(The subcommittee reconvened at 2:30 p. m., upon the expiration of the recess.)
The CHAIRMAN. This session of the subcommittee will be in order.
The subcommittee is highly honored by the presence of a distinguished member of the Canadian Parliament, Mr. Fulton.
Mr. Fulton has had considerable experience with the problem which presently confronts the committee. If Mr. Fulton will come forward, we would like to hear the story as you have experienced it in your great country and our great neighbor, Canada.
You may be seated, Mr. Fulton.
I am going to depart from our usual procedure here in your case. We have been swearing witnesses, but we are not going to swear a member of the Canadian Parliament. You are one of us.
STATEMENT OF HON. E. D. FULTON, MEMBER, HOUSE OF COMMONS,
Mr. FULTON. I appreciate that very much.
Perhaps for the introductory words, I might stand, because I think it would be appropriate while I express on my behalf the feeling of deep appreciation have for the honor of this invitation. I hope that my presentation may be of some assistance to you as indicating the course which your neighbor, Canada, followed in attempting to deal with this problem.
As a problem of concern in equal measure to both our countries, I assure you that although I am not a member of the government in Canada I am quite certain that I speak for all our representatives in Parliament and for Canada as a whole when I say that they appreciate the honor of the invitation and the opportunity to come down and discuss with you these problems of such great mutual concern.
I think it is proper to suggest that this is one more example of the friendship and good neighborliness between our two countries.
I want to express to you, sir and your colleagues on this subcommittee, my appreciation for the honor of this invitation and the opportunity to come here.
The CHAIRMAN. Thank you. We are grateful to you and grateful to Canada.
Now, Mr. Fulton, you may proceed to present your case in whatever manner you choose and think best.
Mr. FULTON. Mr. Chairman, I have first; two apologies to make. I was late this morning, owing to weather conditions over the airport here. I trust that my delay did not inconvenience your proceedings.
The second apology I have to make is that while I accept the responsibility for it myself, I should have been able to do it, I found that I didn't have sufficient notice to prepare a text; but I have made fairly extensive notes.
If it meets with your convenience, I would be prepared to make a statement outlining our approach to the problem and at the conclusion of that perhaps we could discuss it by way of any questions you might have.
The CHAIRMAN. The procedure will be entirely satisfactory to the subcommittee.
Mr. FULTON. There is one other matter I should explain. Your counsel Mr. Beaser, asked me if it would possible for me to arrange to have somebody from either our Federal Department of Justice or a provincial attorney general's office to be available, to discuss with you questions of enforcement of the law which we have in Canada.
I regret that again owing to the time factor I was not able to arrange to have any such official with me.
The CHAIRMAN. For the record, the Chair might state that Mr. Fulton refers specifically to the law covering crime comics.
Mr. FULTON. That is correct. But I don’t want the fact that no one else is here with me from any of the branch of government be taken as an indication that they would not have liked to come had they been able to arrange it. The attorney general's department of the Province of Ontario expressed their regrets they could not make available a witness in the time at their disposal.
I thought perhaps at first I might make a few general remarks regarding the similarity of the problem as it appears to exist in our two countries.
But before I do so, there is one other introductory remark I would like to make, and that is as to my own position. I think in fairness it should be stated that I am not a member of the Government of Canada; nor, as a matter of fact, am I a member of the majority party.
I am a member of the opposition party. Therefore, I think I should say that nothing I say should be taken as necessarily indicating the views of the Government of Canada.
I will try, however, to the best of my ability, to summarize what I think to be the views of the Government of Canada with respect to this matter. When I come to subjects or aspects of it in which I feel that it is not to indicate that this might be the general view, I shall try to remember to indicate to you that this is my own personal view. But in everything I say I think I should make it clear I am not here in a position to speak for the Government of Canada, but simply as an individual member of Parliament interested in this problem.
I think it goes probably without saying that we, our two countries, find themselves very much in the same situation with respect to this problem of crime comics and their influence on the matter of juvenile delinquency. Our two civilizations, our standards of living, our method of life, are very similar. Our reading habits are by and large similar to yours. Indeed, speaking generally, probably the majority of the reading material in the form of publication, that is periodicals as distinguished from daily newspapers, have their origin here.
With respect to crime comics, I don't wish to be taken as saying that it is by any means one-way stream of traffic, because I understand some of those published in Canada find their way here and present you with a problem, but I think by and large with respect to the movement across the border of crime comics that is one thing where the balance of trade is somewhat in your favor.
Those features indicate that the problem is similar in both countries.
The CHAIRMAN. It would be safe to say that the balance of trade is largely in our favor in this case, would it not?
Mr. FULTON. That is my impression. You will appreciate that as much as we have enacted legislation which makes it a criminal offense to publish or sell a crime comic there are not official statistics available as to the volume of these things published in Canada or sold in Canada because it is obvious that people trafficking in an illegal matter are not called upon and if they were, would not furnish the statistics they might be asked for.
We have in Canada examples which we feel indicated pretty clearly that crime comics were of similar nature to those circulating here have an adverse effect upon the thinking and in many cases on the actions of young boys and girls. I am not going to weary your committee with a complete catalog of cases. You probably have had many similar cases referred to you here, but there stands out in my mind particular a case which arose in Dawson Creek in the Yukon Territory. One might have thought that that rather remote part of that country might be as insulated as any place might be against crime comics, but there was a case there in which one James M. Watson was murdered by two boys, ages 11 and 13.
At the trial evidence was submitted to show that the boys' minds were saturated with comic book reading. One boy admitted to the judge that he had read as many as 50 books a week; the other boy, 30.
The conclusion which the court came to after careful consideration of the evidence was that the exposure of these children to crime comics had a definite bearing on the murder. There was no other explanation why the boys should have shot and killed the man driving past in his car. They probably didn't intend to kill him. They were imitating what they had seen portrayed day after day in crime comics to which they were exposed.
The other one is a case of more recent occurrence, reported in a local newspaper on March 11 of this year. I would like to read you the newspaper report. It originated at Westville, Nova Scotia:
Stewart Wright, 14, Wednesday told a coroner's jury how he shot his pal to death March 2, while they listened to a shooting radio program and read comic books about the Two-Gun Kid. The jury returned a verdict of accidental death and recommended that comic books of the type found at the scene be banned.
That, you appreciate, Mr. Chairman, is a case that occurred since the passage of our legislation, which indicates that we have not yet found the complete answer to this problem. I would like everything I say be taken subject to that understanding. I am not suggesting that the legislation we have passed is the complete answer.
I do suggest that it is a beginning in the effort to deal with this problem.
If we had the same general situation prevailing in Canada as you have in the United States, that is, a widespread body of opinion to the effect that this type of literature has a harmful influence on the minds of the young, we also had, a similar conflict of opinions to that which I understand exists here. The publishers, particularly those engaged in the trade dealing with engaged in the trade dealing with comics and other periodicals and magazines, as I think might be expected, were bound on the whole to be on the side which held that these things were not a harmful influence on the minds of children.
I think that the explanation for that, sir, is readily available. They have an interest in the continuation of this stream of traffic. I am not saying, I don't wish to suggest, that they are all acting from improper motives. I am suggesting really that there is an obvious explanation as to why the majority of those concerned in the trade should be found on the one side, that is, on the side which says that these are not harmful.
I also have to confess that many experts and impartial experts in the field of psychiatry were found on the side of those who held that crime comics and were not harmful to children, but merely provided a useful outlet for what they called their natural violent instincts and tendencies.
Those generally were on the one side and as against them there were by and large all the community organization the parent-teacher associations, the federations of home and school, and similar organizations of a general community nature and those more particularly dealing with welfare work.
I would like to take this opportunity of paying here my tribute to the work that many of those organizations in Canada in arousing our people to an awareness of the problem, even if they didn't suggest in introducing, as I say, a unanimous opinion as to how it should be dealt with. I say that because I believe that similar organizations here are assisting in that work.
Also on the side of those who came to the conclusion that these things were a harmful influence were the majority of our law-enforcement organizations. I think particularly of our own Federal Department of Justice where back in 1947 and 1948 when the matter was first discussed in Parliament in a concrete form, the Minister himself, speaking for the Government, expressed the view that these crime comics, of which he had been provided with samples, could have no other effect than a harmful one on the minds of young boys and girls.
That was even before we had taken any positive action to deal with the problem.
I also would like to pay my tribute to a noted expert in your own country, and, indeed, in your own city of New York, Dr. Frederic Wertham. I have read extensively from Dr. Wertham's articles and, of course, I read with great interest his latest book, Seduction of the Innocent. I have had considerable correspondence with Dr. Wertham and I think it is fair and accurate to say that insofar as I myself, made any contribution to this matter and to the enactment of our legislation that I used and found Dr. Wertham's opinions, his quotations, of great assistance and I found they were generally accepted as authoritative in our country in a discussion of this matter.
I am not again saying that opinion was unanimous, but I think it is fair to say that Dr. Wertham's views were given great weight in our country.
The CHAIRMAN. Mr. Fulton, I might interrupt you at this point and, for the record, state that I received this morning upon my arrival here a communication from Dr. Wertham that was hand-delivered and that that communication will be made a part of the subcommittee files.
If at the conclusion of your testimony you would like to examine that letter, you may have that privilege.
Mr. FULTON. I shall be very much be obliged, sir. I am looking forward, I might say, to meeting Dr. Wertham later on today.
That that survey of the general field in Canada, I would like to come to a more particular examination of the background of the present Canadian legislation.
We have had for many years ─ I see I am getting a little ahead of myself. There is another matter which I think I should mention, Mr. Chairman, to give you the full background picture and that is the constitutional position.
Here, I should say that although I am chairman of our own party organization, that is our own caucus committee of the Canadian Parliament dealing with matters having to do with law and law enforcement, I don't wish to pose as an expert lawyer.
The CHAIRMAN. That would compare to our Judiciary Committee, would it not?
Mr. FULTON. Yes, except that this is a committee into which our own party has organized, an opposition party, for the purpose of examining any legislation introduced by the Government having a bearing on those matters. It is because of my interest in that subject, and, to some extent, of my position in my own party, that I have been a spokesman on this matter. I mention that merely to make my position clear. I don't want to be taken as an expert.
I do now want to turn to a consideration of the constitutional position in Canada. I think I stated it correctly but I do so to some extent as an amateur. I mention it because there may be some difference in the constitutional position as between our two countries, particularly when it comes to the subject of law enforcement.
In Canada, broadly speaking, under our Constitution, which is the British-North America Act, all general criminal matters are reserved exclusively to the Federal Parliament, whereas on the other hand, all matters of local law enforcement are left exclusively to the jurisdiction of the provincial government.
When it comes to enacting criminal law, the Federal Parliament alone can act.
When it comes to enforcing that law the responsibility and the authority rests exclusively with the province. No province could enact as part of the criminal law any provision having exclusively application to its own territory.
On the other hand, everything enacted in the realm of general criminal law by the Federal Parliament is equally applicable all across the country.
As to the background of the legislation that we have, there has existed under the criminal code of Canada, which is a statute covering matters of general criminal law, for many years a section dealing with the general problem of literature, obscene literature, indecent objects, indecent exhibitions, and so on. That is found in section 207 of our criminal code.
And I should point out I have here with me a bill which has just this year been passed by the House of Commons, bill 7, which is an act entitled "An Act Respecting the Criminal Law." That is a general revision and recodification of the criminal code for the purpose of consolidating in one fresh statute the original statute, plus all the amending acts which have been passed over a period of some 50 years, since the last general revision. There are only, in a few cases, changes in principle.
Section 207, as it exists in the code now, is reenacted and will be found as section 150 in the bill, which is in the possession of your counsel. This bill has not yet become law because it has not yet passed our Senate, but it is my impression there will not be any changes in the present provisions of section 150 as passed by the House of Commons.
Section 150 incorporates section 207 of the old code, but until 1949 section 207 contained no reference to crime comics as such.
It was concerned exclusively with the matter of obscene objects, or obscene literature, indecent exhibitions, and so on.
I think it was after the last war ─ this is our experience at any rate ─ that the problem of crime comics as such came into existence. It seems to me by and large a postwar development. I am not saying it didn't exist before, but on the scale we now have it seems to be a postwar development which is probably the reason why our criminal law didn't refer to it before.
As a result of the emergency of the crime comics and the factors which I have reviewed already as to the public opinion which grew up about it, there was evidenced a considerable demand that something should be done to deal with this problem created by the crime comic. There was a campaign originated by such organizations as I have already mentioned, the Canadian Federation of Home and Schools, various service clubs organized themselves on a nationwide basis, put on a campaign pressing for some effective action to deal with the problem of crime comics and obscene literature generally.
Parent-teachers' associations joined in this effort. There was in addition considerable work done on it in our House of Commons.
I have already mentioned that in 1947 and 1948, when the matter was drawn to the attention of the Minister of Justice he expressed himself as holding the opinion that it was desirable to do something, although he said up to that time they had not yet been able to figure out any effective measures.
In the course of the discussion as to what should be done, the usual problem arose, and that was to reconcile the conflicting desires to have on the one hand freedom of action, freedom of choice, and on the other hand to prevent the abuse of that very freedom.
The problem is, are you going to have complete freedom of action, or are you going to have a measure of control.
The measure of control, it was generally agreed, divided itself into two alternatives: One, direct censorship; the other, legislative action, legislative action which would lay down the general standards and leave it to the courts to enforce rather than by direct censorship imposed from above by any governmental body.
Just as background, I might say that in Canada there exists no federal censorship as such. There is only in one Province that I am aware of any extensive censorship of literature, and that is in the Province of Quebec.
The majority of our Provinces, if not nearly all, have a form of censorship of movies under the authority of the provincial government. But by and large I think it would be fair to say that the majority opinion in Canada is opposed to the idea of censorship of literature.
I am not saying that that feeling is unanimous, but that seemed to be the feeling that if possible we should avoid bringing in direct censorship. That was my feeling with regard to the matter, not only my individual feeling, but it was my impression of the stated public opinion and, therefore, I felt if we were to get anywhere with it the approach should be by way of legislation to amend the criminal law so as to create an offense on the basis that society regards the continued publication of this material as a danger to society itself, and that society, therefore, through its instrument, its elected representatives, taking cognizance of the problem, is entitled to decide whether it is of sufficient seriousness and danger that the problem is to be dealt with in the usual way under our principle of justice by the elected representatives defining the problem constituting the offense, providing the penalty, and then leaving it to the individual who knows the law, knows what is there, to decide whether he wishes to run the risk, if you like, of continuing in that course of action with the knowledge if he does he may expose himself to the penalty.
In other words, to some extent you might say it is the process of imposing on the individual the obligation of self-censorship instead of imposing it on him by direction from above.
So that was the course that was followed in Canada.
I should perhaps mention one other feature which we have. That is a measure of control at the customs points. I don't know whether you have it, or not. I don't want to go into this in any great detail because I know you have a busy session before you. I will try to summarize it.
In our customs law, and under the tariff items which are approved by Parliament to apply that law there is an item 1201, tariff item 1201, which reads as follows:
It prohibits the entry into Canada of books, printed paper, drawings, prints, photographs, or representations of any kind of a treasonable or seditious or immoral or indecent character, on the grounds that our criminal code makes those an offense in the country; therefore, we are not going to permit them to come into the country while it is an offense under our law.
That tariff item has not been amended with respect to crime comics, but, by and large, I am informed that the officers of the border points, if they are of the opinion that a particular comic magazine would be an offense under the new revision in the criminal code, they will exercise their own discretion in prohibiting its entry, or, if they are in doubt, they will refer it to the department at Ottawa for a ruling as to whether it is admissible or not.
Mr. BEASER. Are the crime comics which go into your country printed in this country, or are the plates sent to Canada for printing?
Mr. FULTON. I am informed it is done in both ways. In some cases the finished article is imported. In other cases the plates are sent over and they are printed in Canada.
Mr. BEASER. You do not know which method predominates, do you?
Mr. FULTON. My impression is that the finished article predominates. Perhaps we could go into that a little more fully later. There is a real problem confronting the customs officials in that we have not had yet very much jurisprudence built up. There have not been many actions in our courts under the new sections with regard to crime comics and the customs officials are loath to set themselves up as censors. They have no hesitation if a particular subject or article has been declared offensive by a court decision in prohibiting its entry, but they find themselves under great difficulty when it comes to saying as to whether or not an article, which has never been the subject of any judicial process, is in fact prohibited under our criminal law.
That is one difficulty.
The other is that the volume of these things moving across the border makes it difficult for them to enforce their own regulations 100 percent, and I think it would be fair to say that customs officers exist mainly for the purpose of collecting duties, customs, and excises, and not for the purpose of indulging in any form of quasi-censoring of literature.
It is an obligation under the tariff item which they willingly undertake, but it is not their main task.
Senator HENNINGS. It may be of interest, perhaps Mr. Fulton is very well aware of this, but Assemblyman James A. Fitzpatrick told me during the recess today that many people come over the border from Canada to Plattsburg, N. Y., which happens to be his home for the purpose of procuring some of the American published comic or horror books and that they take them back across the border, smuggling them or bootlegging them across, as it were.
Mr. FULTON. That may be so, Senator. The only comment I could make on that is that I regret to say that these things circulate with sufficient freedom in Canada that I am surprised that they find it necessary to come down here for that.
Senator HENNINGS. Like carrying coals to Newcastle.
Mr. FULTON. I think it must be a very incidental purpose of their visit. I am not in any way questioning that it does take place.
What I want to avoid is giving the impression of saying that we have dealt with this effectively in Canada and it is only you that have the problem.
My attitude toward it is that it is still a mutual problem although we have made a beginning.
Senator HENNINGS. You are certainly eminently fair, and I am sure want to be very careful in having made that statement not to cause any misunderstanding on that point.
Thank you, sir.
Mr. FULTON. That, then, in brief, is the background of the situation with respect to the nature of the problem and the actual legislation, or lack of it, up to 1949.
In the fall session of our Parliament in 1949, I introduced a bill, of which I regret I have no longer copies left in my file. There is only one copy left in the file of the Department of Justice. There are plenty of copies of the statute in the annual volume of statutes, but of the bill itself, an individual bill, there is only one copy left readily available. So I had our Department of Justice prepare typewritten facsimiles of the bill as introduced.
I shall be glad to give them to your counsel or your clerk for filing at the end of my presentation. This is as best as can be done, a reproduction of the bill with the front page. This was the inside page, explanatory notes and the back page was blank. It was a short bill. It was introduced by way of an amendment to section 207 of the code.
I think it is short enough that I can read it to you and you can understand then our approach to the problem of trying to find the method of dealing with this subject.
I won't read the introductory words, except as follows:
AN ACT To amend the Criminal Code (Portrayal of Crimes)
His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Subsection 1 of section 207 of the Criminal Code, chapter 36 of the Revised Statutes of Canada, 1927, is amended by adding thereto the following:
"(d) prints, publishes, sells, or distributes any magazine, periodical, or book which exclusively or substantially comprises matter depicting pictorially the commission of crimes, real or fictitious, thereby tending or likely to induce or influence youthful persons to violate the law or to corrupt the morals of such persons."
Section 207 in its introductory sections provided that:
Every person shall be guilty of an offense who
and then the introductory sections (a), (b), (c), cover obscene literature, obscene exhibitions and I was adding section (d) to make it a violation to print, sell, distribute a crime comic as a crime.
I would like to read an explanatory note which was submitted at the same time and forms part of the printed material with the bill:
This act is designed to amend the Criminal Code to cover the case of those magazines and periodicals commonly called crime comics, the publication of which is presently legal, but which it is widely felt tend to the lowering of morals and to induce the commission of crimes by juveniles.
The purpose is to deal with these publications not by imposing a direct censorship or by blanket prohibition, but rather by providing in general terms that the publication and distribution as defined in the act shall be illegal and thus leaving it for decision by the court and/or jury, in accordance with the normal principles prevailing at a criminal trial to determine whether or not the publication in question falls within the definition.
That bill was introduced as a private member's bill and given first reading on September 28, 1949. In the debate which followed, after I had outlined my argument in support of the legislation, the Minister of Justice, speaking for the Government, stated that the Government was anxious to take effective action to deal with this problem, they welcomed the introduction of the bill.
However, it raised certain questions with respect to enforcement and, therefore, they asked if it might be stood for the time being while they communicated its contents to the provincial attorneys general to get the benefit of their views as to whether it was necessary; if so, whether it was enforcible in its present suggested form, or whether they themselves would like to see some amendments to make it more workable.
That was done. As a result of the views and opinions offered by provincial attorneys general when the debate was brought on again in committee the bill as introduced was quite extensively amended and in effect given the form of a complete revision and reenactment of the whole of section 207.
In other words, instead of just adding a new clause they incorporated the suggestion into the clause and made it a more workable whole.
It had one more effect which I would like to mention. The amendment to the bill, in that under section 207 in its previous form it was a defence to anyone accused of committing the crime of printing or publishing any obscene literature or crime comic after the amendment carried. It was a defense to the accused person to show that he did not have any knowledge of the indecent content or nature of the publication complained of.
It was felt, particularly with respect to crime comics ─ you say the specimens on the board this morning - that it would be really pretty ridiculous for anyone to try to plead "Well, I don't know the nature of this thing." The nature is self-evident. It was felt by the attorneys general if we were going to make this section effective not only with respect to crime comics, but with respect to offensive literature generally, really this defense of lack of knowledge of the contents of the articles complained of should be removed. It would still be on the onus on the Crown to prove intent in the general sense of that onus under the criminal law.
Senator HENNINGS. May I ask Mr. Fulton one question? You may have suggested this earlier in your statement.
Does this relate to the publisher, the distributor, and the newsdealer?
Mr. FULTON. Yes, sir; it includes the whole field.
Senator HENNINGS. I take it it is announced in the statute in the subjunctive; is that correct?
Mr. FULTON. Yes.
Senator HENNINGS. They may be joined, in other words, they may be coindictees, they may be individually indicted?
Mr. FULTON. Or they may be proceeded against separately. One may be proceeded against without the other.
I shall have something to say on that a little later. That is an interesting legal point. I mean with respect to the matter of dealing more effectively with the publisher.
I should like, if time permits and you think it important, to say something on that later. But that defense was removed as a result of this amendment.
I have also a facsimile copy of the bill as it was amended in committee as a result of the Governments own suggestions. I shall be glad to file that.
Mr. BEASER. Mr. Fulton, am I wrong in believing that the bill as finally passed was different than the one you introduced in that it made it an offense to print, circulate, and so forth, a crime comic to anyone; whereas, as you read our original bill I got the impression it was aimed at distribution which had as its purpose the influencing of youthful people; is that right?
Mr. FULTON. You are correct. In my initial draft of the bill as first moved the words "thereby tending or likely to induce or influence youthful persons to violate the law or to corrupt the morals of such persons" was included.
Mr. BEASER. Was that for enforcement purposes?
Mr. FULTON. I think so on the basis that the nature of these things and their tendency is self-evident.
Senator HENNINGS. That becomes a jury question.
Mr. FULTON. No; those words are not included in section 207 at the present time. The crime comic as defined in the bill, bill 10, as it eventually passed, was defended as follows:
(7) In this section "crime comic" means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially (a) the commission of crimes, real or fictitious -
Now, sir, the only defense as such which is open to an accused under our law, under this bill, is the following:
No one shall be convicted of any offense in this section mentioned if he proves that the public good was served by the acts that are alleged to have, been done and that there was no excess in the acts alleged beyond what the public good required.
If he can prove to the satisfaction of a judge or magistrate or judge and jury that the crime comic in fact served the public good, then there is no conviction.
Senator HENNINGS. That is somewhat then in parallel to your English libel law that you require not only that as defense one need establish not only truth as in the United States, but that it be for the public benefit.
Mr. FULTON. I think that, sir, is in the realm of criminal liability only.
Senator HENNINGS. I meant criminal liability, of course.
Mr. FULTON. Yes.
Senator HENNINGS. It must be for the public benefit under the British law, is it not?
Mr. FULTON. I think it might be going perhaps a little beyond, but it must not go too far beyond. There must be some public interest to be served, yes. I think that would be a fair statement.
Now, when the bill came back in its amended form, as I have indicated it in the summary here, it passed the House unanimously. The House of Commons adopted it without any dissenting vote.
It then went to our Senate and there by that time the periodical publisher or some of those engaged in the trade ─ I shall put it that way ─ perhaps had only just awakened to what was going on; maybe they thought it would never pass the House of Commons.
What the reason was, I don't know, but at any rate, they made no representation to the House. They didn't ask or its reference to a committee. It goes through the Committee of the Whole House, but they didn't ask for reference to a special committee on the bill and they made no formal presentation.
Then it got to the Senate, having passed the House; they asked to be allowed to appear and make representations. So the Senate referred it to one of its standing committees.
There the publishers appeared and they made representations which took the form of some of the submissions which I have read in the newspaper comment, at any rate on your own proceedings from time to time down here, namely, that these things were not harmful to juveniles; in fact, to some extent they formed a harmless outlet for their natural violent instincts.
Senator HENNINGS. I take it, sir, in defining crime you mean felony. That is in section 7, "crime comic" means a periodical or book that exclusively or substantially comprises matter depicting pictorially the commission of crimes.
Mr. FULTON. There is another amendment I was going to come to, Senator, but I will be glad to deal with that point now.
Senator HENNINGS. I do not mean to distract and divert you.
Mr. FULTON. You are concerned with the definition given to the word "crime"?
Senator HENNINGS. Yes, sir; whether you mean felony, misdemeanor; what classification of crime, if any?
Mr. FULTON. I don't think that point has come before our courts.
Senator HENNINGS. For example, if an embezzlement is depicted in a crime comic, a bank teller, let us say, taking money front his employer, or involuntary manslaughter, would, in your judgment, that sort of thing depicted in a comic book constitute a crime within the meaning and purview of your statute?
Mr. FULTON. I would not care to express an opinion on that. I think that would be a matter of individual interpretation by the courts. To my knowledge the point has not arisen.
I think it may be a very important point. I would have to say this, that in my mind in drafting and submitting the original legislation I had in contemplation the crime of violence, what you might call the crime of violence, but taking it over to amend it and amending it, the Government deleted the reference to that type of definition and I had no objection whatever. They had consulted with the law-enforcement officers and the law-enforcement officers felt that a too narrow definition might create obstacles which might create difficulties in the way of its enforcement and no substantial representations against the broadening of the definition were made and so it went through in that form.
I would not care at the moment to express an opinion as to whether the court, looking at it, would say, "Well, the intention of the legislature was to confine it to crimes of violence," or not.
Senator HENNINGS. We would have a most interesting situation, would we not, bearing in mind that the crime of carrying a concealed weapon is a felony in most of our States, having portrayed in a comic a representation indicating that someone was carrying a concealed weapon by verbiage, but the weapon could not be seen.
That would still be carrying it along the line. I certainly do not want to be frivolous or to attempt to make light of part of it but to attempt to present the difficulty this field presents.
Mr. FULTON. I would express this purely as an offhand opinion, that the wording of the statute is wide enough to cover anything which is made a crime by our criminal code. Anything covered in there whether fraud or embezzlement is covered in the criminal code then on the face of it an illustration of a crime of that nature is included in section 207.
It might be an interesting point for defense counsel to raise that as defense the section didn't contemplate that type of crime. Then the court would have to decide what was the intent of the legislature as gathered from the words they used.
So far that point has not come before our courts.
I was mentioning that when it came before our Senate it was referred to a standing committee and the representatives of the trade appeared and made representations against the bill.
Dr. Wertham has an interesting passage in his book in which he records it as having been the opinion expressed that they appeared to be making progress until they made the mistake of producing to the Senators some examples of their wares, that when that was done their case was out of court.
I can't read the minds of our Senators. All I know is that in the result the standing committee reported the bill back to the Senate without amendment and it passed the Senate as a whole by a vote of 92 to 4.
Having passed the senate, it then passed both Houses of our Parliament and was proclaimed and became law.
Now, our subsequent experience has been somewhat as follows - and here I must say I am speaking on the basis of opinion for the reason, as I have said, statistics on this matter are hard to obtain - but it is my impression, and I know this view is shared by the majority of those interested in the problem, the crime comic as such pretty well disappeared from the Canadian newsstands within a year or so following the enactment of this legislation.
But within about the same period of time alternative forms of comic magazines began to appear. Speaking in general terms, these took the form initially of an increase in the number of love and sex and girlie comics which began to hit the newsstands. And that as an interesting comment gave rise to a separate study launched by our Senate on the subject. They set up a committee to look into the sale and distribution of, I think the word they used was salacious
One of the reasons why the demand for that rose so rapidly was the rapid increase in the circulation of that type of pulp magazine following the virtual disappearance of the crime comic.
I mention that merely as an interesting aside.
Then there crept back into circulation in Canada the crime comic again in its original form, but it also began to appear in other alternative forms and there the alternative form I have in mind is what I think you have described generally as the horror comic. I would venture the opinion that the reason the crime comic to a lesser extent and the horror comic to a greater extent reappeared and began to appear respectively, was in part because of the lack of prosecution of any publisher or printer or vendor under the new crime comic section. There were no prosecutions until about a year ago. And partly perhaps due to the fact that the public and myself and other similar interested persons included may have felt, now we have done our job, we can sit back and relax, with the result that there wasn't the same vigilant supervision of the newsstands to pick out offensive publications, bring them to the attention of the authorities and demand prosecution.
Whatever the reasons, anyway, the crime comic in its original form began to reappear and the horror comic in a much exhilarated form ─ I mean it is now circulating to an extent even greater than the present circulation of the crime comic and it is in Canada at any rate relatively newer in form and appearance. It has made its appearance later than crime comics. I think it would be fair to say it made its appearance only after the enactment of legislation in 1949.
But I have to express it again as my personal opinion that even the horror comic was in fact adequately covered by the legislation which we had enacated in 1949 because that legislation refers by definition to the commission of crimes, real or fictitious.
Now, again, it might be an interesting legal point as to whether the courts would say that a fictitious crime means merely a crime committed by a human being, the crime had not taken place in fact, whether they would confine it to that or whether it would be broad enough to cover the case of a crime committed by these fantastic beings, ghoul of the swamp and the Batman, those creatures that can have no existence in reality, but, nevertheless, commit what, if committed by a human being, would be crime.
It is interesting to speculate whether the words "crime, real or fictitious" would apply.
Senator HENNINGS. That would apply perhaps to a crime committed by Mickey Mouse, for example, a more innocuous kind of comic character.
Mr. FULTON. Yes, sir. Again it is a question, of course, whether the courts interpret the intent of the legislature as gathered from the words of the statute.
Mr. BEASER. Assuming you are able to find out how the American crime comics are getting into Canada, are you able under your statute to proceed against the publisher or distributor?
Mr. FULTON. In the United States?
Mr. BEASER. Yes.
Mr. FULTON. No. He is beyond our reach. His crime is not committed in Canada, you see. Unless he were to come and surrender himself voluntarily to the jurisdiction of our courts, I don't think there is any way; I don't think extradition proceedings would lie.
My understanding is that unless he came to Canada and committed the crime and came back here we could not use extradition proceedings.
Mr. BEASER. The question is whether under the Canadian statute Canada is able to proceed against an American publisher who publishes in this country crime and horror comics which then get into Canada, or whether they can proceed against a distributor who sends them into Canada.
Mr. FULTON. I think the first.
Senator HENNINGS. They would have no jurisdiction in the matter in the first place.
Mr. FULTON. Unless he submitted himself voluntarily to the jurisdiction of our courts, which I can't see him doing.
Senator HENNINGS. You would have no venue then?
Mr. FULTON. I think if he voluntarily submitted himself to jurisdiction we would. I think the execution of the sentence might, of course, present some interesting problems, but in effect I don't think it arises. In effect my opinion is ─ and I take it Senator Hennings concurs ─ that the first person we can deal with is the man who first imports it in Canada and there is no suggestion that we should proceed against the American publisher.
If we deal with the man who brings it in we are dealing effectively with it from our point of view. What is done here is a matter entirely for your own determination.
Mr. BEASER. Are you able to get the distributor; is it known or ─
Mr. FULTON. It can be ascertained. I have to say with regret, in my view we are not proceeding sufficiently vigorously in our own country against the distributors, against the man who first puts this offensive material into circulation.
I would like to deal with that at greater length a little later.
I think that is one defect not only in our laws which exist, but in the enforcement of our law.
Now, I just was mentioning that these things have reappeared, although I think again it would be fair to say they don't circulate to the same extent as they did previous to the enactment of the legislation, but they circulate or have been circulating recently to an extent sufficient to give rise to genuine concern.
Then I would like to say a word in consequence of that about the courts and enforcement. I have expressed, I think, already the opinion that our legislation is adequate.
I would say, I think, by that opinion, unless the case comes before the courts in which the prosecution is dismissed then we would know whether or not the law was adequate, but I can see no reason why it should not cover it so I would like to discuss the problems of the courts and enforcement.
I think that first one should state what is probably a general proposition applicable equally in both our countries, that, generally speaking, one of the reasons for what I have called lack of vigorous enforcement may be the inherent dislike of taking measures which appear to be repressive with respect to the written word, with respect to literature.
Our law-enforcement authorities are reluctant, and I think properly reluctant, to launch prosecution against those in the printing and publishing business and in the distribution of literature. It is a reluctance which I think must and should be overcome where the case warrants it, but I used the words "I think it is a proper reluctance" and it is one which I think we must take into account.
In any event, there have been very few prosecutions in Canada, although this material is circulating in certainly greater quantity than I would like to see.
I would like then to refer to one or two specific cases which came before our courts. You will appreciate from your reading of the section as lawyers that there are two alternative methods of proceeding. One is by indictment in which case it comes up before a court with a judge.
The other is by what we call summary procedure or on summary conviction, which means it comes up before a magistrate.
The principle, of course, applicable in both courts are exactly the same as to proof and so on, but the powers of the respective courts within respect to imposition of penalties are quite different. The penalty which the higher court can impose on the more formal indictment procedure is much larger than that which can be imposed by a magistrate on a summary conviction.
The first case I should like to mention came up before a magistrate in the Province of Alberta. Being in a magistrate court, it is not a reported case, but it was the case which gave us the greatest concern because the facts as I understand them were something like this: That the magazine or crime comic complained of illustrated everything right up to the actual moment of the delivery of the death blow, omitted that, and then continued with all the gruesome details immediately following that. That was the presentation at any rate as I understand it, given by the defending attorney.
The legislation refers to the commission of crimes. This does not illustrate the actual commission of the crime and, therefore, the accused is not guilty.
The magistrate dismissed the case on that ground. That looked as though we would have to amend our legislation if we wished it to be effective because you will appreciate so far as the juveniles are concerned if you are going to say everything which falls short of the actual commission of the crime at the moment of death, shall I say, that everything of that sort is all right, then you haven't really got an effective act from the point of view of what we want to accomplish.
So reconsideration was immediately given to introducing the necessary amendment. That has been done. There is a slight modification in bill 7 in the proposed section 150 over and above what there was in bill 10, which I shall come to, but even before we in the House of Commons enacted bill 7, there was another case, Regina v. Rohr.
As you know, in our country all criminal prosecutions are brought in the name of the Queen, or whoever happens to be wearing the Crown at the time being, be it the King or the Queen. Regina v. Rohr, a Manitoba case, in which the same defense was raised before the magistrate. The magistrate, however, convicted in this case.
So as a test case it, was appealed to the Court of Appeals of the Province of Manitoba. The appeal court stated, after looking at the words of the statute, they were clearly of the opinion that the intent of the legislature as clearly to be gathered from those words, was to cover all these incidental arrangements for amid consequence of the crime and that, therefore, the prosecution was properly launched.
I am not going to weary you with it here, but if any member of your committee might be interested in the discussion of the effect of that decision, it may be found in the Canadian Bar review for December 1953 at page 1164, where the case and its implications are discussed by the Deputy Attorney General for British Columbia, Mr. Eric Peppler.
That decision seemed to dispose of the fears which we had that the whole statute might be rendered ineffective, but nevertheless there was this amendment which had been contemplated which was still carried forward for the sake of greater certainty.
It is not a very important or far-reaching amendment, but I think it does substantiate my point that these words are now sufficient to cover even the horror comic because the definition of crime comic as it previously appeared in section 207 was in this form:
Crime comic means in this section any magazine periodical, or book which exclusively or substantially comprises matter depicting pictorially the commission of crimes, real or fictitious.
Now, it reads in this section:
Crime comic means a magazine, periodical, or book that exclusively or substantially comprises matter depicting pictorially:
A. The commission of crimes, real or fictitious, or
B. Events connected with the commissions, on of crimes, real or fictitious, whether occurring before or after the commission of a crime.
Mr. BEASER. You would say, Mr. Fulton, that the statute itself seems to be sufficient. The difficulty lies in the enforcement?
Mr. FULTON. In the enforcement; that is my point.
Mr. BEASER. You think if there were effective enforcement the problem that Canada faces with respect to crime and horror comics would no longer be there?
Mr. FULTON. I don't suppose it will ever disappear entirely, but it would be effectively dealt with; yes.
To conclude in a very few words, I would like to say a word or two with regard to our present experience. Our present experience is, it must be confessed, that printers and publishers still defy the laws because comics are still on our stands, whether publishers in the sense of those who actually print them in Canada, or in the sense of those who put them into circulation after they are imported from your country.
That is the view I know of our Government, that the law is there; what is necessary now is vigorous and complete enforcement.
I did suggest in a recent debate, and it is still my view that there should be a differentiation in the penalty so that a stiffer penalty would be provided for those who, as I see it carry the greater responsibility for putting this offensive material into circulation, what you might call gently at the printer and publisher level; that there should be a stiffer minimum penalty, one that he will really feel, one which will not be, and what so often they are, merely license fees to continue in business.
Mr. BEASER. However, if the majority of these crimes and horror comics are coming in from the United States, that sort of stiffening of penalty would not be effective, would it?
Mr. FULTON. I think it could be made effective because I am convinced an adequate definition could be worked out to cover the case of the initial distributor.
Mr. BEASER. The initial distributor would be included?
Mr. FULTON. Yes. I don't suggest for a moment you can absolve from responsibility the individual news vendor or the retail distributor. I do think they carry a very much lesser degree of responsibility for this thing than the others.
I think, therefore, there should be a lesser penalty for them, that the penalty should be in the discretion of the court and in our jurisdiction it runs an average of anywhere from $5 to $50 for the individual vendor, but I feel there should be heavy penalties for those higher up in the scale.
And that until, in fact, my view in conclusion really is that until you take effective action to deal with those who first put these things into circulation you are not going to deal with the problem.
As I have said, I do not for a moment suggest that the individual vendor and retail distributor can be absolved from responsibility. He is a very minor factor in the chain of responsibility.
I would like to see and have in fact suggested that our own code be amended to make that differentiation, but that suggestion was not accepted by the House of Commons and by the Government.
So that remains at the moment my own opinion and that of certain of my colleagues in the House.
There are a couple of cases I would like to mention, just to finish. There is one case in Canada where a publisher has been prosecuted the Queen against the Peer Publisher Ltd., of Toronto, and William Zimmerman, who is the man who is the principal of that firm, resulted in conviction and fine of a $1,000 and costs against the company and suspended sentence for Zimmerman. No notice of appeal has yet been served.
That was a conviction again by way of summary procedure by magistrate which may account for the relatively low fine.
There was another case against Kitchener News Co., Ltd., distributor again in the magistrate court. They were fined $25. They appealed.
The appeals court quashed the conviction on technical ground that the indictment was incorrectly drawn. The attorney general informs me that he is proceeding with a new trial on a fresh indictment. That is, so far as I have been able to ascertain, the record of court cases dealing with this new law, relatively new law, in Canada.
I believe that the court cases show that the law is workable and effective and the problem is enforcement with, as my personal opinion, a desirability of providing heavier penalty and really effective penalties for those at the top who have the greatest responsibility in the chain of circulation.
One other interesting and encouraging result which has flowed from our legislation is that in a number of cities in Canada, particularly after the last discussion, when the amended criminal code came up before the House and we had extensive and quite interesting debate on that section, as a result of that publicity, at least I think it is partly as a result of that publicity, a number of both wholesale and retail distributors are approaching citizens' committees in some of our cities and saying, "We don't want to break the law in the first place and we certainly don't want to run the risk of prosecution. We would like you to cooperate with us by suggesting to us the offensive titles and if you will do that we would like you to get a representative committee so that it does not just reflect the minority viewpoint. If you will do that we will agree to withdraw those titles from circulation."
I think that springs in some measure from the existence of the legislation.
As I say, I regard it as a quite encouraging indication that this legislation can and will produce beneficial results in Canada, although I am afraid again I must confess that I am not suggesting that it is the complete answer or that it has yet provided a complete elimination of this type of undesirable publication.
That, Mr. Chairman, concludes the statement which I have to make. I appreciate your having listened to me so patiently. I apologize for having taken rather lengthy time. I am very much interested in this subject.
If I have abused your hospitality by going on too long, that is because of my interest in the subject.
The CHAIRMAN. You have been very helpful and you have made a contribution.
Senator HENNINGS. I, too, want to thank you very much and apologize in turn. I was asked by some representatives of the press to get an exhibit of one of the things that was in evidence this morning. I was engaged in that effort during the latter part of your statement. I shall read with great interest the record.
The CHAIRMAN. I might add it was a very able statement, well presented.
Mr. FULTON. Thank you very much.
The CHAIRMAN. I think that Canada is fortunate in having such an able representative in its Parliament.
Counsel, do you have any questions?
Mr. BEASER. Just one, Mr. Chairman.
As you notice, this morning I have been asking a number of witnesses as to the effect on our country's relationships with other countries of these crime and horror comics.
Would you care to comment on what impression and what effect crime and horror comics in Canada are having on the children's ideas of what the United States of America is like?
Mr. FULTON. I would say that their effect in that regard is not very serious in Canada. We live too close to you not to know that our way of life and yours are very much the same.
It would be my opinion, therefore, that a Canadian child reading this type of magazine would not ─ reaction on him would not be what dreadful things go on in the United States of America as distinct from what goes on in Canada.
Rather, the undesirability from our point of view certainly is that it portrays these as natural and everyday occurrences.
In other words, our objection to them is not that it portrays the United States as a country, which has lower standard of moral values than our own. It is merely that they portray human society as having an entirely distorted and unreal sense of value and of moral standards.
Besides that, I would make no, I certainly wouldn't express any opinion that they have a derogatory effect on the opinion of our children toward America as such because as I have pointed out, although to a considerable lesser degree, many publications of the same type are published in Canada, a sufficient number to be alarming and disturbing.
Mr. BEASER. I have no further questions, Mr. Chairman.
The CHAIRMAN. It is your considered judgment that this statute has been extremely helpful, it is not?
Mr. FULTON. Yes, it is, Senator, although I must again repeat that I feel it has not been used to the fullest possible extent.
The CHAIRMAN. Senator Hennings?
Senator HENNINGS. I have nothing further, Mr. Chairman. Thank you.
The CHAIRMAN. Thank you again, Mr. Fulton, very much indeed.
Mr. FULTON. Thank you, Mr. Chairman.
Mr. BEASER. Mr. Samuel Black.
The CHAIRMAN. Mr. Black, will you be sworn?
Do you solemnly swear that the evidence you are about to give to this subcommittee of the Committee on the Judiciary of the United States Senate, will be the truth, the whole truth, and nothing but the truth, so help you God?
Mr. BLACK. I do.
The CHAIRMAN. Will you state your name, address, and association, for the record?