Protecting “Pursuits that Relate to the Culture of the Country”: Advocating for the Artistic Merit Defence in Bill C-12

Abstract

THE CANADIAN CONFERENCE OF THE ARTS (CCA) is a national, non-profit arts service organization based in Ottawa. It is the largest and oldest arts advocacy organization in Canada, with members in all of the provinces, major arts disciplines and cultural industries, including writing, publishing, and the visual and media arts. As a national advocacy group, the represents approximately 200,000 artists and cultural workers, and among its organizational membership are some arts organizations from every artistic discipline and cultural industry. CCA believes that Bill C-12 (formerly C-20), an Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, endangers Canadians' fundamental rights to free expression. initiated an on-going public advocacy campaign, in which Canadian artists such as John Greyson, Richard Fung, Luis Jacob, Penny McCann, Ian Murray, Andrew J. Paterson and others spoke out against the draft legislation in letters addressed to Members of Parliament. News stories on our concerns with Bill C-12 appeared in sources as varied as the CBC, the Sun newspaper chain and Xtra, and our opinions were also taken up in February editorials by the Globe and Mail and the and the Ottawa Citizen. CCA contends that all artistic endeavours relate directly to the core values that the guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms is intended to protect, including the pursuit of truth and individual self-fulfillment. Art is indispensable to any democratic society as a form of expression that describes and comments on human, social and political conditions. It plays a critical role in enabling individuals to explore, understand and become more aware of themselves and the world in which they live. This has been recognized many times by Canadian courts in defining the breadth of freedom of expression in this Even before the advent of the Charter, Justice Bora Laskin in the Cameron case said, The Court can take judicial notice of the fact that the engagement of citizens or inhabitants in the execution of art (whether drawing or painting or sculpting), the training of students in art, the exposure of art to public appreciation, all of this leading to the refinement of public taste, are pursuits that relate to the culture of the country. Similarly, the former Chief Justice of Canada, Antonio Lamer, said this about art in a case concerning section 2(b) of the Charter of Rights and Freedoms (Reference re: sub-section 193 and 195.1 of the Criminal Code): As with language, art is in many ways an expression of cultural identity, and in many cases is an expression of one's identity with a particular set of thoughts, beliefs, opinions and emotions. That expression may be either solely of inherent value in that it adds to one's sense of fulfillment, personal identity and individuality independent of any effect it may have on a potential audience, or it may be based on a desire to communicate certain thoughts and feelings to others. Sexual expression is related to virtually all of the key values underlying the freedom of expression: the search for truth, individual self-fulfillment and political participation. exploration of the sexual aspects of human existence has always been a central concern of artists. Breakthroughs in popular culture have often dealt with the depiction of the sexual nature of humanity and the human body. Sexual expression plays a central role in our understanding of human identity and consequently, constitutes an indispensable subject of textual and visual art. James Joyce's Ulysses and Vladimir Nabokov's Lolita, widely considered as masterpieces of 20th century literature, are recognized as such not only because of their innovative use of language and narrative form, but also because of the candour and directness with which their sexually-charged subject matter is addressed. …