Egale opposes Bill C-2

Egale Canada is opposing Bill C-2 after all.

The national gay rights lobby group has now joined a chorus of civil liberties groups, artist organizations and gay activists who object to fatal flaws in the bill that they say will end up targeting gays and artists rather than the child pornographers and child abusers the bill claims to be aimed at.

Egale’s board of directors decided Apr 14 to criticize the first piece of legislation introduced by the Paul Martin Liberals last year. In doing so, they have reversed a decision taken last December by Egale’s previous board to avoid the issue of Bill C-2.

The proposed bill “stifled dialogue about stuff we need to talk about,” says Hilary Cook, who served as chair of Egale’s legal committee for five years before recently taking an Ontario seat on the board of directors.

There were two main areas of the bill that concerned Egale: its impact on age of consent and its approach to defining and dealing with so-called “child porn.”

The law now forbids people under 18 from having sex with those over 18 if the older person is in a position of trust or authority towards them. Otherwise, the 14-year-old has the right to choose their consensual sex partner. But Bill C-2 would change that, say critics, by introducing the idea of an “exploitative relationship” that the judge can infer “from the nature and circumstances of the relationship.” That’s unacceptably vague and disregards the rights of teens to choose their own sex partners, say critics.

Egale wants to recognize the reality of today’s gay teens, says Cook. “In a class of 25 students, the chance of finding the love of your life is much reduced,” she says. In a world of schoolyard harassment, bullying and generalized homophobia, teens often date and seek sex outside of their peer group, she says.

It’s unrealistic for a government bill to expect teens to have sex only with those of their own age.

“That’s not the queer youth reality,” says Cook.

And, she says, one of the basic issues is the need to amend federal legislation that outlaws anal sex for people under 18, whereas vaginal sex is legal at 14. The law has been struck down by two provincial appeal courts but not fixed by Ottawa.

“It makes no sense. It cannot be 18 for this particular act and 14 for that particular act.”

At the same time, says Cook, it’s important to Egale that exploitation of youth is dealt with. “We definitely need to deal with the teacher who is preying on kids” for example, she says. “We can all remember a teacher who had married a former student.”

Egale considered three options in response to the child-porn sections of Bill C-2, says Cook: to continue the direction taken last December and not submit a comment; to endorse the “nicely put together” brief opposing the bill from the Canadian Conference Of The Arts representing 250,000 artists; or to write its own brief about the bill’s impact on an accused’s defence of creating work with artistic merit.

“We decided to go with the third option, the bravest option,” says Cook.

The government bill creates a definition of child pornography that is too broad and defences that are too narrow, she suggests. The bill would remove artistic merit as a defence, requiring the artist to prove the work fulfilled a “legitimate purpose.”

Cook looked at her own bookshelf and realized that some of her favourite gay books, including those dealing with themes of coming out, would be deemed child porn under Bill C-2.

“We can’t even talk about our own upbringing?” she asks, an edge of incredulity in her voice.

“Acts that are legal, you can’t describe or make art about?”

Among other things, that stifles a discussion about exploitation and consensuality itself, she says. And that discussion needs to occur.

Civil libertarians, artists and gay activists have opposed the child-porn sections of Bill C-2 because it would outlaw written and other works of the imagination that do not actually use children.

They argue that any restriction on freedom of expression must prove demonstrable harm. And how can children be harmed if they were not involved in a work?

Egale’s brief opposing Bill C-2 will focus on the need to preserve the current defence of “artistic merit” available to writers and artists doing controversial works.

“We oppose the definition of ‘artistic merit’ being changed,” says Cook.