How the state protects children from harm caused by child pornography was debated in the B.C. Court of Appeal yesterday as a high-profile case against a Vancouver grandfather reached the province's highest court.
Lawyers for the governments of B.C. and Canada and for admitted pedophile John Robin Sharpe agreed that child pornography is bad. But Sharpe's counsel said the law prohibiting mere possession of it, enacted in 1993, goes too far.
"The impugned legislation is drafted so widely that it has the potential to catch or criminalize conduct the government is constitutionally not permitted to catch", Gil McKinnon, one of two Queen's Counsel representing Sharpe, told a three-judge panel.
"It catches conduct that cannot, by any stretch of the imagination, assist the government in its laudable objective of the protection of children."
Representing the provincial attorney-general's department, which is appealing the dismissal of two charges of possession of child pornography against Sharpe, John Gordon argued possession should be restricted because it causes some pedophiles to act out their fantasies on children.
The case caused a nationwide stir in January, when B.C. Supreme Court Justice Duncan Shaw threw out two charges of possession, which he ruled were unconstitutional. Since then, 18 possession cases have been put on hold pending the appeal.
Shaw did not find fault with the law on trafficking in child pornography. Sharpe, 66, who has no criminal record, will appear June 28 on two trafficking charges.
Gordon told B.C. Chief Justice Allan McEachern and Justices Mary Southin and Anne Rowles that Canada owes a duty to other countries to fight child pornography, which proliferates on the Internet, making it nearly impossible to catch consumers.
"Many nations have criminalized possession of child pornography based on [certain] indirect harms to children", said Gordon.
"The sexualization and erotification of minors has a deleterious effect on [their] psychological development."
He drew a parallel between the child-porn law's infringement of liberty and the law against hate literature, which he said is a reasonable limit on free speech.
McKinnon is to complete his submissions before yielding the floor to co-counsel Richard Peck.
Lawyers for the B.C. Civil Liberties Association, police, victims and a Christian group have all been granted standing before the court, which will finish hearing arguments today.