Making a Bad Law Worse‪.‬

IN ITS FINAL DAYS IN OFFICE, the Jean Chretien government had some good--or at least provocatively interesting--ideas about justice. It proposed to legalise same-sex marriage, and it offered a plan to partially decriminalise the use of marijuana. It also had one very bad idea: Bill C-20, a proposal to amend and strengthen the existing child pornography law (See. 163.1 of the Criminal Code). The centrepiece of Bill C-20 is a disturbing move to eliminate the defence of "artistic merit or an educational, scientific or medical purpose" against a charge of child pornography, and replace it with a defence of serving the "public good." Then, having abolished "artistic merit" the drafters of the bill further proposed that "any written material the dominant characteristic of which is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence" under the Criminal Code should also be made a clime. (1) Though the passage of Bill C-20 was interrupted by the prorogation of Parliament in November 2003, the new government of Prime Minister Paul Martin has the option of resuming consideration of this legislative scheme. To understand how and why the Parliament of Canada arrived at the startling idea of partially striking down the longstanding right of artists to freedom of speech and expression requires a bit of history. (2) Ever since its legislative passage in summer 1993, more than a decade ago, Sec. 163.1 of the Criminal Code (a supplement to Sec. 163, the law against obscenity) was conceptually inchoate. Yet, the original notion for a child pornography law, as drafted by the Ministry of Justice, was reasonably coherent. Tee core idea was that any sexual representation of actual children that was produced through the commission of a sexual crime against those children should be prohibited. For example, it is illegal for an adult to engage in sexual touching of children under the age of fourteen or to counsel or induce the sexual touching of such children. It's also illegal for adults to engage in sex with persons under the age of eighteen with whom they are in a 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, the reasoning went, representations of those acts perpetuated and extended the harm caused by the original violation.