“We didn’t hear from the gay community on this,” says NDP MP Joe Comartin, who sits on the justice committee that has been holding hearings on Bill C-2.
Comartin is startled when told that three key gay organizations – Egale Canada, the Coalition For Lesbian And Gay Rights In Ontario, and the Sex Laws Committee – each submitted position papers outlining serious concerns with Bill C-2, the Martin government’s legislation aimed at clamping down on child porn.
“We didn’t get them,” says Comartin. He could have used them, he adds, noting he was a sometimes solitary voice on the committee opposing excesses in the bill that could seriously hamper the freedom of artists and writers and discriminate against the rights of teens to choose their own sexual expressions.
Tom Warner of the Sex Laws Committee is furious that the gay community’s written submissions didn’t make it to Comartin.
“It is really quite astonishing and, frankly, outrageous that the committee members would not have been provided with a copy of each of the submissions,” he says. “That suggests someone along the way made a decision that our views are not important. They didn’t decide to ignore the views of the Evangelical Fellowship Of Canada or REAL Women.
“Now it’s going to look like we had nothing to say.”
The gay community had lots to say on Bill C-2, along with civil libertarians and groups representing journalists, writers and artists. Some opposing groups and individuals focussed in on the proposed law’s attempt to control child pornography, which they warned would result in legitimate art and journalism being wrongly labelled by police and Crown prosecutors, causing writers, journalists and artists to face trial.
Egale’s position paper says the law creates a definition of child pornography that is too broad and defences that are too narrow, board member Hilary Cook told Capital Xtra in May. The bill would remove artistic merit as a defence and require an artist or writer to prove the work fulfilled a “legitimate purpose” – a legally vague term which is not defined in the proposed law.
Gay literature about coming out could be considered child porn under the new criteria, said Cook in May. “We can’t even talk about our own upbringing? Acts that are legal, you can’t describe or make art about?”
The reality is that close family members commit most child abuse, says Comartin. But Bill C-2 focusses instead on the work of artists, writers and journalists. Comartin says he was impressed by the reasoning of the BC Civil Liberties Association that works of the imagination should not be illegal. Only works that rely on actual child victims should be outlawed.
“If we do not have an actual victim, there shouldn’t be any bars,” he says.
The final wording will result in artists and writers facing trials. Comartin believes they will ultimately win, and the courts will rewrite the law to be more open to artistic freedom. But artists should not have to face expensive trials that damage their reputations, he says. And given society’s homophobia, he suspects that police and Crown prosecutors will be even more likely to charge gay writers and artists.
“I hope I’m wrong, but it’s opened it up,” he says.
Gay groups further focussed on the bill’s attempts to protect children from sexual exploitation. While the objective is worthwhile, all three groups said, the proposals go too far, and end up discriminating against the rights of gay youth to choose when to become sexually active and with whom.
The Toronto-based Sex Laws Committee’s position paper argued, “The danger presented by the criminal code provision is that any same-sex consensual relationship involving a person over the age of 18 years and a person who is under the age of 18 but over the age of 14 will be deemed exploitative. There is a plausible risk, under this new amendment, that the older person will always be presumed to be exploiting the younger person and ‘luring’ them into a homosexual lifestyle.”
Comartin says the NDP sees some of the same shortcomings in the bill as do gay and civil libertarian groups. But he’s been consistently out-voted in committee by shifting coalitions – sometimes the Liberals and Conservatives working together, other times the Conservatives and Bloc Quebecois.
The Conservatives attempted to amend the bill to outlaw any sex involving teens under the age of 16, says Comartin. They failed.
But the surviving language “could catch relationships that are not exploitative,” says Comartin, a career trial lawyer. “Similarly, if you have a fundamentalist judge offended by a youth under 18 taking part in sexual acts, it’s broad enough to catch that.”
Bill C-2 has now passed through the committee stage and the revised version will return to Parliament for second and third reading in the near future.