The Vancouver Province
Thursday, July 1, 1999

B.C. police, Crown to pursue child pornographers despite ruling

by Ian Bailey

John Sharpe
"It's part of their politicking", said Sharpe. "They have to look like they're out protecting children despite these adverse decisions."
VANCOUVER (CP) -- British Columbia's prosecutors and police are warning child pornographers not to expect a break from legal attention amid the legal chaos around Canada's child porn law. Police said they plan to keep investigating pornography cases.

And the Crown will lay charges, working around the complexities raised by an appeal court ruling that has effectively killed the law against possession of such material.

"The system is still intact," says Geoffrey Gaul, a spokesman for Crown attorneys in B.C. - ground zero for the bombshell rulings that started with the January acquittal of John Robin Sharpe.

"Police will continue to investigate allegations of criminal activity, and Crown counsel will review reports that police file, keeping in mind the decision of the Court of Appeal."

The initial ruling struck down the law against basic possession of child pornography as constitutionally invalid. British Columbia's Court of Appeal upheld that ruling this week in a split decision.

"All we have is a declaration that one subsection (of the law) is constitutionally invalid," said Gaul.

The Crown will seek adjournments on cases now before the courts.

Gaul noted that Crowns may also try to sever possession charges from the package of charges facing suspects, attempting to keep the suspects before the courts.

A spokesman for the RCMP, which polices most of British Columbia, said its officers will continue their work on such files.

"We will continue to investigate these reports to the extent that we're allowed in law," said Cpl. Grant Learned.

The man whose situation prompted the rulings scoffed at the confidence of the legal authorities.

"It's part of their politicking," said Sharpe. "They have to look like they're out protecting children despite these adverse decisions."

Sharpe, 65, was charged after police and customs agents seized material including photos of nude boys and a collection of short stories he had written.

The retired city planner defended himself in B.C. Supreme Court, arguing the charges violated his constitutional right to freedom of expression.

In January, Justice Duncan Shaw agreed, detonating an explosion of criticism around the country. Shaw even received a death threat.

Although it is no longer a crime to possess child pornography in British Columbia, other aspects of the law remain in effect.

Lawyers in other provinces can cite the case when defending their clients, although the B.C. ruling is not binding elsewhere.

Now, the situation is heading for the Supreme Court of Canada.

B.C. Attorney General Ujjal Dosanjh said the province will appeal the appeal court ruling, and is hoping for a quick hearing so Canada's highest court can sort out the situation.

"If the attorney general of B.C. perfects its appeal quickly, they can bring a motion so this can be heard before Christmas," said lawyer Ted Danson, who represented the Canadian Police Association during two days of hearings on the matter in April.

Sharpe is pleased.

"I'd like to see the law rewritten in a more rational way," he said.

So, too, would John Dixon of the British Columbia Civil Liberties Association.

The association endorses laws against child porn, but sees the current law, enacted in 1993 by Conservative justice minister Pierre Blais, as too broad.

"People rushed this legislation through a dying Parliament with a view to making some political points," said Dixon, an adviser to Blais' successor, Kim Campbell.

Dixon indicated that no one expected the law to survive a constitutional challenge.

But he suggested there is little political reward in calling for restraint on child porn laws.

"It makes far more political sense to create legislation that slakes an appetite, that can be turned into votes and blame the judiciary after the fact when they have to tidy it up," he said.

The following are excerpts from the B.C. Court of Appeal judgment against Canada's law against possessing child pornography.
Justice Mary Southin:

... First, a legislative provision which makes criminal the possession of material which advocates certain behaviour when advocating that behaviour publicly is not itself a crime seems to me to lack all reason. That which is not "reasonable" cannot be a "reasonable limit".

... To make criminal the private possession of expressive material of any kind is or ought to require the most compelling evidence of necessity.

Justice Anne Rowles:

... By proscribing the mere possession of expressive materials, including the recording of one's own thoughts and the works of one's own imagination profoundly violates freedom of expression.

... While the impugned provision is unlikely to alter appreciably the harm caused to children, the extent to which it trenches upon the values of liberty, autonomy, and privacy that lie at the heart of a free and democratic society is increased dramatically.

... (The law) is truly only one step removed from criminalizing simply having objectionable thoughts. The Charter should never, or perhaps only where the most pressing need is demonstrated, permit the state to regulate an individual's private recorded thoughts, no matter how objectionable those thoughts may be.

... Where a provision has been found to be impermissibly overbroad, it is no answer for the government simply to fall back on the importance of its objective in enacting the legislation. To countenance such an approach would ultimately eviscerate the rights and freedoms guaranteed by the Charter.

Copyright © 1999 by The Canadian Press. All Rights Reserved. Reprinted with permission.