The Criminal Code of Canada includes an offence of “counselling”. If you “counsel” someone to commit an offence, you can be convicted regardless of whether the offence is committed. The Supreme Court of Canada recently addressed this criminal provision, and comments by one of the judges show how the “counselling” offence may be relevant to video games.
The Court decided that “counsel” means the deliberate encouragement or active inducement of the commission of a criminal offence. It does not merely mean “to advise”. That definition is far too broad, and would involve a serious limitation on freedom of expression. As one of the judges pointed out (and this is where video games come in), using this broad definition would mean that movies, video games, textbooks, and other literary works that describe or depict the commission of an offence would be subject to state scrutiny.
This comment demonstrates two important things. First, the Supreme Court of Canada is aware of video games and how their content might be controversial. Second, it looks to us like the claim could still be made that a video game “deliberately encourages” criminal offences. Clearly this is a difficult argument to support. As the case points out, merely describing or depicting certain behaviour does not necessarily qualify as encouraging that behaviour. But is a violent video game different from a violent movie, in that the game player is an active participant in the game violence while a movie-watcher is purely passive? No doubt some parties would make that claim. Still, it's unlikely that we will see a criminal case involving such a charge any time soon.
So, what's the best thing to draw from this case? Probably the minor satisfaction that the Supreme Court of Canada has acknowledged, albeit in very brief passing, that video games are expression that is worthy of protection and that should not lightly be made subject to criminal sanctions.