Mr. Speaker, the motion put forward today proposes to delete clause 7 of Bill C-20, which is an act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act.
In essence the motion seeks to maintain the status quo on child pornography. Simply stated, the government does not accept the status quo and neither do Canadians.
Clause 7 of Bill C-20 proposes two reforms to the existing child pornography provisions. First, it proposes to broaden the existing definition of written child pornography to include written material that describes prohibited sexual activity with children where that description is the dominant characteristic of the material and it is done for a sexual purpose.
Second, Bill C-20 proposes to narrow the two existing defences into one defence of public good, a term that is now specifically defined in the bill. Under the new law no defence would be available where the material or act in question does not serve the public good or where it exceeds or goes beyond what serves the public good. More simply stated, if the risk of harm that it poses outweighs the benefit that it offers to society, then no defence would be available.
The motion to delete clause 7 does more than just seek to maintain the status quo; in fact it says the opposite of what Bill C-20 proposes. It says that written materials that consist primarily of descriptions of unlawful sexual activity with children which descriptions are done for a sexual purpose are not child pornography and that they should not fall within the reach of the criminal law.
In the 2001 Sharpe case, the Supreme Court of Canada interpreted “for a sexual purpose” as being that which can be reasonably perceived as intended to cause sexual stimulation. With this interpretation in mind, it is difficult if not impossible to comprehend the basis for any argument that seeks to support and protect materials that mostly describe the sexual abuse of children and where these descriptions can be reasonably perceived as intended or intending to cause the reader to be sexually stimulated.
It is quite significant that our existing criminal law already clearly prohibits the sexual exploitation of children. The types of written material that this motion seeks to protect are those that portray or purport to portray children as a class of objects for sexual exploitation.
The government recognizes the very real risk of harm that such portrayal and objectification of children poses to our children and to society at large. That is why Bill C-20 proposes to include these types of materials within our definition of child pornography.
The second thing the motion seeks to do is to maintain the current test for when child pornographic materials should be protected by the defence of artistic merit.
Under the current test for artistic merit, the defence is automatically available for material that, objectively viewed, demonstrates some artistic merit no matter how small. For example, if the material in question is a written story, the question becomes, objectively viewed does the story reflect some accepted or recognized literary techniques or styles? If so, the defence is available irrespective of whether the risk of harm that the story poses to children and society outweighs any benefit that it offers.
The government does not agree with and does not support the existing test for artistic merit and neither do Canadians. The Standing Committee on Justice and Human Rights amended Bill C-20 accepting the government's amendment to define the public good as including acts or material that are necessary or advantageous to the administration of justice or the pursuit of science, medicine, education or art.
This definition closely models the language of the Supreme Court of Canada when it interpreted public good in the Sharpe case. Accordingly, the interpretation of Bill C-20 will be guided by the Supreme Court's judgment in this case.
A number of witnesses representing the arts community appeared before the justice committee on Bill C-20 to express concerns that their work or that of fellow artists would be criminalized by Bill C-20. I believe that their concerns are at the heart of this motion.
The justice committee's amendment of Bill C-20 to include a definition of the public good directly responds to those concerns expressed not only by the arts community but also to those expressed by child advocates appearing before the committee. They wanted greater clarity in the bill as to what constituted the public good. However, as to the balance of the concerns raised by the arts community witnesses, a number of observations or points in reply should be made.
The first question to be considered and answered in any potential child pornography case is the following: Does the work in question meet the Criminal Code's definition of child pornography? The written works that were described by these witnesses to the justice committee would not meet the existing definition of written child pornography, that is, they could not be said to advocate or counsel unlawful sexual activity with children. Neither would they meet Bill C-20's proposed new definition. That is, they could not be said to be works that one, were comprised primarily of descriptions of unlawful sexual activity with children and two, that such descriptions were written for a sexual purpose.
The second level of inquiry, and one which falls to the courts to determine, is if the material meets the definition of child pornography, is it protected by a defence? Under Bill C-20, as I have already outlined, there would only be one defence and its test would be a two step inquiry and yes, it is possible for art to meet such a two step inquiry.
Bill C-20 in its preamble clearly identifies the bill's objective. It states:
Whereas the Parliament of Canada has grave concerns regarding the vulnerability of children to all forms of exploitation, including child pornography, sexual exploitation, abuse and neglect;
The motion to delete clause 7 of Bill C-20 and to maintain the status quo for child pornography is not only incompatible with Bill C-20's objectives, it is antithetical.
I urge all hon. members to support Canada's children and to support Bill C-20 as passed by the justice committee and not to support this motion.