At issue is an artistic merit defense that has been narrowed even as the scope of the bill’s definition of child pornography has expanded. Liberal Senator Serge Joyal and a number of other officials are concerned about the bill’s requirement that artists appeal to child pornography charges on a case-by-case basis to prove a “legitimate purpose” in creating work.
Under the un-amended bill, which was introduced as Bill C-2 by Justice Minister Irwin Cotler last year, those accused of child pornography would need to prove that possession or dissemination of the material in question was done in pursuit of the administration of justice, science, medicine, education or art, and that that material doesn’t "pose an undue risk of harm to children."
Joyal and like-minded Senators note that law enforcement officials or doctors would be less likely to be required to defend their possession of suspect material than artists, so Joyal is re-submitting the bill with annotations, or observations, which Canadian legislative processes recognize as a means of officially recognizing the concerns of committee members.
Some Canadian conservatives disagree that there should be any artistic defense against possession at all.
"Anything that leaves open the possibility that child pornography can be interpreted in any fashion as artistic, to me, is ludicrous,” said deputy conservative chief Peter Mackay. “We need to do away with this loophole.”