Canadians Debate Artistic Expression

Gretchen Gallen
VANCOUVER, Canada – A bill is being passed through the Canadian Parliament that could end up having a significant impact on free expression in North America.

The bill, which will be introduced sometime this week, comes on the heels of similar legislation that failed to get passed into law. The bill's intent is to put controls on artistic depictions of underage children and would eliminate the legal defense previously known as "artistic merit" for artists and writers who are accused of producing child-related works of art.

"Artistic merit" has been part of the Canadian criminal code for the past 50 years, according to the Globe and Mail.

The legislation is being referred to by the artistic community as "regressive."

There has been a countrywide push in recent months by the Canadian Parliament to get a firmer grip on the child pornography industry. The bill being discussed this week is just one part of a larger initiative underway.

The artistic renderings in discussion are not necessarily of actual children being sexually abused, but can be artistic depictions that are evocative of child eroticism or exploitation, the Globe and Mail reports.

"I don't believe that the possession of any image should be against the law," J.D. Obenberger, attorney and counselor at law, told XBiz. "Pictures never hurt anybody, it is what people do with them that hurts people. Forbidding people to look at certain types of things is a stepping stone to mind control."

Obenberger added that the bill is part of an overall push for Canada to align itself with U.S. child pornography laws by saying that the bodies of children under 18 cannot be used as objects of art.

The current age of consensual consent in Canada is 14 years of age, but according to Obenberger, Canada has been under incredible diplomatic pressure to make that age the same as in the United States.

"The consensual age in Canada is 14, although you can't let an artist portray you in a seemingly erotic photo or depiction," said Obenberger. "I am certainly not defending child porn, but I do believe in freedom of expression. Every time they say you can't use the color red, it seriously impedes artistic expression."

As an example, Obenberger referred to an album cover by the rock band Blind Faith that came out in the 1970s depicting a bare-chested 12-year-old girl holding a toy airplane.

"You will not see that today," Obenberger said. "The point is that these people were exploring the limits of artistic freedom back then, but people today are chilled in their expression because of fears over prosecution. The true victim in all of this is society, not the artist. No matter how much social value a work considered child porn has, and it doesn't matter how well it is done, there is no defense against child porn. All it takes is someone under the age of 18 in a lewd image, and you're guilty of a 5-15-year jail term."

According to the Globe and Mail, artists who are charged under Canada's child porn law will only be able to argue that their work serves the "public good" in order to avoid a conviction.

Free speech advocates are saying that the legislation, if passed into law, could truly hinder artistic and literary freedom of expression. They are also saying that the defense "public good" creates too much ambiguity for artists when it comes to creative material. According to reports, it is very difficult to prove that creative work contributes to the "public good."

"Are we really going to tell artists that they will be confined to flowers, birds and cans of Campbell's soup?" said a representative for the Canadian Civil Liberties Association. "How is an artist supposed to know in advance whether a court will consider that their work serves the public good? This legislation has no redeeming merit."