The Toronto Star
Sunday, July 4, 1999

No licence for child pornography

The sexual exploitation of children is repugnant.

It is easy to understand why many Canadians want Parliament recalled immediately to override last week's B.C. Court judgment striking down part of Canada's child pornography law.

But hasty legislation is what produced this mess in the first place. Pprotecting a poorly crafted law from future legal challenges would only compound the problem.

It is important to understand what the B.C. Court of Appeal did and didn't do.

The court ruled that one section of the Criminal Code, the law dealing with simple possession of child pornography, is so sweeping that it violates the Charter of Rights.

It did not question Parliament's right to outlaw the possession of child pornography.

Nor did it touch the provisions of the Criminal Code covering production, distribution, and dissemination of child pornography. All of those are still illegal.

The B.C. government has appealed last Wednesday's judgment to the Supreme Court of Canada. Federal Justice Minister Anne McLellan has said she will await the high court's ruling before taking action.

This is the right way to go. But it will take time.

Even if the Supreme Court accedes to McLellan's request for a quick hearing, a judgment is unlikely before the end of this year.

In the meantime, police in B.C. (the only jurisdiction to which the ruling applies) have no power to crack down on possession of child pornography. And lawyers in other provinces can use the B.C. ruling to defend clients in child pornography cases.

The opposition parties say this is unacceptable. They want Parliament to override the Constitution now to ensure that the existing law is upheld.

Certainly this would end the legal limbo created by the B.C. court's ruling. But it would sanctify a law that the courts have twice judged to be seriously flawed.

The circumstances under which Section 163.1 of the Criminal Code came about are worth reviewing.

It was spring of 1993. Prime Minister Kim Campbell was poised to call an election. But first, the Conservative government had one important piece of business to finish. It was determined to pass its tough new child pornography law.

This was the third time the Tories had tried to enact a sweeping bill outlawing child pornography.

Both of its previous attempts had run into a barrage of criticism from artists, magazine distributors, and civil libertarians.

Justice Minister Pierre Blais was not going to let Bill C-128 suffer the same fate. He and his colleagues rammed the legislation through Parliament in six weeks, gambling that it would survive a constitutional challenge.

It is unsettling that the challenge came from John Sharpe, a retired city planner who has made a crusade out of his appetite for pictures of nude boys. He gives freedom of expression a bad name.

It is unfortunate, too, that the emotional outcry over the judgment has obscured the court's real message. It did not say child pornography is right or legal. It merely said one section of the law is poorly worded.

It would be better to fix it than lock it in place forever.

Copyright © 1999 by The Toronto Star. All Rights Reserved. Reprinted with permission.