Submission to the Standing Committee on Justice and Human Rights
Bill C-20: An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act
In this brief addressed to the Canadian Parliamentary Committee considering Bill C-20, an omnibus bill amending the Criminal Code of Canada, especially sec. 163.1, the child pornography law, the British Columbia Civil Liberties Association (BCCLA) takes the view that an already seriously flawed law would be made even worse by the proposed amendments, and we believe that the proposed amended law will not pass constitutional muster once it is challenged, as it inevitably will be, in the courts. We view the proposed amendments as an unjustified attack on Canadians’ rights to free speech, as provided for by sec. 2 of the Charter of Rights and Freedoms, and a shameful assault on the privileged free speech protection afforded to artists in Canadian society. We urge the committee to reject the proposed amendments to the child pornography legislation.
Comments on Section 163.1
1. The BCCLA is a supporter of child pornography legislation. We have long held the view that protection of Canadian children is enhanced by carefully targeted legislation prohibiting child pornography, and we support a law that criminalizes photographic sexual representations of actual children, representations whose production is made possible by a sexual criminal act against those children. We believe that such representations, which we view as an extension of the indignity and harm to children caused by the sexual assault that made the representation possible, is a sufficiently important matter that not only should the production, sale, distribution, and possession for the purposes of sale and distribution be prohibited, but that the mere possession of such representations should also be criminalised, as is now provided for by sec. 163.1. It is important to note that the mere possession offense in 163.1 is a unique piece of legislation in the Canadian Criminal Code. It is the only law in Canada that criminalises mere possession of “expressive” materials, and our support for that measure should reassure parliamentarians that the BCCLA regards the question of child pornography with full seriousness.
2. However, the BCCLA, as evidenced by our interventions in R. v. Sharpe (2001) at the B.C. Appeals Court and Supreme Court of Canada levels, is critical of the existing sec. 163.1, which came into force in 1993. Our basic constitutional objection to sec. 163.1 is that it is legally overbroad, and unjustifiably violates sec. 2 of the Charter of Rights and Freedoms. Our specific objections to sec. 163.1 are as follows:
(a) The prohibition against child pornography representation is not restricted to representations of actual children, but includes representations of imaginary persons, including persons who are not children. This is an unjustifiable violation of sec. 2 protections of freedom of thought and expression.
(b) The definition of child in sec. 163.1 (“a person who is or is depicted as being under the age of eighteen years”) includes people who are not children, a point strongly made by Justice M. Southin in her B.C. Appeals Court reasons for judgment. The age of sexual consent in Canada is 14, therefore the law creates the anomaly that legal sexual acts when represented can become criminal representations. It is not clear how a legal act causes harm through its transformation into a representation. As a matter of principle and constitutional law, the government bears the burden of demonstrating this harm.
(c) Similarly, with respect to legal acts, a merely nude representation of a person who is not a child can be read as a crime on the grounds that “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 eighteen” presumably causes harm. Again, it is not clear how a legal act causes harm through its transformation into a representation. And again, it is up to the government to demonstrate the harm that law seeks to address.
(d) The child pornography law criminalises written material “that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.” Although it is legal to advocate such illegal activity–just as it is legal to advocate violent overthrow of the government–the child pornography law makes it criminal to commit such thoughts to writing. This is an unjustifiable infringement of sec. 2 protections and is dangerously close to the creation of “thoughtcrime.” The BCCLA holds the view that all written material should be exempted from child pornography prohibitions on the grounds that written materials do not legally cause harm.
(e) Underlying sec. 163.1 are unstated and undemonstrated assumptions about harm. The BCCLA holds the view that the standard of legal harm ought to be direct, measurable, damage to person or property, and that indirect harms, such as influencing people by means of ‘bad ideas that may lead to bad acts’ should be inadmissible. Social science findings of harm caused by child pornography representations, as indicated by the findings of fact in R. v. Sharpe (2001), are notoriously unstable–which is a polite way of saying that there is no proof of harm. The law infringes on sec. 2 free speech protections afforded the whole of the citizenry in order to prevent the use that might be made of child pornography representations by a few people. Even if such a notion were to be supported, that would make it incumbent upon legislators to be especially accurate in targeting the representations to be prohibited, which is precisely what has not happened in the overbroad sec. 163.1
4. In the Supreme Court of Canada decision in R. v. Sharpe (2001), Chief Justice B. McLachlin upheld the constitutionality of sec. 163.1, but only by “reading in” to the law significant exceptions and by clarifying the meaning of the “artistic merit” defence. At various points in her reasons for judgment, the Chief Justice pointed to the overbreadth of sec. 163.1, hence her ruling that its application must be restricted through exceptions and clarified definitions. Even with the exceptions provided, the law still contains anomalies. For example, while it is now legal to possess self-authored representations of legal acts, it is still the case that the distribution of such representations remains illegal, as does the possession of such representations by others. The same is true of written advocacy of illegal ideas.
5. The proposed amendments to sec. 163.1 are motivated by the trial judge’s ruling in the subsequent trial of Sharpe, which acquitted Sharpe on two counts of possession of child pornography on the grounds that his writings, as supported by expert witness testimony, had artistic merit, a ruling in accord with the definition of artistic merit provided by the Supreme Court ruling in R. v. Sharpe. Bill C-20 proposes to eliminate the defence of “artistic merit or an educational, scientific or medical purpose” and to replace it with a defence of serving the “public good.” C-20, having eliminated the “artistic merit” defence, also proposes to extend written materials offences beyond written advocacy of sexual activity with a person under eighteen that would be an offence to include “any written material the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.”
6. The BCCLA takes the view that judging thoughts and expressions by the standard of “public good” is, in constitutional terms, fatally vague. The idea that thoughts and expressions are required to meet a standard of “public good” is repugnant to the entire conception of thought, discussion, and expression protected by sec. 2, and ought not be saved by invocation of sec. 1. Though Bill C-20 gestures toward legal methods of determining “public good,” we do not believe that these gestures repair the vagueness of the standard. Put more plainly, we do not believe that the government ought to 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.
7. We expect that various artists’ association will object to the removal of the artistic merit defence proposed by Bill C-20, and we wish to support those objections. The doctrine of artistic merit defence has been entrenched, reiterated, and reaffirmed in law in English-speaking jurisdictions for some three-quarters of a century. Legislatures and courts have provided privileged free speech protection for artists (as well as parliamentarians, participants in the political forum, academics and members of the media) because such special vigilance on behalf of artists (and others), over and above the general free speech protections constitutionally accorded to all citizens by sec. 2, is regarded as central to our conception of the workings of a free and democratic society. The elimination of this recognition by the stroke of a pen is repugnant to the very idea of democracy and is contemptuous of the enhancement of this doctrine provided with considerable care by the Supreme Court of Canada.
8. The elimination of the artistic merit defence would create further undesirable anomalies in the functioning of a genuine democracy. There are numerous well-known works of art that contain descriptions of sexual activities with persons under eighteen that would be offences under the Criminal Code. 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 proscribed as child pornography under the envisaged Canadian legislation. The protection of the freedom of artists is a meritorious activity of government, the prohibition of art isn’t.
9. At the core of these proposed amendments are deep and disturbing confusions about the nature of free speech and democracy, and we confess ourselves to be shocked by the anti-democratic thinking evidenced by the drafters of this legislation. In a well-intentioned effort to protect children, the proposed legislation goes overboard in infringing on doctrines fundamental to a democratic society. The claims of anticipated harm that would be curbed by such legislation are unfounded or, at the very least, there is no evidence to substantiate such claims.
10. To reiterate our position in positive terms: artistic merit should continue to be an acceptable defence to allegations of sec. 163.1 offences; all written materials should be exempted from sec. 163.1 offences on the grounds that they do not cause legal harm; sec. 163.1 should be amended to capture only those representations of children engaged in sexual activity that involve actual children and whose production requires the commission of a crime under the Criminal Code.
Comments on Section 153
We wish to comment, more briefly, on the proposed amendment to create a crime of sexual exploitation of young persons, sec. 153. We oppose the proposed sec. 153 on grounds of legal vagueness and circular reasoning. Existing law protects young persons, aged fourteen to seventeen inclusively, from sexual activity with 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. Such activities are considered exploitative of young persons. Now, it is proposed that we also criminalize sexual relations between adults and young people where the adult “is in a relationship with a young person that is exploitative of the young person.” Although the amendment proposes some factors, such as “age difference,” “evolution of the relationship,” and “degree of control or influence by the person over the young person” to help judges determine whether a relationship is exploitative, the crime of exploitation remains undefined.
We have two concerns about the proposed amendment. First, the language of the amendment is so vague that an adult engaging in consensual sex with, for example, a 17 year old would not be able to ascertain with sufficient certainty whether this sexual relationship would constitute sexual exploitation. Indeed, it is fair to anticipate the invocation of this section by parents as a basis of a complaint to the police if their child has a sexual relationship with anyone older than 17. To this extent, we agree with the comments of the member of Parliament representing Charlesbourg-Jacques-Cartier, M. Richard Marceau. (1) In existing law, it is the position of trust, authority, and dependency that defines a sexual relationship as exploitive, and it is possible for an adult in such circumstances to know that he or she is engaged in exploitation. Second, it is far from clear what harm is being targeted by the legislation. For example, is this amendment seeking to provide a tool against the pimps of children? If so, section 212 of the Criminal Code already proscribes this type of exploitative relationship. What about the exploitation and abductions that arise out of communication via email and the internet that are reported in the media? Yet again, there already exists a criminal prohibition to address this problem. A new section of the Code, section 172.1, creates a specific offence of using a computer to communicate with young people for the purpose of committing sex offences. So, this problem too is already covered by the Code.
Regrettably, when introducing Bill C-20, the Honourable Martin Cauchon, Minister of Justice, does not specify exactly what harm Parliament intends to address with this amendment. We are left to surmise that the government is seeking to prevent any sexual relations between those 18 years and older and those under 18, but isn’t prepared to actually acknowledge this objective.
We urge the committee to reject this amendment on the grounds that it attempts to supplant prevention of harm with an imposition of selected moral views that ought to have no standing in Canadian law. N:\clw\board\policy\ea5-Freedom of Speech\BillC-20Brief.A03 For more information, contact The B.C. Civil Liberties Association 425 – 815 W. Hastings St. Vancouver, B.C. V6C 1B4 [email protected] www.bccla.org
(1) Canada, House of Commons, Hansard, January 27, 2003 (12:25 pm)