The National Post
Friday, July 2, 1999
page A19

Making Canada safe for child porn (again)

Upholding Mr. Justice Duncan Shaw's January ruling which struck down the nation's child pornography law, Madame Justice Mary Southin of the B.C. Court of Appeal declared: "Many of those who gave vent to their outrage knew nothing whatever of the text of S. 163.1 [the Criminal Code section dealing with the possession of child pornography]. What, in their ignorance, they conjured up in their minds was the spectre of a judge giving judicial approval to sexual exploitation of the prepubescent, whether of the male or the female sex, contrary to the will of Parliament."

After this opening salvo, Judge Southin went on to argue that the detrimental effects upon freedom of expression of laws prohibiting child pornography "substantially outweigh the salutary effects". How did she reach this conclusion? She appealed to her own conscience to render her decision: "Social scientists and psychiatrists ... are not men from Mars observing the world and recording what they see from a vantage point of pure detachment", Judge Southin mused. "Nor, for that matter, are judges. To a greater or lesser degree, we all view the world encumbered by our own education, values and experiences."

Insofar as this is so, it is an argument for judicial restraint. Because judges are neither elected nor accountable, they are not supposed to legislate. Their task is to determine whether the law has been broken or, where the law itself is at issue, whether it is inconsistent with established precedent, with the intentions of the legislature and, in recent years, with the Charter of Rights and Freedoms. No doubt Judge Southin has many fascinating opinions, but in a democracy we are not supposed to be governed by the brilliant dinner-party insights of people who once went to law school.

Not that the judge's opinions qualify as exactly glittering -- as Warren Kinsella establishes conclusively on the opposite page. Her reflections on the advantages of child pornography as a career for Brazilian street children are simply the recycled banalities of '60s sexual liberation expressed in plodding legalese. Parliament was not impressed by such sophistries. There is no good reason in law or moral argument why its judgment should be set aside to accommodate the tired paradoxes of a provincial lawyer.

For the small minority of lawyers and law school academics who support the court's majority decision, the Charter sets defendant John Robin Sharpe's constitutional right to enjoy child pornography above the commonsense desire of Parliament and the voters to save children from being sexually exploited.

But the Charter cannot save the court from its fecklessness here. When a law apparently violates a Charter right, such as freedom of expression, the "reasonableness" of that violation must be evaluated through the constitutional lens of "proportionality" (i.e. whether the harm caused by the violation is so serious as to outweigh the gains promised by the legislation.)

But what are the "salutary" effects of making child pornography legally available? The only one ever offered is that a free speech defence of it guarantees that political speech and serious works of imaginative literature will be similarly protected in law. That is the slippery slope argument at its slipperiest. It is absurd to argue that we will not be able to read Karl Marx, Plato, Mein Kampf, the Federalist papers, D.H. Lawrence, and Henry Miller unless Mr. Sharpe is able to read Flogging, Fun and Fortitude -- A Collection of Kiddiekink Classics.

But its "detrimental" effects, though they cannot be weighed with clinical precision, are nonetheless serious and well-established. Decades of research have shown child pornography makes the sexualization of children seem normal; creates a market that draws some, generally disturbed, children into it and gives criminals a financial incentive to coerce others to take part; encourages paedophiles (some of whom may try to resist temptation) to venture deeper into their vices; and, worst of all, incites them to abuse children.

Are these detrimental effects invariable and precisely calculable? No -- they are common and generally observed. Today, however, the so-called "precautionary principle" of scientific research is invoked (often without proper justification) to justify government regulation of bogus public health scares such as genetically modified foods. But child pornography is surely a case in which we should act upon it to defend the safety, liberty, and innocence of our children.

The Honourable Chief Justice Allan McEachern, the lone dissenter and voice of reason on the court, recognized as much. He stated as follows:

"Considering the importance of the objectives of the legislation, I am not prepared to second-guess Parliament on either the scope of the definition it chose ... or on the prohibition of simple possession."

Exactly right. If we cannot trust our MP to make a moral judgment on whether to criminalize the possession of child pornography, on what can we reasonably trust him to judge? And if the opinions of unelected judges are to prevail over Parliament's whenever they can ferret out some constitutional principle in the Charter as a vehicle for their own social prejudices, what is left of parliamentary democracy?

For this reason, Parliament should do what it should have done nearly six months ago: namely, invoke the notwithstanding clause (Section 33) of the Charter to overrule the imperialism of the bench and re-assert the will of the people. The clause -- part of the Constitution, we must point out to lawyers -- was placed there for just such an eventuality. We should not have to risk yet another failure in judgment at the Supreme Court of Canada.

And the failure of the government to act shows very clearly where its priorities are. Ministers would prefer to expose Canada to another year of legalized child pornography rather than clip, however lightly, the wings of the courts on which they rely to carry through those parts of the Liberal agenda the voters oppose.

Copyright © 1999 by The National Post. All Rights Reserved. Reprinted with permission.