Making a Bad Law Worse

Making a Bad Law Worse Stan Persky John Dixon Capilano College I n it s fin al days in o ffic e, the Jean Chrétien government had some good—or at least provocatively interesting—ideas about justice. It proposed to legalise same-sex marriage, and it offered a plan to partially decriminalise the use of marijuana. It also had one very bad idea: Bill C-20, a proposal to amend and strengthen the existing child pornography law (Sec. 163.1 of the Criminal Code). The centrepiece of Bill C-20 is a disturbing move to eliminate the defence of “artistic merit or an educational, scientific or medi­ cal purpose” against a charge of child pornography, and replace it with a defence of serving the “public good.” Then, having abolished “artistic merit,” the drafters of the bill further proposed that “any written material the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence” under the Criminal Code should also be made a crime.1 Though the passage of Bill C-20 was interrupted by the prorogation of Parliament 1 Italics ours. Bill C-20, it should be noted, is an “omnibus” bill, and contains many other provisions unrelated to the child pornography law, particularly a proposal to criminalise the sexual exploitation of young people in ways that go beyond existing restrictions on lawful sex between young people and adults. Although we regard this proposal to be as objectionable and incoherent as the proposed ESC 29.3-4 (September/December 2003): 4-10 in November 2003, the new government of Prime Minister Paul Martin has the option of resuming consideration of this legislative scheme. To understand how and why the Parliament of Canada arrived at the startling idea of partially striking down the longstanding right of artists to freedom of speech and expression requires a bit of history.* 2Ever since its legislative passage in summer 1993, more than a decade ago, Sec. 163.1 of the Criminal Code (a supplement to Sec. 163, the law against obscenity) was conceptually inchoate. Yet, the original notion for a child pornography law, as drafted by the Ministry of Justice, was reasonably coherent. The core idea was that any sexual representation of actual children that was produced through the commission of a sexual crime against those children should be prohibited. For example, it is illegal for an adult to engage in sexual touching of children under the age of fourteen or to counsel or induce the sexual touching of such children. It’s also illegal for adults to engage in sex with persons under the age of eighteen with whom they are in a relation of authority or trust (such as relationships between teachers and students under eighteen), or to provide an “inducement” for young people under eighteen to engage in sex with adults (as in prostitutional circumstances). Since such acts are crimes against children and young people, the reason­ ing went, representations of those acts perpetuated and extended the harm caused by the original violation. The new law also contained one novel feature: while obscenity law criminalised the making, distribution and sale of obscene materials, the child pornography law also criminalised the mere possession of child por­ nography, the first law in Canadian jurisprudence to criminalise simple possession of expressive materials. Unfortunately, the law passed by Parliament in 1993 was far different from the one envisaged by its drafters. Once the bill reached the Com­ mons, it was drastically expanded by legislators, and the law that was hastily passed in June 1993 was, in our view, constitutionally “overbroad.” Stan Persky and John Dixon teach philosophy at Capilano College in North Vancouver, B.C., and are the authors of On Kiddie Porn: Sexual Representation, Free Speech and the Robin Sharpe Case (Vancouver: New Star, 2001). amendments to the child pornography law, we restrict our comments here to the latter. The proposed “public good” defence is worded to protect acts that “serve the public good and if the acts alleged do not extend beyond what serves the public good.” We refrain from comment on the notion of...

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