Judge OKs Child Porn, Triggering an Outcry
BY Mike Mastromatteo
January 31 - February 6, 1999 Issue | Posted 1/31/99 at 1:00 PM
TORONTO—When the British Columbia Supreme Court struck down legal restrictions on the possession of child pornography, Vancouver's attorney general appealed the decision, earning praise from Catholic Archbishop Adam Exner and jeers from civil libertarians.
On Jan. 15 Supreme Court Justice Duncan Shaw ruled that possession of child pornography should not be a crime, because to punish it violates Canada's Charter of Rights and Freedoms.
“There is no evidence that demonstrates a significant increase in the danger to children caused by pornography,” Shaw wrote in defending his ruling.
He said Canadian Criminal Code restrictions against the possession of child pornography should be declared void in that they contravene Charter of Rights protection of freedom of thought, belief, opinion, and expression.
“The intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition (against child pornography),” the judge wrote.
Jason Kenney, member of parliament from Calgary and chairman of the pro-life caucus, said the decision is the latest blow to the family from an activist judiciary.
“Our courts have created the most wide-open abortion license in the world, they are in the process of legislating marriage out of existence, and are now defending the right of child pornographers to peddle their smut,” Kenney said. “This should be a cautionary tale for Americans when it comes to the extremes to which an arrogant judiciary might go.”
British Columbia Attorney General Ujjal Dosanjh announced Jan. 19 that the ruling would be appealed. “Crown counsel will seek to expedite this appeal as this case may have significant impact on other similar cases before the court,” Dosanjh told reporters in announcing the appeal.
In a letter to the attorney general, Archbishop Exner welcomed the Crown's prompt response to the Shaw ruling, adding that the “safety of children” may rest on the case.
“The appeal provides some hope for the countless British Columbians who are bewildered by the thought that our laws may be unable to protect children from a most evil form of exploitation, and may prevent a precedent being set which will affect the entire nation,” Archbishop Exner said. Exner is also head of the Canadian Organization for Life and Family established by the Canadian Catholic Bishops' conference.
The archbishop's praise for the attorney general's action is rare, given the strained relations between the Church and the government of British Columbia.
Since being elected in 1996, the province's New Democratic government has made a number of moves which have angered church and pro-family groups. Most notably, the government is committed to widening access to abortion and contraception services throughout the province. Its support of an injunction against pro-life picketing and public demonstrations has also alienated church and pro-life supporters.
At least one case of child pornography possession charges has already been dismissed as a result of the Shaw ruling. Pending the outcome of the appeal, Dosanjh has instructed British Columbia police to continue investigating child pornography possession cases. A spokesman from the attorney general's office told reporters Jan. 21 that there are about 40 such cases now under investigation.
The attorney general has also sought adjournments of these outstanding cases to prevent them being thrown out in the wake of Shaw's action. Legal officials in the province have speculated that lower courts may be bound by the British Columbia Supreme Court ruling.
‘Our courts have created the most wide-open abortion license in the world, they are in the process of legislating marriage out of existence, and are now defending the right of child pornographers to peddle their smut’
“Our position to appeal is that the possession of child pornography provisions in the Criminal Code of Canada are constitutionally sound,” Dosanjh said.
Section 163.1 of the Criminal Code, the law imperiled by the Shaw decision, defines child pornography as film, video, or other visual representations showing a person under the age of 18 engaged in explicit sexual activity, or any material advocating sexual activity with a person under 18 years old.
Church and pro-family officials were also disturbed by other elements of Shaw's ruling. In particular, they took issue with the judge's contention that possession of pornographic material, including child porn, provides a “cathartic effect” to help release the “pent-up sexual tension of otherwise potential aggressors.”
This view contradicts the position of many anti-porn advocates who charge that the possession of pornography often leads from fantasy to sexual aggression. As well, many psychiatrists contend that sexual offenders often show a long history of pornography use.
Gary Rosenfeldt, head of the Ottawa-based Victims of Violence organization, said there is no question of the link between pornography and crimes against children. Rosenfeldt, whose own son was killed by serial sex offender Clifford Olson, described the Shaw ruling as “ludicrous.”
In his 1998 World Day of Peace address, the Holy Father also saw a connection between child pornography and violence — and called for laws to protect children: “And what are we to say of increasing violence against women and against children of both sexes? Today this is one of the most widespread violations of human rights, and tragically it has even become a terror tactic: women taken hostage, children barbarously slaughtered.
“To this must be added the violence of forced prostitution and child pornography, and the exploitation of children in the workplace in conditions of veritable slavery. Practical steps are needed to try to stop the spread of these forms of violence. In particular, appropriate legal measures are needed at both the national and international level.”
The public outrage over the British Columbia judge's ruling has created tension in the province.
Television and radio talk shows were flooded with angry calls, while at least one death threat was reportedly issued against Shaw. Attorney General Dosanjh appealed for calm in the wake of the controversy. He ordered special police protection for Shaw on Jan. 23, and said judges should never be threatened despite the passion and emotion their decisions may invoke.
Prior to the announcement of the appeal, pro-family forces throughout Canada urged a letter-writing campaign to steer the British Columbia attorney general in a positive direction. A pro-life Internet web site urged supporters to express thanks to Dosanjh for launching the appeal. The web site also distributed comments by a Simon Fraser University law professor who suggested that allowing the Shaw decision to stand would result in a huge increase in the prevalence of child pornography.
Church and pro-family groups remain concerned that a member of the bench would consider removing criminal prohibitions against something as harmful as child pornography, according to parliament member Kenney. They argue that the emphasis on individual rights, as contained in Canada's Charter of Rights and Freedom, continues to erode traditional family values in this country. Some pro-family advocates suggest that the courts are more frequently elevating individual rights before the society's good. In Shaw's case, they contend, innocent children will be the ones to suffer.
Said Kenney, “I hope this decision will begin to wake Canadians up to the fact that democratic authority has been usurped by unelected judges.”
Mike Mastromatteo writes from Toronto.
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