Canada: concerns around prosecution of Yvan Godbout
Yvan Godbout | Photo: via Goodreads
Update - 25 September 2020
On 24 September 2020, the writer Yvan Godbout has been acquitted from the charges against production of child pornography. The trial took place during September 2020. The Quebec Superior Court Justice declared him acquitted and ruled that two of the articles of the Criminal Code violate sectors of the Charter of Rights and Freedoms that guarantee the right to freedom of expression.
The prosecution of Québécois writer Yvan Godbout for the ‘production of child pornography’ in relation to scenes in his novel Hansel & Gretel, and his editor, Éditions ADA inc., for the ‘production and distribution of child pornography’, represents a significant test of the protection of freedom of expression in Quebec and Canada more broadly, said PEN International today. The organisation calls on the authorities to drop the charges against the author and his editor, if he is being prosecuted solely for passages written in his book.
The novel Hansel & Gretel – a gothic retelling of the well-known German fairy tale, which features, in particular, a passage in which a father sexually assaults his daughter – was originally published in 2017 by AdA Editions, in the Les contes interdits (Forbidden Tales) collection. According to Vice News, ‘the work was not marketed to children, contains no explicit visual images, a content warning was printed on the back, and the scene is meant to be horrifying, not erotic.’
On 14 March 2019, Godbout and the director of AdA Editions, Nycolas Doucet, were arrested, interrogated by investigators from the Sûreté du Québec – the provincial police force – and were released pending trial on 15 April 2019. Their arrest was prompted by a complaint, lodged by a professor in January 2018, more than a year before, that a page from the novel describes a scene of a sexual assault on a child. The publisher suspended the sale of the book, but Éditions ADA inc. decided to sell the book again after few months since they had not received any further news from the police .
Godbout faces charges of making child pornography under section 163.1(2) of the Canadian Criminal Code, for which he could face a prison term of one to 14 years. According to his lawyer, the trial is due to commence in September 2020. The case is without precedent.
The Canadian Criminal Code defines child pornography as ‘any writing, performance or sound recording that defends or advises sexual activity with a person under eighteen’ and ‘any writing whose dominant characteristic is the description for sexual purposes, sexual activity with a person under eighteen.’ Producing, distributing or possessing such writings constitute criminal acts. However, the Code also states that ‘No person shall be convicted of a crime under this section [on child pornography] if the acts that would constitute the crime: (a) have a legitimate purpose related to the administration of justice, science, medicine, education or arts.’
According to Godbout’s lawyer, Jean-Philippe Marcoux, the Crown used its extraordinary power to proceed with a trial before a jury, without the consent of the accused and bypassing a preliminary hearing in front of a judge which would have reviewed whether there was sufficient evidence to proceed to trial. Writing to PEN International, Marcoux stated that, ‘This is a test case for the Crown and they are trying something that has never been tried in the past in Canada, from my understanding. We strongly believe that considering the law and the jurisprudence here in Canada, this novel does not constitute child pornography. It could be argued that this is close to censorship and against the [sic] freedom of expression.’
Salil Tripathi, Chair of the Writers in Prison Committee of PEN International, said: 'As a work of fiction, it is bizarre that such charges would be laid against Godbout and his editor given that Hansel and Gretel would appear to fit firmly within the exemptions provided for by law. Local accounts suggest that the novel is not marketed to children nor does it have any graphic imagery, so one questions how it can be reasonably argued that the passage reaches the required threshold of harm to negate any exemption based on artistic merit. We call on the Canadian authorities to act as per international norms of free expression, and not let a legitimate law – against child pornography – stifle legitimate literature.'
As indicated to Vice News by Catherine Tosenberger , a professor at the University of Winnipeg who specialises in folklore and children’s literature, in giving fairy tales a dark re-interpretation, authors like Godbout are actually bringing them closer to their original source material.
In response to the legal process faced by the novelist, organisations such as ANEL, L'Association Nationale des Éditeurs de Libre (National Association of Book Writers) and UNEQ, l'Union des Écrivaines et des Écrivains Québécois (Union of Writers of Quebec), have described the trial against Godbout as excessive, ‘an obvious case of censorship’ which 'criminalises the writing of fiction'; UNEQ also mentions a possible 'deprivation of freedom of expression.'
Raising concerns for the precedent that this case could set for the protection of Freedom of expression in Quebec and Canada more broadly, Félix Villeneuve, Coordinator of the Committee for the Defence of Persecuted Writers of PEN Quebec, stated, 'Artists sometimes feel the need to present the human being at its worst, not out of complacency, but in order to make sense of the world we live in. If the artist cannot elaborate a discourse around rape, violence, terror, and taboos in general, in order to put them under the spotlight, who will?'
PEN International urges the Canadian authorities to drop the charges against author Yvan Godbout and his editor, Éditions ADA inc., if he is being targeted solely for a passage from his novel, and to protect the right to freedom of expression enshrined under The Canadian Charter of Rights and Freedoms and Article 19 of the International Covenant on Civil and Political Rights of the United Nations, ratified by Canada.