Did you know that it’s illegal to sell Superman comics in Canada? According to Section 163 (1) (b) of the Criminal Code, anyone who “makes, prints, publishes, distributes, sells” a “crime comic” – defined as any comic book that depicts a real or fictitious crime – is guilty of an offence. That would include any comic where Lex Luthor kidnaps Lois Lane.
It’s also illegal to sell or advertise Viagra, the morning-after pill, any cure for a “venereal disease,” or any other medicine or service that claims to improve virility, cause an abortion, or cure a sexually transmitted disease under S163 (2) (c).
Other parts of s163 criminalize the creation and distribution of obscene written matter and photos, exhibitions of a “disgusting object or indecent show.”
Despite the obviously unconstitutional impingement on free speech , it’s not one of the provisions that’s targeted by Bill C-39, an “Act to amend the Criminal Code (unconstitutional provisions,” that justice minister Jody Wilson-Raybould introduced into the House of Commons on March 8, 2017.
Among the provisions that are under scrutiny here are several clauses struck down by the courts related to the definition of murder, how breathalyzer tests can be administered, vagrancy and publishing fake news. And the sodomy law repeal, which has been stalled in Parliament since Wilson-Raybould introduced it in November 2016, is folded into this bill as well.
The bill was timed for release on International Women’s Day to call attention to the formal repeal of the abortion law struck down in 1988. (Bizarrely, the ban on advertising abortion services would remain. Nobody mentioned that when Trudeau used the same day to announce a new global fund to provide abortion services in developing countries.)
It’s all well and good that the government is finally doing what the Supreme Court ordered, in some cases, several decades ago.
But why do they have to wait for the court to rule on laws that are obviously unconstitutional, or flat-out stupid, to change the law?
A close review of the Criminal Code could probably find a dozen other unconstitutional provisions,, including vague provisions related to public morals and obscenity that have come under Supreme Court scrutiny for their use against LGBT people and businesses. Chief among them ought to be the provisions added by the Harper Conservatives’ “Protection of Communities and Exploited Persons Act” — the sex work law.
The Conservatives introduced the law after the Supreme Court struck down the previous provisions on sex work. The new law got cute with the Court’s ruling, by criminalizing the clients rather than the sex workers themselves, and also struck new ground in offence to free speech by criminalizing the placement of ads for sexual services. That included criminalizing anyone who works at a newspaper that places such ads. Although a Supreme Court challenge is years away, it doesn’t take much analysis to recognize that the current sex work laws recreate exactly the same dangers for sex workers that the Court found violated the right to their security of person.
Indeed, shortly after being sworn into office in December 2015, Wilson-Raybould committed to “reviewing the prostitution laws and making sure that we’ve adequately addressed the concerns expressed by the Supreme Court.”
As a candidate for office, Toronto Liberal MP Adam Vaughan went further.
“It concerns me substantially that the federal government would take steps that put free speech at risk,” Vaughan said back in June 2014. “When Charter issues are abridged, it’s something all Canadians need to worry about.”
Indeed, these sections of the Criminal Code are not just insulting to sex workers and queer artists. They directly impact fundamentals of free speech and the free press.
That the government tabled this incomplete review of the Criminal Code betrays its superficial commitment to upholding our Charter rights.