Distinguishing between Vladimir Nabokov and a purveyor of child pornography is not all that difficult for most Canadians. But for Canadian courts, it has not always been easy to separate the two. It is about to become harder still.
The federal government intends to remove the defence of artistic merit from the child-pornography law. It also intends to remove the defence of an educational, scientific or medical purpose. The sole remaining defence will be the public good.
On the surface, that defence might seem to include the two deleted defences. The public good is defined as something that is necessary or advantageous to the administration of justice or to the pursuit of science, medicine, education or art. However, a story or drawing that passes muster under that public-good definition is still not home-free. The court must then decide whether the harm to society outweighs the benefits.
This is treacherous territory. Any work of fiction that involves the portrayal of a child in illegal sexual activity could be deemed child pornography. Thus, Gunter Grass's The Tin Drum, a highly moral work, might fall afoul. Or Mr. Nabokov's Lolita, a classic literary work. The good that any such work of art does is rarely direct, while the harms may be far more obvious. Those who would prey on children will seize on any material that they can turn to their own perverted uses.
This legislation, which died last November when Parliament prorogued and is soon to be reintroduced, owes its existence to Robin Sharpe. Although the B.C. man was convicted two years ago of possessing 400 photographs of boys engaged in explicit sex acts or poses, he was acquitted on a charge of possessing child-porn stories he had written for the purpose of distributing them. Of three literary experts who testified in court, two found artistic merit in his stories of bondage, kidnapping and sex with children, some of them under 12.
This was a strange exercise, to be sure. But in fact he was acquitted not merely because of the artistic-merit defence, but because the court felt the stories did not advocate or counsel pedophilia. The court erred on the side of free expression.
The government also plans to amend the child-exploitation law to make it illegal, in some circumstances, for those over 18 to engage in sex or sexual touching with those 14 to 17. Currently, the law makes those relationships illegal only when the older person holds a position of trust or power, such as a teacher. The new law would ask the courts to decide when a relationship is exploitative, based on the ages of the two people, the evolution of their relationship and the degree of control or influence by the older over the younger.
This is a dubious idea. Should the police and the courts have this much power to decide when, say, a 24-year-old should keep away from a 17-year-old? And a story, play or movie based on those illicit relationships might then be deemed child pornography. It might become awfully hard in this country to discuss what life is really like -- which, after all, is one of the points of art.
Truth is the lifeblood of a democracy, but not every truth does the society good. Should society pick and choose which truths to hear, and which to reject?
At bottom, it is enormously difficult to criminalize expression, which is as it should be in a country that protects free speech in its Constitution. No matter how small Parliament tries to write the defences, the courts have served notice that they will read them large.