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OTTAWA -- Lawyers in a major child-pornography case competed for the attention of the Supreme Court of Canada yesterday by conjuring up images ranging from child torture to Orwellian thought police.
"This legislation is thought control", said Richard Peck, a lawyer for John Robin Sharpe. Citing George Orwell's chilling, futuristic novel, Nineteen Eighty-Four, he said heatedly: "We are there."
Mr. Peck waved aside arguments that a law prohibiting the possession of child pornography is essential to safeguard the most vulnerable individuals in society -- children.
He instead countered with a quotation from the 19th-century philosopher John Stuart Mill stating that a democratic society must permit citizens a "zone of privacy" where their thoughts and creations can have free rein.
"The minute the state infringes that zone by telling me what I can and cannot write to myself -- that I cannot possess a photograph of myself or a drawing I have made -- then that zone, that bubble, has been burst", he said. ". . . I defy the state to do that."
Mr. Sharpe, a 66-year-old Vancouver man, was charged in 1995 with two counts of possessing child pornography and two counts of possessing it for the purposes of distribution. The possession law was struck down at his trial. The distribution charges have yet to be tried.
Cheryl Tobias, a lawyer with the federal Department of Justice, defended the law yesterday as a vital tool in "diminishing the market" for child pornography. This goal is an obligation not just to Canadians, but to the entire international community, she said.
If pedophiles have a constitutional right to free expression, Ms. Tobias said, "it is dwarfed by the interest of children in our society. In my submission, we ought not sacrifice children on the altar of the Charter."
The Supreme Court was clearly intrigued by what may be its highest-profile case this year. Each of the nine judges weighed into the fray at least once yesterday with probing questions.
Many delved into the issue of whether the law is so broad that overzealous law-enforcement officials could prosecute people for private diaries and works of art.
Lawyers for several provinces intervening in the appeal argued that these "hypothetical" instances are baseless scare tactics used by those who oppose the legislation.
John Gordon, a lawyer for the B.C. Attorney-General, ridiculed the notion that anyone possessing a sex-related doodle in a notebook or a Norman Rockwell painting featuring a nude boy standing by a bath would be prosecuted.
"The Crown would have to prove it was made for a sexual purpose", Mr. Gordon said. "The legislation targets not thoughts, beliefs and opinions, but their outward manifestation. A person can think what they like. They can have what fantasies they wish. They can even converse with others about them."
However, Mr. Gordon warned that even the most innocuous-looking sketch is capable of being used by a pedophile to put a child at ease and initiate sexual contact.
Mr. Justice Ian Binnie observed that as the law stands, even a book such as Vladimir Nabokov's Lolita can be seen as advocating child sex. "It seems like a difficult line to draw", he said.
Chief Justice Beverley McLachlin then expressed concern that a young girl's diary in which she expresses private delight at her first sexual experience could run afoul of the current law.
Some lawyers pooh-poohed the idea that any prosecutor would take such a case to court. However, the chief justice appeared unimpressed.
"Assuming the legislation is overly broad, can it really be saved by saying: 'Trust us to use it wisely'? " she asked.
Shawn Greenberg, a lawyer for the Manitoba government, went so far as to urge the court to ignore the "far-fetched" hypothetical instances and the broader ramifications of its decision.
She said the real issue the law targets is horrendously lurid pornography that demeans and physically exploits children. "We are not talking about a 16-year-old who draws a pair of breasts on a paper and shoves it in his drawer", Ms. Greenberg said.
Another lawyer for Mr. Sharpe, Gil McKinnon, actually conceded there is a place for a law criminalizing the possession of pornography, provided children were actually exploited in producing it.
He said the government was hasty and careless in creating the current law, ignoring legal critics who warned that it would violate the Charter of Rights and Freedoms.
Mr. McKinnon said the law gravely overreaches common sense by outlawing any self-authored story that advocates pedophilia and any visual representation of a child that is focused on his or her sexuality.
The government could have achieved its aims simply by outlawing the "publishing" of child pornography, he said. It need only have defined publication as the act of showing material to another person.
"While the vast majority of Canadians might well be upset by someone in their home [creating pornography] . . . the courts over the years have recognized the value of privacy in the modern state", Mr. McKinnon said.
But lawyers for the provinces, police and victims groups said that virtually any chink in the law would allow pedophiles a field day.
"If you excuse the apparently lawful, you lose the ability to capture the apparently unlawful", Mr. Gordon said.
Joshua Hawkes, a lawyer for the Alberta government, said pedophiles have a penchant for sending material on the Internet to augment one another's collections. If they are given any sort of privacy exemption, he said, the spread of this material will become unprosecutable.
"They will say: 'It is just for my private possession. I've never circulated it,' " Mr. Hawkes said. "That is unanswerable."
Mr. Hawkes again invoked John Stuart Mill. "He spoke of the marketplace of ideas. Then, child pornography is the black market."
Toward the end of the day, several judges hinted at the direction they may favour by questioning lawyers about severing small portions of the law without striking it down outright.
Ms. Tobias said the federal position is that while the law should stand as it was created, severing it was clearly preferable to striking it down.
The hearing resumes today.
The possession section differentiates visual material and written material.
To gain a conviction for possessing visual material, the Crown must show that an accused person had in his or her possession visual representations of children which, real or imagined, involved the depiction of sexual behaviour or the portrayal of the sex organs or anal area.
Written material that contravenes the law is that which, implicitly or explicitly, counsels or advocates the commission of a sexual offence against a child.
The charges against Mr. Sharpe involve his possession of pictures of young boys in sexual positions as well as stories Mr. Sharpe wrote involving pedophilia.