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PROTECTING
"PURSUITS THAT RELATE TO 'THE CULTURE OF THE COUNTRY": ADVOCATING
FOR THE ARTISTIC MERIT DEFENCE IN BILL C-12
By:
Frank Addario, Megan Davis Williams and James Missen
(Canadian Conference of the Arts, February 2004)
The
Canadian Conference of the Arts (CCA) is a national, non-profit
arts service organization based in Ottawa. It is the largest
and oldest arts advocacy organization in Canada, with members
in all of the provinces, major arts disciplines and cultural
industries, including writing, publishing, and the visual
and media arts. As a national advocacy group, the CCA represents
approximately 200,000 artists and cultural workers, and among
its organizational membership are some 400 arts organizations
from every artistic discipline and cultural industry. The
CCA believes that Bill C-12 (formerly C-20), an
Act to amend the Criminal Code (protection of children and
other vulnerable persons) and the Canada Evidence Act,
endangers Canadians' fundamental rights to free expression.
The CCA initiated an on-going public advocacy campaign, in
which Canadian artists such as John Greyson, Richard Fung,
Luis Jacob, Penny McCann, Ian Murray, Andrew J. Paterson and
others spoke out against the draft legislation in letters
addressed to Members of Parliament. News stories on
our concerns with Bill C-12 appeared in sources as varied
as the CBC, the Sun newspaper chain and Xtra, and our opinions
were also taken up in February 2004 editorials by the Globe
and Mail and the Ottawa Citizen.
The CCA contends that all artistic endeavours relate directly
to the core values that the guarantee of freedom of expression
in section 2(b) of the Canadian Charter of Rights and Freedoms
is intended to protect, including the pursuit of truth and
individual self-fulfillment. Art is indispensable to any democratic
society as a form of expression that describes and comments
on human, social and political conditions. It plays a critical
role in enabling individuals to explore, understand and become
more aware of themselves and the world in which they live.
This has been recognized many times by Canadian courts in
defining the breadth of freedom of expression in this country.
Even before the advent of the Charter, Justice Bora Laskin
in the Cameron case said, "The Court can take judicial
notice of the fact that the engagement of citizens or inhabitants
in the execution of art (whether drawing or painting or sculpting),
the training of students in art, the exposure of art to public
appreciation, all of this leading to the refinement of public
taste, are pursuits that relate to the culture of the country."
Similarly, the former Chief Justice of Canada, Antonio Lamer,
said this about art in a case concerning section 2(b) of the
Charter of Rights and Freedoms (Reference re: sub-section
193 and 195.1 of the Criminal Code): "As with language, art
is in many ways an expression of cultural identity, and in
many cases is an expression of one's identity with a particular
set of thoughts, beliefs, opinions and emotions. That expression
may be either solely of inherent value in that it adds to
one's sense of fulfillment, personal identity and individuality
independent of any effect it may have on a potential audience,
or it may be based on a desire to communicate certain thoughts
and feelings to others."
Sexual expression is related to virtually all of the key values
underlying the freedom of expression: the search for truth,
individual self-fulfillment and political participation. The
exploration of the sexual aspects of human existence has always
been a central concern of artists. Breakthroughs in popular
culture have often dealt with the depiction of the sexual
nature of humanity and the human body. Sexual expression plays
a central role in our understanding of human identity and
consequently, constitutes an indispensable subject of textual
and visual art. James Joyce's Ulysses and Vladimir
Nabokov's Lolita , widely considered as masterpieces
of 20th century literature, are recognized as such not only
because of their innovative use of language and narrative
form, but also because of the candour and directness with
which their sexually-charged subject matter is addressed.
Well-known visual works, such as Michaelangelo's David
and The Last Judgement , Goya's Nude Majar
, and Manet's Le Déjeuner sur L'herbe
all depict nudity or sexual themes. All of these art works
caused scandal and challenged prevailing community values
at the time of their creation and were the subject of censorship
attempts by customs seizures, detention, destruction of the
work, "draping" requirements, or threatened with criminal
obscenity charges.
History
is filled with accounts of attempts to regulate sexual expression
that exploits no one and is not the product of any criminal
activity. These attempts have failed because it is impossible
to draw a line between prohibited sexual expression and protected
artistic expression, in cases where nobody is harmed in the
production of the material in question. It is as a result
of this history that the Courts have created an "artistic
merit defence" to governmental action against expressive works
with sexual content. This defence now has an established position
in Canadian law, summarized by the Supreme Court of Canada
in its 1992 judgment in the Butler
case, as follows: "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. The artistic merit defence applies
not only to existing works, but to works which are being contemplated
.... the court must be generous in its application of the
'artistic defence'."
The depiction of sexual activity involving persons under the
age of 18 years should not be invariably suppressed. The CCA
accepts that Parliament may legitimately enact legislation
aimed at preventing harm to actual minors that is a direct
result of criminal activity. The CCA shares the widespread
public abhorrence for the sexual abuse of minors and acknowledges
the permissibility of criminal sanctions in connection with
material that involves - or is held out as involving - the
unlawful abuse of real children. On the other hand, literary
and visual representations involving teen sexuality, so-called
"coming of age" books and films (such as John Greyson's Genie
award-winning 1995 feature Lilies ), published diaries
of teenage sexual experiences (such as the works of Evelyn
Lau), classical and neo-classical paintings (such as the paintings
of Paul Peel, which hang in the Art Gallery of Ontario), stories
that explore child sexual abuse (such as the CBC's production
of The Boys of St. Vincent ) or self-depictions of
artists (or would-be artists) under the age of 18 years, are
all properly protected by the freedom of expression "artistic
merit defence". They are expressions of a fundamental aspect
of the human condition and their creation harms no one and
are, thus, not criminal offences.
The proposed reform intends to inhibit artistic expressions
involving people under (or depicted to be under) the age of
18 that are created "for a sexual purpose". If it is assumed
that "for a sexual purpose" means describing sexual activities
and if the definition is given an expansive interpretation,
this change could criminalize the works of any Canadian artist
who addresses themes such as "coming of age" and juvenile
sexuality, not to mention criminalizing Canadians who merely
possess or distribute those works, such as museums, libraries,
schools, or galleries. If, on the other hand, "for a sexual
purpose" is narrowly interpreted, its inclusion is rendered
unnecessary, as it would be captured by the existing Criminal
Code. Further, if the current Bill were to pass as drafted,
numerous scenarios would ensue wherein Canada's police and
courts would be left with vague language in order to interpret
what creative and artistic works may or may not constitute
"child pornography". For example, any Canadian teenager
over the age of consent of 14 could face criminal charges
if s/he decided to express her/his own personal experiences
of a legal sex act with another teenager in the form of writing,
painting, film, or song. This is the type of legal "Pandora's
box" that C-12 would open and the CCA finds this unacceptable.
More
alarming to the CCA is the proposal to remove the existing
defense in cases of alleged child pornography (paragraph 163.2
of the Criminal Code), which reads: ".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."; and
replace it with: "No person shall be convicted of an offence
under this section if the acts that are alleged to constitute
the offence, or if the material related to those acts that
is alleged to contain child pornography, serve the public
good and do not extend beyond what serves as the public good."
Thus, a reverse onus is placed on the accused artist whereby
s/he must not only prove objectively that their creative work
in question not only serves the public good, but
it does not exceed the limits of the public good.
Former Justice Minister Martin
Cauchon practically conceded that the "public good" was a
vague concept when he defined it during question period following
his September 2003 testimony to the Standing Committee as,
"the standards of society". The CCA contends that the very
notion of public good in this context runs contrary to "the
standards of (Canadian) society" because, in a democracy,
freedom of expression serves the public good and
is an end in itself, not the other way around.
The
CCA opposes the elimination of the artistic merit defence
in section 163.1 of the Criminal Code of Canada.
Eight years after section 163.1 was inserted in the
Criminal Code, the Supreme Court gave an extensive definition
of the artistic merit defence in its 2001 ruling on
the case of British Columbia pornographer John Robin
Sharpe. The CCA was greatly relieved by this development,
as the Supreme Court's definition is broad enough to
ensure that artists working with novel or transgressive
subject matter would not suffer the ignominy of being
prosecuted in the criminal courts. Although the Court
also went on to carve out two exceptions to the offences
of possessing or making child pornography, it did so
in order to avoid having to strike down the entire law
on the ground that it was an overbroad infringement
of the freedom of expression. As a result, the "child
pornography law" has largely been saved and is wide
enough to capture virtually all situations in which
expressive material could lead to harm to real children.
Its effectiveness is best exemplified by the Sharpe
case itself, wherein he was in fact tried, convicted,
sentenced and served time for the crimes he did commit,
namely the criminal possession and distribution of sexual
images of actual children, but was acquitted of charges
related to writing works of his imagination.
Although the public good defence has been in the Criminal
Code since 1892, it does not have an auspicious history.
Replacing the defence of "artistic merit" by the phrase
"public good" is inadequate; it is a vague and subjective
notion, one which the CCA feels has not been adequately
defined. The Department of Justice stated it has taken
its definition of "public good" from the Supreme Court
of Canada's ruling in Sharpe . However, in
paragraph 70 of this ruling, the Supreme Court states
that, "The public good defence has received little interpretation
in the obscenity context, and a precise definition of
its ambit is beyond the scope of this appeal". The defence
invites purely subjective assessments resulting in criminal
liability being dependent on judicial personal taste.
It will inevitably have a chilling effect on the creation
of important works of art by Canadian artists. This
is so for three reasons:
First, the public good is an inherently subjective concept.
In a democracy, free expression itself serves the public
good. It is an end, not a vehicle to producing expressive
material consistent with some secondary value.
Second,
the enforcement of section 163.1 is subject to the exercise
of discretion by the police and the Crown. Neither is
equipped to judge whether the "public good" will be
served by a particular piece of expressive material.
Unlike the courts, the police and the Crown are not
obliged to hear all sides before they make their decision.
A number of now-notorious examples illustrate the difficulties
that face those charged with enforcement and prosecution
when they are called upon to make determinations of
this nature, the most infamous of them in Canada involves
the Little Sisters' Bookstore case in British Columbia,
though a more recent incident involves the 2002 Halifax,
Nova Scotia seizure of a video installation by artist
Lyla Rye.
Third,
the judgment in Sharpe gave the artistic community
the certainty that it was seeking since the enactment
of section 163.1 in 1993. Bill C-12 effectively undoes
this achievement by replacing artistic merit with its
vague and subjective cousin, "public good". The theory
that public good can be quantified ignores the experience
of artists and promotes only "consensus art" of the
most timid variety. The defence will thus be incapable
of protecting freedom of expression where it is, in
fact, most necessary. The defence will not apply to
that which the consensus majority does not recognize
as having merit - the controversial, the novel, the
transgressive, and expression that is not part of the
mainstream. The very subjectivity of the term "public
good" and the self-limiting definition of the defence
means that it will offer protection against censorship
and criminal conviction only to those whose expression
represents consensus values. This is inimical to the
concept of free expression.
These
concerns are not hypothetical. The prosecution of the
Toronto artist Eli Langer in the mid-1990s and the subsequent
attempt by the Crown to destroy his works illustrate
the difficulties faced by legitimate artists when they
employ themes that fall within the terms of section
163.1. Langer's illustrations, on display at the Mercer
Union gallery, depicted young persons who appeared to
be under the age of 18 engaged in sexual activity, in
some cases with adults, and he was initially charged
with making and possessing child pornography. After
several months, the Crown withdrew those charges but
sought a forfeiture of his works in order to destroy
them. The Crown's application was dismissed after a
court concluded that the works had artistic merit. Langer
could not be prosecuted under section 163.1 today because
the defence of artistic merit, as defined in the 2001
Sharpe decision, would protect him.
However,
he could easily be prosecuted under the replacement
"public good" defence. As the trial Court found in Langer,
one of the purposes of his work was to draw attention
to child sexual abuse and concluded, "Although the subject
matter of the paintings and drawings is shocking and
disturbing, the work as a whole is presented in a manner
that is not intended to celebrate the subject matter.
In other words, the purpose of the work is not to condone
child sexual abuse, but to lament the reality of it."
Under the definition in Sharpe , Langer could
not be prosecuted regardless of the success of his work.
Under the public good defence, he could. Under the definition
of artistic merit in Sharpe , Langer could
not be prosecuted even if the Court thought his work
was excessively explicit. Under the public good defence,
he could.
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The
CCA asserts that Bill C-12 needs to be amended and positioned
so that while it protects living children from sexual predators,
it will also provide future generations with their Charter
rights to freedom of expression. Elimination of the
artistic merit defence will not eradicate the sexual abuse
of minors, nor will it prevent child pornography from being
produced and distributed; it will only serve to create confusion
among the public and punish artists whose works, created in
good faith, could be deemed in contravention of the new legislation.The
CCA submits that the artistic merit defence, as defined in
Sharpe , should be retained. It protects artists.
It protects art. It protects "pursuits that relate to the
culture of the country".
**
Frank
Addario is a lawyer with
the Toronto firm Sack, Goldblatt, Mitchell. His practice
focuses on criminal trial and appellate litigation and all
forms of Charter litigation, with an emphasis on freedom of
expression matters. He has argued numerous cases, including
Ontario v. Langer and
Little Sisters Book and Art Emporium v. Canada .
Megan Davis Williams has spent her life working
in the arts as both artist and administrator and has been
the National Director of the Canadian Conference of the Arts
since 1998. James Missen is the CCA's
Cultural Policy Intern and is also a Sessional Lecturer in
the School for Studies in Art and Culture at Carleton University.
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