Québec has a bit of a history when it comes to ludicrous prosecutions of people for their exercise of their freedom of expression. And I’m not talking about Maurice Duplessis’s time here. What I have in mind are the cases of Rémy Couture, a make-up artist who was put on trial for having produced some (admittedly gruesome) pictures and videos, and Matthieu Bonin, charged with hate speech (!) for an online rant apparently suggesting that a shooting at the National Assembly would be a good idea, though these charges were eventually dropped. Both of these took place earlier this decade. And now, they have been joined by the prosecution, on child pornography charges, of Yvan Godbout and Nicolas Doucet, respectively the author and publisher of a horror novel that depicts, on one of its 270 pages, the rape of a child.
Now, I haven’t read the novel (which doesn’t exactly sound like the sort of novel I’d read, anyhow). Since the publishing house is now busy tracking down all existing copies to hand them over to the provincial police, and worrying whether anyone who’s bought one already might be charged, there is no chance that I, or anyone, will. But La Presse quotes both a representative of the publisher and another writer as saying that the scene that forms the basis of the prosecution serves to expose the rapist as a “monster”, and that he is eventually “harshly punished”. It is very difficult to believe that a fair-minded reading of such a scene ― again, one scene in a novel ― would fit under the Criminal Code‘s definition of child pornography as “written material … that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence” or “written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence”.
Moreover, the Criminal Code provides a defence to any person who “has a legitimate purpose related to … art; and … does not pose an undue risk of harm to persons under the age of eighteen years”. The Supreme Court has explained, in R v Katigbak, 2011 SCC 48, [2011] 3 SCR 326, that this requires “an objective connection between the accused’s actions and his or her purpose, and … an objective relationship between his or her purpose and one of the protected activities”, [60] in this case art. Relying on what is said in the La Presse report, there seems to be little question that these requirements will be satisfied here. Besides, the Supreme Court added that “this objective assessment does not involve the court in any assessment of the value of the particular … artistic activity in question”. [61] Whether Mr. Godbout wrote and Mr. Doucet published a book that is great art, or even in good taste, is irrelevant. What matters is that the book in question is art, whether good or bad.
As the Supreme Court rightly noted, the courts ― and, it might have added, prosecutors ― are not well placed to be artistic critics. Their role is not to be the censors who will purify society’s morals and elevate its tastes. Lawyers and judges are not qualified for this job, and should not want to take it up even if they were. The risks of arbitrary enforcement, as well as the certainty of chilling effect on artistic freedom, would not be acceptable in a free society. A lawyer ― and any citizen who values his or her and others’ freedom ― can, however, confidently say that the Québec prosecutors’ tendency to go after unconventional artists is in very bad taste indeed.
H/t Maxime St-Hilaire and Patrick Taillon
Double Aspect 
It’s great fun to speculate in the absence of any context from the actual book, but the SCC’s decisions have not been quite so narrowly focused, including that which is found in decisions about pornography. Merely making it “art” does not protect it from a review of the purpose of the passage — it could very well be that the description goes well beyond the “norm” of literary description and moves more into an area that glorifies, encourages or even simply titillates based on the content. Simply the fact that it is “written” doesn’t make it a book, any more than a video makes something a film, or all child pornography would be protected as well.
By contrast, if the description has an artistic purpose and not simply an argued artistic purpose, the analysis is valid. Mere inclusion is not enough. Or John Grisham’s first book, A Time To Kill, would be in the same boat. I started reading again his books a few years ago and realized I had never read his first, as The Firm was the one that launched his popularity. The first book (ATTK) starts with a chapter that includes a brutal rape of a young black girl by a couple of rednecks who try to kill her but fail, and she survives to identify them. It subsequently leads to two cases — one for rape, one for murder — but it is the first chapter that lingers in your mind. I have read some dark stuff, including while at law school, but that first chapter seems almost gratuitously graphic. I’m surprised any modern publisher would have printed it, to be honest, considering he was a first time novelist when it was published. Dramatically the scenes need to be there to justify the behaviour and considerations that follow (and to remove any doubt of guilt), but it definitely shocked my sensibilities and that is saying something.
Interestingly, there is a case that may make it to the US Supreme Court eventually where a rapper, singing about two cops that arrested him, goes even farther and suggests that (a) cops should be killed (a general threat) AND (b) that he knows where they sleep, what time they get off work, and he’s going to stick a knife in them (a specific threat). Charged with uttering threats after posted to YouTube.
Do either go beyond the “simple” rules and considerations to raise the spectre of censorship, or are we simply saying there are limits to freedom of expression that don’t include hate speech, inception of violence, or encouragement of child abuse?
Obviously, we don’t have access to the book. Censorship is funny that way ― something is banned based on a reason which we are denied the opportunity to assess. But if the report is accurate and the issue is one page in a 270-page book, and it is condemnatory, then again possibility of it being either glorification or titillation it strikes me as remote. Even more so when one considering the bad form Québec police and prosecutors have on these issues. And the issue, as I read Katigbak, is not about conformity to some sort of literary “norm”. That would be making courts into literary critics. It’s the function of the impugned writing, considered within its own context, not what other writers do.