Persecuting artists

In December 2002, then-Justice Minister Martin Cauchon introduced Bill C-12 (formerly C-20), an Act to amend the Criminal Code for the protection of children and other vulnerable persons, into the House of Commons. The Bill proposed significant legislative changes to several areas of the code, including its child pornography section. The Canadian Conference of the Arts (CCA) worked tirelessly to impress on the federal government that any amendments to the child porn law must continue to provide for the legal defence of artistic merit, in order to protect Canadians’ right to free expression as guaranteed in the Charter of Rights and Freedoms. Bill C-12 died in the Senate with the May 2004 federal election announcement.

The Bill recently returned to Parliament as C-2, the very first piece of legislation brought forward by Paul Martin’s newly elected minority Liberal government. (This is not entirely a surprise, as during the heat of the June election campaign, the Conservative party retracted a news release with a headline reading “Paul Martin Supports Child Pornography?” and later changed it to “How Tough is Paul Martin on Child Pornography?”) What is surprising, however, is how little the language in the new bill has been altered in order to address the concerned testimonies of CCA and its member organizations, in addition to the Canadian Civil Liberties Association and other groups.

The same proposals to criminalize legitimate expression remain in C-2, as the bill would expand the legal definition of “for a sexual purpose” to include audio formats and written materials that describe prohibited sexual activity with persons under the age of 18. C-2 also removes the contentious “public good” defence in the previous draft and replaces it with a “legitimate purpose” defence that is equally vague and untested in a legal context.

Canada’s artists mounted a significant advocacy campaign to argue that the “public good” defence proposed in C-12/C-20 be dropped and that the artistic merit defence, which has jurisprudence in Canada in protecting expression, be retained. The Canadian Conference of the Arts does support new legal measures to protect underage persons from real sexual harm, abuse, exploitation and the trauma of testifying against their aggressors. However, we also believe that by eliminating the artistic merit defence that currently exists in the Criminal Code, the bill reaches further than necessary by implicating as sexual activities the production, distribution and/or exhibition of representational works depicting persons under the age of 18 in sexual situations.

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.

Conversely, sexual expression is related to virtually all of the values underlying the freedom of expression. It plays a central role in our understanding of identity and political participation and, consequently, it constitutes an indispensable subject of textual and visual art. Yet history-and, indeed, contemporary society-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 no actual person is harmed in the production of the material in question.

It is as a result of this history that our courts have upheld an artistic merit defence to governmental action against non-consensus 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 judgement in the Butler case. “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.'”

If Bill C-2 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 which artistic works may or may not have a “legitimate purpose” or “pose an undue risk of harm to persons under the age of 18 years.”

If it is assumed that “for a sexual purpose” means describing any sexual activities, and if the definition is given an expansive interpretation, this change in the law could potentially criminalize Canadian works that address themes such as “coming of age” and juvenile sexuality in art, not to mention criminalizing those who merely possess or distribute those works, such as museums, libraries, schools, or galleries.

Further, any Canadian teenager over the age of consent, which is now 14, could face criminal charges if they decided to express their own personal experiences of a legal sex act with another person in the form of writing, painting, film, or song. The same would be true for adult survivors of sexual abuse suffered while teenagers who use expressive representations as a means of therapy.

These are the types of legal Pandora’s boxes that Bill C-2 would open. This is unacceptable and unnecessary, given that an insufficient debate about the consequences of passing such legislation has yet to occur either in Parliament or in the broader Canadian public.

Elimination of the artistic merit defence will not eradicate the sexual abuse of actual minors in this country, nor will it prevent the production and dissemination of child pornography. It will only serve to create confusion among the public and persecute artists whose works could be deemed in contravention of the new legislation.

* James Missen is the cultural policy intern at the Canadian Conference of the Arts, a national non-profit arts service organization founded in 1945 and based in Ottawa. As an advocacy group, the CCA represents approximately 250,000 artists and cultural workers and among its organizational membership are some 350 arts organizations from every artistic discipline and cultural industry.