3 min

Artists beware

New bill outlaws acts of the imagination

Credit: Xtra files

Last week Canadian artists called for a rethink of censorship legislation currently on its way to becoming law. In a joint press conference held Mar 8 by the Canadian Conference Of The Arts (CCA) and The Writers’ Union Of Canada (TWUC), artists and freedom of expression advocates expressed concern with Bill C-12, now in its third and final reading in the House Of Commons.

Representatives of CCA and TWUC, as well as queer artists Luis Jacob and Richard Fung, warned that the bill puts artists who deal with themes of sexuality involving persons under 18, real or imagined, at risk of facing criminal charges.

“Artists, and visual artists in particular, will once again bear the brunt of an attempt by the government to describe expression that they think is unsafe for the rest of Canadians to see,” said Frank Addario, legal representative for the CCA.

If passed, Bill C-12 would remove artistic merit as a defence against child pornography charges, leaving only the vague defence of public good. Addario argued that the impact of art on public good isn’t something that the courts can determine during the course of a normal criminal trial but is something made clear over a longer period of time.

Scott Ferguson, executive director of Inside Out, agrees. “All of a sudden the onus comes on the artist or the organization to prove that [the art] is in the public good and for a piece of current art that’s going to be difficult. Something that has never been screened, you don’t have a historical frame of reference for it.”

Ferguson says he’s concerned about what the bill could mean for Toronto’s Lesbian And Gay Film And Video Festival, which predominantly screens new films, including work that deals with youth sexuality and sexual experience. “I think it could have a serious impact on the programming we do for the festival and other initiatives we have year round.”

In particular, Ferguson is concerned about how the law could impact Inside Out’s Queer Youth Digital Video Project, in which young queers age 17 to 24 are mentored through the process of making a short video. The resulting videos are then screened during the festival in May.

“If you have a 17-year-old youth doing a film about their experiences with their sexuality or coming out, that could all of a sudden fall under the guidelines of that bill which would have a devastating effect on us as an organization and on the youth in the program.”

The proposed amendments are largely motivated by the Supreme Court Of Canada’s acquittal of Robin Sharpe in 2001. Although Sharpe was found guilty of two counts of possession of child pornography related to sexually explicit images, he was acquitted on charges related to his own writings on the grounds that it had artistic merit and that it was intended solely for his own use.

In addition to removing the defence of artistic merit, Bill C-12 would make it a criminal offence to write about sex involving persons under the age of 18, even if it was not intended for public consumption. Currently the law only covers written material that counsels or advocates sex with persons under the age of 18.

Last week’s press conference was held at the Ontario College Of Art And Design to highlight the threat to young artists working from their own experiences.

Critics of the bill argue that the legislation does little to improve protection for real children suffering from abuse. “[The federal government] is trying to say that this bill will fight child porn when in fact it’s going to prohibit so many other areas it’s going to have a negative effect,” says Ferguson. “I don’t think it will do anything to make children safer in the kinds of situations that they’re trying to address in this bill.”

Justice department spokes-person Pascale Boulay says that legitimate artists have nothing to worry about. She points out that for materials to be considered child pornography under the bill, “it has to be [depicting] a prohibited sexual activity with a child, it has to be the predominant characteristic [of the work] and it has to have been done for a sexual purpose…. If it’s really art it shouldn’t have those components,” says Boulay.

“The objective is to better protect children from sexual exploitation,” says Boulay. “It has nothing to do with art.”

Originally introduced last fall as C-20, the bill was prorogued with the change of government, but was reintroduced by current Justice Minister Irwin Cotler on Feb 12.

The TWUC and CCA are asking that the bill be referred to the Supreme Court for reference before allowing it to proceed any further.

“At this point it’s not an option that the government is considering,” says Boulay.