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The National Post
Saturday, January 16, 1999

Top B.C. court strikes down child-porn law

Possession is legal: judge.
Defendant claimed law infringed his constitutional rights

by Francine Dube,
with files from Mark Hume, Elena Cherney,
and The Canadian Press

[John Sharpe]
John Sharpe defends paedophilia.
Photo: Steve Bosch
Possession of child pornography is not a crime, a British Columbia judge has ruled.

"There is no evidence that demonstrates a significant increase in the danger to children caused by pornography", wrote Justice Duncan Shaw of the B.C. Supreme Court in his ruling, which was released yesterday.

The decision is binding on provincial courts in British Columbia. It may be cited in courts outside the province but is not binding on them. The provincial attorney-general's office is considering whether to appeal.

The man who stood accused of four charges of possession of child pornography is John Robin Sharpe, a 65-year-old divorced father of two from Surrey, B.C. He represented himself in the case, arguing the prohibition against the possession of child pornography was an infringement of his right to freedom of conscience under the Charter of Rights and Freedoms.

In April, 1995, police found computer discs in his home containing a text entitled Sam Paloc's Flogging, Fun, and Fortitude -- A Collection of Kiddiekink Classics, among other pornographic writings and photographs. A year later, another search of his home turned up more pornographic books, manuscripts, and stories involving children.

The material was graphic and explicit, including photographs of nude boys displaying their genitals.

Mr. Sharpe openly admits that he likes child pornography, and defends the practice of what he calls "inter-generational sex".

"This is not a confession. But intergenerational sex, particularly involving adolescent boys, is a practice of long standing in society", he said in an interview yesterday.

A former community planner in Ottawa, Saskatoon, and for the Comox-Strathcona Regional District on Vancouver Island, Mr. Sharpe defended himself, rather than hire a lawyer to represent him.

He has also been charged with distributing child pornography and will appear in court Feb. 1.

The Crown argued that possession of child pornography puts children at risk from paedophiles. A specialist in forensic psychiatry, who treats people with sexual deviancies, testified that pornography excites some child molesters to commit offences and reinforces erroneous beliefs paedophiles use to justify their aberrant behaviour.

At the very least, Dr. P.I. Collins testified, the children shown in the photographs are abused in the making of pornography, and pornographic films or photographs are a record of their abuse.

Judge Shaw wrote that "only assumptions" support the idea that child pornography incites people to have sex with children.

"A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography", his decision states.

He writes that it's debatable that laws against possessing child pornography protect children and, given that fact, do not justify invading someone's privacy.

"Books, diaries, pictures, clothes, and other belongings are personal and private expressions of their owner's beliefs, opinions, thoughts and conscience", he wrote. "The simple possession prohibition deals with a very intimate and private aspect of a person's life and, in my view, that fact should be given considerable weight. I find that the limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects."

Judge Shaw struck down the section of the Criminal Code dealing with possession of child pornography, saying it contravened charter rights of freedom of thought, belief, opinion, and expression. This could affect the cases of child pornography already before the courts in B.C.

A spokesman for the criminal justice branch of the Ministry of the Attorney-General said a decision will be made next week on whether to appeal the decision.

"If it's not overturned, it's a very disturbing precedent", Nicholas Bala, a law professor at Queen's University in Kingston, said. "I don't think he gave enough weight to the harmful effects of child pornography, particularly the fact that some of this material is produced using children."

Pierre Gratton, press secretary to Anne McLellan, Justice Minister, said he is aware of the ruling.

"We continue to be concerned with anything having to do with child pornography and we will closely review this decision", he said.

A 1992 Supreme Court ruling on pornography upheld the ban on child pornography and makes it difficult to understand Judge Shaw's ruling, Julius Grey, a Montreal constitutional lawyer and McGill University law professor, said.

Justice John Sopinka, the late chief justice of the Supreme Court who wrote the court's unanimous ruling in the 1992 Queen v. Butler pornography case, called it "a reasonable restriction on freedom of expression."

Such acts, Judge Sopinka wrote, "appeal only to the most base aspect of individual fulfillment" and don't merit constitutional protection. In upholding the partial ban, the Supreme Court took into consideration the lack of concrete evidence linking pornography with social ills.

Mr. Grey said the 1992 decision means there's a strong chance Judge Shaw's decision will be overturned on appeal.


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