TORONTO—Church and civic leaders think a disaster is brewing if a Canadian court decides to make possession of child pornography legal.
At issue is a January ruling in the Supreme Court of British Columbia in which Justice Duncan Shaw ruled that possession of child pornography should not be considered a crime. The ruling was handed down in the case of a Vancouver man who had been charged with possession of child pornography under Section 163 of the Canadian Criminal Code.
Shaw ruled that the current law violates freedom of expression guarantees under Canada's Charter of Rights and Freedoms, and that there is no evidence that simple possession of child pornography is harmful to children. The judge also ruled that police violated John Sharpe's right to privacy when they entered his Vancouver apartment and seized pornographic material, much of it written by Sharpe himself.
The decision sparked widespread protest across Canada and even led to a death threat against the judge. Meanwhile, 18 other cases were suspended pending clarification of the Criminal Code on possession of child pornography. Within days of ruling, the British Columbia attorney general and Canada's federal justice minister said they would launch an appeal.
The British Columbia appeal court heard arguments April 26-28. A ruling is expected within the next several weeks.
The appeal has pitted civil libertarians against church groups, family organizations and anti-pornography experts. Canadian police officials are also keeping a close eye on the case. Police believe their investigation of pornography-related criminal activity will be severely hindered if possession is no longer considered illegal.
Lawyers representing Sharpe argued that the current law is much too broad in its scope. They argue that the law was rushed through Parliament in 1993 without proper regard for its full implications, and they claimed the law is a form of thought control. They also suggested the current law would allow police to arrest individuals for such things as keeping a private journal to indulge in private fantasies.
In a statement for the Register, however, Archbishop Adam Exner of Vancouver said the original ruling by Justice Shaw demanded an appeal.
“I am concerned that left unchallenged, this decision might open the door to greater exploitation of children,” Archbishop Exner said. “We've seen it before in society where an exception quickly becomes the rule, leading to more and more exceptions for yet more serious matters.”
The archbishop, who also serves as chairman of the Canadian Catholic bishops' life and family committee, wrote to Canada's federal Justice Minister Anne McLellan, praising the decision to appeal the original court ruling.
“Like many Canadians, we were outraged by the decision of the trial judge that appeared to distort the authentic meaning of freedom of expression and minimize the profound harm that is done to children in the production and possession of this hateful material,” Archbishop Exner said. “We hope and pray that the appeal will be successful and thank you again for your vigorous action on behalf of our country's children.”
Just as the appeal began, an organization called the Canadian Family Action Coalition presented a 100,000-name petition to the Canadian Parliament, urging law-makers to uphold the law against possession of child pornography. The coalition, composed of church, family and police organizations, called on federal politicians to be aware of the “distress of Canadians on this issue.”
Nonetheless, civil libertarians remain opposed to more-stringent guidelines against the possession of child pornography.
Alan Borovoy, director of the Canadian Civil Liberties Association, told the Register that the legislation dealing with privacy and freedom of expression issues must be carefully evaluated.
“If this law had been confined to situations in which actual children had been abused, we wouldn't have much to say about it,” Borovoy said. “But the current law in Canada is capable of imperiling legitimate expressions of art, and as a result there is no excuse for it.”
A similar view was put forward on the first day of the appeal by the British Columbia Civil Liberties Association. This group described the present law as “an exercise in legislative cynicism.”
However, Detective Inspector Robert Matthews of the Toronto police force's anti-pornography unit, said any move to eliminate legal prohibitions of possession of child pornography would be disastrous for police in North America.
“Possession of this material is what is required to investigate cases of production and distribution,” Matthews told the Register. “If the possession component of the law is struck down, it would severely handcuff our efforts at investigation.” He said that possession restrictions are especially needed at a time when the Internet has made child pornography more readily available.
Matthews rejected arguments that the law is too broad in its application and that it would hinder legitimate artistic expression or scientific research.
“The artistic merit question is adequately addressed in the existing legislation,” Matthews said.
He added: “Any child porn is like a picture of a crime in progress. The young people who have been involved in the production of this material find that their lives are in complete disarray. As far as I am concerned, there is no form of child porn that is not harmful.”
Removing legal prohibitions against possession of child pornography is especially troubling to officials with the National Coalition for the Protection of Children and Families. The Cincinnati-based coalition of church and anti-pornography associations contends that pornography, violence and other irresponsible use of pubic media seriously weaken families and society in general.
Coalition president Rick Schatz told the Register that possession of child pornography is harmful because it is often used to manipulate and seduce other children.
“Pedophiles use child pornography to break down a child's inhibitions, to desensitize the child and normalize the abuse, as a teaching tool for the child to perform sexual acts, and they use it as blackmail against the child to force them into abusive situations,” Schatz said.
“What makes the mere possession of child pornography wrong is that it took the sexual abuse of a child to make the production of that material possible,” he added. “Simply possessing child pornography contributes to the market demand for child pornography which propagates the sexual abuse of children. Child pornography is a crime in progress, it is a permanent record of a child's sexually abuse.”
Canadian anti-pornography activists are also concerned about a possible relaxation of criminal prohibitions on possession.
Dolina Smith, president of the Toronto-based Canadians Addressing Sexual Exploitation group, flew to Vancouver to attend the appeal April 26-28. She said overturning the current law on the grounds of censorship would be misguided.
“This ‘thought police’ idea is a complete exaggeration,” she said. “It would be next to impossible for police to investigate this activity if they can't act on possession.”
Smith said she has heard from many parents whose children have been lured into appearing in pornographic photographs, film and videos.
“The impact on these families is just tremendous,” she said. “The parents go through a whole range of emotions, including shock, anger and helplessness.”
Legal experts also have also been critical of the original decision in the British Columbia child pornography case. Iain Benson, legal adviser of the Ottawa-based Center for Renewal in Public Policy, said legal decisions regarding privacy and freedom of expression should not be separated from a moral framework.
“How a debased and deviant version of freedom of expression can be used to override Parliament's legislative scheme to combat the risk (of child pornography) to the state's children is a mystery,” Benson said. “What the [Shaw] decision shows beyond a doubt is that contemporary approaches to ‘rights’ unhinged from any concomitant moral vision of the person or community are capable of furthering fragmentation on the personal and social level.”
Mike Mastromatteo is based in Toronto.