The Toronto Star
Sunday, July 4, 1999

This child pornography law won't help children

by Richard Gwyn

There's no doubt that the child pornography law, Section 163.1 of the Criminal Code, is not merely badly drafted but is disgracefully badly drafted.

Even Shakespeare, who wrote of a 14-year-old Juliet, would risk having his manuscript seized.

Most troubling of all, any possession of anything is illegal. The law's definition of child pornography as encompassing, "any written material or visual representation that advocates or counsels sexual activity with any person under the age of 18" makes criminal - and so makes liable to a 10-year jail term - an individual's private sexual fantasies about not just children but late-aged teenagers, that he or she then expresses in a piece of private writing such as a diary, or in drawings and doodlings.

As Madame Justice Anne Rowles has written, this is "only one step removed from criminalizing simply having objectionable thoughts".

She and B.C. Court of Appeals Justice Mary Southin this week upheld an earlier B.C. Superior Court ruling in favour of convicted child pornographer John Sharpe. Their decision was that Section 163.1 violates the freedom of expression provisions of the Charter of Rights and Freedoms.

There is little doubt that judges Southin and Rowles are correct.

The real concern of the hastily enacted Section 163.1 was less Canada's vulnerable children than the country's then-vulnerable Conservative Party. The amendment was rushed through parliament in 1993, as one of the last acts of the Mulroney government, to show that Conservatives were every bit as supportive of "family values" as the then fast-rising Reform Party.

It's all to the good that the B.C. ruling is now going to be referred to the Supreme Court rather than be overturned by a resort to the Charter's notwithstanding clause, as Reform has demanded of the Chrétien government. Almost certainly, the Supreme Court will - as is long overdue - provide advice on how the child pornography law can be rewritten to do what needs to be done: that is, to contain child pornography, while avoiding bringing the state where it ought not to be, namely in the bedrooms of the nation.

Much of the storm of outrage over the B.C. Court's decision thus is misplaced. It has the perverse effect of making Sharpe seem a champion of freedom of expression, rather than a sad, solitary old man who has to fill up his solitary hours reading stuff like "Flogging, Fun, and Fortitude - A Collection of Kiddiekink Classics". He harms himself, no-one else.

Warnings by Reform and by the Canadian Police Association that the judgement will harm efforts to contain the spread of child pornography ignore the reality that it is only private possession that has been ruled constitutional, and therefore legal.

The production of child pornography remains criminal. Equally, the importation of child pornography and its sale or distribution. Equally, the possession of such material for the purposes of sale or distribution. That comprehensive range of prohibitions gives the police all the powers they need to do the job everyone wants them to do.

Yet by no means all of the public's outrage and unease is misplaced. It expresses a gnawing worry - also, a sense of guilt - that we are failing our children.

Which we are. The explicit sexuality of so much of our public entertainment - Jerry Springer being at the top of the ratings - does far more harm to the self-image and values of our children than the private consumption of explicit material about them. We know this. But we do nothing about it because TV is fun, entertaining, profitable - an expression of the God of the Marketplace before whom we all now bow down.

We bow down before that God in another way that harms our children. One in five of them is living in poverty, the highest proportion in any developed country.

But we would arouse the wrath of the God of the Marketplace if we increased taxes upon those who have, in order to give more to those who are poor.

A connection exists between the child poverty that we accept and the child pornography that we want to see rooted out. Judge Southin made it by observing of the children who pose for such material that, "Whether we like it or not, isn't it a fair assumption that they did it for money?"

It's when those, like Reform MPs, who are outraged by the private possession of child pornography (yes, it is disgusting), start to advocate public action to end child poverty that we'll know they are concerned with the children and not with politics.

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