VANCOUVER -- Police efforts to contain the spread of child pornography in Canada will grind to a halt unless the courts overturn a British Columbia ruling that federal laws violated an individual's right to freedom of expression, the British Columbia Court of Appeal heard yesterday.
"They will be placed in a legal straitjacket and the child-pornography industry will flourish", said Tim Danson, a lawyer representing the Canadian Police Association.
What the court is pondering are difficult legal questions regarding where an individual's rights end and where society's obligation to protect its children from sexual exploitation begins.
Mr. Danson opened the hearings with an attempt to introduce as new evidence an affidavit from Detective Inspector Robert Matthews, the officer in charge of the Ontario Provincial Police child-pornography unit.
Det.-Insp. Matthews said that if possession of child pornography is made legal, "police would be completely stymied in their efforts to combat the spread of child pornography", which is speeding up because of the Internet.
He said that before child-pornography legislation was passed in 1993, police found it almost impossible to investigate and prosecute people for collecting and disseminating pornographic material involving children, and were making only one or two arrests a year in Ontario.
"After passage of Bill C-128, this number skyrocketed. In 1998 alone, Project 'P' (the child pornography unit) handled as many as 134 investigations and prosecutions", he said.
"I verily believe that the principal reason for this dramatic change was the inclusion of possession of child pornography as a criminal offence."
Det.-Insp. Matthews said that without the legislation that is now under scrutiny, "the fight against child pornography will be greatly undermined at the very time that the spread of such offensive material is increasing dramatically."
The legislation was cast in doubt last January in a case against John Robin Sharpe, a retired town planner who was arrested after a raid on his Vancouver apartment.
Mr. Sharpe, who initially represented himself in court, won a victory when Duncan Shaw, a B.C. Supreme Court judge, ruled the state had violated his right to privacy and freedom of expression when they entered his apartment and seized pornographic material, much of which he'd written himself.
Within weeks of the ruling, the courts in B.C. had turned aside 18 other child-pornography cases, saying they could not deal with them until appeal courts made it clear whether or not the legislation was valid.
That question brought a dozen lawyers and three judges to the Vancouver courthouse yesterday, as John Gordon and Kate Ker opened arguments for the Crown.
Mr. Gordon said that child pornography not only exploits the children who are depicted in the photographs and videos, but the material plays an important role in "grooming" other children for seduction.
He said pornographic material is frequently used by paedophiles as a tool for lowering the inhibitions of future child victims.
He cited the case of one man, identified only as K.L.B., who was arrested after he was found in possession of a pornographic photo of a five-year-old girl, which he had been showing to a two-year-old girl.
Mr. Gordon said that in the Sharpe case, the Supreme Court judge erred in focusing on the privacy rights of an individual, and neglecting to adequately consider the rights of children who could be exploited by exposure to pornography.
He said the threat of pornography is increasing because of the expansion of the Internet, which allows such easy distribution.
"This is an underground market", he said. "Not only is it underground, it is clandestine and, through the medium of the Internet, it is anonymous."
Mr. Gordon said that one argument against criminalizing the possession of pornography is that it might make it illegal to explore issues surrounding the topic of child sexuality.
"You can explore the issue of youth sexuality without pornographic pictures and stories", he said. "You don't need that . . . You just don't need the dirty pictures, you don't need the dirty stories."
But Justice Mary Southin, one of three judges hearing the case, which is expected to end today, told him that society's definitions change, often dramatically and in short periods of time.
She noted that Lady Chatterly's Lover was once considered shockingly pornographic, but now isn't.
"It's all dreadful stuff . . . and badly written", she said of the pornographic material seized by police in a raid on Mr. Sharpe's home.
"I don't think Lady Chatterly's much of a book, either. (But) I don't know how you draw the distinction."
She said just because some people find the subject matter offensive, that's no reason to throw a blanket ban over a subject.
"There are graphic books written about rape and all sorts of things, but we don't ban them", she said.
Mr. Gordon argued that there is no excuse for any material, written or graphic, that promotes sexual offences against children.
"There is no good child pornography", he stated.
"Like hate literature, it deserves only marginal protection."
Justice Southin also expressed concern about the definition of "children", saying that while the legislation establishes the age of consent at 14, that seems to be out of step with some of the things happening in the world.
Judge Southin asked the Crown why some of the children depicted in the Sharpe pornography case are considered exploited, when it appears they posed for sexually graphic pictures for profit.
"Whether we like it or not, isn't it a fair assumption that they did it for money?" she asked.
She also noted that some of the children appeared to be from Third World countries, and wondered what legal grounds Canada had for being concerned about them.
"What are we doing pontificating about street kids in Brazil?" she asked in a provocative exchange. When Ms. Ker, Mr. Gordon's co-counsel, replied that Canada had international obligations, Justice Southin fired back: "We don't have international obligations to stop kids starving to death in the streets of Brazil, do we?"
Ms. Ker said Canadians should not be involved in exploiting children in Brazil or anywhere.
But Judge Southin said concepts such as integrity and autonomy are often dictated by economic realities, and poor children -- like poor women who are forced into prostitution -- might have different views than those held by white, middle-class Canadians.
"That's the trouble with these arguments", she said. "They all sound fine until you start looking at the real world."
Judge Southin suggested that perhaps the views Canadians have about child pornography may change over time, perhaps to the point where it becomes acceptable.
"It has not reached that stage and it appears unlikely that it will", replied Ms. Ker.
Judge Southin also questioned Mr. Gordon about the effectiveness of the child-pornography laws, saying while they may make it easier to arrest and prosecute adults, that doesn't necessarily mean they do much to protect children.
"Will it work?" she asked.
"These sound like all the arguments around in the United States for prohibition . . . It made it worse."
She noted that the sexual exploitation of children was a fact long before the Internet emerged, and appears to have little to do with the dissemination of pictures or stories.
"People offended against children in Roman times, when practically nobody could read or write except for the upper classes", she said.
"It will continue to exist in our society", replied Mr. Gordon. "(But) we cannot throw up our hands and say 'What's the point?' "
The case continues.