Making a Bad Law Worse

Abstract

IN ITS FINAL DAYS IN OFFICE, Jean Chretien government had some good--or at least provocatively interesting--ideas about justice. It proposed to legalise same-sex marriage, and it offered plan to partially decriminalise use of marijuana. It also had one very bad idea: Bill C-20, proposal to amend and strengthen existing law (See. 163.1 of Criminal Code). The centrepiece of Bill C-20 is disturbing move to eliminate defence of artistic or an educational, scientific or medical purpose against charge of pornography, and replace it with defence of serving public good. Then, having abolished artistic merit drafters of bill further proposed that written material dominant characteristic of which is description, for sexual purpose, of sexual activity with person under age of eighteen that would be an offence under Criminal Code should also be made clime. (1) Though passage of Bill C-20 was interrupted by prorogation of Parliament in November 2003, new government of Prime Minister Paul Martin has option of resuming consideration of this legislative scheme. To understand how and why Parliament of Canada arrived at startling idea of partially striking down longstanding right of artists to freedom of speech and expression requires bit of history. (2) Ever since its legislative passage in summer 1993, more than decade ago, Sec. 163.1 of Criminal Code (a supplement to Sec. 163, law against obscenity) was conceptually inchoate. Yet, original notion for law, as drafted by Ministry of Justice, was reasonably coherent. Tee core idea was that any sexual representation of actual children that was produced through commission of sexual crime against those children should be prohibited. For example, it is illegal for an adult to engage in sexual touching of children under age of fourteen or to counsel or induce sexual touching of such children. It's also illegal for adults to engage in sex with persons under age of eighteen with whom they are in relation of authority or trust (such as relationships between teachers and students under eighteen), or to provide an inducement for young people under eighteen to engage in sex with adults (as in prostitutional circumstances). Since such acts are crimes against children and young people, reasoning went, representations of those acts perpetuated and extended harm caused by original violation. The new law also contained one novel feature: while obscenity law criminalised making, distribution and sale of obscene materials, law also criminalised mere possession of pornography, first law in Canadian jurisprudence to Criminalise simple possession of expressive materials. Unfortunately, law passed by Parliament in 1993 was far different from one envisaged by its drafters. Once bill reached Commons, it was drastically expanded by legislators, and law that was hastily passed in June 1993 was, in our view, constitutionally overbroad. The term means, in legal circles, that law captures activities and materials that are protected by Constitution and that should not be criminalised. The overbreadth of law is found in law's definition of pornography. In Section 163.1, child pornography means a photographic, film, video or other visual representation ... that shows person who is or is depicted as being under age of 18 and is engaged in or is depicted as engaged in explicit sexual activity. As well, includes representations the dominant characteristic of which is depiction, for sexual purpose, of sexual organ or anal region of person under age of 18 years. Finally, also includes written material or visual representation that advocates or counsels sexual activity with person under age of 18 years that would be crime under Criminal Code. …