Mr. Speaker, I am very pleased to have the opportunity this evening to speak to Motion No. 69 introduced by the hon. member for Mississauga South.
The motion seeks to amend the current definition of obscenity as it appears in subsection 163(8) of the criminal code as follows:
“For the purposes of this Act, any matter or thing is obscene where a dominant characteristic of the matter or thing is the undue exploitation of any one or more of the following subjects, namely, sex, violence, crime, horror or cruelty, through degrading representation of a male or female person or in any other manner”.
I praise the member for his efforts to protect Canadians from any material containing violence. He is well known for his work in this area and I congratulate him. However, I am not sure the aim of the motion is clear enough.
First, let us examine the effect of the proposal before us. The proposed definition of obscenity would extend the notion of obscenity beyond the bounds of its common understanding. The current code definition requires the undue exploitation of sex or the combination of sex and at least one of violence, horror, crime or cruelty in order to be considered obscene.
Obscenity is understood to include some notion of sexual immorality or indecency. The proposed definition of obscenity in the motion would include materials that unduly exploit violence, crime, horror or cruelty alone. To include within the definition of obscenity strictly violence, horror, crime or cruelty would not fit in within the common and legal understanding of the concept. Other changes to the current definition of obscenity proposed by the motion would have little or no effect on the manner in which the term is currently applied.
The replacement of the word publication with matter or thing is not necessary. The courts have already held that the definition of obscenity in subsection 163(8) applies to all matter whether or not it is a publication. There is no need therefore to make this change.
Second, the addition of through degrading representation of a male or female person is also unnecessary because it is included within the judicial interpretation of the current definition of obscenity.
As has been referred to tonight, the Supreme Court of Canada said in R. v Butler that material which depicts explicit sex without violence will usually also have to depict degrading or dehumanizing treatment in order to be constitutionally prohibited.
As mentioned by the court, explicit sex that is not violent and not degrading or dehumanizing is generally tolerated by society and will not qualify as undue exploitation of sex. Where there is undue exploitation of sex alone, therefore, it is unnecessary to specify that it includes degrading representations because that is implicit in the context of undue exploitation based on the interpretation given by the Supreme Court of Canada.
The motion also proposes to add the phrase “in any other manner” as a qualifier of undue exploitation. The type of manner contemplated by this wording is unclear but it would appear unnecessary as well. For reasons similar to those I have already referred to, the provision as it currently appears in the code leaves the notion of undue exploitation unqualified so as to allow for more flexible interpretation.
The definition proposed in the motion would qualify the phrase undue exploitation with through degrading representation of a male or female person, with the result that the possible interpretations of the phrase would be narrowed. It then attempts to broaden the definition with the addition of the phrase “or in any other manner”. This addition is unnecessary and needlessly complicates the current wording with the possible result that judicial interpretations of the new definition may not turn out to be what the motion seeks to realize in proposing this definition.
Just like the hon. member, we want to protect children from the harmful effects of material containing violence. But there may be other, more efficient ways to go about it than to legislate.
First, we must trust the conscientiousness of Canadian parents to adequately supervise the activities of their children and regulate the types of materials to which their children are exposed.
In addition to parental supervision, the broadcasting industry has adopted a voluntary code regarding violence in television programming to respond to the public's concern over the issue of violence in the media and in society in general. The voluntary code states that:
It is the responsibility of the broadcaster, the regulator, the cable operator and cable delivered programming services, in conjunction with parents, teachers and individual viewers to work cooperatively to inform and educate society on how to best manage this technological revolution which has created an endless video buffet of programming choices.
While the government must certainly play a role in protecting children from the harm occasioned by violence in the media, all sectors of society must work co-operatively to achieve this goal. The criminal code is a blunt instrument. It is not the sole instrument or even the most effective instrument available to deal with social or moral behaviour. It may be used to deal with certain discrete types of behaviour but we must resist the tendency to rely too heavily on it as a panacea for all that we wish to repair in our society.
In conclusion, I would also like to join with other members in thanking this hon. member for his contribution to the debate on this subject.