Government lawyers appealing the dismissal of child-pornography possession charges faced some tough questions Monday from a B.C. Court of Appeal judge who challenged the law's application.
Justice Mary Southin at one point asked how a 16-year-old girl (two years past the age of consent) posing for sexual photos would fare under a law that defines child pornography as material that depicts children under the age of 18.
Crown counsel John Gordon replied that he didn't know how the law would be interpreted in that circumstance.
In January, B.C. Supreme Court Justice Duncan Shaw dismissed two charges of possession of child pornography against Vancouver resident John Robin Sharpe, saying the law violated the Charter of Rights and Freedoms.
Sharpe, a 65-year-old retired city planner, was charged with possession of child pornography after customs officials and police seized computer disks, books, stories, and photographs depicting nude children.
Shaw's ruling led to several other child-pornography cases being delayed across the province -- and calls from some politicians, notably members of the Reform party, to invoke the Charter's notwithstanding clause to throw out the ruling even before an appeal was heard.
Shaw also received a death threat as a result of the ruling.
Crown lawyer Gordon faced several pointed questions from Southin as he asked the court to reverse Shaw's ruling Monday.
(The case is being heard by Southin, Chief Justice Allan McEachern, and Justice Anne Rowles.)
Gordon argued that possession of child pornography needed to be illegal to help stamp out its production and distribution.
Southin replied: "These sound like all the arguments that were advanced in the United States to support [alcohol] Prohibition. And look at the result. It just made everything worse."
Southin said she was particularly troubled by the fact the law defined child pornography as material that depicted children under the age of 18, while the age for sexual consent is 14.
"That's what troubles me about this legislation -- its relationship to the age of consent."
Southin asked Gordon if a 17-year-old boy who took sexual pictures of his 16-year-old girlfriend could be charged with possession of child pornography under the law -- and if the woman herself, if she cooperated, could be charged as an accomplice.
Gordon had to admit he couldn't answer that question.
In one of the most striking encounters, Southin said it appeared to her that some of the children in Sharpe's photographs were from the Third World.
"Whether we like it or not, isn't it a fair assumption that they did it for the money?" Southin asked. "What are we doing pontificating about what street kids do in Brazil?"
Crown co-counsel Kate Ker responded that Canada has international obligations to protect children abroad from harm.
"Don't we have an obligation to stop kids from starving on the streets of Brazil?" Southin responded. "Sometimes . . . the only thing they have to sell is themselves. ... That's the problem with all these arguments. They all sound fine until you start looking at the real world."
Sharpe, who was very outspoken after he won his case in January, was more leery of the media spotlight Monday.
He has shaved off his moustache and ducked journalists' cameras throughout the day.
But he said briefly outside court that he felt it was important to challenge the law.
"I feel I'm doing a public service", he said. "It's a bad law. Someone has to tackle it."
Gordon had argued that permitting possession of child pornography also maintains the market for pornography and encourages its production and distribution.
The argument that the law infringes on freedom of speech was also challenged by Gordon, who said free speech is chiefly meant to encourage open debate and the search for truth.
"Some forms of expression are more deserving of protection than others", Gordon argued.
He also challenged Sharpe's argument that the law infringes on the right of society to debate issues involving child sexuality, such as lowering the age of consent.
"You can explore issues of child sexuality without writing a story about the rape and beating of a 10-year-old boy", Gordon argued. "[This material] is not lofty and cerebral. It is base and physical."
Gordon concluded his arguments Monday and one of Sharpe's lawyer, Gil McKinnon, began his presentation outlining his client's central argument that the law is "too broad in that it catches conduct that cannot -- by any stretch of the imagination -- assist the government in attaining its lawful objective of protecting children."
McKinnon and co-counsel Richard Peck will continue their arguments today.
Timothy Danson, who is representing the Canadian Police Association and several victims' rights groups, argued briefly Monday that the law against possession of child pornography was a vital investigative tool for police -- allowing them to crack secretive child-pornography rings, whose distribution of pornography is harder to prove.
More than a dozen lawyers were in court Monday representing various groups that are intervening in the appeal. The B.C. Civil Liberties Association is the only organization supporting Sharpe. The federal attorney-general is intervening in support of the Crown. Also supporting the appeal are numerous victims' rights, children's rights and religious groups including the Canadian Police Association, CAVEAT, and the Evangelical Fellowship of Canada.