The Martin minority government’s first foray into the legislative process has artists and civil libertarians across the country raising red flags of alarm.
Bill C-2 is a motley collection of amendments to the Criminal Code, all designed to, in Justice Minister Irwin Cotler’s words, “protect the most vulnerable amongst us.” It’s the latest incarnation of Bill C-20, which was first introduced in December 2002, later turned into C-12 and eventually died in the Senate in May when the federal election was called.
Like its predecessors, Bill C-2 seeks to, among other things, increase penalties for offences related to child abuse and abandonment and make it less daunting for children to testify in court. It also seeks to tighten the existing child pornography section of the Criminal Code. And that’s where the trouble begins for the bill’s critics.
But it doesn’t end there. Bill C-2 also seeks to criminalize a new form of intergenerational relationship, something Micheal Vonn of the BC Civil Liberties Association (BCCLA) has grave concerns about.
Right now, Canada’s Criminal Code sets the age of consent at 14 years, which means people can legally consent to have sex once they turn 14-unless they want to have sex with someone older than 18 years. Then they can only consent, by law, if they are not dependent on the older person and if the older person isn’t in a position of trust or authority towards them.
Bill C-2 wants to add one more category: if the bill passes, the 14-year-old’s consent also won’t count if he or she is judged to be in an “exploitative relationship” with the adult.
What’s an exploitative relationship? “A judge may infer that a young person is being exploited in a relationship from the nature and circumstances of the relationship,” the bill says. “Factors that a judge may consider include the age of the young person, the age difference between the parties, the evolution of their relationship, and the degree of control or influence exercised over the young person.”
In other words, says Vonn, “it’s unconscionably vague.”
In fact, she says, “the crime of exploitation basically remains undefined.” And that makes it “ripe for abuse, just ripe.
“What exactly is the harm that this particular provision is aimed at?” she asks. The law already prohibits many forms of specific exploitative acts, Vonn points out, so why would this vague clause even be necessary?
What is the government trying to do? she continues. Is it trying to prohibit any sexual relationship between people over and under 18 years?
If that’s the government’s goal, then it’s out of line, she says. “I don’t think it matches any notion of that the government has any business doing. The age of consent is 14, for gosh sakes.”
Vonn also has serious concerns about the part of the bill targeting the child porn law. While the BCCLA supports legislation to protect actual children from actual harm, it opposes any attempt to outlaw written works of the imagination that do no demonstrable harm, she says. Yet that’s just what this bill would do.
Right now, the child porn section of the Criminal Code defines child porn as any written material which counsels or advocates sex with people under 18 years of age. Bill C-2 seeks to expand that definition. If the bill passes, any written material which simply describes sex with minors, as its “dominant characteristic,” would be considered child pornography.
Outlawing any works of the imagination is an “unjustified violation” of the freedom of expression guarantees in the Charter of Rights, Vonn says.
If the government wants to outlaw any form of expression it should have demonstrable proof that the expression causes “direct, measurable damage to a person,” she continues. But works of the imagination “do not cause harm,” she says, renewing her objection to “anything that might expand” the criminalization of such works.
It’s an objection being echoed by artists across Canada.
Not only would Bill C-2 expand the definition of which written works count as child porn, it would also add a whole new form of expression-audio-to the potentially prohibited list. All in all, it’s a change vehemently opposed by the Canadian Conference of the Arts (CCA), a group representing about 250,000 artists.
“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,” writes the CCA’s James Missen, in the last issue of Xtra West.
But Bill C-2 doesn’t just want to expand the definition of what counts as child porn-it also wants to limit the ways in which a person charged with making child porn can defend themselves.
Right now, if a person charged with making child porn can demonstrate that the work has artistic merit, the judge will acquit them. It’s called the artistic merit defence-it means it may be porn but it’s legally defensible porn because it has artistic value.
What counts as artistic value? According to the Supreme Court of Canada, “any expression that may reasonably be viewed as art,” as having some “artistic value, however small” qualifies for the artistic merit defence.
Bill C-2’s predecessors scrapped the artistic merit defence and replaced it with the public good defence-to howls of protest from artists and civil libertarians. The public good defence would promote only “consensus art of the most timid variety,” the CCA warned at the time.
Only works which fall within the mainstream, which reflect consensus values and meet the dominant culture’s standards of what’s acceptable will count as serving the public good, it continued. It’s not the job of artists to reflect consensus values, but to challenge them, the CCA argued.
When the government introduced Bill C-2 last month, the CCA was initially heartened to see that it had apparently abandoned its predecessors’ brief flirtation with the public good defence. Then the artists took a closer look at the defence’s replacement.
Rather than reverting to the old artistic merit defence, Bill C-2 strikes out in a third-equally vague-direction: the legitimate purpose defence.
According to the new defence, a work would be legally defensible if it serves a “legitimate purpose related to the administration of justice or to science, medicine, education or art.” While the word “art” is in there, it is unclear how it would apply-especially since the bill expressly removes the artistic merit defence.
Moreover, there’s a part two to the legitimate purpose defence: in order to be defensible, a work must not only serve a legitimate purpose, it must also “not pose an undue risk of harm to persons under the age of 18 years.”
The CCA is worried. This defence is just as vague as the public good defence and just as “untested in a legal context,” Missen says.
Law professor Brenda Cossman agrees. What’s going to count as harm? she asks. If previous court rulings are any indication, “a reasonable apprehension” of harm will be sufficient. And any court that finds a given material to be child porn is also likely to find that it could reasonably harm children, she points out in the last issue of Xtra West.
Canada’s child porn law is “already pretty broad,” Cossman notes. If this passes, Bill C-2 will make it even broader while narrowing its available defences.
And that’s a problem, the artists and civil libertarians all agree.
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