Submission to the Department of Justice Consultation on the Undue Exploitation of Violence

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1 Submission to the Department of Justice Consultation on the Undue Exploitation of Violence May 31, 1996 Introduction We commend the Department of Justice for initiating this consultation on the undue exploitation of violence in the media. The Consultation Paper on the Undue Exploitation of Violence (the Consultation Paper ) asks whether new legislation is required to govern the undue exploitation of violence and it raises the possibility of including the undue exploitation of violence in the Criminal Code s obscenity provision. The Consultation Paper also specifically discusses the information highway, in terms of the unique difficulties of regulation. This raises the most difficult problem of balancing freedom of expression with the responsibility to protect the common good. The Evangelical Fellowship of Canada (EFC) is a national association of churches, church-related organizations, educational institutions, individuals and 28 denominations from across Canada. We expressed our concerns about violence on television to the Canadian Radio-television Telecommunications Commission (CRTC) in its hearings last fall. As well, with other church groups, we expressed our concern about violence against women in a submission to the Canadian Panel on Violence Against Women. Principles In addressing this issue, we wish to identify the principles which have particular significance to our faith community and yet are also shared by other faith communities and which have given shape to and continue to characterize Canadian society. Canada is founded on and shaped by a vision of life which is characterized by specific values and rooted in certain moral principles. For example, our legal system is not morally neutral. Peter W. Hogg has described the Constitution as a mirror reflecting the national soul 1. It reflects a vision of life and an understanding of right and wrong, and how it is we should live together as a nation. Our whole legal system is a system of applied morality. As the Law Reform Commission has written: In truth the criminal law is a moral system. It may be crude, it may have faults, it may be rough and ready, but basically it is a system of applied morality and justice. It serves to underline those values necessary and important to society. When acts occur that seriously transgress essential values, like the sanctity of life, society must speak out and reaffirm those values. This is the true role of criminal law. 2 It is vital that we as a nation continually examine and affirm those principles and values that give shape to, and provide a grounding for, our society. What are the principles which provide a basis for our living together? The Charter of Rights and Freedoms itself gives guidance on what characterizes these principles. The preamble to the Charter states: Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.... The principles must be consistent with both the idea of the supremacy of God and with the rule of law. The Charter also refers to principles of fundamental justice which help define and shape the rights and freedoms guaranteed in the Charter, and it seeks to protect the values of life, liberty and security of the person. The identification and interpretation of these principles is a task in which all Canadians can participate. Various communities in our society will bring their own perspective to bear in this discussion. In this, religious communities have a unique contribution to make. Three principles we wish to address are dignity, stewardship, and communal responsibility. Dignity Then God said, Let us make man in our image, in our likeness, and let them rule over the fish of the sea and the birds of the air, over the livestock, over all the earth, and over all the creatures that move along the ground. So God created man in his image, in the image of God he created him; male and female he created them. (Genesis 1:26-27) The first principle is that human beings, created in the image 1

2 of God, have inherent dignity and worth. We believe that human life must be valued, respected and protected throughout all its stages. The dignity of human life is also a core principle in Canadian society. The Supreme Court has recognized that Canadian society is based upon respect for the intrinsic value of human life and on the inherent dignity of every human being This is how the Court interpreted the value of life found in section 7 of the Charter. Likewise, as quoted above, the Law Reform Commission has identified it as an essential value. It is this belief in the inherent dignity of all persons which shapes our human rights legislation and our social welfare policies. The Supreme Court also recognized that other Western democracies recognize and apply the principle of the sanctity of life... 4 As Justice Sopinka wrote: To the extent that there is a consensus, it is that human life must be protected and we must be careful not to undermine the institutions that protect it. 5 Stewardship From everyone who has been given much, much will be demanded; and from the one who has been entrusted with much, much more will be asked. (Luke 12:48b) We believe that life is a gift of God. We are but stewards of what God has entrusted to us. All human life, being of equal value in the sight of God, is to be cared for and nurtured physically, emotionally and spiritually. However, we each have a unique responsibility for our own life. This understanding is captured in the concepts of liberty and the security of the person. While people might differ in whether we understand life to be God s or ours, our society affirms the responsibility we each have to manage our lives well. As a society we affirm the liberty of each to live life as they will, and we seek to provide what is basic and essential to the exercise of that liberty through education, social assistance and health care. We also affirm the right of each to bodily integrity. We also recognize limits to these. The state may authorize intervention when the exercise of one s freedom infringes on the like freedom of another, or when someone is destructive of his or her own life (psychiatric intervention). We often seek to protect people from themselves (cigarette warnings, seat belt laws, etc.). In other words, while we as a society recognize the responsibility each person has in living his or her life, we also have a notion of what constitutes good stewardship of life. We discourage both by moral suasion and by law, behaviour which is destructive to life, be it one s own life or that of another, and we seek to help people to live fulfilling and enriching lives. This is reflected in the Criminal Code which is filled with prohibitions against violence, including prohibitions against uttering death threats, assault and child pornography. In the case of robbery, if a weapon is used during the offence, the sanction is more severe, presumably because the threat of violence is more pronounced. Communal Responsibility For none of us lives to himself alone and none of us dies to himself alone. (Romans 14:7) Nobody should seek his own good but the good of others. (1 Corinthians 10:24) The third principle is that we are responsible to seek the common good. The Bible points out that we, among all other creatures, have a unique relationship to one another as well as to God. We live in community and are interdependent. God calls us to seek a just society and to protect the vulnerable. Our interdependence and our communal nature are reflected in all aspects of societal life. For example, the legal system recognizes the responsibility and interrelatedness of the community and the person. In law, the individual person is responsible to the community as it is the community which punishes criminal acts. Likewise, the community s responsibility for the individual is reflected in social welfare programs and provision of medical care. Our actions, how we live our lives, affect others. Application of the principles These principles of dignity, stewardship and communal responsibility can be applied to the issue of the undue exploitation of violence. Violence reduces the victim to an object to be manipulated for one s own advantage or pleasure and thus debases the dignity of the victim. The unlawful use of physical force, demonstrations of power intended to force submission or subjugation, the threatened use of violence to instil fear and to intimidate; these acts of violence dehumanize the victim as well as the offender. It is destructive of both the victim of violence and the perpetrator. It is not good stewardship for either in that it is based upon or leads to a misunderstanding of the value of the life of the victim and ultimately devalues that person s life. Exposure to gratuitous and glamourized violence can desensitize people, particularly children, to the effects of 2

3 violence, and can foster a sense of hopelessness and fear. We have a communal responsibility to protect society from both the dehumanization and the fear it causes. The Broadcast Act is an example of the application of these principles to the regulation of the broadcasting system. Section 3.1 of the Broadcast Act states that the Canadian broadcasting system should serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada. The Broadcast Act also states that the system should serve the needs and interests, reflect the circumstances and aspirations, of Canadian men, women and children.... Violence in the media has been shown to be harmful to Canadian society, particularly to the children who are exposed to it. The majority of studies on television violence find that violent programming encourages violent behaviour. 6 The CRTC s review of scientific studies, Scientific Knowledge About Television, finds television violence a risk factor for anti-social behaviour and aggressive tendencies. How is the current regulatory framework being applied? The CRTC s approach to carrying out the Broadcast Act mandate to strengthen and protect society s fabric, in response to violence on television, is to require self-regulation by television broadcasters. The broadcasters develop violence codes and will not have their licenses renewed if they fail to comply with them. However, this policy does not regulate all broadcasting that comes into Canada and is applied only after a complaint has been received. When a complaint has been received, the decision is not binding on all broadcasters, but only on the one who initially aired the program. While the current policy of self-regulation by broadcasters has some merit, it does not adequately address the problem of violence on television. The CRTC has deferred it s responsibility to industry and to parents, and is not fully carrying out the mandate of the Broadcast Act. Before new regulations are introduced, we suggest that the current regulatory framework be applied. Should more regulations be introduced? The undue exploitation of violence should be regulated in the interest of safeguarding and strengthening the fabric of society. Given the gaps in the current framework and the unique medium of the information highway, it seems that more regulations are necessary. While several proposals have been suggested, it is important to employ a multi-tier approach which recognizes the responsibility of the government, the industry and the end user to any regulations. The information highway is still developing and there has not been sufficient time for studies on the effects of the violence that it portrays. However, this medium has the potential to be similar to television in terms of the capability to run images on the screen. The information highway also has an interactive capacity which may make it even more influential than television broadcasting. While existing legislation governs the information highway, this medium has unique enforcement difficulties. Some legislative proposals to regulate the undue exploitation of violence include (a) inclusion in the obscenity provision in the Criminal Code, (b) self-regulation of the information highway by service providers and (c) government regulation of information highway service providers. Inclusion in the obscenity provision As the Consultation Paper points out, the undue exploitation of non-sexual violence is not addressed in the obscenity provision of the Criminal Code. Currently, the definition of obscene in subs. 163(8) of the Criminal Code reads: For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. The Consultation Paper also points out that there is no specific prohibition in the Criminal Code to deal with materials which gratuitously or unduly exploit violence. The Consultation Paper suggests that the undue exploitation of violence could be added to the obscenity provision in subs. 163(8) of the Criminal Code. Whether or not a publication involves the undue exploitation of sex so as to attract Criminal Code sanctions is determined by community standards. The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an antisocial manner, in other words, a manner which society formally recognizes as incompatible with its proper functioning. 7 However, in the case of the Internet, for example, would the community standards be that of the Internet user or Canadian society generally? Will community standards be set according to the lowest common denominator in society? If so, is this conducive to the common good? Another consideration in the inclusion of the undue exploitation of violence into the obscenity provision is that of enforcement. In subs. 163(2) (a), the Criminal Code states 3

4 Every one commits an offence who knowingly, without lawful justification or excuse, sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or any other thing whatever... While this provision regulates the depiction of sexual violence, it has been severely limited by the Supreme Court of Canada decision in R v Jorgensen. 8 In the Jorgensen case, an adult video store manager was acquitted because he did not knowingly distribute obscene material. Unless the definition of knowingly is changed, there is a limited group who can be prosecuted for distributing obscenity. If a service provider is to be responsible for the material provided, how can it be expected to know what is there? What should be its legal obligation? The broader question raised in Jorgensen was who or what is the best person or agency to rate and censor films? Who should decide which films do or do not violate standards before they are distributed? This question remains unanswered. We are concerned that regulation by the obscenity provision, as it is currently interpreted and applied, is not adequately protecting the common good of Canadian society. Self-regulation In its final report, the Information Highway Advisory Council (the Council) suggests a different response to regulating the Information Highway. The Council proposes that the government amend existing laws to make them applicable and enforceable on the information highway and that the service providers develop ethics codes which they will refer to in a process of self-regulation. The Council states that it is the government s role to establish a clear regulatory and policy framework for the Information Highway. It also states that, Canadians need to recognize that we are at a turning point in history. Our challenge is to make a confident, positive choice toward a more civil society, to seize the new tools of the information revolution and to employ them to the advantage of every Canadian. 9 The idea of the self-regulation of service providers, suggested by the Information Highway Advisory Council, implies that service providers are able to monitor content and remove objectionable content. The development of software filters, such as Net Nanny and Internet Filter, suggests that technology may be developed which would be able to screen out objectionable content. While self regulation should be encouraged, it cannot replace the responsibility the government has in protecting the common good and fostering a civil society. Government regulation Another proposal for regulating the information highway is to mandate separation between the infrastructure operations and the service providers. 10 The principle in telecommunications of common carriage, where there is non-discriminatory access and non-interference with content, would be applied to the infrastructure operators. This would make the situation of the infrastructure operators similar to the present situation of, for example, telephone companies which are not responsible for any of the content they carry. Service providers would be considered similar to broadcasters, so that they would be responsible for content and for shaping content to fit public policy directions. We have several questions about the various ways to regulate the undue exploitation of violence: If legislation on the undue exploitation of violence, to be determined by community standards, were introduced, which community would decide what is tolerable on the information highway? Which community now decides what is obscene on the information highway? Should a regulatory framework be proposed before the technology to carry it out is available? Would self-regulation by service providers be effective in keeping glamourized and gratuitous violence off the information highway? Should it be the computer user (or parent) in the home who is responsible for keeping material which violates the Criminal Code out of their homes? Who should be held responsible for the distribution of unduly violent material on the information highway? Would it be the person who created the materials? The one who put them on the network? The service provider? The owner of the communication lines? Would setting up a national regulatory body to rate films, books, magazines, etc. which may contain violent content help to assisting the enforcement of the obscenity provision? Could a national body work in conjunction with provincial film boards or the CRTC? While we do not have answers to all of these questions, we would resist an approach to violence in the media which leaves the onus on any one of the participants, either the government, the industry or the end-user. Rather, EFC recommends a multitier approach. For example, in our submission on television violence, we proposed to the CRTC a form of regulation that involved the CRTC, the broadcasters and the end-users. We recommended that a national classification system to rate and 4

5 label programming be set in place. Within that classification system, we suggested that the CRTC prohibit programming containing gratuitous and glamorizing violence and restrict programming containing brutal violence to discretionary services. We suggested that some programming only be shown after the watershed hour and we left some programming up to parental discretion to monitor. We suggest a similar regulation of the Internet. Protecting the common good of society is a shared responsibility and, although it is the responsibility of government to ensure that it is achieved, it should take place in partnership with others. Are Further Consultations Necessary? The EFC encourages the government to continue with its Endnotes 1 Peter W. Hogg, Constitutional Law in Canada (2d ed., 1985) at 1. 2 Law Reform Commission of Canada, Report No. 3, Our Criminal Law, 1976, p. 16. Emphasis added. 3 Rodriguez (B.C.L.R.) At Rodriguez (B.C.L.R.) At Rodriguez (B.C.L.R.) At Today s Parent, R. v. Butler further planned consultations on the development of new mechanisms to protect the vulnerable while safeguarding our fundamental freedoms of expression and association with regard to the information highway. We suggest that in these consultations, the government consider legislation which tailors current Criminal Code provisions, such as those on obscenity and child pornography, to the medium. We encourage the development of a code of ethics for information providers. As an organization concerned about violence and the well-being of Canadian society, we would be interested in participating in further consultations on the information highway and the development of ethics codes and mechanisms to protect the vulnerable and serves the public good. 8 R v Jorgensen 9 Connection Community Content: The Challenge of the Information Highway. Final Report of the Information Highway Advisory Council Charles Sirois and Claude E. Forget, The Medium and the Muse: Culture, Telecommunications and the Information Highway. The Institute for Research on Public Policy: Ottawa, Copyright, The Evangelical Fellowship of Canada, May be photocopied without permission, providing acknowledgment of EFC as the source of the document is retained. 5