CCA BULL ETIN / BULLETIN DE LA CCA
ONE SMALL STEP FOR ARTISTIC MERIT?
Ottawa, October 8, 2004 - The CCA is somewhat pleased to learn that the federal government's new bill on child pornography, introduced in the House today as Bill C-1, contains amendments demanded by CCA members and echoed by several other arts and civil liberties organizations. After more than a year of public outcry from the cultural community and their supporters, including the editorial boards of several major Canadian newspapers, the Martin government finally appears to have come to its senses.
A report earlier today in the Ottawa Citizen indicated that Bill C-1 would include amendments from the former Bill C-12 (and prior to that, Bill C-20) to replace the controversial “public good” defence with more specific wording. Upholding the right of freedom of expression in artistic works was one of CCA's top issues over the past year. The earlier “public good” defence would have shifted the onus in obscenity cases to the accused, who would then be obliged to prove in court that their expressive work was produced to serve the vague legal notion of “public good” and that the work did not exceed those limits.
Why only “somewhat pleased”? On the one hand, while a cursory analysis of releases about the new bill reveals positive developments in protecting freedom of expression by introducing a new legal defence of “legitimate purpose”, there are still some obstacles. On the positive side, the proposed legal defence of “legitimate purpose”, as opposed to the heavily criticized “public good” defence in the bill's previous existence, would, according to a Department of Justice backgrounder released today, “only be available if (1) the act in question had a legitimate purpose related to the administration of justice, or to science, medicine, education or art, and if (2) the act does not pose an undue risk of harm to children. The single legitimate purpose defence incorporates the harm-based standard used by the Supreme Court of Canada in upholding the existing child pornography provisions in 2001.”
However, the same release also speaks of how C-1 “would broaden the definition of child pornography to include audio formats, as well as written material that describes prohibited sexual activity with children where that description is the predominant characteristic of the work and it is done for a sexual purpose”. At this point, what is specifically proposed in the minutiae of the draft text of C-1 remains to be seen, though it does not bode well for the cultural community when certain kinds of expression could potentially be criminalized as “obscene”. It also mentions creating two new offences of “voyeurism”.
See also:
The Department of Justice's Backgrounder on Bill C-1: http://canada.justice.gc.ca/en/news/nr/2004/doc_31248.html
The Department of Justice's Media Release on Bill C-1: http://canada.justice.gc.ca/en/news/nr/2004/doc_31246.html
According to the Citizen report, the government was concerned that if a new law eliminated the artistic merit defence, it would not withstand a court challenge on the basis that it violates the Charter of Rights and Freedoms. Stephen Harper, leader of the Conservative Party, is quoted as saying his party will settle for nothing less than the complete elimination of “all legal excuses for child pornography”. Nevertheless, today's introduction of the amended bill demonstrates a significant policy shift on the part of the Liberal government, and one which owes its existence to the fact that there is a minority government. (The New Democratic Party had joined with the artistic community over the past year in calling for such an amendment.)
CCA will continue to monitor the progress of Bill C-1 and will provide its members with frequent updates.
A backgrounder on the Bill in its previous iteration is available on the CCA website at http://www.ccarts.ca/en/advocacy/publications/policy/index.html#expression ; see also CCA bulletins 18/04 and 25/04 .
For more information:
Kevin Desjardins
Communications and Public Relations Manager
(613) 238 3561 ext.11
Fax (613) 238 4849
49/04
Please post and/or distribute. When reprinting CCA Bulletins, please give appropriate credit.
Register now for the CCA's 2004 National Policy Conference
Friday 19 and Saturday 20 November 2004
at the MacKenzie Art Gallery ,
Regina , Saskatchewan
See CCARTS.CA for more details