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Comments on proposed amendments to the Criminal Code of Canada (Portions dealing with pornography)

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Introduction

Some of those who advocate obscenity laws do so because they believe that reading sexually explicit materials or watching sexually explicit actions will harm at least some readers or watchers. Others support these laws because they are offended by sexually explicit materials. The latter, of course, does not provide an adequate basis for obscenity laws. The former might if overwhelming evidence existed that sexually explicit materials can be harmful to users. But no such evidence is available. What the supporters of such laws must favour is censorship—and any censorship is clearly and unequivocally harmful because it is an infringement of one of our most basic rights, the right of free speech. Indeed it is an attack on freedom itself. Because it is such an attack, the burden of proof rests with those who support obscenity laws. They must be able to provide irrefutable evidence that such materials are seriously harmful—so harmful that they warrant the imposition of censorship.

And by the same token any obscenity laws must avoid the use of concepts whose application is open to dispute. Otherwise, not only would the legal system find itself embroiled in endless disputes, but the way would also be opened for the laws to be used to harass and intimidate people and thereby to create de facto censorship. But anyone who attempts to write obscenity laws quickly finds that it is impossible to avoid using concepts that are essentially disputatious. The concept of obscenity is itself an example and the history of obscenity laws is littered with failed efforts to clarify the central concepts.

Given the difficulty involved in being clear and the absence of evidence of harm, the only rational course is to oppose obscenity laws. But if one for some reason still believes that there should be such laws, he or she ought not, given these difficulties, to be willing to impose severe penalties on those who break such laws. It would be vicious in the extreme to do otherwise.

Finally, we must be very wiry of another danger with ’the problem” of obscenity. We can become so concerned about the pursuit of pornographers that we direct our energies away from grave social problems far more deserving of our attention. If obscenity is a social problem it seems to be a symptom, not a cause. We would be reckless to devote our efforts to its eradication if we thereby neglect those problems that are clearly serious.

The BCCLA opposes even the obscenity laws we now have in Canada. The proposed amendments would enormously extend the scope of present obscenity laws and drastically increase the penalties for breaking the laws.

In what follows we focus on two clauses, 18 and 19, which would amend present sections of theCriminal Code.

Clause 18

Clause 18 does not merely, as the explanatory notes say, call for an “amendment” of the Criminal Code; rather it recommends radical alterations of Section 159(8) of the Code and a resultant massive extension of the range of items that would, under the law, be regarded as obscene. The extension would be in four areas:

  • Items covered by the Code would clearly and explicitly be extended from “publication” to “matter or thing”. While the present wording of section 159 of the Code does include the expression “or other thing whatsoever,” the section obviously was written with published materials in mind. The proposed “amendment” explicitly allows any kind of thing to be obscene.

    This extension may not be as significant as the others. The main threat to freedom of information is the threat to publication—and that threat exists under present obscenity laws. However, it does seem bound to increase the number and variety of obscenity cases and would greatly increase opportunities for harassment of citizens by police, customs officials and others. It does nothing to clarify the concept of obscenity and promises merely to increase disputes and litigation.

  • Features of items which would make them obscene would be extended from “undue exploitation of sex, and crime, horror, cruelty or violence “to” undue exploitation of sex or crime, horror, cruelty or violence—-“. Thus, the latter four would become obscene in their own right, surely opening a Pandora’s box of possible charges and suppression. For example, would so-called “detective” or “mystery” novels represent undue exploitation of crime?

    The proposed amendments to section 159 are introduced as a way “to clarify the meaning of obscenity”. That is an admirable goal, but these proposed extensions have the opposite effect of increasing the range of features to which the vague and essentially contentious concept of “undue exploitation” must be independently applied.

  • The features discussed in (b), above, are presently included in the Code, although their role in defining obscenity would be upgraded. But the amendments also include introduction of an entirely new criterion for obscenity, “undue degradation of the human person.” Presumably this criterion is viewed by the government as different from the other criteria, and not simply as summarizing or catching the essence of obscenity in whatever guise it presents itself.

    Of course no rational person can favour the degradation let alone whatever is “undue degradation” of any person. To degrade someone is by definition to do something one ought to oppose. And no doubt coercing people to engage in sex acts or persuading innocents to participate in such acts does degrade then. It may even be that degradation of people is at the heart of what some of those who favour obscenity laws are concerned with. But “degradation” is at least as vague and ambiguous as “undue exploitation, and used in laws of the kind proposed in the amendments, the degradation clause seems likely only to increase the opportunity for suppression of basic freedoms.

  • The amendments would require that, where children are concerned, any thing which “unduly depicts” or describes a child engaging in any one of a variety of sexual acts would make that thing obscene.

    Indeed, criteria for obscenity as applied to children are to be broadened even further—much further—so that no thing could depict or describe a child even simulating sexual acts or “unduly displaying any portion of his or her body in sexually suggestive manner.”

We hold no brief for child pornography; nor do we decry the motives of the authors of the amendment. Clearly they believe that by cutting off the publication of such materials, we can eliminate the use of children for such purposes. But the proposals seem misguided in at least two ways.

First, it seems likely that the proposed extensions, with their attendant penalties, could at best reduce such use of children, not eliminate it. But, second, even passing the proposed extensions could eliminate the production of child pornography we must consider the threat these extensions would pose to basic liberties, particularly freedom of expression. The term “depicts” so expands the criteria of obscenity that the amendment would carry the law far beyond protection of children. Under the guise of such protection this and the other extensions endanger all of the arts. That they pose a serious threat to literature seems clear. And the effects on visual and performing arts would be even more severe. Broadening the depiction criterion to include simulated sexual acts and adding the “sexually suggestive” criterion could presumably choke off even such trivial and harmless productions as old Shirley Temple movies. And into the continuing disputes about what counts as obscene would be added disputes about what is to count as “sexually suggestive.” Given the varied social backgrounds and psychological idiosyncrasies of persons, these disputes seem bound to be endless.

Clause 19

The amendments proposed in this clause reveal some of the excessive zeal which was revealed March, 1973 Report on Pornography of the Standing Committee on Justice and Legal Affairs of the House of Commons from which these amendments presumably were derived. The amendment calls for truly draconian punishments to be imposed on producers and purveyors of pornography. And these extreme penalties are to be imposed for “criminal” acts in which the “victims”—those who read or watch obscene materials—are chiefly volunteers. The idea that these acts ought to be classed as criminal derives from a wholly unsubstantiated belief that the citizens who choose to use the materials will thereby be harmed. The suggested punishments are grotesquely excessive.

Conclusion

The adoption of these amendments would make bad law worse. They would effectively misdirect the energies of police and other officials. They would encourage widespread harassment and de facto censorship. Worst of all, they would promote a sustained attack on freedom of expression. They should be rejected.