The National Post
Thursday, April 15, 1999

Protecting children outweighs benefits of porn possession, Ottawa argues

Court documents: Government challenges B.C. ruling

by Janice Tibbetts

OTTAWA -- The federal government yesterday mounted a vigorous defence of its law banning child pornography, arguing in a court submission that possession fuels the sexual fantasies of paedophiles and will lead to the sexual abuse of children.

"The fundamental and overriding importance of protecting children from all forms of sexual abuse far outweighs any possible benefit from permitting people to possess child pornography", the federal government said in a document filed in the B.C. Court of Appeal.

"The creation of pornographic images of children being sexually abused constitutes a permanent record of their abuse and exacerbates the harm and humiliation suffered by the children involved."

The court will hear a challenge April 26-27 to a widely maligned ruling from Justice Duncan Shaw of the B.C. Supreme Court who declared three months ago that Ottawa's six-year-old law against child porn is unconstitutional.

People across the country were outraged at Judge Shaw's decision to clear Robin Sharpe, a retired city planner, of possession of child pornography because the Criminal Code provisions outlawing possession were a "profound" violation of his right to freedom of expression and personal privacy.

The ruling left B.C. courts powerless to prosecute anyone who owns child porn. One case was thrown out immediately following the Jan. 15 decision and numerous others have been put on hold pending the outcome of the Court of Appeal ruling. The ban still holds in the rest of Canada.

Despite Ottawa's spirited written defence, critics said that the federal government should be doing more than simply intervening in court and letting the case wind its way through the justice system.

"It's definitely not enough because at this time the meter is running on the number of people who stand with charges that have been set aside and the problem is . . . they're going to be dismissed as a result of taking too long", said Jim Abbott, the Reform crime critic from B.C.

The Reform party failed in its bid this year to get the federal government to quash the court ruling by using the "notwithstanding" clause of the Constitution, a safety valve of sorts that allows governments to override unpopular court rulings.

Anne McLellan, the Justice Minister, argued that the federal government believes its law is sound and she is confident it will be upheld by the higher court.

"I think it's a very strong factum and it makes the federal government's views very clearly in terms of our belief that that law is constitutional", she said yesterday, referring to the court submission.

The 33-page document notes that courts in Ontario and Alberta already have upheld the federal law, which makes it a criminal offence to produce, publish, distribute or possess "obscene things."

Children, in particular, are a vulnerable group who need "special protection", said the submission.

"Possession of child pornography, whether visual or written, fuels the sexual fantasies of pedophiles and will lead some paedophiles to act upon their fantasies and abuse", the submission says.

The federal government relies heavily on a 1995 Supreme Court of Canada ruling which did not deal specifically with child porn but offered guidelines that would essentially outlaw porn deemed to be "of harm to society."

Ottawa dismisses out of hand the defence argument that its laws violate freedom of expression, saying the only possible freedom it hampers is that of sexual gratification.

"The Charter was not intended to permit any group to pursue self-fulfillment at the expense of another group", says the submission.

"Just as hate literature hinders the ability of the target group to develop a sense of self-identity and belonging, child pornography is expression which hampers the ability of children to develop a sense of worth and dignity."

The Justice Department is asking that if the appeal court uphold's Judge Shaw's decision, that is suspends its judgment for a year to give Parliament time to address the issue.

Copyright © 1999 by Southam, Inc. All Rights Reserved. Reprinted with permission.