Today, in my criminal law class, we discussed what is a “crime.” We defined “crime” as any form of human behaviour designated by lawmakers as criminal and subject to penal sanctions.” This definition of crime is both narrow and broad: broad as any form of behaviour can be considered a crime, yet narrow as it is only those behaviours so designated by the law makers, which are considered crimes.
Let’s look at that premise more closely. Any behaviour, so designated, can be a crime. For example, opium was legal until the turn of the century when the 1908 Opium Act was enacted. On the other hand, coffee is legally consumed in Canada but was historically subject to bans and restrictions in many countries such as Turkey and pre-Revolutionary France.
Furthermore, no matter how morally repugnant certain behaviour may be, the conduct is only criminal if so designated. In other words, it is not a crime unless our government says so. Clearly then, criminal law is fluid: it changes over time in accordance with society’s fundamental values.
And yet, there are crimes still found in our Criminal Code, which do not resonate with today’s values and leave us to wonder why the behaviour is still designated as criminal. Section 163(1)(b), which makes it illegal for anyone to make, print, publish, distribute, or sell a “crime comic,” is a case in point.
A crime comic, as defined under s.163(7), is a “magazine, periodical, or book that exclusively or substantially comprises matter depicting pictorially” the commission of crimes, either real or fictitious, or any events leading to the commission of a real or fictitious crime. Thus a crime comic, deemed illegal under the Criminal Code, can easily be that super hero comic book purchased at the corner store or that cool graphic novel on Louis Riel.
Where did this crime come from? In this instance, we can blame the United States. In the 1940s a genre of comic books known as “crime comics” appeared. In truth, some of the comics were in “bad taste” depicting gory scenes of violence, however, the bulk of the comics were inevitably the triumph of good over evil. Either way, the books did not, as suggested by the Senate Subcommittee on Juvenile Delinquency, promote or contribute to the commission of crimes by juveniles.
In fact, despite the very public contention of American psychologist Dr. Fredric Wertham that the crime comic books were connected to the increase in juvenile crimes, there was no scientific basis for this position. Unfortunately, by the time the true facts were exposed, the issue had become so political the government was moved to regulate the comic book industry. In Canada, the result was even more significant as the Criminal Code was amended in 1949 to add crime comics as an offence “tending to corrupt morals.”
In the 1950s, the offence was tested by a group of comic book vendors in Manitoba. Mr. Roher, the chosen offender, was convicted of selling a crime comic, specifically “No. 62, April, Dick Tracy.” The cover of the comic book is particularly gruesome as it depicts Dick Tracy floating in the water, near death, while a once masked villain shoots at him. Definitely a crime is being committed but we all know, Dick Tracy, the crime fighter will prevail. He even says so in the corner of the cover as he studies his radio watch, which cries out: "calling all crime stoppers." This fact, however, was meaningless in the eyes of the law as Mr. Roher was convicted of selling this crime comic.
In upholding the conviction in 1953, Chief Justice McPherson describes, in detail, the “bloodthirsty” events illustrated in the comic. According to McPherson C. J., “the legislature wished to enact laws to protect the children of this country from the evil effects of being subjected to publications dealing with crime.”
The Chief Justice also considered the defence available under the section, which is still preserved in the present day offence, known as the defence of the “public good” whereby:
No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.
In dismissing comics as serving the public good, the Chief Justice commented on the defence as follows:
The only defence under this section I have ever heard suggested is that by reading these publications the child acquires a desire to read. To me it is a strange basis upon which to start child education and, logically considered, could be quite easily adapted to other phases of training; for instance, by starting children on "home-brew" they might become connoisseurs of fine liquors and whisky and eventually experiment with a drink of milk!
Clearly, the Chief Justice was not a fan of the funnies! Or was he really just a man of his times, immersed in the hysteria of the moment and in tune with the public fear caused by the increase in juvenile crimes? This may explain why the conviction was upheld and why the crime found its way into the Criminal Code, but it does not explain why this crime is still part of our criminal law.
Perhaps we could imagine an inappropriate comic, aimed at children, which we would not want published and sold but do we need the criminal law to regulate that scenario? Furthermore, as the section now reads, appropriate material could be subject to the offence, despite the defence of public good, such as the graphic novel by Chester Brown on Louis Riel or the Fantastic Four.
So, why this is still a crime is a valid question to ask and a valid question to keep asking as society changes and our laws do not. By questioning and asking “why,” we are ensuring that our laws reflect who we are as a society and if they do not, then it is incumbent upon our law makers to provide an acceptable answer.