Last Updated: Friday - 09/24/2010
Week of October 18, 2004
'Artistic' defence child porn blasted
Conservatives query legitimacy of potential legal loophole
By DEBORAH GYAPONG
Canadian Catholic News
The federal Liberal government has introduced legislation to tighten up child pornography laws, but received a quick rebuke from the Conservative opposition for leaving an artistic "loophole."
The bill, said Attorney General Irwin Cotler, provides for a "cluster of initiatives to fight child pornography, including a broadened definition that would include audio as well as visual and written porn, a new criminal offence for advertising pornographic material, and an increase in maximum sentences from six to 18 months.
The bill exchanges the former "common good" defence for a narrower "legitimate purpose defence," Cotler told reporters. Those legitimate purposes for using minors in what might be seen as pornography include the administration of justice or use in science, medicine, education or art, as long as that use "does not post an undue risk of harm to persons under the age of 18 years."
When journalists asked Cotler why art was included, he said, "I have a responsibility to ensure that any legislation introduced complies with the Charter of Rights and Freedoms." He said the law balances the rights of freedom of expression with harm to children.
Cotler maintained that Canada has "the most comprehensive child protection regime in the world."
However, Conservative justice critic Vic Toews, in an email interview said, "I am not convinced that a specific defence related to art is necessary in order to comply with the charter. Once something is classified as child pornography, I do not believe that it can qualify as art."
Toews points out that the Criminal Code does not offer an artistic defence for hate literature.
"Is child pornography any less a hate crime? Do children need less protection than those groups set out in the hate laws? Why could the charter require the art defence in respect of child pornography but not when it comes to hate literature?" he asked.
The Conservatives also criticize the new bill for not raising the age of consent to at least 16 years of age.
NDP justice critic Joe Comartin said he thinks that overall "the legislation is moving in the right direction."
He said the new legislation might not withstand a charter challenge because the artistic defence may be too narrow.
Cotler faced a question at the news conference about whether pictures of children taken in the bath might get parents in trouble under the new law. He said that a parent in such an instance would lack the criminal intent for such work to qualify as porn.
The new law will add new voyeurism offences that would prohibit "secret observation" or the recording by any means "in circumstances where there is a reasonable expectation of privacy," such as a bathroom, bedroom or changing room.
Canada is taking part in a coordinated strategy with other G-8 countries to combat the proliferation of child pornography on the Internet, Cotler said. Cyber porn is a borderless and often anonymous crime, and thus impossible for one country to combat alone.
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