| & |
OTTAWA -- If only the issue were as simple as the delicious picture that greeted the nine justices of the Supreme Court of Canada when they came back into their courtroom after the morning recess yesterday.
There, in the front row of the public gallery, sitting side-by-side, were the two men who have come to represent for many Canadians the very forces of good and evil, Ontario Provincial Police Detective-Inspector Bob Matthews and John Robin Sharpe.
Det.-Insp. Matthews is the longtime head of the child pornography unit of the OPP, probably the most knowledgeable police officer in the country on this subject, a frequent expert witness in court, and the man who so successfully argued the case that police needed a better tool to deal with kiddie porn that he could be fairly described as one of the architects of the very legislation now being argued at the high court.
Det.-Insp. Matthews could play himself in the movie, so whistle-clean and wholesome-handsome is he. Silver-flecked hair cut close to his well-shaped head, beautifully mannered and impeccably attired in a fine navy suit and crisp white shirt, he appeared to have stepped fresh from some invisible travelling shower, sort of the flip-side of the Peanuts cartoon character PigPen.
Mr. Sharpe is the 66-year-old retired Vancouver city planner whose collection of naked boy pictures and accompanying writings, called Sam Paloc's Boys' Abuse: Floggings and Fortitude, became the most infamous in the land when the lot was seized about five years ago, both from his suitcases by Canada Customs and later by police from his home.
He, too, looked and acted every inch his part: He arrived late; dressed shabbily in a brown leather jacket, blue shirt, too-short black jeans and camel-coloured vest with a hole in it; alternately rolled his eyes in disdain, fell asleep and for a time actually picked his nose in court, and said such outrageous things as, "The public is thinking with its blood", which is only arguably better than being led about by its pecker, but one thing at a time.
It is Mr. Sharpe's case that has brought a slew of lobbyists and senior lawyers -- including Ontario Attorney-General Jim Flaherty, who himself handled that province's piece of the pro-law pie here yesterday, and fairly deftly too, though for a time he was boxed about the ears by Justice John Major -- to the Supreme Court for two days of argument.
On Jan. 13 last year, Mr. Sharpe was acquitted in the B.C. Supreme Court of two counts of possessing child pornography on the grounds that some parts of the Criminal Code of Canada are unconstitutional. The B.C. Court of Appeal later upheld the ruling, and in July, the province appealed the decision to the Supreme Court of Canada.
The law in question -- Section 163, though only parts of it are being contested here -- was passed in 1993, and by all accounts, revolutionized the investigation and prosecution of kiddie porn lovers. According to an affidavit from Det.-Insp. Matthews that forms part of the evidence, before Section 163 came into being, his unit was able to muster only one or two such investigations a year; in 1998, it ran 134. Clearly, the section works. And Det.-Insp. Matthews, and the lawyer for the Canadian Police Association, Tim Danson, among others, yesterday argued that without it, they will be lost. They also say that simple possession of child porn is akin to simple possession of drugs -- that it gives police the necessary "foot in the door" that may lead them to more important dealers and traffickers and producers.
But since when are laws driven by their usefulness to police? And is a bad law rendered good merely because cops like it?
Where it gets even trickier is in who else may be captured by 163, which also criminalizes such other things as drawings, sketches, sculptures and writing which may only advocate sex with children, or which may only depict sex acts with minors, or where the victimized children may not in fact be actual children, but the figments of a sick imagination, or some wretched "morphed" combination of computer-generated image and real untraceable photograph -- the net, through Internet Relay Chat networks where paedophiles find one another and exchange pictures and the like, is the real sewer for child porn -- or, at its mildest, idle doodles or jottings in a fevered teenager's diary.
The purported righteous, as represented by lawyers for British Columbia, the federal government and a whack of provinces and various child-advocacy groups, argued that the protection of children is so important it outweighs virtually any intrusion into the free-expression rights guaranteed citizens by the Canadian Charter, even when those rights are exercised privately, even when they only ever form a record of one's thoughts. As one of the lawyers, Cheryl Tobias, who was speaking for the feds, said succinctly, "We ought not to sacrifice children on the altar of the Charter."
At bottom, it appeared the law's supporters are prepared to live with the consequences of a piece of legislation that may be far too broad.
As Judge Major put it to B.C.'s lawyer, John Gordon, yesterday at one moment, "So the law would pick up [in other words, criminalize] a sketch?" "A sketch, yes", replied Mr. Gordon. A little later, Judge Major asked if such a sketch, meant for the author's eyes only but stolen by a burglar, would result in the author being charged. "I suspect he would [be charged]", Mr. Gordon said, "I suspect he would have to be by virtue of the fact he created the material." Later still, Judge Major, in an exchange with Mr. Flaherty, was back gnawing this very bone: "So it's sketch at your own risk?"
One of the justifications for the uphold-the-law position is that it's not innocent teenagers, writing luridly about their first sexual experience, or one-time sketchers, or working artists that the police and prosecutors are targeting; they can be trusted, goes this line, to go after the right people, in other words, the bad kiddie porn adherents whose poster boy is the grimy Mr. Sharpe.
But in fact, the very first reported case of Section 163 involved charges against former Toronto artist Eli Langer, whose elegant, disturbing little drawings depicted boys, who appeared to be under 18, engaged in sex, in some cases with adults. Eventually, the charges were dropped, but the Ontario government then moved with a forfeiture application to seize Mr. Langer's drawings so they could be destroyed as child pornography.
The court eventually accepted a defence of artistic merit, but only after Mr. Langer had been put through the wringer and publicly tarred as a kiddie pornmaker.
This, it is worth noting, was a mere four months after Section 163 became law and about six after Det.-Insp. Matthews had spoken before the standing justice committee, singing the law's praises and trying to soothe the ruffled feathers of artists and free-expression advocates who were then rushing about the country in a panic, shrieking that the sky was falling.
"I don't think", Det.-Insp. Matthews said then, "the arts community should have any concern about the kind of material we're trying to eliminate."
He probably looked then as crisp and as clearly on the side of good as he does now. Robin Sharpe probably looked as creepy, not to mention crepey, as he does today. But all is not always what it seems. As Judge Major remarked yesterday to Mr. Flaherty, "The objects [of the law] are laudable, but you have to do it properly, don't you?"
Amen.