decision. discrimination case against the government at Othe Federal Court. (Canada v. Johnstone) Even Johnstone complained to the Canadian Human 13 Volume 7, Issue 2 Rights Commission in 2004 because she was unable discrimination because instead of protecting the to maintain full-time employment status due to interests of young workers with family obligations, her rotating shift schedule and ensuing difficultly this ruling encourages employers to find subversive securing childcare. Without full-time employment and clandestine means to ignore the job applications status, she was ineligible for workplace benefits. and advancement requests of otherwise qualified The Canadian Human Rights Tribunal (Tribunal) young workers since hiring and promoting those found that due to this ineligibility, Johnstone was the victim of an employment policy that discriminated workers is now associated with greater risk and against her on the basis of family status—i.e. having higher costs. children requiring childcare. What has been the government’s response? In The Federal Court affirmed cases like this, the government the Tribunal’s decision cannot be trusted to fully that Johnstone’s childcare defend­ its own interests in court because it has an schedule­ should have been Governments do accommodated by her gov­ ❝ insufficient incentive to put ernment employer, the Can­ not bear the financial up a good fight. Moreover, adian Border Service Agency burdens associated lack­ing sufficient incentive, (CBSA). Effectively, the de­ with an adverse the government may mount cision means that Johnstone a less than rigorous defence has a right to benefits and court decision in because the financial bur­ a job that fits the time the same way that dens associated with an un­ constraints of her personal a private defendant favourable court decision life. It also demonstrates are ultimately borne by the that both Johnstone and the does. When a taxpayers. court expect others—in this positive rights In defending its interests case, Johnstone’s employer claim is successful against Johnstone’s human and fellow employees—to against a government rights complaint, the gov­ shoulder some of the burden of ernment advanced three arg­ Johnstone’s life-choices. defendant, the costs uments. First, that the term Robyn Benson, head of associated with that “family status”, as used in the the Public Service Alliance unfavourable ruling Canadian Human Rights Act, of Canada, called this ruling should not be construed to “a huge win for Canadian are dispersed across include childcare obligations. workers with family ob­ a broader segment Second, that Johnstone had ligations”, and that “it is of society and not satisfied the prima facie now clear that employers test for discrimination. must carefully consider ultimately borne by And third, that the tribunal each and every family status taxpayers.” lacked the authority to order accommodation request ~ the remedies it awarded to and accommodate [those Johnstone. These arguments requests] short of undue —although interesting to hardship”. lawyers—do not truly strike It is unsurprising that organized labour would at the heart of the matter, especially from a private gleefully endorse this ruling—it greatly expands employer’s perspective. employer obligations to employees. But if The government did not argue that Johnstone Benson’s assessment proves accurate, employing has no legal right to receive workplace benefits, young workers (particularly women) with family that human rights legislation should not be used to obligations will become more complicated and costly. force others to bear some of the costs of Johnstone’s This is why this decision will ultimately backfire lifestyle, that Johnstone was requesting preferential and not have the desired effect of preventing future treatment, and that a victory for Johnstone would be

14 Volume 7, Issue 2 a setback for employees with childcare obligations. no direct impact upon the financial bottom-line at Although each of these runs contrary to existing and the CBSA since it is operated by the government established precedent, private employers had an and funded by taxpayers. Further, since it is the interest in these arguments being advanced in court. government’s legislation that enabled Johnstone to Of the arguments the government did advance, make a complaint, government lawyers were unable none addressed whether or not human rights to argue that the law is unconstitutional, poor policy, legislation can or should provide the basis for a or that it produces absurd results. In other words, positive rights claim. No where did the government not only did the government lack incentive to defend argue that human rights legislation should not itself fully, it may have had an interest in advancing be used as a means an incomplete defence of transferring the to preserve its own costs of an individual’s legislation. chosen lifestyle to other There are other ex­ members of society—in am­ples of when the gov­ this case, from Johnstone ernment cannot mount to her employer, her a rigorous or complete­­ peers, and ultimately, defence.­ On April 26, taxpayers. 2010, five applicants A private employer sued the Canadian and would have defended Ontario governments him­self vigorously a­g­ for failing to develop ainst Johnstone’s com­ an effective housing plaint because that em­ strategy to deal with ployer would directly inadequate and high- priced housing. (Tan­ bear the financial bur­den udjaja v. Canada) The of losing the case. The applicants are ad­ court’s decision means vancing a positive rights that every employee with claim asking the courts childcare obligations in to force taxpayers to cir­­cumstances similar fund their life-styles. to Johnstone’s must re­ The Attorneys General ceive accommodation of Canada and Ontario by employers short of have filed motions to undue hardship. This dismiss the application. gre­­at­­ly complicates And like the Johnstone an employer’s task of case, should this ap­ generating an employee plication proceed, both work shift schedule, as government de­fendants a particular segment will be incapable of of employees have mount­ing a complete effectively been given trump cards permitting them de­fence. to avoid working undesirable shifts. Even more, For example, one argument unavailable to the this decision not only restricts employer freedom, governments’ lawyers is that the governments’ it also has a negative impact upon employees who own policies and regulations are the primary cause do not have childcare obligations — since it is of inadequate and high-priced housing. As long- these employees who will be scheduled to work the undesirable shifts. time Governor of the Reserve Bank of New Zealand, Donald Brash said in his introduction to the 2008 But the government does not bear its own Demographia survey, financial burdens the way that a private employer does. A ruling, regardless of the result, would have “…the affordability of housing is

15 Volume 7, Issue 2 overwhelmingly a function of just one is defending itself against a positive rights claim. thing, the extent to which governments In every positive rights claim advanced in court, place artificial restrictions on the supply of the claimant is asking that his or her actions be residential land.” indemnified by the defendant. When such a claim is made against a private defendant, that defendant Although this may be a controversial proposition in the discipline of urban planning, notice that has a significant interest in defending itself since it no government that already places “artificial will bear the costs of losing. But this is not true for restrictions” on residential land supply could defend governments. itself by advancing Brash’s argument in court. To do Governments do not bear the financial burdens so would be to undermine its associated with an adverse own interventionist programs. court decision in the same Instead, in the Tanudjaja ap­ way that a private defendant does. When a positive rights plication, the Federal and ... a particular Ontario governments will be ❝ claim is successful against forced to justify their levels segment of employees a government defendant, of interference in the housing have effectively been the costs associated with market rather than address given trump cards that unfavourable ruling are what Brash thinks is the root dispersed across a broader of the problem. permitting them segment of society and ul­ to avoid working timately borne by taxpayers. Of course, this will suit the undesirable shifts. In essence, the government five applicants’ positive rights merely functions as a conduit claim well. As long as the Even more, the passing on to others any new arguments before the court [court’s] decision burdens it receives. con­­cern only the adequacy not only restricts There are two obvious of the governments’ housing problems resulting from this. policies and not whether employer freedom, it First, when the government is governments should interfere also has a negative defending itself from a positive in the housing market, the impact upon rights claim, taxpayers have debate will not address the employees who do an interest in the outcome fun­damental problem — not have childcare because ultimately they will that “artificial restrictions” have to bear the cost of an drive-up housing costs. The obligations – since it unfavourable decision. If the prevailing assumption shared is these employees government - for by all parties to the application who will be scheduled reason - fails to fully and com­ will be that government pletely defend itself, taxpayer interference in the housing to work undesirable interests have not been duly market is justified and perhaps shifts.” represented to the court. And necessary. No one will suggest ~ second, since every court that the court undergo a decision has a precedential thorough examination of how value, as similar adverse government intervention creates inadequacies and decisions accumulate over time, the body of case law high prices, despite that it would be in the interests of will become more and more skewed in favour of a taxpayers to do so. claimant advancing a positive rights claim.♦

The Johnstone and Tanudjaja cases are excellent examples of litigation where the government has Derek James From is a Calgary-based lawyer practicing law with an insufficient incentive to defend itself rigorously the Canadian Constitution Foundation. Derek is married and has and completely. In both cases, the government two preschool children. www.theCCF.ca

16 Volume 7, Issue 2 BOOK REVIEW

Hanna Rosin’s The End of Men The End of Men by: Hanna Rosin Rosin’s book would have been a welcome change 310 pp.: Viking, 2012 in class because it describes society as it is now, not Reviewed by Kathryn Marshall the way it was forty years ago. Rosin’s book is geared anna Rosin’s The End of Men is not a book you’ll for a new generation of women making waves in the find on a women’s studies course reading list. female-empowered society our mothers fought hard HThat’s a shame, because it offers a strikingly for us to have. different take to gender issues than what we’re used Compare today’s world to a scene out of the popular to. drama “Mad Men” set in the 1960’s. The old rules have Rosin’s general thesis is that a once male-dominated been turned upside down and it’s a whole new world. world has, in only a few generations, become a place It’s this new world that Rosin describes. where women are leading the way in the classroom, According to Rosin, we now live in a world where boardroom and family room, and this trend will women aren’t just on par with men, but are far continue into the future because women are better exceeding them in many areas of life. Using statistics equipped to be flexible with the times. to back up her thesis, Rosin shows that women now When I completed my degree in women’s studies earn almost 60 percent of all bachelor’s and master’s and feminist research in 2008, the glass ceiling degrees, earn more PhDs than men, hold the majority and “patriarchal systems” of oppression were the of America’s jobs, and are dominating in professions dominant themes. We read more than our fair share of like health and law. Women are entering traditionally gender-themed books, most of them from the 70s and male dominated fields like engineering, business and 80s. This was appropriate since that was the era many science in increasing numbers too. women’s studies departments seem to be stuck in. And men? According to Rosin, they aren’t excelling In my lectures I was often told my gender was in our rapidly changing world quite as well as the oppressed by a male-dominated world. This seemed women. She argues that while the role of women has out of step with reality. I certainly didn’t feel that way. evolved dramatically, the role of men in society has Like many of my friends, I was busy making career remained largely static. plans and exploring exciting options for the future, Rosin goes into detail explaining how there are not bemoaning patriarchy or the heavy weight of a plenty of examples of jobs that have seen a switch double-paned glass ceiling over my head. from all-male to female, but very few all-female

17 Volume 7, Issue 2 to male. Think about it – female lawyers are now undergraduate sex in a salaciously clinical manner. commonplace, but a male nurse is still often still the What’s really changing society is not so-called punch-line on TV. transient sex lives, but that women are staying single According to Rosin, economic changes are more longer, focussing more on building their careers likely to impact men as a gender than women. She and getting educations, thus delaying marriage and refers to it as the “mancession” – where the recent starting families. economic downturn in the US threw many more men The hero in Rosin’s book seems to be a woman in out of work than women. her late twenties or early thirties with no kids. Sixty Contrary to what this book’s needlessly provocative years ago, a woman fitting that description would title suggests this is not an apocalyptic tale about the have already been married for ten years and would end of men. Rather, The End of Men is really about probably be viewed by society with sympathy for her evolving gender roles and how these changes have childless status. Today, with her MBA or law degree in impacted practically every aspect of life, and will hand, tailored suit, and lack of social pressure to wed continue to do so. and immediately have kids, her possibilities are endless. Rosin weaves together a somewhat disjointed narrative The norm used to be that a of statistics, history, anecdotes woman worked until she was and interviews and presents a married, or then maybe worked persuasive case that changes in part-time or went back to work the political, social and economic once the kids were grown. Today landscape have catapulted women are focussed on their women ahead. careers and excelling in school and in their jobs. We’ve read headlines and heard talks of this trend for years, Rosin also explores in detail but Rosin manages to capture the shifting roles in family life that a comprehensive snapshot are happening. Today, there are of what the “rise of women” more stay-at-home dads than ever looks like right now - culturally, before and more females who economically and socially - are the primary income earner. across different cultures and Rosin describes how gender roles socio-economic classes. That are becoming more fluid and said, one major criticism is that interchangeable, and households the book is too heavily centered have more equality in the sharing on the middle and upper-middle of domestic duties. classes. This is a particular weak point as it is the Ultimately, the point of the book is that the goal of lowest income groups that have been hit the hardest equality championed by the feminist movement hasn’t in the last few years. just been achieved, it’s been greatly surpassed. Rosin conducted interviews with men and women It’s no wonder that with a message like this some from a variety of backgrounds, exploring three main of Rosins biggest critics have been feminists. If they themes: sex, family and career. accepted her conclusions, many of those women’s The sex lives of young single female Ivy-League studies departments would be out of business. students features prominently in Rosin’s book. She But is Rosin overstating the case that women’s argues women have a newfound power and control equality has come so far that women have now pulled in their sexual liberation where they are free to date ahead of men? and “hook up” without the pressure of being saddled down in a committed, time-consuming relationship. Rosin deals with the fact that women still have not This is a neither new nor original observation, and is achieved full equality in the upper echelons of power. better dealt with in fiction rather than the awkwardly Try to tally the number of female CEO’s, law partners voyeuristic exercise of an academic discussing and political leaders out there and the final number

18 Volume 7, Issue 2 does not remotely reflect the stunning numbers of completed in only 40 years. There is a lot more of this female university undergraduates. ride yet.♦ Better yet, read some of the coverage that came out of Yahoo CEO Marrisa Mayer’s announcement that she Kathryn Marshall is a columnist, political commentator and an was pregnant. A male CEO announcing he was about articling student at a litigation firm in Vancouver. Her column “The to become a father would not have generated even a Duel” appears weekly in 24 Hours Vancouver where she debates splash of ink. the issues of the day. What about family and gender roles and how much Kathryn’s columns and op-eds on law, politics and public policy have appeared in print and online in more than a dozen newspa- have these evolved? While she did many interviews, pers and magazines across Canada. She blogs at the Huffington Rosin states “I did not talk to a single breadwinner Post Canada, internationally at Reuter’s TrustLaw and at kath- wife who has entirely ceded the domestic space.” rynmarshall.ca. She is a frequent guest on talk radio and televi- sion, including regular appearances on CTV’s Political Express Interesting questions that could have been explored panel. Her advocacy work have received extensive coverage in the more in this book are why are there so many women media, including Maclean’s Magazine, The Economist and Global graduating from law school, but still so few female National news. partners in law firms, and why are stay at home dads Originally from London Ontario, Kathryn holds an Honours B.A. still a relatively rare occurrence? in Women’s Studies and Political Science from Western University and a J.D. from the University of Calgary, where she served as an Ultimately, Rosin’s title is simply too presumptuous, Editor of the Faculty of Law student newspaper. and her thesis too premature. She has written about Kathryn volunteers her time with several community organizations, one of the biggest shifts in human society since the including the Make-A-Wish Foundation of British Columbia and discovery of agriculture, but has assumed it has been Yukon.

Why are Canada’s courts soft on sexual crimes against children?

By Bob Tarantino pornography offers a timely opportunity to reacquaint he public conflagration of Tom Flanagan’s ourselves with how Canadian courts punish sexual reputation following his musings about the crimes against children. Insofar as the assertion about Tappropriate punishment for possessing child Flanagan’s initial comment is that it tried to parse a 19 Volume 7, Issue 2 distinction between production and consumption of imprisonment by Justice Stephen J. Hunter of the vile material, how then should we react to criminal Ontario Court of Justice – five years for the court cases where the harm is quite clearly shown- and one additional year for the child pornography -and yet courts hand down indefensibly short convictions (a six-month sentence for the weapons sentences for crimes against kids? offence was ordered to be served concurrently). When I attended Osgoode Hall back in the 1990s, the snarkier amongst us observed that we were in The Ontario Court of Justice: six months per child “law school”, not “justice school”. It was a useful rape reminder that while lawyers and the legal system Put differently (i.e., more accurately) P.M. was use “justice” as an aspirational yardstick, it is a goal sentenced to six months for each rape. Of the actually realized only occasionally. constellation of offences The decisions of various Can­ of which he was convicted, adian courts in a recent case, R alone carries a maximum punishment v P.M., the sentencing for which Ontario courts took place in 2010 and the appeal ❝ under our Criminal Code of which the Supreme Court have consistently of fourteen years per of Canada refused to hear in held that rape of a offence. Whoever he was, P.M. received the benefit November 2012, give us occasion child by a parent is to reflect on just how regrettably of the courts’ bizarre far short of delivering justice our appropriately punished penchant for awarding system sometimes falls. This is by a sentence of bulk discounts for the commission of multiple particularly true when it comes to only three to five the commission of violent sexual crimes. crimes against children. The de­ years imprisonment. Ontario courts have cision, handed down by Justice In order to be consistently held that rape Stephen J. Hunter of the Ontario sanctioned by more of a child by a parent is Court of Justice, is shocking in appropriately punished by its leniency, and sobering in the significant periods a sentence of only three to lessons it teaches. of incarceration, five years imprisonment. In order to be sanctioned The crimes committed in R v P.M. simply raping a child by more significant periods are best described as horrifying. isn’t enough: Ontario A father (identified only as “P.M.” of incarceration, simply to protect the identity of his appellate courts have raping a child isn’t enough: victim) vaginally and anally raped generally required Ontario appellate courts have generally required his thirteen-year old daughter additional aggravating “approximately ten times” over the additional aggravating course of a little more than a year. circumstances in order circumstances in order When his home was searched after to exceed the five- to exceed the five-year a school counsellor learned of the year barrier. barrier. assaults and called the police, police ~ Thus, in order to receive discovered nearly 2,000 images of mid- to upper-single digit child pornography on the man’s year penitentiary terms, computer. Included among them were photographs the rapes must occur “on a regular and persistent basis and videos of him raping his daughter. In some of the over substantial periods of time”. Longer sentences, videos, the victim was heard begging, “Daddy, please measured in years in the upper-single digits to low stop”. Needless to say, he didn’t. double digits, are only warranted where the sexual The man pleaded guilty to sexual assault, incest, intercourse has been accompanied by “physical sexual interference, making child pornography, violence, threats of physical violence, or other forms possession of child pornography and careless storage of extortion”. of a firearm. He was sentenced to a total of six years Even more severe sentences will only be

20 Volume 7, Issue 2 imposed where there has been “a pattern of severe themselves) handed down by trial judges. psychological, emotional and physical brutalization”. In other words, Ontario courts want to make sure “Six Years” Does Not Equal “Six Years” that victims have really suffered before they are Of course, in the case of P.M., to talk of a sentence prepared to drop the hammer on a parent who rapes of incarceration for “six years” is itself to promulgate their child. (A full discussion of sentencing practices a fiction: because of an institutional orientation in by Ontario courts can be found in R. v P.M. 2012 ONCA favour of ensuring that convicted criminals spend as 162 at paras. 43ff. See also the extensive analysis in R. little time as possible actually incarcerated, a sentence v Foley, 2013 ONCJ 26.) of “six years imprisonment” will mean nothing close Even against the backdrop of the to six actual years spent in generalized leniency of Canadian prison. sentences as compared to the After approximately one range of punishments available -third of his sentence (i.e., pursuant to the Criminal Code, the two years), P.M. will be In short, for sentence in P.M. was disturbingly ❝ eligible for (and is virtually low. having terrorized and guaranteed to receive) a raped his daughter variety of “temporary ab­ The Ontario Court of Appeal: sence” and “day parole” “Lenient” But Not “Inadequate” ten times over the treatments. After two-thirds Newspaper editorial boards course of slightly of his sentence (i.e., four such as that of the Globe and Mail more than a year, for years) he will be entitled to condemned the decision. The “stat­utory release” under Crown appealed the sentence, but having videotaped the Corrections and Con­ a majority of the Ontario Court and photographed ditional Release Act and of Appeal, comprised of Justices those grotesque will serve the remainder Rosenberg and MacPherson, was of his sentence “in the not of the view that the sentence assaults for his later community”. (And this en­ warranted modification. They viewing pleasure, for tire analysis ignores the thought six years in total was having possessed fact that because P.M. “lenient”. They even thought that committed his crimes be­ the concurrent one year sentences hundreds of other fore the passage of the for possession and creation of images of violent child Truth in Sentencing Act, he child pornography was “extremely pornography, P.M. will was given a “two for one” lenient”. However, in a bit of credit for the eleven months analytical jiu jitsu, they held that spend significantly he spent in custody prior to the aggregate sentence was not less than five years in trial.) “clearly inadequate”, and so they prison. In short, for having refrained from altering it. ~ terrorized and raped his Justice Epstein, the dissenting daughter ten times over judge on appeal, thought the the course of slightly more sentence should have been than a year, for having increased to nine years’ imprisonment. The Supreme videotaped and photographed those grotesque Court of Canada refused to hear a further Crown assaults for his later viewing pleasure, for having appeal of the sentence. possessed hundreds of other images of violent child In its way, R v PM is instructive because it pornography, P.M. will spend significantly less than demonstrates yet again that Canadian courts are five years in prison. congenitally lenient when it comes to the punishment The decisions of the various courts in R v P.M. are of child sexual assault cases, and that appellate courts law. But they should not be mistaken for justice.♦ cannot always be counted on to correct lenient sentences (lenient, that is, as described by the courts Bob Tarantino is a lawyer in Toronto.

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