Not in the name of children

Parliament is poised to enact legislation (Bill C-20) that will amend the Criminal Code sections dealing with, among other things, child pornography and sexual relations with persons between 14 and 17 years of age.

The proposed amendments take an already flawed law and make it much worse. Parliament has launched an unjustified, and unnecessary, attack on Canadians’ rights to free speech. In particular, Parliament has targeted the privileged free-speech protection given to artists in our society.

The British Columbia Civil Liberties Association (BCCLA) supports carefully targeted child pornography legislation. We even support criminalization of the mere possession of certain expressive materials-a unique scenario in Canadian law, which traditionally does not condemn such simple possession.

But the law must be limited. It must only ban materials that are created as a result of sexual criminal acts against children. Any photographic sexual representation of actual children, whose production is made possible by the commission of sexual criminal acts against those children, is the proper subject of criminal sanction. The key aspect, in our view, is that these materials only exist because crimes against children are committed.

But the current law forbids much more than that. It bans representations of persons who are not even children. Indeed, representations of imaginary people can give rise to criminal prosecutions. It is far from clear that such representations cause any harm or violate anyone’s rights and, without such harm or violation, there ought not be criminal prohibition.

Moreover, the age of consent in Canada is 14 (so, assumedly, we have decided that sexual acts by minors are not harmful, or at least not harmful enough to criminalize) yet representing these legal acts is a crime. This anomaly makes little sense.

The proposed amendments do nothing to fix these problems. Parliament has missed an opportunity to protect expression and, instead, has chosen to impose drastic restrictions on free speech. The BCCLA opposes Bill C-20 and believes that many of its provisions will not pass muster under the Charter.

One of the most shameful amendments proposed in Bill C-20 is to eliminate the artistic merit defence and to replace it with a defence of serving the “public good.”

Artists have been given special protection by legislatures and the court because art, as expression, is a central concept in a free and democratic society. Without the defence, existing works of art such as Vladimir Nabokov’s Lolita, Bernhard Schlink’s The Reader, and Marguerite Duras’ The Lover all contain depictions and descriptions that might now be prohibited.

The chilling effect of the law on new artists is another aspect of the law that is detrimental to free speech in Canada. Indeed, though the Supreme Court has not gone far enough to protect free speech, it has consistently protected artistic expression. Bill C-20 is inconsistent with that protection.

Protecting artists is an important goal for legislatures. Prohibiting art is not.

Worse yet, judging thoughts and expressions by the standard of “public good” is repugnant to the entire conception of thought, discussion, and expression protected by the Charter. Simply put, the government does not have the right to require its citizens to serve the public good when thinking or expressing themselves.

At the core of these proposed amendments are deep and disturbing confusions about the nature of free speech and democracy. We expect more from our elected representatives than kneejerk emotional responses.

We expect rational deliberation and careful protection of our rights. Bill C-20 fails to deliver. In a well-intentioned effort to protect children, the proposed legislation goes overboard by infringing on doctrines fundamental to a democratic society.

Bill C-20 also creates a crime of sexual exploitation of young persons. Although the amendment proposes some factors to help judges determine whether a relationship is exploitative, the crime of exploitation remains undefined. Existing law already protects young persons from sexual activity with adults who are in a position of trust or authority or adults with whom the young person is in a relationship of dependency, and from sexual activity with adults under conditions of inducement. Such activities are considered exploitative. But a broad and undefined “exploitation” crime goes too far.

In existing law, it is the position of trust, authority, and dependency that defines a sexual relationship as exploitive, and it is possible for an adult in such circumstances to know that he or she is engaged in exploitation. The language of the amendment, by contrast, is so vague that an adult engaging in consensual sex with, for example, a 17-year-old would not be able to ascertain with sufficient certainty whether this sexual relationship would constitute sexual exploitation.

All told, Bill C-20 is a major blow against freedom of expression. The BCCLA believes that many of the provisions violate the Charter and will ultimately be found unconstitutional. Rather than waste taxpayer resources fighting legal battles against artists, Parliament ought to devote more funds to finding and prosecuting those who abuse real children in the name of profit.

* Kirk Tousaw is the policy director for the BC Civil Liberties Association, Canada’s largest civil liberties group.