The National Post
Friday, July 2, 1999
page A18

Pornography ruling leaves sour taste

by Warren Kinsella

Wednesday's stunning decision by the British Columbia Court of Appeal -- namely, that it is perfectly fine to possess child pornography -- recalls another infamous case, involving the prosecution of former Toronto lawyer Harry Kopyto.

There, Kopyto was convicted of contempt of court, for suggesting that judges and cops stick together. Later on, the Court of Appeal, under then Chief Justice Peter Cory, threw out the conviction, stating judges should expect such critiques. "The courts are bound to be the subject of comment anc criticism", wrote Judge Cory. "Not all [judgements] will be sweetly reasoned."

In the B.C. Court of Appeal judgment concerning self-confessed paedophile Robin Sharpe, it is not difficult to predict that comment and criticism will abound. For, in their 74-page ruling, the court's majority offered up little that amounted to "sweet reasoning". For paedophiles, it is a triumph; for parents, children's advocates and victims' groups, it is a devastating setback.

The background to the case is well-known by now. Sharpe, a 65-year-old retired city planner, was charged in 1995 and 1996 with possessing child pornography. Customs officials and police found computer disks, books, stories and nude photographs of children. One document was titled Flogging, Fun and Fortitude -- A Collection of Kiddiekink Classics.

In January, 1999, a B.C. Supreme Court judge dismissed two of the possession charges against Sharpe -- who had represented himself in court -- on the grounds the law under which he had been prosecuted was contrary to the Charter of Rights and Freedoms. Dozens of similar B.C. cases involving child pornography ground to a halt. A later effort by the Reform party to persuade the federal government to invoke the notwithstanding clause -- and, in effect, reinstate the possession of child pornography law in B.C. -- was defeated in the House of Commons. Await the B.C. Court of Appeal's judgment, Reform MPs were told, a position some in the government now undoubtedly regret.

When the appeal was heard in April, there were clues that all was not well with the Crown's case. Madame Justice Mary Southin astounded many present in her Vancouver court when she repeatedly interrupted Crown Attorney John Gordon to sniff that she was not comfortable "pontificating" about street children in Brazil: "Whether we like it or not, isn't it a fair assumption that they did it for money?... What right do we have pontificating about what street kids do in Brazil?"

If that sort of logic was not offensive enough, media reports quote Judge Southin going on to question whether criminalization of child pornography was even worthwhile. Referring to Prohibition laws in the United States, she stated: "Look at the results. It did not stop anything. It just made it worse."

Judge Southin, unfortunately, wrote for the majority in the appeal of R. v. Sharpe. Sections of her decision contain plenty of illogic and even errors of law. Rejecting the sworn testimony of police officers and experts with many more years of experience than she has in pursuing paedophiles, she returned to a discussion of what she called "the so-called Third World". The exploitation of children in these countries is not the fault of paedophilic predators, she seems to suggest. Instead, the "underlying cause is economic ... [in such countries] the population has a grim choice -- starvation or exploitation". How novel, it is the economy of the victim's place of residence that is to blame. This is slightly better than blaming the victim, but only slightly.

There is more, in one astonishing analogy that is key to the decision she ultimately reaches. Judge Southin flatly states that it is not against the law to possess material that promotes genocide, or is seditious, or obscene. We can only assume Judge Southin had not bothered to cast her eye over Customs tariff code number 9956, to cite just one example, which authorizes officials to seize materials that advocate genocide (Subsection 4), or those that are seditious (Section 2), or obscene (Section 6).

The simple fact is that possession of child pornography does two unhelpful things. First, it legitimizes the sexualization of children. Decades of expert analysis shows that child pornography more than occasionally prompts paedophiles to attack children.

Secondly, as any student of capitalism will know, the desire to possess something inevitably creates a market. In this terrible case, the possessive Robin Sharpes of the world create a market for his ilk to violate, and destroy, those children Judge Southin referred to -- the ones found on the dirty back streets of Brazil.

As she reads her morning papers, filled again with calls for the election of judges -- and U.S.-style competence hearings -- perhaps Judge Southin can spend a minute or two to reflect on that.

Warren Kinsella is a Toronto author, currently writing a book on free speech issues.

Copyright © 1999 by Warren Kinsella. All Rights Reserved. Reprinted with permission.