clear of the kiddie porn law

(simon chester is the partner in charge of research and a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch. This article was prepared with the assistance of karen liebesman.)

the Shakespearean classic, Romeo and Juliet; a sexy advertisement featuring a waif-like supermodel; the hit tv show Beverly Hills 90210. What’s the connection? All of them could face prosecution under Canada’s new child pornography laws. What’s more worrying is that – just like guns and drugs – mere possession of child pornography is now a crime by itself.

Writers, producers, broadcasters and distributors need to know how far the law goes and whether they should be sensitive to a difficult and murky area of the law.

So far, we’ve had a year of experience under the new law. Ten pedophiles convicted and one Toronto artist and gallery swept into court. How far has this law been clarified over the year? Not much.

The new child pornography laws

Late in the Tory years, Justice Minister Pierre Blais tried to address the hot topic of sexual abuse of children, and with the passage of Bill C-128 added a slew of child pornography offences to the existing Criminal Code obscenity laws. The bill was pushed through Parliament with a haste that in any other context would have been described as indecent. Press and community criticism was ignored.

At the time, the new law was criticized as poorly drafted and liable to put a chill on legitimate creative expression. Lawyers and artists said it was unnecessary given the existing obscenity provisions.

The new laws prohibit the depiction of ‘explicit sexual activity’ – a term whose meaning is unclear – by anyone under 18 or represented as being under 18. Making, displaying, importing, distributing or merely possessing such material is punishable by a maximum prison term ranging from five to 10 years.

So, no law is broken when Canadians over the age of 14 have consensual sex, but it is illegal to make art that shows them having it, even if the characters involved are purely fictional.

Artistic merit

While the legislation provides a defence for material which has artistic merit or can show an educational, scientific or medical purpose, the broad language of the law sweeps into the net a lot of mainstream material. In effect, the law declares material criminal first, with the chance for explanations later. Artistic merit is only assessed after the criminal charges have been laid and even then the legal defence is highly subjective.

The good news is that the burden of proving the work has artistic merit is not on the accused creator. To raise this defence, the accused only has to show that there is some evidence to indicate that the work has artistic merit. Then the Crown has to prove beyond a reasonable doubt that the defence was not established.

The stakes are high

The bad news is that even if you win, you’ve had to face extremely negative publicity. The stigma of a criminal charge for child pornography is not easily erased. You’ve also had to go to the time and expense of defending yourself in court. And don’t look to your project’s e&o insurance to cover these expenses – criminal actions aren’t covered. And the worst news is that if you loseÉyou go to jail for up to 10 years. Other obscenity offences get only up to two years.

Risks, risks, risks

As a result, members of the arts and entertainment community may now think twice before becoming involved in controversial works which employ or depict children. Many are concerned that because of the new laws, quality Canadian shows such as The Boys of St. Vincent and Degrassi High would be too risky to make.

It can be convincingly argued that separate child pornography laws were unnecessary in the first place. Before the new laws, child pornography could be dealt with under the existing obscenity laws. These provisions considered any publication obscene, ‘a dominant characteristic of which is undue exploitation of sex, or of sex and any one ofÉcrime, horror, cruelty or violence.’

‘Publication’ is broadly defined and catches virtually everything. Much confusion resulted as courts developed many different tests in order to determine what amounts to ‘undue exploitation of sex.’ So, in the 1992 Butler case, the Supreme Court of Canada tried to clarify the law.

What is pornography?

To help set some guidelines for its evaluation, the Court divided pornography into three categories:

– first – explicit sex with violence, almost always constitutes the undue exploitation of sex – it’s a no-no;

– second – explicit sex without violence but which is degrading or dehumanizing, may be undue if it would pose a substantial risk of harm to society – be very careful;

– finally – explicit sex that is not violent and neither degrading nor dehumanizing would generally be tolerated by society, unless children are involved.

Clearly, the Court recognized that explicit sex involving children is a special case in that it may be obscene on its own, without any violent or degrading (dehumanizing) behavior. Moreover, there were already many provisions in the Criminal Code that could be used to charge those involved with the production of child pornography, such as the sections dealing with sexual assault, sexual exploitation, sexual interference, invitation to sexual touching and corrupting children.

In the Butler case, the Court clarified that the main test for deciding whether a work is obscene is the ‘community standard of tolerance.’ The test is based on what type of material the Canadian community as a whole would permit other Canadians to see. But, since the new provisions seem deliberately not to use the same wording as the existing obscenity section (‘undue exploitation of sex’ is used in the obscenity definition while ‘explicit sexual activity’ is used for child pornography), it would appear that the elaboration of the community standards test by Canada’s top courts is of little, if any, help in deciding what is beyond the pale.

Pretty baby?

Besides choosing the age of 18 as the cut-off point for the definition of child pornography, thereby making no distinction between a child of seven and a young adult of 17, the government has decided that even representations of persons depicted as being under 18, whatever their actual age, qualify as child pornography. Considering the youthful focus of current fashion and health trends, the court faces quite a task in differentiating between the appearance of persons under 18 and the appearance of those 18 or over.

If guessing someone’s age is difficult for the court, what is the general public to do? What if you honestly, though mistakenly, believed that the person represented in the material was 18 or older? If you are charged with circulating or possessing child pornography, then you may be able to rely on this honest mistake as a defence. However, if you are charged with the production of child pornography, the mistake of fact defence cannot be used unless ‘all reasonable steps’ were taken to ensure that the person in the material actually was, and was depicted as being, over the age of 18.

Tough calls?

So, producers face a challenge in deciding what sells and what will land them in jail. For example, a film clip featuring two teens in a hotel room after the prom, kissingÉyou’re probably safe so far. But, what if the camera then focuses on their clothes dropping around their feet and we hear the creaking of bed springs? Technically, no explicit sex is shown but the implication is clear.

Even without meaning to, a work may go too far. Recently there was a public outcry over a spread featuring Kate Moss, the English waif-like model, who was shown topless and in sexually suggestive poses with others. While Moss is the ripe old age of twentysomething, she resembles hardly more than a school girl. As a result, the ad could be considered child pornography and the photographer could conceivably get five to 10 years in Kingston.

The Langer dilemma

Until the courts begin issuing decisions which interpret the new provisions, it is uncertain where the line will be drawn between acceptable materials and criminal pornography. How then, without any clear guidelines, is the decision made to lay these types of charges in the first place? Perhaps an ‘outraged taxpayer’ happens to be offended by a certain work and complains to the police.

As Toronto artist Eli Langer found out, the police can seize the material and lay criminal charges against the creator, exhibitor, distributor etc. While the criminal charges against Langer himself have been dropped, the Crown is still seeking the court’s permission to destroy the actual works of art that were seized.

Or perhaps a border official, with an afternoon’s worth of training in the obscenity department, examines a shipment of material crossing the border and decides it is pornographic. Customs officials have the power to seize such material on the spot. At this point, your options are to accept the decision – which results in the material being destroyed – and the financial loss, or you can ask that the material be re-examined. The appeal route is, again, costly and slow, and even if you win, the material may be dated and unmarketable by that time. Litigation is not a sport for the short of wind or shallow of purse.

Clearly, no one condones the sexual abuse of children, but passing needlessly broad and vague criminal legislation with no evidence that it addresses a real issue in an effective way is not the answer. Until more people are charged and tried under these laws or until the legislation is tested as restricting freedom of expression, we cannot tell where, in the eyes of the law, legitimate creative expression ends and where child pornography begins.

Twelve years ago, with the enshrinement of freedom of expression in Canada’s Charter of Rights and Freedoms, Canadian artists thought their artistic rights had been constitutionally protected. 1993’s law and Langer’s prosecution turned back the clock. It seems doubtful that the Liberals will be willing to revisit the issue. So once again we are still waiting for clear answers from the courts. Welcome to the brave new world of Canada’s morality laws in the nineties.

(this article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)