The Globe & Mail
Thursday, July 1, 1999

Kiddie-porn law headed to top court

B.C. appeal judges decide 2-1 in favour
of man found with child pornography

by Jane Armstrong

Vancouver -- Canada's controversial child-pornography law is on its way to the Supreme Court of Canada after the British Columbia Court of Appeal ruled yesterday that the law contravenes the Charter of Rights and Freedoms.

Within an hour, B.C. Attorney-General Ujjal Dosanjh announced the appeal, saying Canadians want the matter decided by the country's highest court. "I think it's important that the ultimate arbiter of these kinds of issues, that the Supreme Court of Canada, speak on this very important issue", he said.

In Ottawa, federal Justice Minister Anne McLellan told reporters she is "very disappointed" with the B.C. ruling and suggested that the federal government is keeping open the option of exempting the child-pornography law from the Charter if it loses the case before the Supreme Court.

"One thing is absolutely clear for us as a government: We believe the protection of children in this country is a paramount value."

Ms. McLellan said the federal government will join B.C. in vigorously arguing the case at the Supreme Court, and will request that the court expedite the appeal.

At issue is the constitutional soundness of a six-year-old law that outlaws the possession of child pornography. The case wound up in the B.C. Court of Appeal after retired city planner John Robin Sharpe decided to fight two pornography charges laid against him four years ago.

The case prompted an emotional debate that pitted civil libertarians against child-protection agencies and children's advocates.

Mr. Sharpe, who represented himself at trial, argued that the child-pornography law infringed on his constitutional freedoms. In January, Mr. Justice Duncan Shaw of the B.C. Supreme Court ruled in favour of Mr. Sharpe, prompting a storm of indignation from opposition MPs and other proponents of the law.

Judge Shaw subsequently received a death threat and Mr. Sharpe was hounded by angry neighbours who posted his photograph around his Vancouver neighbourhood, warning residents that a child pornographer lived in their midst.

At the appeal court, two of three judges who heard the case ruled in favour of Mr. Sharpe. Chief Justice Allan MacEachern dissented.

In the 80-page decision, the court ruled that the child-pornography law, as it is written now, is at sharp odds with constitutional rights that guarantee freedom of expression and the protection of privacy.

It said the law is also flawed because it has the potential to penalize people for possessing and creating material that may merely be the products of the imagination and not intended for distribution.

"Making it an offence to possess expressive material, when that material may have been created without abusing children and may never be published, distributed or sold, constitutes an extreme invasion of the values of liberty, autonomy and privacy", Madam Justice Anne Rowles wrote.

Madam Justice Mary Southin added: "To make criminal the private possession of expressive material of any kind is or ought to require the most compelling evidence of necessity."

Judge Southin said the law is inconsistent because it could unfairly penalize activities between consenting individuals that aren't considered exploitive. "The possessor of a copy of . . . the poems of Catullus would not be caught by it. But . . . it would cover the case of an 18-year-old taking salacious photographs of his 17-year-old girlfriend."

Judge Southin also had harsh words for the media frenzy that occurred after Judge Shaw's ruling, saying many commentators didn't know what they were talking about.

In his dissenting opinion, Chief Justice MacEachern argued that material produced for the most harmless of reasons could end up in the hands of someone who wishes to exploit children.

"It must also be remembered that photographs or other depictions of a young couple (under the age of 18) who record their sexual experiences for private purposes could end up in the possession of others and become harmful to children."

Mr. Sharpe was charged in 1995 after Canada Customs officials seized computer disks containing stories titled Sam Paloc's Flogging, Fun, and Fortitude, and A Collection of Kiddie Kink Classics. Mr. Sharpe was returning to Canada with the material after a trip to Europe. Later, police also seized books, manuscripts, stories, and photographs.

Mr. Sharpe was the author of much of the material police seized from him. He has admitted he is interested in child pornography and likes to write stories and poems about sex between male adults and boys.

However, Mr. Sharpe's lawyer, Richard Peck, said the charges laid against Mr. Sharpe have implications for all Canadians, and that this latest court dismissal reveals the flaws in the child-pornography law.

"The problem with this legislation was that it was overly broad", Mr. Peck said in an interview. "This case is about my rights, your rights, our collective rights."

He also criticized politicians who had harsh words for Judge Shaw's ruling, arguing that Parliament passed a flawed bill into law, then "pilloried" the judge who pointed out the flaws.

Outside court, Mr. Sharpe appeared flustered, but obviously pleased with the ruling. He said the past four years have been difficult personally and also costly.

He has also been the focus of anger and disgust among people opposed to his sexual preferences. But others have congratulated his efforts. "Some people have come up to me and said I'd like to shake your hand. Other people are quite indignant and angry."

The ruling means that, for now, it is not a crime to possess child pornography. The ruling isn't binding in other provinces, but courts in other provinces can look to it for guidance.

In British Columbia, the uncertain status of the child-pornography law has created a backlog of cases. The Attorney-General has asked judges to allow adjournments and encouraged police to continue to investigate suspected cases of child pornography.

Mr. Dosanjh estimated there are about three dozen outstanding child-pornography cases.

Meanwhile, the Reform Party called yesterday for Prime Minister Jean Chrétien to bring MPs back to Ottawa from their summer break to hold an emergency session of Parliament to deal with yesterday's ruling. The Opposition wants the government to invoke the so-called notwithstanding clause of the Constitution now so that the pornography law will stand no matter what the courts rule.

Parliament can use the clause to exempt a law from Charter challenges, but has never used the power despite several controversial Supreme Court rulings.

Ms. McLellan said it is premature to say whether the government would use this provision, adding that the Supreme Court should first make its ruling.

Laws against production, importation and distribution of child pornography remain in full force because the ruling deals only with the issue of possession, Ms. McLellan noted.

THE LAW

Section 163.1 of the Criminal Code defines child pornography as:

(a)
a photographic, film, video, or other visual representation, whether or not it was made by electronic or mechanical means,

(i)
that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii)
the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years

(b)
any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this act.


Copyright © 1999 by The Globe & Mail. All Rights Reserved. Reprinted with permission.