![[John Robin Sharpe]](images/2000-01-19-a-nationalpost.jpg)
Photo: Fred Chartrand, Canadian Press
John Robin Sharpe arrives at the Supreme Court of Canada in Ottawa yesterday as the
court began hearings into the constitutionality of laws prohibiting possession of child pornography.| & |
| Photo: Fred Chartrand, Canadian Press
John Robin Sharpe arrives at the Supreme Court of Canada in Ottawa yesterday as the
court began hearings into the constitutionality of laws prohibiting possession of child pornography. |
As about 50 demonstrators waved placards outside urging the court to uphold Canada's law banning child porn, more than two dozen lawyers rolled up their sleeves in the courtroom to debate the merits of criminalizing all forms of possession, including works of the imagination.
"This legislation is thought control, we're there", asserted Mr. Sharpe's lawyer, Richard Peck. Mr. Sharpe, a 66-year-old retired city planner who successfully defended himself in the B.C. Supreme Court, watched from the back benches as his two lawyers sought to convince the court that collection of short stories he wrote do not put children at risk.
But the B.C. government, Ottawa and several provinces implored the court, which has previously come down in favour of the freedom of expression guarantees in the Charter of Rights, to consider this a special case because it involves children.
"We ought not to sacrifice children at the altar of the charter", argued Cheryl Tobias, a lawyer for the federal government.
The crux of yesterday's arguments was whether a 1993 Criminal Code provision, which criminalizes possession of photographs, videos and "any written material or visual representation that advocates or counsels sexual activity with a person under the age of 18", should be struck down because it is too all-encompassing.
"This whole case is about balancing", said John Gordon, a lawyer for the B.C. government, which brought the case to the high court after failing to convince the B.C. courts that simple possession puts children in harm's way.
Five provinces lined up behind British Columbia to argue that even works of the imagination, including computer-generated depictions, sketches, cartoons and fiction, put children at risk by threatening their dignity and fueling the sexual fantasies of paedophiles.
But several Supreme Court judges appeared skeptical about the broad reach of the legislation, which technically criminalizes what Justice John Major described as "trivial breaches" that don't involve real children.
How do you deal with the fact that the law technically bans such classics as Vladimir Nabokov's novel Lolita, the judges asked, or even the private, pornographic musing recorded in a private diary?
The Canadian Police Association, a key intervenor in the case, argued that police only lay charges in severe cases involving the most vile pornography collections, such as sexually explicit photographs or videos of real children.
"We're not talking about a 16-year-old who draws a sketch and shoves it in the drawer", said Ted Danson, the association's lawyer.
Mr. Sharpe, for instance, was charged after police raided his Vancouver home and carted away more than one dozen boxes of photos of naked boys, some of whom appeared to be as young as seven. In many pictures, their genitals were in clear view and in others, boys were kissing or having sex.
Police also seized Mr. Sharpe's collection of short stories entitled Sam Paloc's Boys' Abuse: Flogging and Fortitude.
The Criminal Code provision banning possession is the "linchpin"' for police in their battle to catch distributors, particularly at a time that home-created works, including computer-generated depictions of real children, are being downloaded and traded on the Internet, said Mr. Danson.
The explosive case, which was the first and arguably the most significant in the Supreme Court's winter session, has sparked widespread public outrage against Mr. Sharpe as well as pressure on the federal government to override the rulings of the B.C. courts.
Mr. Sharpe's acquittal in the B.C. Supreme Court in January, 1999, was upheld last June by the B.C. Court of Appeal, which found that the Criminal Code section "is truly one step removed from criminalizing simply having objectionable thoughts".
The rulings left police in B.C. powerless to prosecute anyone who owns child pornography and numerous cases have been put on hold pending the Supreme Court's decision, which is not expected until later this year.
Mr. Sharpe still faces trial on charges of distributing child pornography.
The hearing concludes today.