It will now be up to the Supreme Court of Canada to decide whether Vancouver resident John Sharpe's possession of an extensive collection of child pornography constitutes a crime.
Surely, when considering whether Canadian laws infringe on the Charter of Rights and Freedoms, judges in our legal system must also consider the intentions of legislators. In the case of Parliament, the intention was clear enough, even if the child-pornography clause in the Criminal Code was broadly worded.
Section 163.1 of the code outlaws representations that depict a child in "explicit sexual activity". It also outlaws representations, for a sexual purpose, of sexual organs and the anal region of a child. Finally, it defines as illegal "written material or visual representation that advocates or counsels sexual activity" with a child.
In passing this ban, Parliament had one goal in mind. It wasn't interested in stopping artistic expression or engaging in KGB-like thought control over Canadians, as the B.C. Court of Appeal decision suggested. No, its motive was plain enough: to stop the sexual exploitation of children.
MPs reached the quite sensible conclusion that the possession of child pornography, which often requires an act of purchase, encourages its production. They made the reasonable decision that prohibiting possession would inhibit the manufacture and distribution of child pornography.
Parliament acted out of concern that the production of pornography often harms children, who are not able to give their informed consent to such activity. It acted out of the understanding that child pornography may lead adults to commit offences against children and that the practice of showing children this material may lower their inhibitions toward sexual behaviour. Finally, it acted out of concern that allowing possession of child pornography would make sexual acts with children more socially acceptable. That's the whole point of pornography: it arouses the desire to act.
But this is not what the B.C. Court of Appeal judges chose to dwell on in their decision. They did not focus on the government's intentions or on the very real and pronounced problem of the sexual abuse of children. For them, the issue was that personal forms of expression could be banned under the law: the private pedophiliac fantasies of someone expressed in a diary, say, or the drawings of sexual activity with children on sketch pads.
Again, this is not what Parliament intended. The law may, indeed, be loosely drafted and require some tightening. But Canadians should not lose sight of the issue here: do the harms caused to children by allowing the possession of child pornography outweigh the potential harms caused by banning it?
Most Canadians would come down on the side of the child. Most parents would take every reasonable precaution to protect their children from potential harm. That's the principle that guided our Parliament, and that's the principle that should guide our courts in interpreting the Charter of Rights.