The Halifax Daily News
Friday, July 2, 1999

The child pornography law is an ass

Court cases won't settle the issue.
What we need is a better (and less politically motivated) law

by Stephen Kimber

The British Columbia Court of Appeal got it right. Canada's draconian laws against merely possessing child pornography are badly written, wrong-headed, and could do more harm to our civil liberties than any good they might accomplish in saving children from harm.

That's not to suggest we don't need a law to protect children from being exploited for sexual purposes. We do. It's just that this politically motivated, over-broad, and mindless piece of legislation is not the law we need.

But judging by the instantaneous, cement-headed response of Canada's lawmakers - the me-first-me-too pronouncements of our justice ministers, who insist they will appeal the B.C. court's decision instead of revising the flawed law to make it do what it was intended to do in the first place, followed by the demands of Reform Party leader Preston Manning, who wants the prime minister to invoke the notwithstanding clause to overturn the court's decision - we are in for a lot more political grandstanding and games playing before this one is over.

Before we get our knickers in a knot about how it has suddenly become open season on our kids, it is worth remembering that the 1993 law banning possession of child pornography was never a carefully considered piece of legislation to begin with.

The Mulroney Tories, anxious to burnish their image as tough-on-crime in advance of an expected election, simply put together a dog's breakfast of what they hoped would be vote-getting, anti-crime legislation and rushed it all through parliament.

From introduction to proclamation, the whole process took less than three months. The Opposition parties, eager to claim they too opposed the sexual exploitation of children (who doesn't?), barely paused long enough to question the legislation's potential implications, or ask why plenty of other far-from-pro-child-pornography groups - including the Canadian Bar Association - had argued the legislation was hastily drawn up and potentially flawed.

The problem isn't with the intent of the law, but with the slipshod way in which it was drafted. Section 163.1 of the Criminal Code goes way beyond protecting real children from harm and makes it a crime for someone to possess a film, or photograph, or even written material in which even a consenting adult "is depicted as being under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity".

The law, in fact, has the potential to transform everything from possessing a copy of Vladimir Nabokov's acclaimed novel Lolita to writing in private erotic journals - even if the author is one mooning teenager writing about another - into jail-able criminal behaviour.

The only two reports dealing in any serious way with child pornography in Canada - the Badgley Report and the Fraser Report - were careful to make distinctions between creative works of the imagination and pornographic material in which real children were exploited. And the British Columbia Civil Liberties Association, in its submission to the Court of Appeal, said it couldn't find one other Canadian criminal law, either current or historical, that would send a person to jail merely for possessing what it called "expressive" material.

Justice Mary Southin's judgement forcefully makes the point - one you would expect the Reform Party itself to be championing - that the state has no business in our imaginations. It's worth repeating.

"The ultimate justification for a constitutional guarantee of the right to privacy is our belief, consistent with so many of our legal and political traditions, that it is for the individual to determine the manner in which he or she will order his or her private life," Southin wrote.

"It is for the individual to decide what persons or groups he or she will associate with, what books he or she will read, and so on. One does not have to look far in history to find examples of how the mere possibility of the intervention of the eyes and ears of the state can undermine the security and confidence that are essential to the meaningful exercise of the right to make such choices ... State efforts to coerce individuals into holding or abandoning thoughts, beliefs, or opinions - no matter how evil or repugnant they may be if acted upon - are the hallmarks of a totalitarian society and antithetical to a free and democratic society. For this reason, simple possession offences of expressive material should only be upheld in exceptional circumstances where the law in question is carefully tailored to capture only expressive material that is necessary to the attainment of an overriding state purpose."

There is nothing to stop our lawmakers from redrafting this law to protect our children from real exploitation by child pornographers. Nothing except the fact that it's far easier - and generates better publicity - to rail against the courts for being soft on kiddie pornographers.

Copyright © 1999 by The Halifax Daily News. All Rights Reserved. Reprinted with permission.