Bad Taste

Overzealous prosecutors in Québec charge the author and publisher of a novel with child pornography for describing a rape

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

Chilling Effect

I wrote a while ago about the case of Matthieu Bonin, a Québec blogger who was accused of incitement to hatred, after making some admittedly tasteless and idiotic statements which, nevertheless, didn’t amount to anything like hate propaganda. Fortunately, as La Presse reports, the charges against him have now been dropped. Yet they should never have been brought in the first place, and the story does illustrate the insidious effect of the existence of relatively vague hate speech provisions in the law, and especially of the prosecutorial abuse of such provisions.

I can’t even imagine what it is like to live for months with criminal charges―even, or perhaps especially, unfounded criminal charges―against you. Mr. Bonin was also prevented from uploading videos to the internet―a curtailment of his freedom of expression for which, as has now been officially confirmed, there was no good reason at all. In the grand scheme of things, two months without ranting on YouTube aren’t very much, yet even if relatively small, it is still a loss of freedom for which nothing can compensate.

Mr. Bonin speaks of having learned a lesson about use of language on the internet. But there is also a lesson for us all in his story, about the dangers of laws that restrict speech and of prosecutors who apply these laws according to their fancy rather than to what they actually say.

Vive le Québec Libre!

Prosecutors in Québec seem to have forgotten that this is a free province in a free country. First, they came for a makeup artist whose gory videos, though involving no actual gore or violence whatsoever, were too realistic for their liking. And then, after a mere busybody concerned citizen complained, they came for a ranting blogger for, apparently, saying that someone ought to organize a mass shooting at the Québec National Assembly. (The story is a couple of weeks old, but I only came across it now, and think it’s worth highlighting, especially since it hasn’t attracted the attention of anglophone media.)

Now what Matthieu Bonin, the blogger, said is thoroughly disgusting. But that is not enough to accuse him of―wait for it―hate propaganda. Jeremy Waldron, about whose views on hate speech prohibitions I have written at length ( hereherehere, here, and here), thinks that Western democracies, including Canada, can be trusted not to abuse their hate speech laws to prosecute expression that is merely offensive, and does not fall within a fairly narrow understanding what what hate speech really is. This case is evidence that he is, regrettably, mistaken.

As the lawyer and blogger Véronique Robert, from whose post I learned about this case, explains, there is a very simple reason why Mr. Bonin is not guilty of the charge against him. S. 319 of the Criminal Code criminalizes public incitement (subs. 1) and wilful promotion (subs. 2) of “hatred against an identifiable group” (my emphasis). And “identifiable group,” pursuant to subs. 319(7) and 318(4), “means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.” As Mtre Robert points out,

This is … an exhaustive list of what constitutes an identifiable group. … As this definition of an identifiable group does not include the group of politicians, there is no actus reus at all, and nothing, in my view, can ground a charge against Matthieu Bonin. In order to have him found guilty, the prosecution would have to amend the Criminal Code. (Translation mine)

As in the make up artist’s case, it seems to me that the prosecution is grotesquely mistaken about the legal claim it is asserting. But of course, even though the accused is going to be acquitted, he will have suffered stress and incurred considerable expenses. This is not how the power of a free state should be used. Whoever authorized the prosecution should be ashamed of him- or herself.

There is a further point to be made, though it is of secondary importance in light of Mtre Robert’s conclusion. The provision of the Criminal Code under which Mr. Bonin is charged might be unconstitutional. But what about R. v. Keegstra, [1990] 3 S.C.R. 697, which is generally taken to have, in Mtre Robert’s words, “have settled the question” of the constitutionality of the Criminal Code‘s prohibition on hate speech? Let me explain.

S. 319 of the Criminal Code has two subsections that create similar, but distinct offences. Subs. 1, criminalizes incitement of hatred “by communicating statements in any public place … where such incitement is likely to lead to a breach of the peace.” This is the provision Mtre Robert quotes in her post, but she does not clearly say that that is the one under which Mr. Bonin is charged. Subs. 2 criminalizes “wilful[] promot[ion]” of hatred “other than in private conversation. So it is applicable to a broader range of situations than subs. 1―anything other than a private conversation, as opposed to “a public place”, and there is no need for likelihood of a breach of peace; but subs. 2 is also narrower, in that it includes a requirement of wilfulness which is absent from subs. 1. Only subs. 2 (as well as par. 3(a)) was at issue, and was upheld, by a vote of 5-4, in Keegstra. And, importantly, the requirement of wilfulness in subs. 2 was among the factors the majority invoked as showing the limited scope of subs. 2, and therefore constitutional permissibility. Because that requirement is absent from subs. 1, I think that Keegstra does not settle the question of its constitutionality. To the contrary, it is some reason to believe that subs. 1 might be unconstitutional. So if that’s the provision under which Mr. Bonin is charged, he has, in my opinion, a fairly strong constitutional argument to make.

There is, by the way, another difference between subs. 319(1) and 319(2). Pursuant to subs. 319(6), “[n]o proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.” There is no such restriction applicable to subs. 1. This may not have any constitutional significance―the Supreme Court did not comment on this requirement in Keegstra. But if the charge against Mr. Bonin is under subs. 1, without the Attorney General’s consent, their absurdity might suggest that it would be a good idea to apply the subs. 6 requirement to subs. 1 as well as subs. 2.

The best thing, of course, would be to get rid of s. 319 altogether, for the reasons I discuss in the posts linked to above, and because we now have an example of blatant prosecutorial abuse. But so long as the provision is on the books, the prosecutors’ sense of decency―or at least their knowledge of the law―are what we are forced to count on for our freedom. Right now, in Québec, both are in short supply.