February 28th, 2003
Dear
Editor:
I am writing on the matter of Bill
C-20 An Act to amend the Criminal Code
(protection of children and other vulnerable persons) and the Canada Evidence
Act. As there seems to be a considerable
amount of misinformation in circulation on this issue, I am asking for your
help to circulate correct information on this important matter.
The recent decision by a British Columbia court in
the Sharpe case clearly demonstrated to Canadians that our laws are currently
being interpreted in a manner contrary to our shared fundamental values and
beliefs. To summarize, Mr. Sharpe was
charged on several counts of the possession of child pornography. While he was found guilty of the charges
relating to photographic material, he was acquitted of the charges relating to written
material. As the written works were
original material, based upon fictional creations from his mind, the artistic
merit defence was used and upheld by the courts. In my opinion, this
defence, and the interpretation of our child pornography laws in such a
fashion, is unacceptable, and inconsistent with our community values and
standards. To many of my colleagues
and I, this court decision sharply defined the need for Parliament to either
change the laws that exist, or to implement the Notwithstanding Clause to
overturn this decision. Canadians are
looking to government for action. For the record, I strongly feel that both
the verdict and the sentence delivered in the Sharpe case are unacceptable.
In an effort to clarify Parliament’s
intentions to the courts and to prevent a similar verdict in other cases, on
December 5th, 2002, the Minister of Justice introduced Bill C-20, An Act to amend the Criminal Code
(protection of children and other vulnerable persons) and the Canada Evidence
Act. It is worth saying that Bill
C-20, while it attempts to address the loopholes opened by the Sharpe verdict,
is not restricted to those areas alone.
Not only does it eliminate the ‘artistic merit defence,’ but it adds a
new offence of voyeurism; increases maximum penalties for child sex offences;
makes child abuse an aggravating factor for the purposes of sentencing
(including child abandonment); and adds a new category to the offence of sexual
exploitation of young persons and makes additional amendments to further
protect children from sexual exploitation.
Again, Canadians clearly find it abhorrent that the courts would
consider child pornography ‘art,’ simply because it takes the form of original
written works. Accordingly, Bill C-20 eliminates the artistic merit
defence. To do this, the new
legislation proposed to add the following section to the Criminal Code:
any written
material the dominant characteristic of which is the description, for a sexual
purpose, of sexual activity with a person under the age of eighteen years that
would be an offence under this Act.
Legally
speaking, under the new rules Mr. Sharpe could not claim that his writings are
‘art,’ as this defence does not exist.
Rather, the necessity would exist that any written material must clearly
demonstrate that it “serve[s] the public good and [does] not extend what serves beyond the public
good.” I do not believe that any
court, or reasonable human being, could consider Mr. Sharpe’s work to serve the
public good.
Some Canadians have expressed their
wish to see the ‘for a sexual purpose’ phrase removed from the above amendment
to the Criminal Code. Please note that
this phrase only applies to written works, not to other material. Accordingly, its removal could cause a
problem for those who make a living studying human behaviour. For example, without this phrase, the
detailed notes of a court appointed psychologist, who interviews a child victim
of sexual abuse, could be considered child pornography. University and medical textbooks, used for
research and education relating to deviant behaviour, could be considered child
pornography. An elementary school
educator teaching health or sex education, which is now a required class in
many schools, could be in violation without the phrase ‘for a sexual
purpose.’ It is also possible that the
screenplays and scripts of such critically acclaimed films as The Boys of St. Vincent and American Beauty may be considered child
pornography. The House of Commons
Standing Committee on Justice and Human Rights will examine these
possibilities, and other provisions of the bill. I will be following the proceedings carefully to ensure that
possessors and manufacturers of child pornography are dealt with as harshly as
possible. We want laws that prevent the
creation and existence of one of the most hurtful and abhorrent things in
society. We do not want the courts to
instead be spending their time attempting to prosecute psychologists,
psychiatrists, scholars, researchers, behavioural scientists, and artists on
the basis of their chosen craft.
I also want to address the issue of removing the
phrase ‘for a sexual purpose’ from other sections of Bill C-20 (as has been
suggested by many of my constituents).
As one example, the section pertaining to the offence Invitation to Sexual Touching reads;
Every person who, for a sexual purpose, invites, counsels
or incites a person under the age of fourteen to touch, directly or indirectly,
with a part of the body or with an object, the body of any person, including
the body of the person who so invites, counsels or incites and the body of the
person under the age of fourteen years… is guilty of an offence.
If
Parliament was to amend the above by removing ‘for a sexual purpose,’ it could
allow the courts enough latitude to interpret the various sections in a manner
that would view this as inappropriate and unlawful for any purpose. This could create a situation whereby a
parent, grandparent or other custodial individuals could be placed in jeopardy
by changing a diaper, bathing a young child, helping a juvenile to get dressed
or hugging or kissing a child. The
resulting judicial confusion could hinder the vitally important physical bond
that develops between a young child and their respective parental figures;
something that cannot be permitted to happen.
In closing, Canadians and the Government of Canada
have spoken – child pornography has no
place in our society. We need to
continue to strengthen our laws to protect our children and prosecute those who
would wish to harm them. In doing this,
we need to be vigilant so as not to prevent normal and healthy physical contact
between adults and children. Moreover,
we must also ensure that legitimate written material does not become outlawed
by attempts to eliminate works created by the deviant minds of those who would
opt to violate the innocence of our young.
This legislation is a positive step forward – not a final solution. We want tough laws. This legislation aside, the Government will
continue to take steps to prevent child pornography, and I will most certainly
do all that I can to make our society safe for children. I will continue to voice our concerns on
this important issue.
Sincerely,
Paul
Steckle, M.P.
Huron-Bruce