The two principal objections of the B.C. Civil Liberties Association to the proposed amendments to the child pornography statutes can be succinctly stated:
1. Possessing a “legitimate purpose” is an inappropriate criterion for art. No democratic government should require that a work of art be legitimized by reference to some extraneous value, upon threat of state suppression. The forum of a democratic people is the site upon which their notions of what is legitimate are constantly being formed, celebrated, interrogated, confirmed, revised or discarded in expressive exchanges which confer particular and special value upon art. Requiring, under pain of criminal penalty, that Canadians have a legitimate purpose as a precondition of participating in their forum is nonsense. To extend this requirement to art that is merely possessed, and not published, is nonsense on stilts that can only be explained in terms of some extraneous purpose or political pressure
2. “has a legitimate purpose related to…..” various redemptive thingies such as science, medicine, education or art is wonderfully vague. One ordinarily speaks of “serving” a purpose, and it is not at all clear what subtle shift away from ordinary usage the drafters intended with their notion of having or possessing a legitimate purpose. Perhaps they worried that “serving a legitimate purpose related to art” might be construed as simply “serving an artistic purpose”. An artistic purpose is clearly a legitimate purpose related to art. “Having” a legitimate purpose related to art might be meant to escape this reduction by suggesting the possession of some legitimate purpose that is distinct from art though somehow related to it. What might this free-floating notion of legitimacy be? No one can say before some court pronounces on it, but it is an invitation to the judiciary to make it up as they go along, presumably drawing on their personal moral convictions. But this is mere speculation, and in a country that prizes “rule of law”, one of the first necessities of criminal statutes is that they clearly and unequivocally identify the specific nature of an offence. When this principle is neglected, the rule of law is replaced by the more whimsical and unjust “rule by persons”. This is a state of affairs designed to bring the administration of justice into disrepute.
So the proposed amendments are, to the extent that we can guess their intended force, obnoxious to democratic values and an infringement of the fundamental freedoms of thought and expression protected by the Charter. But guessing the intended force of the amendments is a necessity, and this vagueness is, in and of itself, a fatal flaw in a polity committed to rule of law principles in the administration of its system of criminal justice.
Since the proposal of these amendments is but the latest development in a story, it is essential to place them in the narrative. The original notion of a child pornography law, as conceived by the Department of Justice in response to Canada’s ratification of the International Convention on the Rights of the Child, was reasonably coherent. The core idea was that any sexual representation of actual children that was produced through the commission of a sexual crime against those children should be prohibited. For example, it is illegal for an adult to engage in sexual touching of children under the age of 14 or to counsel or induce the sexual touching of such children. It’s also illegal for adults to engage in sex with persons under the age of 18 with whom they are in a relation of authority or trust (such as relationships between teachers and students under 18), or to provide an “inducement” for young people under 18 to engage in sex with adults (as in prostitution). Since such acts are crimes against children and young people, the reasoning went, photographic or video representations of those acts (since these forms of representations ordinarily require the exploitation of an actual child in their production) perpetuated and extended the harm caused by the original violation.
The new law also contained a strikingly novel feature: while obscenity law criminalised the making, distribution, sale, and possession for the purpose of distribution of obscene materials, the child pornography law also criminalised the mere possession of child pornography, the first law in Canadian jurisprudence to criminalise simple possession of expressive materials. Consistent with the reasoning re photographic representations discussed above, the idea here was that the possession of the photographic record of the sexual exploitation of a child is special in that it is a continuation and extension of the original crime against the child. Permitting such possession could form a motive for the exploitation of children in the production of photographic child porn for profit, just as permitting the possession of stolen property would encourage the crime of theft. Referring back to the International Convention, an important element of this provision is that it provided a measure of protection for children even if they were sexually abused in a foreign jurisdiction that countenanced such exploitation.
Mindful of the remarkable threat to constitutional expression rights posed by a law that criminalized the mere possession of expression materials, Justice Department officials were very careful to achieve a tight focus on representations that involved the abuse of actual children, and exclude from the scope of the law all manner of expression materials that were the product of imagination, such as text, drawings, paintings, sculptures, etc..
This was to be a law that would unite Canadians, whether “liberal” or “conservative” in their outlook, in the effort to protect children from being exploited by pornographers. It was to have practical use and effect, and avoid becoming a divisive freedom of expression battleground.
Unfortunately, the law passed by Parliament in 1993, in the heated context of a looming general election, was far different from the one envisaged by its original drafters. Once the bill reached the Commons, it was drastically expanded by legislators, and the law that was hastily passed in June 1993 was constitutionally “overbroad.”
The overbreadth of the child pornography law is found in the law’s definition of child pornography. In Section 163.1, “child pornography” means “a photographic, film, video or other visual representation… that shows a person who is or is depicted as being under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity.” As well, child pornography includes representations “the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years.” Finally, child pornography also includes “any written material or visual representation that advocates or counsels sexual activity with a person under the age of 18 years” that would be a crime under the Criminal Code.
The statute is overbroad, we contend, for the following reasons:
1. The prohibition against child pornography is not restricted to representations of actual children, but includes representations of a) persons who are not children, but are merely “depicted” as children, and b) imaginary persons. It is not clear how such depictions cause direct harm to children. This goes far beyond the case law on child pornography offered in the Butler decision of 1992, where the Supreme Court of Canada identified expressive materials that “use children in its production” as obscene.
2. The definition of child (persons under the age of 18) is too broad. The age of sexual consent in Canada is 14, therefore the law creates the anomaly that a lawful act, when represented, becomes an unlawful representation. For instance, while it is lawful for two 16-year-olds to engage in sex, a photograph of them doing so is illegal. It is not clear how a lawful activity causes harm through its transformation into a representation. The same thing is true of lawful nude activities that result in the representation “of a sexual organ or the anal region” of a person under the age of 18.
3. Finally, the law also criminalises written material “that advocates or counsels” certain illegal sexual activities. Although it is legal to verbally advocate such illegal activity-just as it is legal to advocate the violent overthrow of the government-the child pornography law makes it criminal to commit such thoughts or expressions to writing. Again, a lawful activity – speech – becomes illegal when transformed into a representation in the form of writing. This not only violates constitutional freedom of speech protections, it is also dangerously close to the creation of “thoughtcrime.”
Underlying the overbreadth of the child pornography law is a deeper doctrinal debate about “harm” in relation to the Criminal Code. The B.C. Civil Liberties Association holds the view that the standard of legal harm ought to be direct, measurable damage to person or property, an idea famously found in John Stuart Mill’s On Liberty. We also hold the corollary view that indirect harms, such as influencing people to believe in “bad ideas” that may lead to “bad acts,” should be inadmissable as a basis for criminal law. The contrary doctrine, that a “reasoned apprehension of harm” is a sufficient basis to criminalise expressive materials, is, for us, an unacceptable violation of freedom of speech, one of the fundamental freedoms protected by Sec. 2 of the Charter of Rights and Freedoms in Canada’s Constitution. Much of the child pornography law appears directed at preventing apprehended harms that might be caused by a very small class of persons who might be influenced by viewing child pornography. It is as if we made a law prohibiting the representation of bank robberies or car chases on the grounds that it might cause some individuals to rob banks or drive recklessly.
Thus, when an amendment is proposed in C-2, qualifying the force of the already weak “legitimate purpose” defence, that the act (possessing the expression material) that is alleged to constitute the defence “does not pose an undue risk of harm to persons under the age of eighteen years”, we know that the judiciary are being enjoined to err on the side of protective caution in their inferences of possible harm.
The existing child pornography law does, however, contain one saving feature in the form of an available defence: “the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.” Interestingly, the first case heard under the new law, in December 1993, six months after its proclamation, involved a Toronto artist, Eli Langer, who had exhibited paintings depicting sex between adults and children. An Ontario court quickly determined that Langer and his work were protected by the “artistic merit” defence.
The first significant challenge to Sec. 163.1 didn’t occur until some years later. Robin Sharpe, a Vancouver writer (whose writing included fictional child pornography), was arrested in 1995 and eventually charged with possessing child pornography. The child pornography that Sharpe allegedly possessed included a manuscript of short stories that he had written. When Sharpe’s case was heard in 1998, the accused challenged the constitutionality of the simple possession clause of the law, on the grounds that it violated his right to freedom of thought, speech, and expression. To the surprise and dismay of many conservatives and their political representatives, both the trial judge and the B.C. Appeals Court agreed with Sharpe and struck down the possession clause of Sec. 163.1 as being an unacceptable violation of the Constitution. The constitutional part of the case was ultimately settled by the Supreme Court of Canada in R. v. Sharpe (2001).
In its decision, the court took on the overbreadth argument. While the constitutionality of the child pornography law was upheld, the court decided that the law came perilously close to overbreadth, and could be saved only by “reading in” some changes to the interpretation of the meaning of the law. So, for example, the court ruled that “written materials and visual representations created and held by the accused alone, exclusively for personal use; and visual recordings, created by or depicting the accused, that do not depict unlawful sexual activity and are held exclusively for private use” were not child pornography that violated the possession clause of the law.
In terms relevant to the analysis of Bill C-2, some of the most interesting passages of Chief Justice Beverly McLachlin’s majority decision in R. v. Sharpe concerned the defence of artistic merit. Again, because the law raised such troubling constitutional concerns about rights of privacy and freedom of thought and speech, the court thought it important to spell out the meaning of the artistic merit defence, in the process broadening the meaning of the notion and consequently narrowing the scope of the child pornography law.
The court invoked a crucial precedent from its 1992 decision on obscenity law in R. v. Butler: “Artistic expression rests at the heart of freedom of expression values and any doubt in this regard must be resolved in favour of freedom of expression.” Added McLachlin, “Simply put, the defence must be construed broadly.” This is the passage in law-the culmination of three-quarters of a century of legal debates about banned books, going back to James Joyce’s Ulysses-that justifies what might be called the “privileged” free speech rights of artists, rights that exempt artists from restrictions on expression that apply to the general populace. (There are, by the way, similar free speech “privileges” accorded to legislators, academics, and the media.) These free speech privileges should not be viewed as “special interest” rights, but as a recognition that certain expression, such as art, is so fundamental to the values of a democratic polity that threats to it should be subject to special vigilance by legislators and the Courts.
Does “artistic merit” refer to the quality of the art? No, said Chief Justice McLachlin. “A person who produces art of any kind is protected, however crude or immature the result of the effort is in the eyes of the objective beholder… I conclude that ‘artistic merit’ should be interpreted as including any expression that may reasonably be viewed as art. Simply put, artists, so long as they are producing art, should not fear prosecution.” With that, Sharpe was remitted for trial.
At his trial, the Crown contended that Sharpe’s stories were a violation of the proscription of written advocacy of sexual crimes against children, even though the writing didn’t directly advocate or counsel anything. The Crown argued that the descriptions in the stories amounted to advocacy. Sharpe not only denied the implication of advocacy but, more tellingly, replied that the stories had artistic merit and he produced expert witnesses to testify to that effect. Sharpe was acquitted on the charge that his stories were child pornography on the grounds of the artistic merit defence (though he was found guilty on a count of possessing child pornography photographs).
The acquittal on artistic merit grounds provoked, as the case had done periodically for several years, a tremendous political uproar. It was this political outcry that motivated the Justice Department’s proposal of amendments, first in Bill C-20, and now in Bill C-2, bringing us to the present, and the criticisms with which we began our brief.
What the proponents of Bill C-2 envisage is an accused resembling Sharpe who is denied the right to claim the defence of artistic merit. When the accused then argues that the impugned material does not advocate or counsel illegal acts, the proponents then invoke the additional amendment prohibiting mere descriptions of illegal acts. While the bill’s proponents imagine capturing real child pornographers, the amended law could conceivably also capture Plato’s Symposium, Nabokov’s Lolita, and such films as Franco Zeffirelli’s version of Shakespeare’s Romeo and Juliet, notwithstanding the Supreme Court’s explicit exemption of such works from the charge of advocating illegal sexual acts.
Given the Supreme Court of Canada’s particular attention to the artistic merit defence and how closely the child pornography law skirted unconstitutionality, we believe that the proposed amendments display a sort of contempt for the court. They fall far outside the range of what has come to be termed a “conversation” between Parliament and the judiciary. Should they become law, their fate is almost certainly to be declared unconstitutional.
Perhaps the kindest thing that can be said about this misconceived law and its “Robin Sharpe amendments”, with their deep misunderstanding of both democracy and art, is that protecting children is an important goal for legislatures. Prohibiting thought and art is not. It has been said that there is nothing as irresistible as a bad idea whose time has come. We can only hope that this bad idea about “legitimate purpose” is not one whose time has come.