What Tom Flanagan should have said

Last Wednesday, Flanagan was speaking at Alberta’s University of Lethbridge. The former senior advisor to Prime Minister Stephen Harper, known as the “guru” of Canada’s conservative movement, was there to speak about one of his areas of expertise; aboriginal issues.

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The subject turned to the sexual and physical abuse that occurred in residential schools and then Flanagan was asked a question about child pornography. He said, “I certainly have no sympathy for child molesters, but I do have some grave doubts about putting people in jail because of their taste in pictures.” The professor had made similar remarks in 2009 which is why the question was asked. As is so common these days, Flanagan was recorded and his statement was uploaded on YouTube. The reaction to Flanagan’s remarks was swift and vitriolic. CBC immediately announced he would no longer appear as a commentator on the television program, Power and Politics. Danielle Smith, leader of Alberta’s Wildrose Party, announced Flanagan no longer has anything to do with the opposition party. The professor served as Wildrose’s campaign manager during the last provincial election.

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And the University of Calgary announced Flanagan, who is currently on academic leave, will be retiring in June. After the uproar, Flanagan apologized, again reiterating he was not defending child molesters. Attacks from the left came as no surprise. In 2010, a group of lefties tried to get Flanagan charged criminally with incitement to murder after he remarked Obama should take out Wikileaks founder Julian Assange, perhaps with a drone. What was surprising about last week’s statement was the harsh reaction coming from the right who should be defending what is left of freedom of speech in this country. While some commentators have defended Flanagan’s right to pursue academic freedom, others such as Smith and the Harper government moved quickly to distance themselves from the professor. Anyone who knows anything about the Conservatives’ get-tough-on-crime policies knows the party does not question the jailing of those who view child pornography. Under the Tories, mandatory minimum sentences became fashionable and anyone prosecuted on indictment faces a minimum sentence of six months in jail if convicted of possession of child pornography. If prosecuted by way of summary conviction, the mandatory minimum sentence is 90 days in jail. The offence of child pornography in Canada is extremely broad and does not necessarily involve the victimization of actual children. Whether this is right or wrong should at least be open to debate. It is unfortunate Flanagan did not elaborate on his remarks about whether it is necessary for someone to go to jail for simply looking at pictures. Under the Criminal Code, creating and sharing a drawing depicting a child in a sexual explicit pose lands the creator and other adult viewers in jail. Similarly, possession of child pornography that consists of computer generated images of children is guilty of the same offence as if the images were those of a real, exploited child. Writing a fictional account of what would constitute child pornography is illegal to possess as long as the writer shares it. A child is defined as anyone “apparently” under the age of 18 years. So a 19-year-old woman can legally appear in pornographic pictures and videos but if she “appears” to be under 18, it constitutes, with few exceptions, the offence of child pornography. The breadth of the legislation is such it cannot be said that the only aim of criminalization is to protect children from physical, emotional and sexual abuse. Where no real children are involved, the object of the law is simply to prevent people from looking at pictures. Whether people agree or disagree, the notion of jailing everyone who is guilty of possession of child pornography should be open for debate. But the reaction of those formerly associated with Flanagan, forecloses any possibility of a discussion on the topic in a country that at least purports to have free speech. It is unfortunate Flanagan did not expand upon his reasons why he feels jail may not be necessary. That Flanagan said what he said in a university setting is significant. Those on the right have always been critical of those on the left who think that because a woman’s right to choose has been settled, pro-life views that abortion is murder have no place on a university campus. Flanagan obviously did not state his views other than to question jailing those who look at pictures. But people do face jail time for looking at pictures created where no actual child has been victimized. Conservatives who attacked the professor are acting no differently than the left does—they are in favour of academic freedom as long as they agree with what is being discussed.

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