Canadian Press
Wednesday, June 30, 1999

Province appeals child porn case to Supreme Court

by Ian Bailey

VANCOUVER (CP) -- The B.C. government wants the Supreme Court of Canada to rule quickly on Canada's child pornography law after an appeal court decision that the law against possessing child porn is unconstitutional.

The ruling Wednesday means B.C. prosecutors will continue adjourning the cases of those caught with child porn until the high court has made a decision.

The federal Reform party wants Ottawa to act now to reinstate the law but Justice Minister Anne McLellan said she has confidence in the law the way it stands.

The B.C. Court of Appeal ruling means it is not a crime to possess child pornography in British Columbia although other aspects of the law remain in effect.

Lawyers in other provinces can also point to the case when defending their clients, although the B.C. ruling is not binding on courts elsewhere.

Attorney General Ujjal Dosanjh said he wants the Supreme Court to deal with the matter as soon as possible.

"There is some urgency. We want to make sure we bring certainty to this law as soon as possible", said Dosanjh.

"It's important that the ultimate arbiter of this kind of issue -- the Supreme Court of Canada -- speak to these issues."

McLellan said she is disappointed by the ruling but still backs the disputed law.

"We will make those arguments before the Supreme Court of Canada if provided with the opportunity to do so", she said.

McLellan noted the law is still in force in nine provinces and three territories.

However, Reform Party Leader Preston Manning called on the federal government to recall Parliament at once and use the Constitution's notwithstanding clause to override the decision.

"We think the safety of children simply can't wait for a further appeal to wind it's way through to a Supreme Court decision", Manning said.

"I don't think the public is going have much patience for the legal hairsplitting arguments that are in the majority decision in this case."

But the British Columbia Civil Liberties Association, which intervened in the appeal court hearing, said using the notwithstanding clause is a bad idea because it would sustain an bad law.

Spokesman John Dixon described such a move as "grandstanding -- the same kind of craven political pandering that created a climate that produced this law in the first place."

Dixon called for a carefully crafted law against possession focused more on actual photographs of underaged children, not writings and drawings.

"What we don't need is someone to turn a legislative shotgun in the general direction of something ... and pull both triggers at once", said Dixon.

"This law is disastrously overbroad."

Two of the three appeal court judges agreed the law is unconstitutional, but the court's chief justice disagreed.

Justice Anne Rowles said the law effectively criminalizes possessing of material created from people's imagination for their own use without ever harming a child.

Rowles said the section of the Criminal Code banning possession of child pornography "is truly only one step removed from criminalizing simply having objectionable thoughts."

"The Charter should never ... permit the state to regulate an individual's private recorded thoughts, no matter how objectionable those thoughts may be."

John Robin Sharpe, 65, was charged after police and customs agents seized various materials, including photos of nude boys and a collection of short stories Sharpe had written entitled Sam Paloc's Flogging, Fun, and Fortitude: A Collection of Kiddie Kink Classics.

The retired city planner defended himself in B.C. Supreme Court, arguing the charges violated his constitutional right to freedom of expression.

In January, Justice Duncan Shaw agreed, detonating an explosion of criticism around the country. Shaw even received a death threat.

Justice Mary Southin, who sided with Rowles in dismissing the appeal, criticized those who expressed outrage at Shaw, saying most didn't know what they were talking about.

However, Chief Justice Allan McEachern said Shaw didn't take into account the fact that children are often harmed in the making of child pornography "and the risk of future exploitation of other children as a consequence of creating a market for this kind of material."

"In my judgment, the inadequate weight given to these factors in the judge's analysis constitutes legal error that is sufficiently serious."

Sharpe said Wednesday he was pleased with the ruling, but said the public scrutiny has been difficult.

After the brief hearing, he appeared anxious and rattled when surrounded by more than a dozen TV cameramen, radio reporters, and other journalists.

"It's not cheap to stick up for what you believe is right", said Sharpe.

Sharpe still faces charges of distributing child pornography.

After Shaw's ruling, Sharpe cast himself briefly as a kind of advocate for child pornography before realizing that most Canadians found the material repugnant.

At one point, residents of his central Vancouver neighbourhood put up warning posters to alert parents to his presence.

But Sharpe also said not everyone has treated him as a pariah.

"Some people have come up to me and said 'I'd like to shake your hand.'"

Richard Peck, Sharpe's lawyer, said the Supreme Court was the appropriate place for a hearing on the case.

"These are very important constitutional issues. They have to be debated."

The law outlaws possession of child pornography, including videos, magazines, photos, or computer-generated images of people under 18 or depicted as being under 18.

Written material is also prohibited if it advocates sex with anyone under 18.

The law also outlaws the distribution and publication of such material.

Copyright © 1999 by Canadian Press. All Rights Reserved. Reprinted with permission.