The Globe &l Mail
Saturday, January 16, 1999

Child-porn law is struck down by B.C. judge

Criminal Code ban on possession
violates Charter of Rights, ruling says

by Jane Armstrong

VANCOUVER -- The British Columbia Supreme Court has struck down a section of the Criminal Code that outlaws the possession of child pornography, ruling that the law violates the Charter of Rights and Freedoms.

"The invasion of freedom of expression and personal privacy is profound", Mr. Justice Duncan Shaw wrote in a 33-page judgment released yesterday.

"The intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition."

The judgment is binding only in British Columbia, but other provinces can look to it for guidance. Geoffrey Gaul, a spokesman for Attorney-General Ujjal Dosanjh, said the province will decide next week whether to appeal.

Police in B.C. said they are concerned about the decision.

"The consensus in the law-enforcement community is that child pornography is a serious issue," said RCMP Sergeant Russ Grabb. "However, Charter rights are paramount in this country."

The judgment stems from a case against a Vancouver man, John Robin Sharpe, who faced four charges stemming from two arrests.

In the first case, Canada Customs officials seized computer disks titled Sam Paloc's Flogging, Fun and Fortitude, and A Collection of Kiddie Kink Classics. The next spring, police raided Mr. Sharpe's home and seized books, manuscripts, stories and photographs.

Mr. Sharpe was charged with two counts of possessing child pornography and two counts of possession for the purpose of distributing and selling the material.

Mr. Sharpe represented himself in court, arguing that both sets of charges violated his constitutional rights.

The Crown presented evidence that children are abused during the manufacture of pornographic material. The court also heard from an expert that child pornography perpetuates an illegal and immoral assumption that child-adult sex can be natural and does not harm children.

Judge Shaw held that a person's private home and belongings, such as books, diaries, pictures and clothes, are an important expression of an individual's identity. To prohibit an individual from possessing child pornography is too great an intrusion on individual freedom, he ruled.

To forbid an individual to simply possess pornography singles out collectors who are simply interested in pornography, but who don't harm anyone, he ruled.

He also held that other sections of the Criminal Code protect children from abuse and exploitation arising from pornography.

In striking down the Criminal Code provision against possession, Judge Shaw also appeared to agree with a theory that sexual aggressors or pedophiles use child pornography to masturbate and "relieve pent-up sexual tension" instead of preying on children, thereby posing less of a threat to them.

"Whether or not this cathartic effect outweighs the harm caused by the possession of pornography is not known, but it is nonetheless a significant factor to take into account."

However, Judge Shaw upheld laws prohibiting the sale and distribution of child pornography.

Pornography critics were angered by the decision, arguing that the possession of child pornography is not a harmless act.

Shari Graydon, executive director of MediaWatch, a group monitoring depictions of women and girls in the media, said allowing individuals to possess child pornography is tantamount to condoning the sexual exploitation of children.

"The very existence of pornography featuring children, on some level, condones and normalizes and makes acceptable the sexual objectification of children, which most people will categorically agree is not appropriate and is not acceptable and should not be condoned."

A spokesman for federal Justice Minister Anne McLellan said that the federal department had not had time to study the decision, but pointed out that the decision on an appeal must come from the provincial Attorney-General.

Private Purposes

"First and foremost, the invasion of freedom of expression and personal privacy is profound.

"Further, the prohibition extends to all persons including those who make no harmful use of pornography. The prohibition also includes pedophiles, who, instead of preying on children, use pornography for very private purposes, such as relief from their affliction by masturbation.

"As noted earlier, sexually explicit pornography is used to relieve pent-up sexual tension of otherwise potential aggressors. Whether or not this cathartic effect outweighs the harm caused by the possession of pornography is not known, but it is nonetheless a significant factor to take into account.

"The ban includes 'mildly erotic' pornography . . . although the evidence indicates that 'mildly erotic' pornography has the effect of reducing sexual aggressions against children."

-- Mr. Justice Duncan Shaw

The Child-Porn Provision

The section of Canada's Criminal Code struck down yesterday by the Supreme Court of British Columbia in R. v. Sharpe:

Section 163.4 -- Every person who possesses any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

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