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Opinion

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Last year, police in Windsor, Ont. received complaints about a man on a Transit Windsor bus watching porn on his laptop. They never caught up with the guy. But even if they had, they admitted they weren't quite sure what they'd do about it.

Watching porn on laptops, tablet computers or smartphones while in public places -- in libraries, restaurants or parks, or on buses or commuter trains -- isn't illegal. It's crude and it's rude. But it's not criminal.

Police suggested it could lead to charges of obscenity, or possibly mischief, under Canada's Criminal Code. But both charges are a reach.

Unlike child pornography, which is flat-out illegal, porn that displays explicit sex acts between consenting adults is legal, so long as it's not obscene.

Pornography and obscenity are sometimes used interchangeably in popular speech. But in law, they're not synonymous. And so long as adult porn doesn't run afoul of the Criminal Code's obscenity provision, it's perfectly legal to watch it, or even expose it to "public view," as the Code puts it.

The Criminal Code defines obscenity as "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely crime, horror, cruelty and violence, shall be deemed to be obscene."

The key word in the definition is "undue." What's criminal isn't the sex, or even its exploitation, be it solo or in concert with crime, horror, cruelty or violence. What's illegal is the undue exploitation that transmutes it from porn (legal) to obscenity (illegal).

Regardless, the abundant plain vanilla explicit sex available for downloading from, or viewing on, the Internet, so long as it's not violent, degrading or dehumanizing, doesn't constitute undue exploitation, and therefore isn't obscene.

So the guy on the Transit Windsor bus was well within his rights to watch what the police called "regular sex."

Police suggested the other charge they could lay is mischief. But chances of a successful prosecution for mischief are just as remote.

Mischief is a property offence. It punishes damaging someone's property or interfering with someone's use or enjoyment of property. (Vandalism is a common type of mischief.) Ogling porn in public has nothing to do with intentional interference with someone's property rights.

Police threaten mischief charges because they can't figure out what else to do. In the Transit Windsor case, a police spokesman called mischief a "basket-type" charge. An admission that, although there's nothing specific police can point to in the Criminal Code, they'd lay a mischief charge as a last-resort catch-all.

All of which isn't to say there shouldn't be a law against viewing porn in public.

If some people don't have the courtesy or forbearance to keep their perverse viewing habits private, and social opprobrium isn't sufficient deterrent for some, then the heavy hand of the criminal law should apply.

And perhaps the offence should bear a more severe penalty where the public place includes locales where children are, or are likely to be, present.

High-speed wireless Internet and video-enabled smartphones and tablet computers are here in abundance, and are only going to become more prevalent. Looking at porn in public is a worrisome by-product of that expanding technology. But it's up to Parliament to legislate amendments to the Criminal Code that criminalize a new species of anti-social behaviour enabled by portable and wireless technology.

Law enforcement is right to raise this apparent gap in our criminal law. But police shouldn't attempt to deter offensive conduct or prohibit harm to minors by twisting existing laws all out of shape.

Keeping the criminal law current with changing times and evolving technology is a job for Parliament, not the police.

 

Douglas J. Johnston is a Winnipeg lawyer.