The National Post
Monday, July 5, 1999

B.C. court is just an unpopular messenger

As it stands, the porn law is a form of thought control<

by Jonathan Kay

Last week British Columbia's Court of Appeal ruled that Canada's law banning possession of child pornography is unconstitutional. Like the lower court decision that preceded it, the Court of Appeal's judgment has been attacked as a defence of paedophilia. "What this case has proven", claims Liberal MP Albina Guarnieri, "is that [the judge] puts the rights of paedophiles above the rights of children."

Of course, that is plainly untrue. Most of Canada's child porn law -- the provisions against production, importation and distribution of child porn -- was untouched by the judges' decision. Only the provision dealing with simple possession was struck down. Moreover, the decision should hardly have come as a surprise. The possession clause was identified as constitutionally suspect in 1993, when it was passed into law. Many commentators argued at the time that the law was introduced hastily, in the lead-up to an election with the Conservatives more intent on posturing as tough on crime than on protecting children. They also expressed skepticism about the law's wording, noting that the country would be left without any child porn law at all if the provision was overturned due to its deficiencies.

This warning has proven prescient. For all the talk we hear of judge-made law, B.C.'s judiciary is merely playing the role of unpopular messenger, telling people what many of us have known for six years. If Canadians don't like the result, they should take the issue to parliamentarians -- who can rescue the anti-possession clause with great ease. B.C.'s judges have not argued that every child porn possession law would be inherently unconstitutional -- only that the current regime is impermissibly broad, making a criminal of the lone essayist or doodler who privately records the fruits of his or her own imagination.

And here we get to the heart of the problem with the current statute. Virtually no judge or layman would object to a law narrowly targeting the possession of child porn that features real underage models. As Alan Borovoy, general counsel of the Canadian Civil Liberties Association, wrote in support of this proposition, "civil libertarians too wish to prevent child abuse". But it is one thing to proscribe the possession of photographs and movies that portray the abuse of real children, and another to proscribe the simple possession of commentaries and sketches whose creation owes nothing to the victimization of underage participants.

The B.C. Court of Appeal said the law, as it stands, is "only one step removed from criminalizing simply having objectionable thoughts". I would argue, actually, that the court is being too generous. The law is a form of thought control, full stop. Consider where the very idea of "thought control" was popularized -- in George Orwell's 1984. The seminal expressive act of the novel's protagonist, Winston Smith, was the writing of the words "down with big brother". "Whether he went on with the diary, or whether he did not go on with it, made no difference", wrote Orwell. "The Thought Police would get him just the same."

Had Smith been Canadian, and had he instead written "I advocate sexual activity with 17-year-old girls", then, if discovered, he might have spent five years in jail under the law struck down by B.C.'s court -- even if the Smith of my invention, unlike Orwell's, had been aged 17 himself.

Am I being dramatic here for the sake of illustration? Most definitely. Am I bending the truth? Not at all. My example is entirely within the ambit of the stricken statutory provision. In the Post, Mark Hume wrote that examples of the sort I am presenting should be ignored because "what parliamentarians were thinking about were children. They were thinking about the little kids who are sexually abused."

Let's put aside the fact that, as already indicated, most parliamentarians were probably thinking more about posturing politically than about protecting children. The nub of the matter is that it is of no particular importance what noble motives politicians announce to the public when enacting unconstitutional legislation. Illegal laws must be stricken -- and Canadians should not blame the courts when Parliament puts them in a position where they must act on that simple truth.

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