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 .