The need for the Supreme Court to clear the air has become more urgent after the British Columbia Court of Appeal, in a 2-1 decision, struck down the law against possession of child porn. In our view, the two judges on the majority put excessive emphasis on the protection of freedom of expression. We support the dissenting ruling by Chief Justice Allan McEachern, who argued that the benefits of the law far outweigh the protection of people possessing the smut.
While we hope that Canada's highest court will endorse McEachern's sense of priorities, there are no guarantees. The court of appeal's ruling follows a decision in January by B.C. Justice Duncan Shaw to dismiss possession charges against John Robin Sharpe. Evidently there is considerable sympathy in the courts for the theory that the possession law is too broad because it could conceivably infringe on the rights of others who have no interest in sex with children.
The potential loss of freedom of expression is the stumbling block. It's the job of the courts to ensure that laws take into account the individual liberties of citizens as protected by the Canadian Charter of Rights and Freedoms, and to render a balanced judgement. The two judges on the majority were undoubtedly well-intentioned in expressing concerns about a possible abuse of rights. But they were on thin ice in suggesting that police might start prosecuting youths who record their own, consenting sexual activity in private and keep photos or tapes in their possession. There would be outrage if this were to happen, and rightly so. The law is intended to tackle the realities of child molestation, not people who make home videos for their own use.
If there are problems in the wording of the law, the Supreme Court of Canada iss the best place to address them. The federal government made the right call in supporting the B.C. government's strategy of appealing the ruling and pressing for a fast-track decision by Canada's highest court. That's a more practical way of sorting out the issues than the Reform party's more drastic idea of recalling Parliament to override the decision using the Constitution's notwithstanding clause.
The guidance of Canada's highest court should be a prerequisite before the politicians start tinkering with a law designed to reflect society's disgust with child pornography and the wrongdoing that goes with it.