Sharpe Child Pornography Trial - 'Artistic Merits' Defence SNAFU?
halcombe
these http://www.google.com/search?hl=en&q=+site:www.canoe.ca+%22child+pornography%22+vancouver+trial+2002
) , and getting concerned about the way the artistic merits defence
that Sharpe is running is being handled.
The Supreme Court of Canada majority opinion goes out of its way to
lay down that this defence has nothing to do with the ordinary meaning
of the expression 'artistic merit'. It is completely a term of art
(extract below).
Yet, from the reports of the trial, both sides seem to be putting
forward academic literary critics whose testimony seems essentially to
be judging Sharpe's writings according to the ordinary meaning of
'artistic merit', not the meaning laid down by the SCC.
The judge does not seem to be making sure they evaluate the texts
according to the wholly artificial test laid down by the SCC.
The jury would find dealing with this test tough enough in the best of
circumstances. But if they've had to endure a long, off-topic, debate
on the 'ordinary meaning' merits of the texts - complete confusion
would be understandable.
Of course, I'm working on pretty scanty evidence. But that's all I
have. And the signs are not good.
I realise that, even if Sharpe is convicted, that does not, strictly
speaking, constitute a legal precedent. And he would, no doubt, appeal
on the ground that the SCC test was incorrectly applied.
But two things would flow:
First, it would be an actual example of the test in action - and a
demonstration, perhaps, that the faith of the SCC in 'liberal
defences' to protect artistic expression was misplaced.
Second, it would encourage prosecutors to think that convictions can
be obtained in relation to such material.
_______________
"61 Section 163.1(6) provides a defence for a representation or
written material that constitutes child pornography if it has
"artistic merit". Three issues arise regarding the ambit of this
defence: (1) the meaning of "artistic merit"; (2) whether artistic
works must conform to "community standards" in order to gain the
protection of the defence; and (3) the procedure for considering the
defence. When construing the defence of artistic merit, we must keep
in mind the admonition of Sopinka J. in Butler, supra, at p. 486:
"Artistic expression rests at the heart of freedom of expression
values and any doubt in this regard must be resolved in favour of
freedom of expression." Simply put, the defence must be construed
broadly.
62 The first question is what the defence covers. It seems clear
the defence must be established objectively, since Parliament cannot
have intended a bare assertion of artistic merit to provide a defence.
This leaves two possibilities. First, "artistic merit" may refer to
the quality of the work in the opinion of objective observers. It is
not uncommon in everyday discourse to say of a work of art that,
although it is genuinely art, it possesses little or no "artistic
merit". If "artistic merit" is used in this sense, then the task of
the court would be to determine how good the work of art was. Art
students learning their craft, inept artists and artists breaking
conventions to establish new idioms might well find their work
classified as lacking "artistic merit" and hence lose the benefit of
the defence. On the assumption that this was the meaning of "artistic
merit", it was argued that the defence is too limited and arbitrary to
protect artistic expression adequately.
63 The second meaning that can be ascribed to "artistic merit" is
"possessing the quality of art", or "artistic character". On this
meaning, a person who produces art of any kind is protected, however
crude or immature the result of the effort in the eyes of the
objective beholder. This interpretation seems more consistent with
what Parliament intended. It is hard to conceive of Parliament wishing
to make criminality depend on the worth of the accused's art. It would
be discriminatory and irrational to permit a good artist to escape
criminality, while criminalizing less fashionable, less able or less
conventional artists. Such an interpretation would run counter to the
need to give the defence a broad and generous meaning. I conclude that
"artistic merit" should be interpreted as including any expression
that may reasonably be viewed as art. Any objectively established
artistic value, however small, suffices to support the defence. Simply
put, artists, so long as they are producing art, should not fear
prosecution under s. 163.1(4).
64 What may reasonably be viewed as art is admittedly a difficult
question -- one that philosophers have pondered through the ages.
Although it is generally accepted that "art" includes the production,
according to aesthetic principles, of works of the imagination,
imitation or design (New Shorter Oxford Dictionary, Vol. 1, p. 120),
the question of whether a particular drawing, film or text is art must
be left to the trial judge to determine on the basis of a variety of
factors. The subjective intention of the creator will be relevant,
although it is unlikely to be conclusive. The form and content of the
work may provide evidence as to whether it is art. Its connections
with artistic conventions, traditions or styles may also be a factor.
The opinion of experts on the subject may be helpful. Other factors,
like the mode of production, display and distribution, may shed light
on whether the depiction or writing possesses artistic value. It may
be, as the case law develops, that the factors to be considered will
be refined.
65 This brings me to the issue of whether the defence incorporates
a community tolerance standard. In Ontario (Attorney General) v.
Langer (1995), 123 D.L.R. (4th) 289 (Ont. Ct. (Gen. Div.)), McCombs J.
interpreted s. 163.1(6) as importing a requirement that material, to
have artistic merit, must comport with community standards in the
sense of not posing a risk of harm to children. I am not persuaded
that we should read a community standards qualification into the
defence. To do so would involve reading in a qualification that
Parliament has not stated. Further, reading in the qualification of
conformity with community standards would run counter to the logic of
the defence, namely that artistic merit outweighs any harm that might
result from the sexual representations of children in the work. Most
material caught by the definition of child pornography could pose a
potential risk of harm to children. To restrict the artistic merit
defence to material posing no risk of harm to children would defeat
the purpose of the defence. Parliament clearly intended that some
pornographic and possibly harmful works would escape prosecution on
the basis of this defence; otherwise there is no need for it.
66 The third issue is how the artistic merit defence functions
procedurally. The test, as mentioned, is objective. The wording of the
section suggests that it functions in the same manner as other
defences such as self defence, provocation or necessity. The accused
raises the defence by pointing to facts capable of supporting it
(generally something more than a bare assertion that the creator
subjectively intended to create art), at which point the Crown must
disprove the defence beyond a reasonable doubt: see Langer, supra.
67 I add this footnote. The statutory defence of artistic merit to
a charge of possession of child pornography is conceptually different
from the defence of artistic merit to a charge of obscenity under s.
163 of the Criminal Code. With respect to s. 163, the meaning of
obscenity and the defence of artistic merit are largely judicial
creations. It turns on whether the sexual portrayal is the dominant
purpose of the work, on the one hand, or essential to a wider artistic
purpose, on the other (the internal necessities test). It also asks
whether the sexual aspect of the work, viewed in context, would meet
community standards of tolerance. The definition of child pornography,
by contrast, stands independent of the defence of artistic merit,
making the language of "internal necessity" and the logic of "either
obscenity or art" inapposite. For this reason, and with the greatest
respect for the contrary view expressed by McCombs J. in Langer,
supra, I do not find it incongruous to interpret the defence of
artistic merit to the child pornography offences differently from that
developed under the obscenity provisions."