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ANOTHER BULLET HITS THE CHILD PORNOGRAPHY LAW

Mr. Justice Duncan Shaw of the Supreme Court of BC, for the second time, has re-written the child pornography law to his own liking. In doing so, he has been assisted by the decision last year of the Supreme Court of Canada on child pornography, as well as loopholes written into the child pornography law itself, when it was passed back in June 1993.

Mr. Justice Shaw pounced on both these openings to give the accused paedophile, Robin Sharpe, who admits that his great passion is the exploration of sexual relationships between men and boys, the benefit of the doubt, and to find him not guilty of possessing child pornography in regard to a 243-page document he wrote, consisting of 17 short stories dealing with boys under 12 years of age. These stories described man-boy and boy-boy sexual relations, including fellatio, sadism and torture.

Mr. Justice Duncan Shaw did, however, find Mr. Sharpe guilty of possessing child pornography in regard to his collection of approximately 500 photographs of boys under 12 years, most displaying their genital organs or anal regions and some depicting the boys engaged in explicit sexual activity. The majority of these photographs were taken by Mr. Sharpe himself in Sri Lanka and other Asian countries.

Mr. Justice Shaw's conclusion that Robin Sharpe's writings were not in violation of the child pornography law is highly controversial.

Background of the Case

At Mr. Sharpe's first trial, Mr. Justice Shaw concluded in his decision handed down in January 1999, that Robin Sharpe was not guilty of possessing child pornography (S.163 (1) (b) of the Criminal Code) on the grounds that child pornography was an integral part of Mr. Sharpe's character. To refuse him access to this material was to deny him freedom of expression, opinion, etc., in violation of the Charter. Mr. Justice Shaw then struck down the child pornography law. (See Reality, January/February,1999. "Child Pornography Law Struck Down," page 3.)

However, in January, 2001, the Supreme Court of Canada overturned this decision and upheld the child pornography law. However, in its wisdom, the Court decided to read in "improvements" to the law to protect private works of the imagination, whether written or visual, not for distribution, and private photographic depictions of legal sexual activity between persons able to give their legal consent (age 14 and older). (See Reality, January/February 2001, "The Child Pornography Law and the Supreme Court of Canada," p. 4.) Importantly, in this decision, the Supreme Court of Canada also accepted the loophole in the child pornography law, which stated that child pornography would not be contravened if it had artistic, educational, medical, or scientific value.

In short, the child pornography law provided that "artistic" merit (and educational, scientific and medical merit) outweighed any harm that might result from the sexual exploitation of children. This is a very disturbing loophole.

Written Material Does Not Counsel or Advocate

The child pornography law (S.163(1)(b)) provides that any written or visual material that advocates or counsels sexual activity with a person under the age of 18 years is an offence.

Mr. Justice Shaw, however, found that, although Mr. Sharpe's written material may glorify sexual acts with children, it does not actually promote the commission of such acts, even if the material was designed to titillate or excite the reader. Mr. Justice Shaw concluded that the mere description of a criminal act does not necessarily send the message that sex with children should be pursued. Interestingly, he reached the conclusion, even though a forensic psychiatrist, Dr. Shaberhan Lohrasbe, gave evidence at the trial that child pornography lowers adult inhibitions about sex with children, and also may incite paedophiles to commit offences. Mr. Justice Shaw did not accept this evidence.

Artistic Merit

Two university professors, one from the University of Western Ontario, James Miller, Professor of gay and taboo literature, and the other, Lorraine Weir, Professor or English Literature at the University of BC, testified that Mr. Sharpe's work had artistic merit similar to that of the works of the infamous Marquis de Sade, which, they testified, was well recognized by literary scholars.

Mr. Justice Duncan Shaw stated that he found the evidence of these two professors "impressive" and he gave their testimony great weight. On the other hand, he dismissed the evidence of Paul Delaney, Professor and Chair of the Department of English at Simon Fraser University, and that of the aforesaid psychiatrist, Dr. Shaberhan Lohrasbe, an expert in treatment of sex offenders. The latter two experts gave evidence against the "literary merit" of Mr. Sharpe's material. The judge dismissed their evidence because he said they took into account the immoral qualities of Mr. Sharpe's work and that this played too significant a role in the formulation of their opinions. Therefore, he concluded that their evidence could not carry weight in the determination of the artistic or literary merit of Mr. Sharpe's writings.

Mr. Justice Duncan Shaw found, consequently, that Mr. Sharpe's defence of artistic merit for his written works was acceptable, and, as a result, Mr. Sharpe was found not guilty of possessing child pornography in regard to his written works.

Mr. Sharpe Receives Minimal Sentence

Judge Shaw continued to show his disdain for the child pornography law by imposing on Mr. Sharpe a minimal sentence of house arrest for four months. The maximum sentence for violation of the pornography law is two years imprisonment. Mr. Sharpe obviously expected to receive a jail sentence for his conviction, as he arrived at the sentencing hearing with an overnight bag. Instead, Mr. Sharpe's sentence consisted of his remaining in his apartment for four months, under electronic monitoring between 4:00 p.m. to 8 a.m. He was ordered not to contact anyone under 18 years of age and was denied access to the Internet except with the permission of his parole officer. The Crown prosecutor had argued for at least 10 to 12 months behind bars.

An editorial in the Vancouver Sun (May 4, 2002) stated:

…Our society's central concern must be the protection of children. Justice Shaw's decision to hand down a lenient conditional sentence gives the wrong signal to would-be child pornographers and won't help protect children here or elsewhere in the world. …

… For the sake of all the world's vulnerable children, it's time judges handed down sentences that correspond to the magnitude of the crime.

Effect of the Decision

Unless this decision is overturned by a legislative amendment, writings dealing with sex, torture, sadism, etc., with children may well escape the child pornography prohibition by the simple expedient of using the defence that the material has "artistic" merit. Obviously, there will always be so-called "experts" willing to testify that anything has artistic merit, if only to break down the law and create a liberal, permissive society with no taboos. (Remember the Toronto artist Eli Langer who drew pictures of boys and adults engaging in sexual acts together which was declared to be "artistic" and, therefore, not child pornography? See Reality, November /December, 1994, "Pornography Defended in Canada," page 8, and Reality, May/June,1995, "Court Rules on Child Pornography," page 6.)

If we value the protection and safety of children, it is clear that our child pornography law must be rewritten to eliminate the artistic merit exemption. Otherwise, this ruling will only serve to encourage paedophiles to continue to write material that incites the sexual exploitation of children. In this latter regard, it is important to note that once this material - no matter how squalid and disgusting - is found to be "artistic," there will be no restrictions on its distribution. Who would want this material? Paedophiles, and if Dr. Lohrasbe is correct, they will use it to turn their disgusting fantasies into reality.

The Liberal Government's Response to the Court's Decision

On April 23, 2002, the opposition party, the Canadian Alliance, presented a motion before the House of Commons, demanding that the age of consent to sexual activity be raised from the present 14 years of age to at least 16 years of age, and that legislation be introduced to protect children from sexual predators in the child pornography law.

The Liberals, however, voted down the motion on the pretext that it was a complex issue, which required further consultation.

The real reason why the Liberals defeated the Alliance motion, however, became apparent on May 10, 2002, when Justice Minister Martin Cauchon announced that his government plans to introduce an omnibus legislative package in the fall "to protect Canadian children," including Criminal Code changes to "tighten" laws against child pornography by narrowing the controversial artistic merit defence. Unfortunately, it does not appear that the Liberal government intends to entirely eliminate the artistic merit defence, but just limit its application so as not to interfere with the Charter provision of freedom of expression." Right.

Mr. Cauchon also stated that he intended to consult the provincial attorneys-general at their annual meeting in October prior to his introducing the legislation. Consequently, this package of legislation (which will also include a provision to raise the age of consent for sexual activity from 14 to 16 years of age) will probably be introduced sometime before Christmas 2002. Meanwhile, child predators are free to carry on with their "artistic" works.

Please write to the following to insist that:

1. The age of consent be raised to 18 years of age (not 16 years); and

2. The defence of artistic merit be deleted from the child pornography law (not merely defined).

Please write to:

The Hon. Jean Chrétien, PC, MP
Prime Minister's Office
80 Wellington St., 2nd Floor
Ottawa, Ontario K1A 0A2
Tel. (613) 992-4211
Fax: (613) 941-6900

The Hon. Martin Cauchon, PC, MP
Minister of Justice
Justice Building
284 Wellington St.
Ottawa, Ontario K1A 0H8
Tel: (613) 992-4621
Fax: (613) 990-7255

Your MP
House of Commons
Ottawa, Ontario K1A 0A6

Your provincial Attorney General
c/o Legislative Building
Your provincial capital

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