People caught with child pornography in B.C. won't be prosecuted until Canada's highest court has ruled on the case of John Robin Sharpe.
The B.C. Court of Appeal found in favour of the elderly Kitsilano pedophile yesterday and ruled it is not a crime to possess child pornography in B.C.
Attorney-General Ujjal Dosanjh said he will appeal the decision to the Supreme Court of Canada.
"We should really seek the advice and counsel of the Supreme Court of Canada on what it believes with respect to this provision of the Criminal Code", he said.
About three dozen child-pornography cases in B.C. are on hold -- some have already been dismissed -- and Dosanjh said adjournments will be sought in fresh cases until a ruling by Canada's top court.
When Sharpe, 66, was charged with possessing child porn, he argued in B.C. Supreme Court that the charges violated his constitutional right to freedom of expression. Justice Duncan Shaw agreed.
Justice Mary Southin, who sided with Justice Anne Rowles in dismissing the Crown appeal, said that outside of the War Measures Act of 1914, "I know of no other Canadian legislation except the section here in issue which has ever made the simple possession of any expressive material a crime."
"It is not a crime to possess expressive material which advocates genocide ... which is seditious, and it is not a crime to possess that which is obscene."
She said the law against simple possession of expressive material "bears the hallmark of tyranny".
Rowles said the ban on possessing child pornography "is truly only one step removed from criminalizing simply having objectionable thoughts."
"The Charter should never . . . permit the state to regulate an individual's private recorded thoughts, no matter how objectionable those thoughts may be."
But Chief Justice Allan McEachern said the trial judge didn't take into account the fact that children are often harmed in the making of child pornography "and the risk of future exploitation of other children as a consequence of creating a market for this kind of material".
Justice Minister Anne McLellan said she is disappointed by the ruling but noted the law is still in force in nine provinces and three territories.
Reform leader Preston Manning called on Ottawa to recall Parliament and use the Constitution's notwithstanding clause to override the decision.
"We think the safety of children simply can't wait for a further appeal to wind its way through to a Supreme Court decision", Manning said.
But the B.C. Civil Liberties Association's John Dixon said using the notwithstanding clause is a bad idea because it would sustain a bad law.
Dixon called the Reform party's suggestion "grandstanding -- the same kind of craven political pandering that created a climate that produced this law in the first place".
Lawyer Richard Peck, who fought Sharpe's battle without pay, said: "This legislation was really run through by Parliament with little meaningful debate."
Sharpe, who has received death threats, said: "It's not cheap to stick up for what you believe is right."
He still faces two charges of possessing child porn for distribution or sale.
Police raided John Robin Sharpe's home in April 1995 and seized materials including photos of nude boys and a collection of short stories Sharpe had written called Sam Paloc's Flogging, Fun, and Fortitude: A Collection of Kiddie Kink Classics.
Sharpe was represented briefly by Tourism Minister Ian Waddell, who was then not an MLA. Waddell later withdrew.
Sharpe tried to subpoena Waddell, who had served on a House of Commons committee that studied the child-pornography law, but Waddell had the subpoena quashed.
In January, B.C. Supreme Court Justice Duncan Shaw ruled the law against possessing child porn violates freedom of expression.
Sharpe, who is a father of two grown children and is a grandfather, has operated a group home for disturbed teens and taught many students under 18. He says he's never been convicted, charged, or warned by police about any offence involving children.
About three dozen child-pornography cases in B.C. are on hold, and Attorney-General Ujjal Dosanjh said Crown counsel will seek adjournments in new cases until the Supreme Court of Canada hears the John Robin Sharpe case.
After the B.C. Supreme Court ruled in Sharpe's favour last January, several porn cases were dismissed: