A Quebecer author and his publishers were charged with producing child pornography concerning fictional scenes in a horror novel. The Quebec Superior Court acquitted the author while declaring part of Canada’s Criminal Code.
In April 2019, the authorities charged Quebec author Yvan Godbout and his publisher Nycolas Doucetwith producing and distributing child pornography. The charges relate to a single paragraph in one of Godbout’s novels, a dark retelling of Hansel and Gretel, in which a father sexually assaults his daughter. The two were arrested in March 2019, after a reader who came upon the passage and called the authorities. The work was not marketed to children, it did not contain any explicit visual images, it also included a content warning printed on the back, and the scene was meant to be horrifying, not erotic.
Experts in the area have long flagged concerns about the expansive nature of Canada’s child pornography laws, which are broader than those laws such as the United States, and which have been used to prosecute artists like Eli Langer. But in case of Godbout, this is the first-time child pornography charges have been brought against a literary author for a work of prose. The fact that someone finds a passage offensive or immoral is not a sufficient ground to lay charges. To convict Godbout, the prosecution first had to show that the passage in question had conceivably incited a paedophile to commit a contact crime. Secondly, the prosecution had to show that Godbout’s book could not reasonably be viewed as a work of art.
Quebec Superior Court decision
At trial, the Quebecer provincial prosecutor, by way of direct indictment argued that Yvan Godbout had produced child pornography between 1 November 2016 and 18 February 2019, which was contrary to section 163.1 (2) of the Canadian Criminal Code. Jean-Philippe Marcoux, Yvan Godbout’s lawyer, on the other hand, sought to obtain a declaration of the unconstitutionality of sections 163.1 (1)(c), (2), (3), (4), (4.1) and (6) of the Criminal Code as well as the section 7 of the Canadian Charter of Rights and Freedoms (Charter) – which provides that all laws or state actions that interfere with life, liberty and security of the person must conform to the principles of fundamental justice; the basic principles that underlie notions of justice and fair process. Marcoux contended that these sections also violated the presumption of innocence principle provided under the Charter in section 11(d) while not being justified in a free and democratic society under section 1 of the Charter.
Godbout argued that the author of horror and a fictional novel, who neither advocates nor advises on child pornography could not see his freedom of expression restricted through criminal charges which carry a social stigma since it would unjustifiably violate section 2(b) – freedom of thought, belief, opinion and expression, section 7 – the right to life, liberty and security of the person, and section 11(d) the presumption of innocence principle.
The Court recognized the violation of section 2(b) but pleaded its justification because child pornography belongs to the category of expression whose protection is very relative given its deleterious effects on the most vulnerable groups in the society, in this case, children. The Court also denied the existence of a violation of section 7 or section 11(d). In the first case, Godbout does not demonstrate it – a violation of his right to life, liberty, and security. In the second case, because the burden of presentation is incumbent on an accused and therefore cannot constitute a reversal of the burden of proof.
Based on the discussion above, on 24 September 2020, Justice Marc-Andre Blanchard ruled that section 163.1 (c) and section 163.1 (6) (b) cast too wide a net, that targets works of literature that do not endorse or promote paedophilia. While acknowledging that sexual material involving minors is harmful, Justice Blanchard stated that “the court believes [it] must distinguish between material that exposes a tangible reality, videos, or photos even drawings from literary fiction”. The Provincial Government of Quebec has 30 days to appeal the decision.
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