Child Pornography Law Struck Down

The tremendous power of judges under the Charter of Rights reverberated across Canada in January when Mr. Justice Duncan Shaw of the BC Supreme Court struck down a part of the 1993 child pornography law -- the part which prohibits the possession of such material.

The case arose when the defendant, 65-year old John Sharpe, appearing on his own without a lawyer, argued before the court that his freedom of conscience under the Charter of Rights was violated by the child pornography law, which prohibited him from possessing child pornography.

Judge Shaw, in a very confused judgement, concluded that although child pornography may be harmful, such harm was not sufficient reason to interfere with Mr. Sharpe's Charter right to freedom of conscience. Judge Shaw went on to state that a person's right to explore material depicting children as vehicles of sexual gratification was an essential part of that person's intimate and private life which should be given considerable weight. What Judge Shaw apparently failed to understand is that possessing and viewing child pornography is intrinsically harmful and corrupting, and is, therefore, morally reprehensible. One's right to "expression" cannot be used to trump legislation which purpose is to protect vulnerable children.

In short, although it is true that people are free to think any thoughts they want, when such thoughts are fuelled by child pornography, which actually does real harm to real children (e.g., the ones in the pictures), then the "expression" right should not have priority.

The reality is that a single judge, under the Charter, has thrown out a law that Parliament, in its wisdom, passed in order to protect innocent children from violation and abuse. Should not the right to protection of vulnerable, helpless children have priority over a 65-year-old man who wants to amuse and titillate himself by looking at graphic and explicit pictures of nude boys displaying their genitals? Who are these little boys, so cruelly exposed? Don't they have a more compelling right to protection?

Mr. Sharpe openly defends the practice of what he calls "inter-generational sex," arguing that there is nothing wrong with an adult having intercourse with a "consenting" child. In this regard, it is troubling that Allan Borovoy, counsel for the Canadian Civil Liberties Association, is quoted in the National Post, (January 16, 1999) as stating that he has long had concerns about the child pornography law which, he suggests, goes too far since it restricts "legitimate material and even works of art." Child pornography can NEVER be considered a work of art and the loophole in the child pornography law which provides that exception must be shut!

Artists, like everyone else, must accept responsibility for their actions. As a plumber or physician is held responsible, so, too, must an artist for any work that he creates. If his work is the cause for harm to others, it cannot be excused on the basis that it is "art."

Neither the Attorney General of BC, Ujjal Dosanjh, or the federal Attorney General, Anne McLellan, seem prepared to act quickly and decisively, although Ms. McLellan has announced that her department will seek intervenor status in the appeal and Mr. Dosanjh has advised Crown Prosecutors to seek adjournments in active cases until the province's appeal is heard. These are at least steps in the right direction.

To protect vulnerable children from harm, the most effective solution, however, would be for the federal Parliament to enforce the notwithstanding clause (S.33 of the Charter of Rights) which would bypass the court ruling and reaffirm Parliament's prohibition of possession of child pornography. Liberal MP, Albina Guarnieri (Mississauga East) had gathered the signatures of 70 backbench Liberal MPs and seven Senators in a letter to Prime Minister Chrétien, which calls for the invoking of this constitutional override provision. Justice Minister McLellan, however, has called the invoking of S.33 "foolish."

On February 2, the Reform party brought a motion to invoke S.33, but it was defeated 143 - 129. Only 4 Liberal MPs of the many who had signed the above letter, had the courage to vote for this motion. In effect, they were the only ones who answered the call of their conscience rather than the dictatorial rulers of the Liberal party. At least this vote laid open, for all to see, the tyranny of the Liberals. The 4 Liberal MPs, all from Ontario, who defied their master were: Albina Guarnieri (Mississauga East), Paul Steckle (Huron-Bruce), Rose-Marie Ur (Lambton-Middlesex) and Dan McTeague (Ontario). All of these MPs expect sanctions against them for their vote.

It is expected that it will take approximately 3 years for the decision of Mr. Justice Shaw to make its way up to and be finally settled by the Supreme Court of Canada. In the meantime, as Mr. Sharpe remains entitled to his pornographic pictures, how are the vulnerable children used to create such images going to be protected?

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