Canada is not currently among the countries that imprison writers based on their published works. But that may be about to change.

Last April, Quebec author Yvan Godbout and his publisher Nycolas Doucet were charged with producing and distributing child pornography. The charges against them stem from a single paragraph in one of Godbout’s novels, a dark retelling of Hansel and Gretel, in which a father sexually assaults his daughter. Godbout and Doucet were arrested in March 2019, after a reader came upon the passage and called the authorities. 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.

Godbout’s book Hansel et Gretel was published in September 2017 by Éditions AdA as part of its series Contes interdits (Forbidden Tales). The works in the series reimagine classic fairy tales as horror stories. Currently, Hansel et Gretel is ranked at 3.6 out of 5 stars on Goodreads.

Though the case has attracted almost no attention in the English media, advocates for civil liberties have spoken out against Godbout and Doucet’s arrests. In a letter to Quebec’s Minister of Justice, the Canadian Civil Liberties Association (CCLA) called the charges against the two men “a terrible exercise of your quasi-judicial powers,” and said: “it is straining the limits of reasonableness to suggest that the novel is ‘child pornography’ as contemplated under [Canada’s Criminal Code].” A petition protesting the prosecution of Godbout and Doucet currently has almost 20,000 signatures.

Experts have long raised concerns about the expansive scope of Canada’s child pornography laws, which are broader than those in countries such as the United States, and which have been used to prosecute visual artists such as Eli Langer. But the Godbout case is the first time child pornography charges have been brought against a literary author for a work of prose. It is not difficult to see why groups like the CCLA might think that the case represents a misuse of the law. Canada’s Supreme Court has ruled that restrictions on expressive material are justifiable to the extent that such material “poses a reasoned risk of harm to children.” The fact that someone finds a passage offensive or immoral is not a sufficient ground to lay charges. In the case of written texts, which do no harm to anyone in their production, a work violates the law if it “fuels the sexual fantasies of pedophiles and could incite them to offend.” The court also emphasized that the law does not apply to “any expression that may reasonably be viewed as art.”

To convict Godbout and Doucet, the prosecution will have to show, first of all, that the passage in Godbout’s work could conceivably incite a pedophile to commit a contact crime. This will not be easy. In his critical survey of Canada’s child pornography laws, Bruce Ryder, a professor at Osgood Hall Law School, concludes that “the social science evidence ... does not support the ‘causal hypothesis’ in relation to this type of material. We ought not to rely on it as the basis for criminal prohibitions.”

Second, the prosecution must show that Godbout’s book cannot reasonably be viewed as a work of art. This would seem to be a still more difficult, if not impossible, task. And this raises a serious question whether the charges should have been laid in the first place. Frank Addario, a criminal and appellate lawyer who leads one of the country’s leading Supreme Court practices, said that in dealing with expressive materials, the government’s job is “to prosecute in clear cut cases where there is no artistic merit defence. This is not a political judgement. It’s a legal one. It requires discretion and restraint, not pandering.”

Catherine Tosenberger, a professor at the University of Winnipeg who specializes in folklore and children’s literature, said that, in giving fairy tales a dark re-interpretation, authors like Godbout are actually bringing them closer to their original source material. She says that tales such as Hansel and Gretel originated as stories intended for audiences made up of both adults and children, and points out that “the idea of protecting children from the evil and violence of the world didn’t become a thing until the twentieth century.” The original tales often contained material that was dark. The story of Sleeping Beauty is based, for instance, on a seventeenth-century Italian fable, “Sun, Moon, and Talia,” by Giambattista Basile, who drew on folk legends from the Middle Ages. In it, a king discovers a beautiful young girl who has fallen into a deep sleep, and, feeling his blood “course hotly through his veins,” rapes her while she is unconscious.

There is no shortage of literature in every genre that deals with difficult subjects, often in explicit terms. If authors have to fear prosecution for addressing them, the impact on Canada’s cultural life would be severe. Michael Bookman, a Toronto lawyer who is a member of the board of PEN Canada, said: “one of the obvious consequences of a conviction would be a freeze on the kinds of expression writers are willing to publish, and that has to concern those of us who believe freedom of expression holds an important place in how our society evolves and how it progresses.” The authorities in Quebec have not explained what they hope to accomplish by taking the case forward. When asked whether a fictional work such as Godbout’s is a danger to the public, Tosenberger says: “If that were true, Agatha Christie would be guilty of mass murder.”

The case is currently scheduled to go to trial before a jury in September 2020, at the Palais de justice in Sorel-Tracy, Quebec.