Submission of the Writers’ Union of Canada to The Standing Committee on Justice and Human Rights on Bill C-20

Abstract

Submission of theWriters' Union of Canada to The Standing Committee on Justice and Human Rights on Bill C-zo August 28,2003 'X he Wr it e r s’ Un io n of C an ad a is a national organization represent­ ing approximately 1500 book writers. Its objectives include protection and advancement of freedom of expression. We have serious concerns regarding certain provisions of Bill C-20, An Act to amend the Criminal Code. While we strongly support the overall purpose behind the legislation—to protect children from sexual exploita­ tion and abuse—we believe that the child pornography provisions of Bill C-20 are a misguided attack on freedom of expression and an infringement of the Canadian Charter ofRights and Freedoms that is unacceptable to a free and democratic society. In 1993 the Writers’ Union made representa­ tions against Bill C-128, which introduced Section 163.1 into the Criminal Code and for the first time created an offence that dealt specifically with child pornography. In a press release following passage of that legislation through the House of Commons, Myrna Kostash, then chair of the Writers’ Union, called unsuccessfully on the Senate to defeat the legislation: Government should focus its energies on making laws which prevent harm to real children who are hungry, poor and sexuWritten for The Writers’ Union of Canada by its legal counsel, Marian Hebb. Reprinted with permission. ESC 29.3-4 (September/December 2003): 18-24 ally exploited and not try to hoodwink the public into believ­ ing that censorship laws in any way address these problems. The government has taken advantage of the public’s concerns about these issues by ramming through poorly drafted, illconsidered legislation.... This is happening yet again with Bill C-20, which purports “to close loopholes” in the child pornography law enacted in 1993 by deleting from the legislation the defences of artistic merit and educational, scientific or medical purpose. We have no quarrel with the law protecting real children. It should do this and it does. Already, before the enactment of legislation specifically dealing with so-called child pornography, in its 1992 landmark case on the test for obscenity, R. v Butler, the Supreme Court of Canada focussed on the risk of harm to vulnerable women and children and excluded certain material generally tolerated by the community from the definition of obscenity (within the meaning of the Criminal Code offence) but not where real children were involved in its production. The real problem is not that Canada has laws that are inadequate 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. Police forces have called for a national strategy on child pornography, complaining that local forces are usually overwhelmed and inexpert and cannot launch complex technical investigations, and officials of the Crimi­ nal Intelligence Service of Canada are swamped by calls from police for help in investigating Internet child pornography.1 University of Toronto philosophy professor and pornography specialist Wayne Sumner has said: “I don’t see any defect in the laws on the books at the moment. The law is just fine. The question is how effectively it can be enforced.” 1 2 We share this view. We submitted, when it was introduced, that Section 163.1 was an infringement of freedom of expression under the Canadian Charter of Rights and Freedoms. This existing child pornography legislation already has a chilling effect on expression, as authors and other creators tend to engage in self-censorship to avoid possible prosecution when writing or depicting characters who are under 18. By restricting or removing alto­ gether the defences of artistic merit or educational, scientific or medical purpose, currently available to a person accused of a child pornography 1 The Globe and Mail, January 18, 2003. 2 Ibid. The Wr it er s’ Union of Canada is the national organization for authors of fiction, non-fiction, poetry, history, essays and children's books, with a membership of some 1,500 professional published authors of trade books. Founded by writers for writers, it fosters a spirit of professionalism and selfrespect among...