Spoken Word of the Law

Thursday, November 19, 2009

Question

I'm helping a friend launch an erotica reading/cabaret night. The bulk of the night would be billed with writers/performers/content we select ourselves and a small part of the evening would be open mic format.We are debating whether or not we should have a submission policy around the type of content we would allow in the performances. I don't like the idea of setting up restrictions, as I feel like the whole idea of an event like this is for performers (and the audience) to freely explore ideas around sex even if it means pushing boundaries. At the same time, I don't know if I feel comfortable having someone do a piece that borders on child pornography or bestiality. How does one determine the lines of what can and can't be shared? Are there legal issues around what you can and can't say/read during a public performance in a bar, or can people say whatever the fuck they want as long as people are given some sort of warning?

AG

Answer

"Our Criminal Code, which is applicable in all provinces, contains numerous provisions that could apply to a public performance," says Toronto criminal lawyer Alexander Ejsmont. As that pertains to pederastic content, "The Code's definition of child pornography includes "any written material [his italics] or visual representation that advocates or counsels sexual activity with a person under 18."

Until fairly recently our Criminal Code had a provision that took into account "artistic merit" but in 2004, a bill (C-2) was passed that changed this more liberal terminology to "legitimate purpose." The Evolution of Pornography Law in Canada states, "Section 163.1(6) of the Criminal Code now requires that the accused satisfy an objective, two-step harms-based test: No person shall be convicted of an offense under this section if the act that is alleged to constitute an offense has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and does not pose an undue risk of harm to persons under the age of eighteen years."

"In public performance cases, note that there is also a section criminalizing an "immoral theatrical performance" which places liability on both on- and offstage players," says Ejsmont. Look up Section 167(1) of our criminal code for more details on that.

You may be wondering why it is legal to have sex with a 16 or 17 year old but if you do spoken word about it, you'd better be prepared to defend it as legitimate and purposeful. I have no idea and what a hopeless standard by which to judge written erotica anyway. I mean good lord, the topic makes fools of most of us—at least 90 percent of the prose we create in a state of untethered lust, regardless of age or species, is bound to be objectionable by someone's measure.

As for bestiality, our laws are explicit in committing the actual act (illegal) or coercing someone else to do it (illegal) as well as sale and distribution (illegal). It's hard to say—after all, people have been putting a Midsummer Night's Dream on for centuries without arrest—but a piece that deals with zoophilia could possibly constitute an immoral theatrical performance.

Jason Gratl, a lawyer for the British Columbia Civil Liberty Association, says, "Yes, there are limits on what a person can say in public that are independent of the consent of the listener: criminal code restrictions on hate speech, communicating for the purpose of prostitution, counseling the commission of criminal offences such as sexual assault, etc. There are also criminal code offences for which the consent of the listener is a factor to be considered in determining whether the content offends "community standards" and is therefore illegal: indecent acts and indecent theatrical performances are two examples. Where there is consent the Court is less likely to find indecency based on community standards.  "Community standards" is the test for indecency, with the standards being assessed by a judge with reference to anticipated harm to the proper functioning of society, especially with reference to gender relations.  For "indecency" related crimes, the Courts have backed off, requiring greater evidence of psychological or attitudinal harm to spectators and participants."  Gratl gives the sex club cases in Montreal as an example: http://www.canlii.org/en/ca/scc/doc/2005/2005scc81/2005scc81.html.

In short AG, no, you can't just say whatever the fuck you want and though warning people about salty subject matter can't hurt, it doesn't necessarily mean the authorities are going to look the other way.  "If you've got any doubt about whether a specific act crosses the line," says Gratl, "call a lawyer and get legal advice beforehand."