Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence for June 29, 2005 - Evening meeting
OTTAWA, Wednesday, June 29, 2005
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 7:05 p.m., to give consideration to Bill C-2, An Act to amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act.
The Honourable Lise Bacon (Chairman) in the Chair.
[Translation]
The Chairman: We are resuming consideration of Bill C-2, An Act to amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act.
[English]
We have tonight as witnesses, as a panel, The Writers' Union of Canada, with Ms. Marion Hebb and Ms. Susan Swan. Welcome.
[Translation]
And, from the Union des écrivaines et des écrivains québécois, we have Mr. Charles Montpetit, representing the Comité liberté d'expression.
[English]
Welcome to the three of you. We are pleased to have you here tonight. We will hear your presentation, and then I am sure that honourable senators will have questions to ask you.
Please proceed.
Ms. Susan Swan, The Writers' Union of Canada: Honourable senators, I am a Toronto novelist. I have published six books of fiction. Two of them have had some foolishness, which is the result of bad legislation, about obscenity. I will talk to you about that in a while.
Ms. Hebb and I represent The Writers' Union of Canada this evening. Together with the League of Canadian Poets, the Periodical Writers Association of Canada and the Playwrights Guild of Canada, national organizations representing approximately 3,000 professional writers, we made a submission to the Justice Committee of the House of Commons on Bill C-2. We are also supported by the Book and Periodical Council. Freedom of expression is an important issue for our members, our profession and our industry.
Our organization supports strong measures to combat sexual abuse and exploitation of children, but we have serious concerns regarding some of the provisions of Bill C-2. We do support the overall purpose behind the legislation, which is to protect children. However, we do not believe that censorship laws address the problems created by the sexual abuse and exploitation of children.
The role of a writer is to hold up a mirror to society, to probe human experience and to explore the truth as he or she sees it. The whole of society is deprived if restraints are placed on the writer's pursuit of his or her vision.
Our members are potentially affected by child pornography legislation, not only because they are writers, but also because written works are translated into visual forms such as theatre and film — I had a novel made into a movie — recorded as talking books or broadcast, or are very often accompanied by illustrations. Writers must be able to portray children in sexual situations in a variety of works — including autobiographies; coming-of-age stories on page or stage; accounts of crime in books, newspapers or magazines; and sex education materials — without fear of being penalized for crossing subjective, arbitrary barriers.
Child pornography legislation not only brings to bear the sanctions of the Criminal Code on those writers unfortunate enough to transgress its censorship provisions, it also has the chilling effect of causing many writers to censor their own works. If writers have to fear being on the wrong side of the law, their creativity will be stifled, and the wrong people will be penalized by a law that should be more directly applied to adult pornographers who abuse real children.
Ms. Marion Hebb, The Writers' Union of Canada: Honourable senators, we have no quarrel with the law protecting real children. The law should do that and it already does. We believe that the real problem is not that Canada has inadequate laws to protect children from sexual exploitation and abuse, but rather that Canada has inadequate strategies and insufficient resources to support the police in dealing with danger to real children.
If the child pornography legislation is to be amended, we submit that it should be amended in the following ways: first, to deal with the abuse and exploitation of real children and not fictional or imaginary ones; second, to insert the words ``for a sexual purpose'' into the branch of the offence depicting sexual activity visually; third, and most important, to make the prosecution prove both that the writer or the artist has no legitimate purpose related to art and that there is an undue risk of harm to persons under the age of 18 years. These should not just be defences with the burden being on the accused person to establish artistic purpose and no undue risk of harm. The onus should be on the Crown, not on the writer. What has happened to our principle of innocent until proven guilty?
In January 2005, the federal government established a national hotline, called Cybertip.ca, for fighting the on-line sexual exploitation of children. The program gets tips from the public and passes them on to the local police. We applaud such initiatives to rescue children from predatory pedophiles.
The sequence of bills introduced in reaction to the Sharpe case is, by contrast, window dressing to make the public believe that the problems of child pornography are being addressed. It should be remembered that Robin Sharpe was convicted on two charges of possession of child pornography — photographs of real children — and he was sentenced, although he was not convicted with respect to some stories he had written.
In 2003, Bill C-20 purported to close the loopholes in the 1993 child pornography law by getting rid of defences including artistic merit. In 2004, Bill C-12 did the same. We now have Bill C-2.
When the child pornography legislation was introduced in 1993, we submitted that section 163.1 of the Criminal Code was an unjustifiable infringement on freedom of expression under the Charter of Rights and Freedoms. This existing child pornography legislation has a chilling effect on expression, as authors and other creators tend to engage in self-censorship to avoid possible prosecution when writing about or depicting characters who are under 18. We were relieved when the Supreme Court of Canada, although upholding the constitutionality of the child pornography legislation, gave a broad interpretation to the defence of artistic merit. We were pleased as well that Robin Sharpe went to jail on pornography charges unrelated to his stories.
We believe that the Bill C-2 amendments will infringe the Charter of Rights and Freedoms. Bill C-2 expands the definition of child pornography to include written descriptions of certain acts that are offences under the Criminal Code, while replacing the defences, including the existing artistic merit defence, which has been interpreted liberally by the Supreme Court.
The new artistic purpose defence does not stand alone. In addition to establishing a legitimate purpose related to art, the accused must put forward some evidence that his or her work does not pose an undue risk of harm to persons under 18. This potentially undoes or undermines the first branch of the defence and it puts serious works of art at risk. It is the police, the prosecutors and ultimately the courts of the day that will decide whether a work poses undue risk of harm to children. We have no idea how the Supreme Court of Canada will interpret this new, double-barrelled defence.
We believe that it was the Supreme Court judges' broad interpretation of the defence of artistic merit in the current legislation that saved the child pornography offence in question from being struck down by the Supreme Court of Canada in the Sharpe case as an unjustifiable infringement of the freedom of expression. We are of the view that the artistic defence, which is now qualified by the need for a parallel assessment of whether or not there is an undue risk of harm to children, will no longer be sufficient for the courts to be able to save the child pornography provisions from violating the Charter. In other words, the requirement with respect to the risk of harm is likely to strip the Criminal Code offences of their Charter-proofing, because a court will likely find that it negates the amended artistic defence of legitimate purpose related to art.
Attempts to establish the actual meaning of the new defence will be costly to the community, especially in policing and court time, and to the individual charged. We submit that the existing provisions of the Criminal Code already more than adequately cover the material that this new legislation is intended to target.
We are disappointed that the drafters of Bill C-2 did not take the opportunity to change the over-broad, sweeping definitions of child pornography as they were enacted in 1993. Without the definition of artistic merit as interpreted by the Supreme Court of Canada, the existing law already causes us grave concern. Most problematic, the existing definition includes visual representations that show a person who is or who appears to be under the age of 18 engaged in or depicted as engaged in explicit sexual activity.
Ms. Swan: Ms. Hebb is a lawyer and she works for the Writers' Union of Canada. I am a novelist who is a member of the Writers' Union of Canada. To sum up in laymen's terms what we are most concerned about, it is the onus being placed on the writer or the artist to prove that their work does not pose undue harm to children.
As Ms. Hebb has said, we are concerned about children. I am a mother and I am sure many of you are parents. We are all united in our concern, but we do not want a law that puts the writer or artist in the position of being guilty until proven innocent.
A second concern, one I wish to speak personally about, is the vagueness of some of the language, which opens the way in Canada with other laws to really embarrassing, unnecessarily expensive and wrong decisions.
For instance, I am the author of a novel called The Wives of Bath, which is about a murder in a girl's boarding school. It was made into the movie Lost and Delirious, which starred the wonderful Quebec actress Jessica Paré. As recently as 2003, this novel was stopped at the border. A professor from McMaster University was returning from the United States and was stopped by the customs guard who said that he would charge the professor with bringing obscene materials into Canada. I found that extraordinary. Professor Paul Rapoport found that extraordinary. My novel was published in Canada and was well reviewed; it was a best-seller. Upon hearing that, the customs official said that some books published in Canada are illegal here.
That kind of nonsense happens regularly at the border, and it happened to my novel. Eventually, the book was given back to him. He was also carrying —
Senator Nolin: Did he receive a letter of apology from the minister?
Ms. Swan: He did not receive any apology. Pornography, Sex and Feminism, by Alan Soble, an American author — another book that is readily available in Canada — was seized along with my novel. A second customs officer, who did not believe Mr. Rapoport was a professor, was very interested in email topics that said ``submissions'' and ``our house.'' Mr. Rapoport runs a literary journal.
That is one example of the unnecessary nonsense that can happen when officials take it upon themselves to interpret the law in a very broad and ignorant way. Professor Rapoport edits a quarterly and he was unfairly told that his books were obscene material. He was finally allowed to go through customs but that experience has changed his mode of travel now. He will not fly into Canada. He always goes by train or bus through Buffalo because he does not want to go through that again.
The second thing I want to tell you about happened in 1988. I also wrote a novel called The Last of the Golden Girls. The first part of the novel deals with young women coming of age sexually and with their peer group. I had a summertime scene in which the two girls are practising lovemaking, kissing each other in the sand dunes so they will be ready for the real thing with boys. They quote passages from Peyton Place to each other. They are trying very hard to be sexy and to do what they think mature women do with men.
When this novel was in progress, I read an excerpt from it on the CBC, and immediately two citizens in Alberta phoned the Edmonton morality squad and said that they wanted the novel charged with obscenity and for promoting lesbianism. As we know in Canada, we are all happy to acknowledge people's freedom of sexual choice, and that really was not at all my intent in writing this passage. I was trying to describe what it was like being a young woman coming of age sexually in the late 1950s in Canada.
The tape from the CBC was seized. My publisher, who was about to bring out the novel, was told that there was a chance that it would be charged with obscenity but we would have to wait for Detective Taylor of the Edmonton morality squad to decide whether it was worthy of an obscenity charge. My publisher at that time was Louise Dennys of Lester & Orpen Dennys; the firm was small and they did not have very much money. In a way she was delighted because she thought such a foolish charge would be wonderful publicity for the book. On the other hand, she was not really financially equipped to deal with a protracted battle in the courts; we were all very relieved six months later when Detective Taylor of the Edmonton morality squad had listened to the tape and decided that the passage was charming. There was no need to follow through with charges of obscenity.
Professor Rapoport's story with the border guard and the story of the potential obscenity charge in Alberta have happy endings. However, the law can lead us down the path to more of that kind of silliness. We are here this evening for that reason. It was not wrong for those citizens to express their views. However, when they bring the law to bear on artists and writers dealing with imaginary characters, not real people, great problems can result. As writers and artists, we want you to pay attention to that.
Ms. Hebb: If the bill passes, child pornography, as defined by the Criminal Code, will also include any written material whose dominant characteristic is a description, for a sexual purpose, of sexual activity with a person under 18 years of age. Based on that description, it would become an offence under the Criminal Code.
Ms. Swan: Off limits to film and theatre producers would be non-fiction books dealing with incest, such as Sylvia Fraser's My Father's House or Charlotte Vale Allen's Daddy's Girl. Even a non-fiction account of puberty by Paulette Bourgeois and Martin Wolfish could be prosecuted under this vague description of sexual acts with people who appear to be or are under 18 years of age. Again, we do not want a law that encourages a misguided attempt to reassure the public that the government is taking care of children when in reality it is knocking on the wrong door, if you will, and causing the taxpayer an unnecessary expense.
Ms. Hebb: We are of the view that the proposed changes to the child pornography offences in the Criminal Code set out in this bill will create offences that infringe the Charter. The language remains vague. The changes will increase the likelihood of the arbitrary exercise of prosecutorial discretion to lay charges against creators of written, visual and auditory material. Because so much falls within the new, expanded definition of ``child pornography,'' there will be greatly increased opportunities for arbitrary prosecution. My colleague, Ms. Swan, feared that she would be one of the targets.
Ms. Swan: We believe that the proposed changes to the law will lead to increased self-censorship by writers and other artists, which will cast a chill on the expression of ideas. That is unacceptable in a society that values freedom of expression. Laws repressing free expression will not eliminate the sexual abuse and exploitation of children. We urge the government to address its corrective measures to controlling and stopping the sexual abuse and exploitation of children. We call on this committee and all senators to remove the amendments to section 163.1 of the Criminal Code and to focus concern on protecting real children.
[Translation]
Mr. Charles Montpetit, Comité liberté d'expression, Union des écrivaines et des écrivains québécois: Madam Chairman, you have all received the brief I submitted on behalf of the Union des écrivaines et des écrivains québécois. So, I will not be rereading it.
I would like to mention that I do not appear here solely on behalf of the Union des écrivains, but also on behalf of various associations representing authors, illustrators, booksellers, translators, theatre professionals, librarians, civil libertarians, visional artists, multimedia artists, radio, television, and cinema artists, composers of dramatic works, and obviously, actors from the Union des artistes who have all endorsed the brief I will be attempting to summarize.
Today, in Canada, it is not illegal to write a crime story, for instance, depicting murder, as can be seen on television and in films. In that case, why would we have legislation prohibiting the depiction of an act of sexual abuse on a child? In both cases, a fictitious crime is being depicted in the story, unless it is a documentary describing a real life experience.
Authors who depict murder are not affected by the bill. Why would an author addressing sexual abuse be treated any differently? On that point, I feel personally concerned. The last time I was in Ottawa, I was here to receive the Governor General's award. Today, I am here to try to explain to you why this legislation could make me a child pornographer. I do not understand where this charge stems from.
My concern is due to the fact that I have written, in collaboration with 16 other authors, two anthologies on people's first sexual experiences. These authors and I have won literary awards. The anthology, entitled La première fois, is non-fiction. These anthologies were written to inform young people about first sexual experiences in everyday life. These works were designed as a supplement to sex education courses and as a service to our readers.
If we look at how the bill is worded, these books could now be considered child pornography. According to the bill child pornography is any depiction of a person under the age of 18 years engaged in sexual activity.
The Chairman: What section are you referring to?
Mr. Montpetit: I am referring to section 163.1(1)(a)(i). This section in current legislation stipulates that if there is sexual activity with a person under 18, it is child pornography. That is that. The section is clear as it stands.
The only defence, which explains why I have not yet been arrested, is due to the fact that further on it is stated that this does not apply if the material has artistic merit or an educational, scientific or medical purpose. Thanks to this exception, I have not yet been sent to jail, nor have the 16 other authors I have worked with and all of those who work in the field of youth sex education.
However, if we start weakening the exception granted to our artistic, educational, scientific and medical works and if we say that those who have produced them must from now on prove the legitimacy of their work and that their work does not pose undue risk of harm, very few authors will be in a position to defend themselves before their book ever gets published. How can a person prove that their soon-to-be-published work will not be perceived as offensive and there will be no charge of illegitimate purpose which could pose undue risk, according to some? I am not saying these people would prevail in court. However, because of this weakening, all of those who, like myself, have written about youth sexuality could end up in the courts for ten years, by the time an appeal makes it to the Supreme Court, trying to defend their reputation at great cost to themselves, obviously, causing great damage to their reputation. In the meantime, works would be seized, removed from circulation until all appeals are exhausted. For all practical purposes, that means that even if works were exonerated, there would be a ten-year state sanctioned ban on of them in the marketplace.
I consider this situation completely unacceptable. Enormous authority is given to any individual who would feel like bringing frivolous charges against an author whose work can never please everyone.
We know that many people oppose sex education, for instance, and feel that, sex education poses a risk and encourages young people to engage in early sexual activity.
Personally, I think that would be a frivolous accusation, because I have always believed that informing young people about sex is not pushing them into having earlier sexual experiences. This education in fact answers their questions without forcing them to experience things themselves. This was confirmed by the son of a woman I dated for 13 years recently; he proof read my book when he was 14 years old, of course with the approval of his mother. That did not push him to engage in sex at an early age. Only when he turned 17 did he decide to become active. He came back to thank me, because he reread my books at 17, and said they helped him to avoid some mistakes.
Young people appreciate these books, and not only my son —these two books were selected by the International Youth Library in Munich amongst a selection of 240 of the best books for young people throughout the world. An English version came out in the form of two other anthologies, written once again with 16 authors, different authors, and this new version won three literary awards. An Australian version is also available.
Under this bill, something like this could be considered an international crime. Call in Interpol. What strikes me as surprising here is that it is unnecessary to proceed in this way because no author has ever avoided jail under the current exception for science, medicine, education and art.
Yes, John Robin Sharpe did not go to jail on two counts relating to his literary work, but he remains behind bars today because of real crimes against real people. No pedophile was ever freed under the current exception.
Why weaken them, then, and risk trapping a host of innocent authors who think they are doing a public service by working in the field of youth sexuality?
Let us not kid ourselves, teenage sex is legal in Canada from the age of 14, which is the age of consent. If you are allowed to make love at 14 years of age in Canada, why would you be forbidden from speaking or writing about it in a book? The act itself is legal in real life, but if you talk about it in writing, it becomes illegal. In my view, that does not make sense. It is exactly the opposite of what it should be, and of the perspective on murder today. It is illegal to murder someone in real life, but you can write about it. That is the way it should also be as far as sex is concerned.
What I find particularly harmful is not only the fact that an author's book may be seized for the duration of the trial, but also that the author's reputation is basically finished.
I myself earn my living not through royalties, but by talking to students, especially at the high school level. I talk about what I describe in La première fois along with all the other authors. Do you really think that a single school in Canada will ever invite me again to speak — which is how I make my living — if for the next 10 years I have to defend myself against charges relating to child porn?
It is extremely harmful for an artist's reputation, and I am not only referring to financial resources, because contrary to most of the rumours you hear about the artistic world, most artists live in poverty. Most artists could not afford to defend themselves against such charges, even if they are frivolous.
I do not understand why Canada is trying to make life so hard for its artists when they have committed no crime against anyone, and I would invite you to refer this bill back to the House of Commons so it can be appropriately amended.
[English]
Senator Milne: Are you telling us that an author who, as an adult, wrote about the fact that they had been abused as a child — a true story, not a fictional story — would be criminally liable under several sections of this bill?
It is generally accepted in Canada that writing about such experiences is a form of therapy that helps the person recover. In fact, there was a bill amended before this committee in the past about criminal authors in prisons. That bill allowed people in situations like that to write out their problems in order to help them recover.
Frankly, this aspect of this bill concerns me deeply. As I said to the last witness we had before us, the two issues that bother me are the mandatory sentencing and the removal of the defence of artistic expression or artistic merit. I will leave it at that. It is not really a question; it is a statement.
[Translation]
Mr. Montpetit: Even if it is not a question, I would like to address a small detail you mentioned. You said: ``generally accepted by the population as therapy''.
By definition, it implies that not everyone supports that. It means that there are people in Canada who would disagree with you. It means that these people could make an accusation.
Even if what you say is perfectly reasonable to the majority of Canadians, it is not the majority we fear in a case like this one. We fear precisely those who disagree with the fact that it is legitimate to talk about sex.
As you said, it does not have to be works of non-fiction. A work of fiction on exactly the same subject, which could still be therapeutic for someone even if it is a short story or a novel, could also be prosecuted. We feel this is unacceptable.
[English]
Senator Pearson: I came in late, but I got a sense of what Mr. Montpetit was expressing. It is the challenge Senator Milne expressed before. I have a lower level of discomfort because I do not think your stories even fall into the current definition of child pornography. There is no offence, so no need for a defence. I think that you are worrying about something that is not there. It is neither advocating nor counselling unlawful sexual activity. You are saying the age of consent is 14. You are talking about perfectly lawful sexual activity that young people engage in.
What you are describing does not fall under the definition; nor do many of the books that other people have put forward. There is no need for a defence because there is no offence. It does not fall under the new definition, because the predominant characteristic of the work is not the description of unlawful sexual activity. Also, it is not written for the purpose of creating sexual arousal in your readers.
I honestly believe you are concerned about something that is not captured in this law. That is not what this law is about at all. This law is about an entirely different form of expression. It is not about what you are doing; it is not about stories about one's childhood; and it is not about paintings. It is about depictions, primarily on the Internet, primarily of real children, in conditions of extreme degradation. There remains a defence for legitimate art, but I do not think a defence is necessary, because I see no offence.
Ms. Swan: Senator Pearson, perhaps you missed my story about the Canadian border guard seizing my novel, The Wives of Bath, which is taught in universities, was a best seller, was made into a movie, had a wide readership and was published in about 16 other countries. I can tell from what you are saying that you have informed literary taste, but I could not make that same claim for the border guard who seized my novel.
Senator Pearson: A border guard once seized Ulysses from me. I cannot answer for border guards.
Ms. Swan: The three of us before you tonight probably agree on what is good literature, but we want to be very careful that this law does not give people who are not as knowledgeable about literature, or as interested in it, an opportunity to wage war on the wrong people. That is the essence of our point.
Mr. Montpetit: I quoted the law in French and I would like to quote it in English as well. Section 163.1(1)(a) reads:
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity...
In other words, any sex under 18 is porn. That is what the law says. That is all that is required for a story to be considered child pornography.
Senator Pearson: The Supreme Court has determined that ``depicted as engaged in explicit sexual activity'' is not mild sexual activity.
Mr. Montpetit: The way the law is currently written, any depiction of sexual activity by anyone under the age of 18 is child pornography.
Senator Pearson: No; any unlawful sexual activity.
Mr. Montpetit: It does not say ``unlawful;'' it says any depiction of sexual activity under the age of 18 years.
Senator Pearson: Explicit sexual activity.
Mr. Montpetit: Yes, but you have perfectly explicit sexual activity that is legal depicted in this book and in many other books.
[Translation]
The Chairman: You quoted the Criminal Code, but Bill C-2 does not address that.
Mr. Montpetit: Bill C-2 does not address that section. Bill C-2 includes the defence an artist can invoke to be exempt from that section. That is the problem. I have no objection to the law defining pornography in one way or another. What I object to is that the bill weakens my means of defending myself.
After all, an artist named Eli Langer was arrested in 1993 under the law as presently worded in the Criminal Code for having allegedly broken the law by exhibiting his paintings in a Toronto art gallery. It took 18 months for him to be cleared of all charges. In those 18 months, his paintings were seized because a member of the public complained.
In my opinion, that case was much more significant and much more outrageous than John Robin Sharpe's case. He is still in jail. What is scandalous is not that John Robin Sharpe was found not guilty on two charges relating to fiction, but that Eli Langer, the artist, was arrested despite the protection conferred in law, which was much stronger back then.
Now, we are in the process of weakening the defence provisions which helped him to clear his name. This means that, from now on, many more artists might be arrested because the means of defence at their disposal will be weakened. That is what worries me.
You say that we are not accountable for border officials' attitudes. With all due respect, I disagree. It is not the Senate's job to help a border guard who has no literary background and to give him the right to throw someone in jail. Rather, I think your job is to prevent that from happening when the guard misinterprets the law.
I would like you not to make it easier for people who, as opposed to yourself, might misinterpret the law.
[English]
Senator Pearson: We disagree on the definitions. I think the defence is stronger for artistic work now than it was before. You think it is weaker.
Mr. Montpetit: Yes, I do.
Senator Pearson: I believe that it is stronger because, in my view, there is a much clearer definition of what we will call child pornography. The exception in the defence for art, science, education and so on, is a double test that I think is much more protective of the kind of art that any of you here have been involved in. I think it is stronger because those of us who have been exposed to real child pornography know that there is a world of difference between that and what you are talking about.
[Translation]
Mr. Montpetit: The law does not define pornography as being anything else than what we are talking about here. It does not refer to the Internet or to extreme degradation, as you said. The law simply refers to sexuality under the age of 18. Even if we believe or would want pornography really to be something else, as it is defined in law, that is not the way it is addressed here. There is no mention of extreme degradation in the law, nor of the Internet. Reference is made to any type of medium, including cinema and books which contain images or texts about sex under the age of 18. That is what the law says.
I do not agree that the defence is stronger now. As an author, until now I simply had to prove that I was an artist and I was covered by the exemptions contained in law.
I have earned my living as an artist, and I have also won awards as an artist. It is easy for me to prove that I am an artist, but that will not be enough anymore. If Bill C-2 is adopted, I will have to prove that what I do is legitimate and that I am not putting anyone at undue risk. It is much harder for me to prove that, and therefore I have much less protection.
Senator Nolin: Even if your work is legitimate, the fact that you have to prove at the outset that it does not put at risk a person under the age of 18 makes your defence almost illusory. Is that what you are saying?
Mr. Montpetit: No, only that it makes my defence almost illusory, almost impossible. How do you want me to prove that my book, which will be published soon, will not put anyone at undue risk? We would have to wait for the book to come out to see if someone is offended.
Really, I cannot guess what goes on in the head of every Canadian who reads my book and chooses to believe that it may harm someone. It means that if anyone accuses me of putting someone in harm's way, I will be put on trial. I may win, but for the duration of the trial my book will be withdrawn from the market.
On the one hand, this means that I am guilty until proven innocent; and on the other hand, that my work is presumed illegal until proof to the contrary. That is unacceptable. Even criminals are not subjected to such conditions, since people who have committed a murder must be proven guilty before they are sent to prison.
Senator Nolin: In other words, the issue is not only the defence contained in the Code. You would also like to see the definition of the offence changed. As it now stands, the definition of the offence is fairly wide open, and only then is the defence introduced.
In your view, the way the Criminal Code is worded is not perfect, but you can live with it. However, what you take issue with is what the bill says today. You want a new definition of the offence. Is that your position?
Mr. Montpetit: Yes. There is a very easy way to redefine the offence. Leave aside the issue of the legitimacy of works of art and scientific works and undue risks, and define the offence as being anything which causes real harm to a real person.
In the case of Bill C-2, that would be real sexual abuse against a real adolescent. The sexual abuse of a child must be defined exactly in the same way as murder, which is real harm done to a real adolescent. If that were done, I would not feel I was being targeted by the act.
There is something else I would like to see changed in the bill. In fact, how is it possible to seize the works of an author before he or she has even been proven guilty? That is a distinct problem.
Senator Nolin: It is the way the Criminal Code is structured. A fairly general offence is established and then there is a defence for that offence. The reason why it is possible to seize the works is because you first have to prove your defence.
Mr. Montpetit: Why would the works not be seized only after a ruling? In the Eli Langer case, the judge took issue with the fact that the policemen first seized the paintings before a ruling was handed down.
Senator Nolin: That is another issue.
Mr. Montpetit: But it is appropriate. Clause 164(5) says that it is only in cases where the court is not satisfied that a publication is obscene that the judge must order the publication to be handed back to the author. In other words, during the entire trial and before the ruling, the work is seized.
Senator Nolin: It is like a first evaluation of the defence. I understand your argument and I am trying to see how it can be used within the framework of the bill. If we use the word ``legitimate'' in paragraph 6(a) of subsection 7, a person may well claim that if the work is legitimate, it does not pose an undue risk to a person under the age of 18.
Mr. Montpetit: It seems that the bill makes a fairly significant distinction between the expressions ``legitimate'' and ``poses an undue risk,'' as it deals with them in two separate provisions. If one automatically led to the other, the bill would not have made this distinction.
Two things must be proven: legitimacy and the lack of undue risk, and in my opinion, each of these two things can be very difficult to prove.
Senator Nolin: According to Senator Pearson, the current defence is much more explicit in terms of the type of defence invoked. Rather than referring to artistic content, it says that the content must have a legitimate purpose and be related to the administration of justice or to science, medicine, education or art. I think you would agree to deleting paragraph (b).
Mr. Montpetit: I do not want to monopolize your time.
Senator Nolin: I think we are touching upon the heart of the matter.
Mr. Montpetit: Neither the bill nor the Criminal Code as currently worded define the expressions ``legitimate'' or ``undue risk'' which are contained in the bill and which are totally vague and subject to interpretation.
Senator Nolin: Let me stop you at the term « legitimate », because there is a lot of jurisprudence to help us define exactly what it means.
[English]
Ms. Hebb: I would like to attempt to answer your question. This is how I interpreted it. When you first spoke, you mentioned the term ``undue.''
Senator Nolin: Senator Pearson is saying that it is a better defence, because now we are explaining what we would accept as a good defence. We have a lot of respect for the courts, but we have a bill in front of us. Paragraph A supports your argument. He is concerned with paragraph B and the fact that he must prove something in advance.
Ms. Hebb: You asked what the term ``legitimate'' means. The section could be reworded so that the Crown had to prove there was undue risk of harm to children. I think this comes back to Senator Pearson's point. There is a reverse onus. It should be in the description of the offence itself. This should not be pornography, but it is.
Senator Pearson: It is up to the prosecutor to prove the offence.
Senator Nolin: Not with the bill we have in front of us. The onus is on the writer.
Ms. Hebb: The onus is on the accused.
Senator Pearson: No.
Ms. Hebb: It is not described as part of the offence. The Crown does not prove it initially. The accused person must put forward enough evidence to establish the two defences. One defence is that it is legitimate.
I suppose my colleague, Mr. Montpetit, would not have trouble proving it was legitimate because no one would assume that a respectable man like him would get into trouble. It is the bad writers and artists who do somewhat unconventional things who are going to get into trouble.
The other defence is more troublesome; the accused person has to prove that there is no undue risk of harm to children. How in God's name would the defendant be able to prove that?
I would like to read a line that Chief Justice Beverley McLachlin said in the Sharpe case:
To restrict the artistic merit defence to material posing no risk of harm to children would defeat the purpose of the defence. Parliament clearly intended that some pornographic and possibly harmful works would escape prosecution on the basis of this defence; otherwise there is no need for it.
Senator Pearson: May I quote from the Supreme Court decision?
Senator Nolin: Yes.
The Chairman: I think they have made their point.
Senator Pearson: First, the Supreme Court has said that the ``defences should be liberally construed with this purpose in mind.'' I am convinced that the onus has not been reversed in Bill C-2 and that most material caught by the definition of child pornography poses potential harm to children. The Supreme Court said:
The accused raises the defence by pointing to facts capable of supporting it (generally something more than a bare assertion that the creator subjectively intended to create art), at which point the Crown must disprove the defence beyond a reasonable doubt...
That does not say they will have to defend themselves.
Ms. Hebb: That is the reverse onus because the accused has to put the evidence forward first and the Crown disproves.
[Translation]
Mr. Montpetit: The rules are completely different as far as murder is concerned, be it real or represented in a work of fiction. So why is it that we are changing the rules for teenage sexuality? There should be no difference between the way we treat that and murder. In the case of reversed onus of proof, a work is seized until the end of the trial. The work is deemed guilty until proven innocent. The artist will have to bear the reversed onus of proof because he or she will have to defend his or her work, which will remain seized until the end of the trial, which may last ten years. That would not change even if the work were ultimately deemed legitimate. So the artist will be on trial, and the work will remain seized, until the end of the trial. That is not the way things are usually done.
Senator Rivest: I understand very well that for an artist who is creating, freedom of expression and creation would be restrained or under undue pressure if the artist has to worry about possible means of defending him or herself. Under the previous formula, it was easier, since the artist simply had to say that he or she was an artist. However, an artist may also be guilty of pedophilia. So as far as specific works and writings are concerned, it may be very tricky to seize them.
I understand the lawmaker's intent. Paragraph 163.1(1) refers to written matter. It remains that this written matter is characterized mainly by — and this situation may not be obvious in a book — a sexual purpose. The description of a sexual relationship is not the main characteristic of a book. Ms. Swan's books were not written with a sexual purpose in mind. Your books were not written with a sexual purpose in mind, even though they are pedagogical. The expression ``with a sexual purpose'' is really not related to a work per se and not to any human dimension it may have. It is for a sexual purpose. I have a hard time defining that expression. I understand that we want to accept any type of creation whose main characteristic is literary and represents life, despair or the human condition as such, but we do not want it to become pornography. It is for a sexual purpose, a sexual exercise, as is the obvious case in pictures of child abuse on the Internet. That is clear. It is obviously for a sexual purpose. I am interested in your interpretation of this restriction contained in paragraph 163.1(1).
Mr. Montpetit: I would like to point out that what you are reading, that is, ``any'' written matter whose dominant characteristic is a description for a sexual purpose, is contained in paragraph 163.1(1)(c), which contains the various reasons which may be held against a work. Don't forget that paragraphs 163.1(1)(a) and 163.1(1)(b) contain provisions which do not at all refer to any sexual purpose, but simply to representations of sexual activities involving persons under the age of 18. There is no mention of creation with a sexual purpose, nor of dominant or any other types of characteristics.
Senator Rivest: I am referring to written matter, as described in paragraph 163.1(1)(c).
Mr. Montpetit: Paragraph 163.1(1)(c) has been added to paragraphs 163.1(1)(a) and 163.1(1)(b) which already exist and which will continue to exist.
Yes, one could be offended that written matter with a sexual purpose would also be forbidden, but that is not the main provision which would be invoked to ban a work. Paragraphs 163.1(1)(a) and 163.1(1)(b) are broader and will remain so.
Senator Rivest: Only if lawmakers specify that only paragraph 163.1(1)(c) will apply to written matter and paragraphs 163.1(1)(a) and 163.1(1)(b) will not. The reference is specifically to written matter. It is the same principle as for paragraph 163.1(1)(d), which refers to audio recordings. When lawmakers are specific, it is because they say what they mean and exclude any generalities.
Mr. Montpetit: Although I am a member of the Union des écrivaines et des écrivains québécois, I insist on defending everyone who works in the visual arts field too, and who is much more concerned about paragraphs 163.1(1)(a) and 163.1(1)(b).
Second, for any written material created for whatever purpose to be considered a crime seems excessive to me in and of itself, because whatever the author's purpose, they are just words on paper. There is no actual harm to any real person when a writer puts pen to paper. I do not understand why written material would even be mentioned in legislation that puts that on the same level as committing murder. In my opinion, written material causes no actual harm to any real person. Regardless of whether it is said to be purely for a sexual purpose, regardless of whether it is said to be the dominant characteristic, and even if it is a novel whose dominant characteristic is sexuality and whose purpose is to arouse the reader sexually. In other words, a pornographic novel does not commit any crime against any real person. It could actually be critical of that, and not encourage it. The purpose is not specified.
Margaret Atwood's latest book, Oryx and Crake, quite explicitly describes sexual acts against the protagonist, and if someone decides to say that she did that for a sexual purpose, he or she is free to accuse her of that.
No doubt Margaret Atwood could defend herself, but she could still be prosecuted and have her books seized for the entire duration of the trial. That in itself is an example.
Senator Rivest: But that passage is not one of the dominant characteristics of the work. Your example is quite good, but you have to be careful, you are talking about written material that harms no one, but a pornographic photograph clearly showing the abuse of a child on the Internet, theoretically, that harms no one, is that acceptable?
Mr. Montpetit: A photograph that clearly shows actual abuse of a real child is evidence of an actual crime. In other words, the crime has already been committed in front of the lens of the photographer. The photograph merely confirms that the crime took place. In other words, you do not need to make the photograph illegal, no more than you need to make a knife illegal to prevent murders. The crime takes place, the actual abuse took place in front of the camera. The photograph helps to prove that there was a crime. The photograph, in a way, incriminates, supports a jail sentence because it documents an actual crime committed against a real person.
However, if it is a composite photograph, we are not talking about actual abuse of a real person. There is no longer any crime. The distinction must be made.
Senator Rivest: Is it acceptable to simply have a pornographic photograph in one's possession?
Mr. Montpetit: The bill does not deal with possession.
Senator Rivest: It is still in the Criminal Code.
Mr. Montpetit: I came here to testify on behalf of artists concerned about producing their works. As for possession, I would be pleased to come back to discuss that with you if there is ever a new bill that attempts to prohibit that.
Senator Joyal: I would like to come back to the nature of the defence set out in the new subsection 6, to the two combined parts of the defence. Previously, under subsection 6, the artist had to demonstrate that his or her work had artistic merit.
Mr. Montpetit: Artistic merit, that was in a former bill, but not in the law that is in force.
Senator Joyal: Subsection 6 of section 163.1 of the Criminal Code states:
[English]
Where the accused is charged with an offence under subsection (2), (3), (4) or (4.1), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.
[Translation]
That is the current defence. I am reading the Criminal Code. Demonstrated artistic merit, under current section 6, was an acceptable defence to the court, regardless if whether it is a book, a painting, a sculpture, installation work, et cetera. However, under this bill, artistic merit is no longer the issue. The issue is in fact the purpose of the work:
[English]
It is essentially a ``legitimate purpose'' in relation to art, so you have the word ``legitimate.''
[Translation]
In the past, we had the wording ``an educational, scientific or medical purpose''. As long as one could demonstrate that the work had an artistic purpose, no determination was made as to the legitimacy of the purpose. Here, we are adding an important component to the defence which used to be in the code. Then, you have to prove other things. Aside from proving the legitimacy of the purpose which you did not have to prove preciously, now you must demonstrate that it does not pose an undue risk.
[English]
You have to prove that it does not cause an undue risk of harm to persons under the age. It is not a specific person.
[Translation]
It is not as though I, as a father happen upon my son reading one of your books, which I consider harmful. I must demonstrate to the court why it is harmful to my child who was educated in given way. The individual's background is assessed and so is undue risk, because risk may be different according to the individual. Risk may be very different according to a person's education, social environment, et cetera. A child who grows up an artistic environment where nude art work is exposed in the home will be more familiar with nudity than a child who has never seen that. If I had to prove this aspect before the court regarding one specific individual, I would give the person's background and their familiarity with nudity or sexuality in general. But this is not what we are referring to.
We are referring to ``persons.'' So this is an abstract concept of a person. And we are referring to ``undue risk.''
[English]
Suppose, Mr. Monpetit and Ms. Swan, that you are in court and you succeed in proving legitimate purpose. You are a well-known artist with prizes and reviews of your books and so on; legitimate purpose would be easy to prove. However, you have to prove something else in addition to that. How will you prove to the court that your material does not pose an undue risk? Will you call to the court a psychologist, a psychiatrist, an association of parents or an association of teachers? Who will be the expert to testify to prove the second item of your defence? If you prove only legitimate purpose, you do not succeed in court.
It is a real question for me whether, as Senator Pearson says, this defence is better than the previous one. As I read it, I do not think it is better. I may be wrong. I find the wording of the current defence and the new defence in subsection 6 difficult to read.
How would you prove that your book does not constitute an undue risk to persons in Canada from coast to coast?
Ms. Swan: I do not know. It is terrifying. That is why we are here. I would suggest that Ms. Hebb speak to that point for a moment.
Ms. Hebb: I do not know how you could prove that. I do not think there is any answer to that. I think that it is a judgment call. It is the sort of thing that might be decided by a jury. It is the reaction of the people who happen to be listening to it. It is personal discretion or a judgment call. It is an impossible test.
Ms. Swan: We are against pornography, namely, taking pictures of real children, as my colleague said. The crime has been done. That is quite a different thing from writing stories that have imaginary characters, and then having to get into imaginary defences of proving why those stories do not constitute undue harm. We are not here to support material on the Internet that has pornographic pictures of real children.
Senator Joyal: I know that.
[Translation]
Mr. Montpetit: I can imagine the defence, in theory, and it may seem a bit absurd, according to which any author wanting to write a book like mine — not necessarily fiction — would first have to start with a market study, sampling a wide variety of young people in Canada to poll the people you mentioned. The problem is that if we ask whether a given passage poses an undue risk, the study itself could be accused of posing an undue risk by requiring people to read these very passages. We would have to carry out a prior assessment to determine whether a market study would pose undue risk, and so on and so on, before any book can be published.
Asking artists to prove these things represents an excessive burden. Artists should not have to prove that their works do not pose undue risk because, in any event, we are dealing with words on paper, in the case of a written document, or a fictional television show. We do not ask TV producers to prove that their shows do not pose an undue risk in cases other than youth sexual abuse. Why ask this of an author who has chosen to address this subject?
Take two popular shows on English Television: Law and Order and Law and Order SVU. The first show deals with murder and the second with sexual offences. Why censor some SVU shows, but no Law and Order shows? Both are fictional representations. There is no difference in the way they are designed, both are legitimate and both have the right to draw public attention to these subjects.
The issue is not whether we can cite the defence you refer to as to whether or not our works pose an undue risk. The issue is, rather, knowing why we should have to do so in the first place.
The Chairman: I asked Department of Justice officials to join us. We may ask them questions if need be.
Senator Joyal: As to the defence under subsection 163.1(6)(b), which we have just referred to:
[English]
...does not pose an undue risk of harm.
[Translation]
A reasonable defence in my opinion would be to ask or to require the person to have used due diligence, as it is said repeatedly in the Criminal Code.
I will give you an example. You have some novels which depict a sexual act between an adult and a child, or between two adolescents. If I want to buy a Playboy or Midnight type magazine in a shop, it will be displayed in an envelope.
[English]
It says right on it that this material is for mature readers, over 17 years or over 18 years of age.
[Translation]
The author or the distributor, depending on the circumstances, is responsible for ensuring that precautionary measure. There is a duty in that regard. Or, for instance, let us say you turn on your television set, Saturday evening at 11 p.m.. You see:
[English]
``For adults, or for 14 years and over,'' and so on.
[Translation]
In other fields, precautions are taken to inform people that the following is a dramatization of sexual acts.
In this case, we could perhaps keep the first part of the sentence, but in the second part we could say: ``has taken reasonable means to ensure the material not be made available to persons under the age of 18 years.'' That, I could understand. But in this case the responsibility does not have to do with the author. Objectively speaking, the responsibility has to nothing to do with what the author must be concerned with before imagining or writing a given text.
Mr. Montpetit: Before I entertain such considerations, I would like to remind you of one thing: according to the definition of pornography, we could be dealing with absolutely any sexual event, even between two 17-year olds. These acts, in real life, would be perfectly legal. To us, there is no point whatsoever in having a disclaimer on a book which deals with a legal activity. If it is not a crime in real life, it should not be a crime to talk about it.
I do not understand why an author describing something legal, yet sexual, should be required to issue a disclaimer whereas an author describing eating an apple — which is also perfectly legal — does not have to do the same.
Second, what kind of warning would this be? Who should be prohibited from reading a story involving two 17-year olds having sex? Everyone under 18? I do not think so. To me, it should be the opposite; I believe youth should be informed of these things as soon as they are old enough to have sexual relations, so that the sexual relations may be as positive as possible.
Poles have demonstrated that 26 per cent of youth in Canada start having sexual relations as of 14. Several very reputable studies have been done to that effect, notably at Queen's University. I quote one in my brief.
I am not defending a position as to whether this is a good or a bad thing. I think it would have been useful to let 14- year-olds read articles to this effect earlier on. In so doing, they would not have been forced into having their own experiences in order to get answers to their questions.
In my opinion, if a writer wanted to serve the public good in the field of sexuality and improve Canadian society, he can do it by making a book on adolescent sexuality accessible to youth, even 13-year-olds, so that they could be informed and not have to experiment on their own.
I think that it would be inappropriate, even harmful, to forbid young people under 18 to read such a book because at that age, young people need to be informed about the best ways of having sexual relations, or the dangers that are out there in the real world.
I even think that a crime novel, featuring a pedophile instead of a serial offender, would be of use to the population because it would show how things work in today's world.
Literature is a mirror of social reality. People who read books, including adolescents, can learn about the world surrounding them. Last, there should be no warning on these books, just as there is no warring on detective novels that deal with murder.
We do not need to find a way to take the necessary precautions so as to avoid any undue risk, because in any case, these precautions are unnecessary.
Senator Joyal: Are you against rating movies?
Mr. Monpetit: I think that it would be better to ``recommend'' them to 13-year-olds or 18-years-olds. On my book, it says ``14 years'' This is not a prohibition or those under 14, but more of a guideline.
As you surely know, not all children read the same book at the same age. They do not automatically acquire the skills to read that material on their 14th birthday. It seems to me that a youth who feels he is ready to read a book like this one, or who feels ready to read a book like Harry Potter before the age recommended on the book's cover, should be allowed to do so, if the youth is keen on learning.
[English]
Ms. Swan: Should we put a sign on our books?
Senator Joyal: Could it be considered appropriate to classify some materials that might pose a risk? In other words, should there be a warning on books similar to the warnings or classifications on movies? Sometimes even exhibitions have warnings or notices. For example, when the Cocteau exhibition was at the Montreal Museum of Fine Arts last year, and when it was at the Centre Pompidou in Paris, at the entrance to the exhibition hall there was a sign requesting that children be accompanied by adults because there were photographs of nude adults in sexual positions. The photographs were not even of persons under the age of 18. It did not offend my sense of freedom that people were informed that that material might pose a risk for some people.
Ms. Swan: When a novel comes out to the public it is reviewed, so there is a discussion of it. I agree with Mr. Montpetit that already a comment on the book says ``recommended''; that is fine. There is not a judgment with it. I do not see the need for more than that, with the reviewing and also the discussion of books now on television. I think it might come across as a judgment.
I write literary fiction, but because some of my fiction has depicted adolescence, there is a contingent of the Canadian public who thinks that I write dirty books, which I find sad. It reduces me to something that I am not and it trivializes my work. The danger of having warning labels on books is that it would reduce the complexity of the authors to a distortion of what they do.
I wish to mention also the chill that happens; the more judgmental language is built into the way we administer and look at things, the more the writer internalizes that atmosphere. It becomes more difficult to have what we value in this society, which is a creative and free sharing of ideas.
Senator Mercer: I will be quick. I cannot help but observe that this is probably the most difficult part of this bill for me. I think we can all agree that we need to do something about the explicit photographs of children, where obviously abuse is happening; but when it comes to artistic efforts, whether in novels or other art forms, it is difficult. Detective Taylor of the Edmonton morality squad, the border guard, Senator Pearson, Ms. Swan, we all look at a piece of art differently because we all process these things differently and we all come from different backgrounds. Therefore, it is a judgment call as to whether I think your novel borders on pornography or whether it is just doing —
Ms. Swan: Good literature quite often will allow for several different interpretations.
Senator Mercer: That is exactly where I am going. It is really in the eyes of the beholder. Frankly, no matter what we do with the bill, whether we add things or take things out, we will have this discussion again; you know that. This is the cost of your being creative. I encourage you to be creative, but one of the costs of your creativity is to be continually challenged by the morals and the bounds put on you by society. However, you are also there to challenge us as a society to expand our thinking.
Ms. Swan: Thank you.
Senator Mercer: I am frustrated that whatever our decision will be, I know I will have several more conversations with the three of you or others representing you and the discussions will be the same. I really wanted to put that on the record — that this is a price that you and your colleagues have to pay for your creativity. I applaud you for being willing to pay that price; it is a price that many of us are not willing to pay, to subject ourselves to public scrutiny in the way that people in the arts must.
Ms. Swan: I do not like to think that there is a price to be paid for creativity, but there is a great irony that when you write fiction very well, people will believe your story is true. It will have tremendous impact and will challenge perhaps some of the ways we look at things in the culture. I accept that. I know that it is one of the paradoxes of being a writer.
Ms. Hebb: If I can add to that, not as a writer but as a lawyer who works with a lot of writers, what you said about there being a price to be paid is telling. Many writers are very conscious of that price; it may not deter Ms. Swan much but it does deter a lot of writers. For a number of books, my opinion has been sought about whether something is too close to the line, and it is difficult to call.
It is not fair to the writer and it is a loss for our society. In fact, some writers have to pull back from what they would create because they are afraid that they have gone too close to the law. There is an enormous financial and emotional cost to be involved in a trial.
[Translation]
Mr. Monpetit: Even if I think I could take what you said as a compliment, I am sorry to say that I am far less noble than you think.
I mean that I hate having to pay this kind of price if, as an artist, I do not have to pay. I think that this kind of thing should not be required of artists, and I will not gladly spend 10 years paying that price in court.
This being said, if I am here before you, it is certainly because I have accepted to defend my profession. But one thing that I would like to note, is that certainly, with regard to pornography and the value judgment you mentioned, this subject has been debated for decades in Canada, going back to before the 1950s.
Even at the turn of the century people were trying to define pornography and many other terms were used rather than ``pornography,'' just as euphemisms of all kinds were found for prostitution, like, for instance, ``houses of ill repute''.
No one agrees on the definition, and this is not new; this has always been going on and will probably continue to do so. And why? Because it is a personal value judgment applied differently by each individual. No two persons in Canada have the same opinion on what is erotic and legal, and what is pornographic and illegal.
Many people say: What is good for me is erotic and what is bad for me is illegal. But others do not apply the same standard.
In the end, I think that the parents should be accountable. It is not up to legislation to determine what youth under 18 can or cannot read. This responsibility should be exclusively that of the parents of the youth. No parent has the right to make a decision for the children of the entire country. Thus, government has no role to play as a super parent for the entire population.
People have varying opinions about what defines obscenity. So let us leave it up to the parents to educate their children in the way that they see fit.
My way of educating the children for whom I was responsible was not necessarily the same as my neighbour's way. Besides, my neighbour sees things differently. For instance, he may not let his children read about sexuality before the age of 18, and I disapprove of this. However, I have no right to tell him how he should raise his children and he has no right to tell me how I should raise mine.
Thus, it seems to me that government should not have the right to tell anyone how to raise their children.
[English]
Senator Milne: I would like to draw your attention to another part of this bill, clause 6. The proposed new subsections 162(6) and 162(7), as outlined in clause 6 of the bill, provide another possible defence and raise another problem. The proposed subsection 162(6) states: ``No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.''
Perhaps I make a film that is intended to teach young girls how to protect themselves against visual spying. I may think that that serves the public good. However, a judge may disagree. Proposed subsection 162(7)(b) says that ``the motives of an accused are irrelevant.'' I find it both puzzling and troubling that the motive is irrelevant, even if the intent is to serve the public good.
Ms. Hebb: Are you reading from the existing act?
Senator Milne: I am reading from the bill at the bottom of page 6 and the top of page 7. It is the proposed section on voyeurism.
Ms. Hebb: They took out the section on motives that we are interested in.
Senator Milne: This is a defence on voyeurism, where it states: ``no person shall be convicted of an offence...''
Ms. Hebb: That proposed section has been considered in another section of the Criminal Code. I believe that the part about motives has been found unconstitutional.
Senator Milne: It has been included in the bill even though it has been found unconstitutional.
Ms. Hebb: It happened in another piece of legislation, although I am not certain that it was in the Criminal Code. I certainly came across that somewhere. I think that section is outrageous.
[Translation]
Mr. Montpetit: I think that the sentence ``the motives of an accused are irrelevant'' is also found in article 162.7(b). This sentence applies to the works we are discussing today.
The article says that the motives of an accused are irrelevant. On the other hand, the bill says that if the accused has done something with a sexual intent, he can be accused. Thus, there is a right to presume the artist's intention, and that it was sexual, but the artist does not have any right to defend himself by stating his true intentions. In other words, certain intentions can be attributed to him, but he is not allowed to defend himself by stating what he really wanted to do. In my opinion, there is a contradiction there. How can you be allowed to read a writer's mind and say that he certainly had a sexual intent, while not allowing him to respond to this accusation? Can an accusation from another person be more accurate than the writer's true motives? In my opinion, this is an infringement of the right to have a full and complete defence.
Legally, whatever can contribute to defend the accused should be allowed before the court. Here, the accused is forbidden to state the main reason why he wrote his work. I think that this should not be forbidden.
[English]
Ms. Hebb: That same language is used in the obscenity section of the Criminal Code and was in the child pornography section until this bill replaced that section with some of the wording we have been reviewing.
Senator Pearson: I am a literate person, so I read a great deal. I thoroughly admire the work of Mr. Montpetit because I agree that many of these problems would disappear if people were sexually healthier. That is tremendously important. I would take exception to the idea that we cannot agree on anything. No person in Canada would disagree that the depiction of the rape of an eight-month-old baby is obscene.
Mr. Montpetit: I agree. Real harm to a baby is a crime and the picture proves the real crime.
Senator Pearson: The picture might even be an image that has been created on computer. That is in here too.
Mr. Montpetit: To me, that is not a picture of a real baby being raped. That is fiction, just as fictional as the depiction of a murder.
Senator Pearson: We have a fundamental disagreement.
Mr. Montpetit: You think that killing the baby would not be a crime if it were depicted in a book but raping that baby would be a crime? I do not understand.
Senator Pearson: I am talking about images.
Mr. Montpetit: If a picture of a baby being killed was produced in a book —
Senator Pearson: I am talking about obscene images.
Mr. Montpetit: I do not understand why images of murder and violence are considered legitimate but images of sex crimes are not legitimate.
Senator Pearson: We are looking at the use of this kind of material in order to groom children for abuse or the like. That is at the core of the issue. My concern for the protection of children in this case overrides any other concern. There is always a balance between artistic efforts and others. I do not think that any works of our witnesses would ever be captured by the wording in the bill. From the discussion this evening, they are thinking in the right direction. However, I feel strongly that the kinds of offences that we are talking about in this bill have to come under the Criminal Code.
[Translation]
Senator Rivest: If the defence simply kept the principle of artistic merit, would that not be the best solution?
Mr. Montpetit: It would be better to come back to artistic, educational and scientific merit than to follow what is proposed in this bill. In our opinion, it would be even better to say ``no real damage to any real person.'' However, this is not the objective of the bill we are studying. Perhaps we should not go into that subject. Nonetheless, the simplest solution, in our case, would be to simply leave the defence as it now stands.
Senator Rivest: Besides, the Supreme Court's interpretation of artistic merit in the Sharpe case concurs with the reservations you raised.
[English]
Senator Rivest: The words ``artistic merit'' have been interpreted by the courts.
[Translation]
Mr. Montpetit: Setting aside the framework of this bill, I have no problem with the Supreme Court's decision.
Senator Rivest: I would really like to know why they changed that.
Mr. Montpetit: I have a theory about this. When the verdict was handed down to John Robin Sharpe, who had been charged on four counts, two of which were related to fictional works and two related to real crimes against real persons, he had succeeded in defending himself against two counts. Canadians were outraged because they believed that John Robin Sharpe had evaded justice, although he had been jailed for his real crimes.
Legislators felt obliged to do something about this loophole, under pressure from a poorly informed public. In our opinion, there was no loophole, because John Robin Sharpe is still in jail. They did not have to jail him for his fictional work.
I would also like to emphasize that throughout this debate, extreme examples were brought forward, such as works in which babies are raped, for instance. I entirely agree that these are extreme cases and, as for photos of children really getting raped, I do not encourage this but if that is the only thing you want to prohibit, the bill should state that and only that.
This bill has not been widened to cover any kind of sexual scene between two 17-year-olds. This is a problem. This should not affect writers writing about love relationships between two adolescents. There is a problem with the legal definition of pornography if the same definition is applied to both acts.
If what you really want to do is to prohibit photos of babies being raped, then the bill should only prohibit that kind of photo.
The Chairman: Thank you very much. Before you leave, we will hear representatives from the department. This might shed new light and help us make up our minds.
[English]
Ms. Hebb: The last flight to Toronto for Ms. Swan and me is at 10 p.m.
The Chairman: Thank you both for coming this evening. It has been most interesting. I will send you the transcript.
Ms. Morency, I have one question. What would be an example of a purpose related to art that is not legitimate?
Ms. Carole Morency, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: We could give you the example in the Sharpe case itself. In that case, he had written stories. The only definition that applied to catch written material under existing child pornography provisions was materials that advocate or counsel unlawful sexual activity with children. Applying the Supreme Court of Canada's interpretation of what it means to advocate or counsel unlawful sexual activity, it has to be seen as actively encouraging or inducing one to go out and sexually abuse a child. The stories that Mr. Sharpe authored and was intending to publish or to make available were graphic descriptions primarily about sexual abuse and torture of young boys.
In the case that went before the trial court after the Supreme Court, the charges were then proceeded with before the superior court in British Columbia. He was convicted on the photographs, but he also was charged with respect to written materials on the basis that they advocated or counselled unlawful sexual activity. The trial court, interpreting and applying the Supreme Court of Canada's decision in Sharpe, said that the materials before the court did not meet that definition of advocating or counselling. In other words, while they were bad and were predominantly or primarily about incidences of sexual abuse, they did not say, in the way the Supreme Court interpreted it, ``Go out and commit this kind of offence against a child.''
The Supreme Court decision looked at how the artistic merit defence works now. The test is not a reverse onus, and Bill C-2 does not change that. The Supreme Court interpreted all the defences in the existing child pornography provisions to say the following: one, they must be construed liberally; two, the accused, as part of the defence, must point to some fact that raises an air of reality about the defence that has some artistic value. That is all that he has to show, or all that he had to show in that particular case.
In the Sharpe trial on the charges, experts were called on both sides, for the Crown and for the defence. These materials have artistic value. They were written with a certain literary style. They showed this technique and that technique. While we may not like the story being described, they had some artistic value. No matter how small, the Supreme Court says, that is all you need to show so that you can benefit from the artistic merit defence.
At trial, the court basically said, ``These materials do not meet the definition of written material, so it is not even caught. It is not an offence. But if I am wrong and if this goes to an appeal court, in the alternative I would find based on the expert evidence led in the court that these materials have some artistic value; therefore, if I am wrong, Mr. Sharpe would be able to successfully invoke the defence of artistic merit.'' That was the decision.
Bill C-2 responds to that, as I said last week, by broadening the definition of written material, and you have to keep going back to what the actual proposed definition is. The material predominantly has to describe unlawful sexual activity with children and it has to be done for a sexual purpose. Again, ``dominant characteristic'' and ``sexual purpose'' are both terms interpreted by the Supreme Court in Sharpe and fully expected to be how Bill C-2 would be interpreted if enacted.
As to how Bill C-2 might apply to the types of work that were in the Sharpe case, one, they would be caught through the broader definition, and two, there would be another test, an additional level of scrutiny the court would have to follow to assess whether the defence would be available.
Being guided by the decision in the Sharpe case, a legitimate purpose related to the administration of justice, medicine, education or art is in our existing child pornography defences. Administration of justice is incorporated by reference from the public good defence and the obscenity provisions, as are medicine, education and art. Then you have the specific defence in subsection 6 in the Criminal Code for artistic merit, education, art, science. Adding the second level of scrutiny, undue risk of harm, brings an extra level of scrutiny that we did not have with the works in question in the Sharpe case.
If a case were to proceed now regarding written material, the question would be whether the material meets either one of the new definitions proposed in Bill C-2 or an existing definition in the Criminal Code. I understand the unhappiness with the existing definition as it applies to material that depicts, visually or through in writing, the sexual abuse of a child, even if it is not a real child. However, the Supreme Court has said clearly that it accepts that, that that is constitutionally sound. That is a valid, legitimate purpose, because you cannot differentiate in many instances between a computer-generated image of the sexual abuse of a child and a real child; moreover, the depiction of children in any format, whether audio or visual or written material, as sexual objects for exploitation demeans children and poses a risk to children and to Canadian society at large.
Senator Nolin: How do you prove that?
Ms. Morency: In the Sharpe decision, the Supreme Court considered the evidence before the court and upheld the overall child pornography provisions relating to possession. In the course of doing so, the justices went through each part of the existing provisions. They considered the evidence before them. With respect to the specific offence of possession, the court decided that it went too far, and they carved out two exceptions. One of the exceptions that they carved out from that offence is self-authored works of the imagination created and possessed for the exclusive use of the creator — the author. If that material is never shown to anyone but kept for that person's own personal use, it poses little risk of harm to children.
The second exception deals with youth above the age of consent who engage in consensual, lawful sexual activity and make a recording of it for their personal use and never show it to anyone. That is child pornography, but there is an exception because they are able to lawfully engage in that sexual activity.
In coming to the finding that there are those two exceptions to the existing provisions, the court looked at the evidence before it and considered what uses are made of child pornography. There were five main things before the court. First, child pornography promotes cognitive distortions. Second, it fuels fantasies that might incite offenders. Third, prohibition of possession helps law enforcement to reduce production, distribution and use of child pornography that does cause direct harm to children. Fourth, child pornography is used to groom and seduce children for contact sexual abuse offences. Fifth, much child pornography is produced using real children.
The court determined that child pornography is used for those purposes. Self-authored works of the imagination never shown to anyone do not meet that standard test; they do not pose a reasoned risk of harm. That is what the second branch of the legitimate purpose defence seeks to incorporate and to draw from the Supreme Court's analysis.
We take very seriously the concerns that have been addressed today about protection of freedom of expression and the concerns we heard from the witnesses tonight. However, I would like to refer to a recent case, the Eli Langer example from 1993. An art gallery owner was charged with exhibiting paintings by Eli Langer that depicted sexual abuse of children. In that case there was much debate and a different interpretation of whether a community standard of tolerance applied. The court said that it did. In Sharpe the Supreme Court said that that is not the test. If it is art, you need only show some value. There is no second branch; there is no undue risk of harm, no community standards of tolerance.
Then we had Sharpe, which had written materials. There have not been many cases of which we are aware, including through discussions with police in previous years, about possession of written material or making it available more broadly. When the reforms to the child pornography provisions were initially enacted in 1993, the bill as introduced had no application to written material. It was amended through the legislative process to include written material that advocates or counsels unlawful sexual activity, primarily to get at materials like those of the North American Man/Boy Love Association, whose newsletter says that sex with children is good, for example.
Since then, we have not seen much. In Sharpe we saw some written stories. The Sharpe case seemed isolated in the sense that it received more attention than reported cases of photographs, but now, in part through the legislative process for Bill C-2 and its predecessors, police are finding more written material that may or may not meet the existing definition of ``advocates'' or ``counsels.''
Last week in my remarks before the committee I referred briefly to a recent decision of the Ontario Court of Appeal involving a defendant by the name of Beattie. In that case, an individual was charged with possessing child pornography that included a binder of 33 stories that described, in graphic language, sexual activities between adults and children under the age of 14. The court examined the stories. They are very similar to the type of material authored by Mr. Sharpe. After describing what the stories were about, the court said the following:
Overall, however, these stories send two explicit and clear messages to the objective reader of them. First, they send the message that children want and enjoy sex with adults. Children encourage sex with adults — even their fathers — by becoming precocious, flirtatious, even manipulative. They are sexually insatiable and ready for repeated sexual encounters. And they enjoy sexual activity even when it is painful and violent.
Second, these stories send the message that although society seemingly disapproves of sex between adults and children, those adults who love children the most and understand them the best (their parents) and those adults who are responsible for their well-being (their parents and doctors) routinely have sex with children.
The message sent by these stories, as interpreted by the Court of Appeal — and leave to appeal may be sought — is that this material depicts children as objects for sexual exploitation. The court found in this case that the materials did advocate or counsel unlawful sexual activity, so the question will be whether the material, similar to what was in Sharpe, meets the existing definition. One could comment on whether Bill C-2 would apply to it as well.
The point is that in the last two to three years we have seen a progression of cases of this kind of material. It is difficult for us to understand how there might be some market for the written materials, and we would all have difficulty understanding that there is any market for the photographs. The intent of the bill is, first, to build on what the Supreme Court has said and interpreted with our existing child pornography provisions, and, second, to not change the existing operation of the defences, which is nothing like a reverse onus.
Senator Nolin: They were not saying that. They would have liked that. They would like the Crown to prove that it caused undue risk.
Ms. Morency: It is the Crown's obligation and onus to prove beyond a reasonable doubt.
Senator Nolin: It is not written that way.
Ms. Morency: It is written just as the existing defence.
Senator Joyal: I do not want to argue, because it is late, but we could have another meeting.
Ms. Morency: Another example of a reverse onus is in section 515(6) of the Criminal Code, which is a bail application. It says very clearly ``unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified...'' Where there is a reverse onus, there are very serious issues, and it must be clearly stated and you must have the grounds to support it from a Charter perspective. Bill C-2 does not change the approach that exists in the Criminal Code.
Senator Nolin: Who is proving (a)? Who has the burden?
Ms. Morency: The Crown has to prove beyond a reasonable doubt that the act in question does not have a legitimate purpose related to art and that it poses an undue risk of harm to children, even if it does have a legitimate purpose. All the defence has to do, as a defendant would have to do in any case where the defendant seeks to rely on a defence, is point to some facts that raise an air of reality to the defence, and the Crown must then prove its case beyond a reasonable doubt. Again, this is drawn directly from the Supreme Court's interpretation in the Sharpe decision.
I wanted to address your concerns tonight to reassure you that the intent is very much to continue the approach that exists now in the Criminal Code with respect to child pornography and to clearly identify how the existing and additional reforms that Bill C-2 proposes would operate. The test will always be whether the material in question meets the definition. In this case, the Crown must show beyond a reasonable doubt that the material predominantly depicts and describes the unlawful sexual abuse of children and that it is done for a sexual purpose.
The example cited earlier this evening would not fall within that definition. In the event that it did, the defence of legitimate purpose related to art would still be available. There is some artistic value shown, and then the defence or the Crown still must prove that it is beyond a reasonable doubt, based on what we have, for example, from the Supreme Court on the uses made of child pornography. I had the pleasure of reading the materials described this evening about books. I am submitting they do not fall within the definition.
Senator Nolin: Are you are looking at the definition in paragraph (c)?
Ms. Morency: In Bill C-2?
Senator Nolin: Yes.
Ms. Morency: Yes.
Senator Nolin: Those books are not included in that definition?
Ms. Morency: Not in the existing or proposed definition, as I understood the books.
Senator Nolin: Let us again read paragraph (c). The way those books have been described to us, they do not fit into that definition.
Ms. Morency: It refers to written material whose dominant characteristic is the description for a sexual purpose.
Senator Nolin: Written materials whose dominant characteristic is the description for a sexual purpose.
Ms. Morency: Right. ``For a sexual purpose'' has been interpreted by the Supreme Court to mean reasonably perceived as intended to cause sexual stimulation to some viewers.
The Chairman: I like the discussion we are having. I think it is very interesting. Could we decide tonight that before we adopt the clause-by-clause of this bill, we want to have a discussion with the people from the department for at least one hour next Wednesday? Then we can decide what we will do with the clause-by-clause. Honourable senators, are you agreeable to that?
Senator Milne: I want to have some clarification of why on earth in clause 6 you have (7)(b) wherein it states that the motives of an accused are irrelevant.
Ms. Catherine Kane, Senior Counsel/Director, Policy Centre for Victim Issues, Department of Justice Canada: I am prepared to do address that now, but would you prefer me to wait until another time?
The Chairman: Next Wednesday.
[Translation]
You heard all the questions and I think that it will take at least an hour of debate before we can pass this bill.
[English]
Senator Joyal: If you are so convinced that the defence in clause 6 is exactly what the Supreme Court has said in Sharpe, why should we not leave it as it is now? According to you, it is already included.
The Chairman: We will have an answer by next Wednesday. Hold your thoughts.
[Translation]
Mr. Montpetit: Let me simply point out that there were many people around the table, very intelligent people, and as they read the clause regarding the reversed burden of proof — which we say is reversed and which you say is not reversed — they interpreted the article differently.
Should this not be clarified in the legislation, and not in the legislator's intention? In my opinion, the legislator's intention is equally irrelevant. The legislation states that intentions are irrelevant. I would like to have this written down.
With all these different interpretations, I think that this should be clarified in the other points of the legislation, and I have one particular point in mind, which is that the work can be seized until the end of the trial. For me, this demonstrates that there is a reversal of the burden of proof. The work is considered culpable until the end of the trial. The act should stipulate that a work cannot be seized without adequate proof.
The Chairman: I will take note of that. Thank you for coming. I think that this was a very interesting meeting for all the senators.
The committee is adjourned.