Home / BCCLA supports criminal law against child porn, but opposes new law as unreasonable censorship

BCCLA supports criminal law against child porn, but opposes new law as unreasonable censorship

The B.C. Civil Liberties Association, Canada’s oldest civil liberties organization, is opposing a new federal law that would eliminate the defence of artistic merit in the Criminal Code’s child pornography provisions.

The BCCLA is an emphatic supporter of legislation that makes it a crime to produce, distribute or possess materials in which real children are used to produce pornographic materials. Materials depicting real children are themselves evidence of the criminal abuse of children and must never be tolerated.

However, the BCCLA opposes provisions in Bill C-20, which if passed would eliminate the defence of artistic merit for fictional and other materials that involve imaginary depictions of children. The government’s proposal would replace the defence of artistic merit with a defence of “public good”. The BCCLA opposes the idea that the government should have the right to require its citizens to serve the public good when thinking or expressing themselves. It is a hallmark of totalitarian societies to exact such correct thinking from its subjects. Bill C-20 would make this fundamentally flawed idea the law of the land.

BCCLA President John Russell, stated today: “The Courts have repeatedly recognized that a right to artistic expression is a fundamental feature of the right to free expression within the Charter of Rights and Freedoms. The government cannot eliminate the right to artistic expression any more than it can eliminate the Charter itself.”

In fact, in R. v. Sharpe, Chief Justice McLachlin specifically pointed out the shortcomings of a defence of public good:

“Nevertheless, the public good defence might not answer all concerns as to the law’s breadth. Absent evidence of public good in the particular case, a person might still be convicted for possession of material that directly engages the value of self-fulfilment and presents little or no risk of harm to children. Thus, while the public good defence might prevent troubling applications of the law in certain cases, it would not do so in all.” R. v. Sharpe, 2001 1 S.C.R. 45 at paragraph 71

Unless “artistic merit” is by definition regarded as serving the “public good,” something not suggested by Bill C-20, various existing works of art will come under threat of prohibition by the government, and a chill will be created for the creation and distribution of future works of art. Such existing works of art as Vladimir Nabokov’s Lolita, Bernhard Schlink’s The Reader, and Marguerite Duras’ The Lover all contain depictions and descriptions that might be prohibited unless a successful “public good” defence could be mounted. Filmed versions of Shakespeare’s Romeo and Juliet, such as that of Franco Zeffirelli, deprived of an artistic merit defence, might find themselves censored as child pornography under the proposed law. The protection of the freedom of artists is a meritorious activity of government, the prohibition of art – and harassment of artists – isn’t.

The Association is also opposing another amendment that would criminalize sex between an adult and young person if the adult “is in a relationship with a young person that is exploitative of the young person.” The law currently prohibits sexual activity between young people (aged 14-17) and adults who are in a position of trust or authority or adults with whom the young person is in a relationship of dependency, and from sexual activity with adults under conditions of inducement. The BCCLA believes that such activities are legitimately considered exploitative of young persons and should be criminalized. However, the new amendment would be unreasonably vague. No youth or adult could be reasonably expected to discern whether they would be committing a criminal act or not if they had sex.

The BCCLA is supportive of another amendment in Bill C-20 that would address a current gap in the criminal law to prohibit a person surreptitiously observing or visually recording someone who is nude and who has a reasonable expectation of privacy.

The BCCLA’s Policy Director, Kirk Tousaw, is presenting the BCCLA’s concerns to the House of Commons Standing Committee on Justice today in Ottawa today.

CIVIL LIBERTIES CAN’T PROTECT THEMSELVES