OTTAWA -- Which is worse: The risk that kiddie porn might spread or the risk that the Charter of Rights could be undermined?
Despite a British Columbia court ruling striking down the federal kiddie-porn law in that province, Ottawa remains extremely reluctant to do anything to weaken the Charter.
And that is as it should be, University of Ottawa law professor Joseph Magnet said yesterday.
Parliament and the legislatures can override such judicial decisions by using the Charter's so-called notwithstanding clause.
But Parliament has never used it and that "seems to be in accord with the attitude of most Canadians", said Magnet.
Even the rare use of the clause by the provinces - Quebec and Saskatchewan - has generated "a lot of concern", Magnet said.
Reluctant to do anything
to weaken the Charter
"People think that (using the clause) demeans respect for fundamental rights. People think that it cheapens the Charter and that if used routinely over time, it would erode the Charter as one of our premier human rights statements."
In 1998, Alberta Premier Ralph Klein's government ignited a storm of controversy by introducing a bill to override the rights of victims of the province's sterilization law and was quickly forced to back down.
In the B.C. case, Justice Minister Anne McLellan tried to calm the country by noting:
McLellan declined to be interviewed yesterday but, when she faced a similar situation in February, she said premature use of the notwithstanding clause to preempt the appeal process in the child pornography case would be contrary to the long-term interests of Canadians.
"The use of the notwithstanding clause is a serious matter without precedent at the federal level", she told Parliament in February.
"Before we take such a serious step ... we have a duty to ensure that other mechanisms for addressing the situation have been tried and have failed.
No distinction between porn
and young-love stories
"This principle applies even in the most difficult circumstances, even when we are faced such as we are today with a decision (on kiddie porn) that has so very clearly elicited the concern of Canadians from coast to coast to coast."
As a parent, Magnet said he understands the concern over last week's B.C. decision. "Everybody agrees that the use of children for sexually exploitative acts is abhorrent."
But the law that was struck down in B.C. goes much further, and that may be why it was judged to be a violation of the Charter, Magnet said.
As written, the statute doesn't distinguish between what is clearly kiddie porn and young-love stories such as Romeo And Juliet, he said. "That's what has engaged the criticism of the courts."
McLellan says she is confident the law will ultimately be upheld by the Supreme Court of Canada. If it is not, Magnet said, Ottawa can rewrite the law to attempt to make it more acceptable to judicial scrutiny.