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ILER CAMPBELL BARRISTERS & SOLICITORS
160 JOHN STREET   2ND FLOOR  TORONTO CANADA M5V 2E5

March 14, 1996

Dear Mr. Allisat

RE:  TORONTO FREENET

You have asked our advice regarding allegations made 
against you and actions taken against you by the Toronto
Free-Net.

In particular the Board posted a notice February 15
stating that your membership was suspended because 
"Mr. Allisat posted what was determined by our legal counsel
to be child pornography". You have advised me that this
was done without notice to you. You further advised me
that a meeting of the members of Toronto Free-Net will
take place March 14 to consider this matter.

You have advised us that for some time you have engaged
in a debate on various newsgroups regarding the use of
and access to the Internet by children.

You have provided me with a hard copy of some of this
debate. Your own position is set out in Internet Parental
Control FAQ in the name of the Communication Action
Decency Front (C.A.D.F.). The alternate position is set
out by Voters Telecommunications Watch (V.T.W.) by Shabbir
J. Safdar and Steven Cherry on another FAO(sic),

This debate over access to the Internet takes place in
the context of U.S. congressional action to control and
govern the content of material on the Net.

In summary, you describe your position to be that access
to the Net cannot be controlled, that children can gain
access to all manner of material, and that technical steps
to prevent this are infeasible or easily overcome. You
propose a system which prevents access to the Net for
people under age 18 and establishes a Kindernet/Youth
Net for young people.

The opposition disparages this, and offers a variety
of programming options installed by parents to edit and
control material where Net access is available to
children.

We take no position on this interesting and difficult
debate. It is simply the context of the specific item
in dispute.

On February 11, 1996 you posted a story "The Sweethearts",
to a variety of newsgroups with the designation that it
was from C.A.D.F. That story was one of four. They were
stories of explicit sexual encounters. You advised that 
your purpose in doing so was to prove your point that
explicit sexual material is readily available on the Net
and cannot be controlled as the opposition in this
debate would like to believe.

After this article was posted Toronto Free-Net took
the steps against you as noted above.

I have reviewed the article "The Sweethearts".

The assertion by the Toronto Free-Net that this is 
"child pornography" in my opinion is incorrect. Child
pornography is defined in section 163.1 of the <U>Criminal
Code</U> :

161.1   (b)   Any written material...that advocates
              or counsels sexual activity with a person
              under the age of eighteen that would be
              an offence under this Act.

I note that "kiddie porn" provisions regarding written
material are not so severe in their effect as those
regarding visual material.

The content of "The Sweethearts" is a sexual encounter
between teenagers under 18. One of the females in the
story embodies the obnoxious chauvinist fantasy that
women like to be forced to have sexual relations. The
sexual encounter would likely be found to be a sexual
assault without consent (in the old parlance "rape").

However, there is nothing in the story that advocates
or counsels sexual activity.

In my view, even an extremely broad interpretation of
the words advocates or counsel would still not capture
and criminalize this posting. Furthermore, as described
to me, the context of the posting in the on-going debate
makes clear that the story as posted does not advocate
or counsel.

It is useful to consider whether or not the story is
obscene within the meaning of Section 163(1). In my
view, there is no doubt that the story is obscene as
the word is currently defined in the caselaw, in that
it is dehumanizing and degrading of the young woman.

However, it is a defence to an obscenity charge under 
the obscenity provisions that if the public good was
served by the acts that are alleged to constitute the
offence if the acts alleged do not extend beyond what
served the public good. As described to me, your
political objectives in posting the story were 
undoubtedly to serve the public good. There is no 
significant caselaw interpreting this section since
the Charter of Rights and Freedoms has come into play.

I note that the freedom of expression cases in other
areas of the law have given wide ambit to political
discussion. The context of the debate on this subject
is obviously important, and as described to me, this
strongly favours your position. In my view, your
position would prevail were the matter to be 
litigated. and it is noteworthy that you have not
been charged,

FURTHER CONCERNS

In the decision by the Board of Toronto Free-Net,
they declare that the material is child pornography.
They say they are acting as a result of a warning from
the police that they may be responsible for material
that is posted by it's members. I would suggest that
you recommend to the Board that they review and revise
their position:

(a) whether it is advisable that the organization,
    or its lawyer, sit in judgment on matter which
    are fairly difficult criminal law questions and
    highly controversial as free speech issues;

(b) whether, in any event, they should respond to
    police threat;

(c) whether the Board is, in law, responsible for
    something posted by a member as the police are
    alleged to have suggested. this is a proposition
    I doubt very much, and should be challenged by
    organizations such as the Free-Net.

If I can be of any further assistance please do not
hesitate to call.

Yours sincerely,

Charles Campbell
CC/cs