RIGHTS-CANADA: Child Pornography and the Right of Privacy

By IPS Correspondents Reprint | | Print |

Mark Bourrie

OTTAWA, May 5 1999 (IPS) - Canadian laws prohibiting the creation, sale and possession of child pornography are being seriously questioned in the nation’s courts by those who advocate pedophiles have a right to own “erotic” photographs.

The furore began when a court in British Columbia, on Canada’s Pacific coast, ruled that John Robert Sharpe, the defendant in a case involving the possession of “kiddie porn”, had a “right to privacy.”

Sharpe was convicted, however, on two other counts of trafficking and creating child pornography.

The day after the decision the trial judge, Duncan Shaw, received the first death threat levelled against him in a relatively-quiet 11 years on the bench.

And with public debate on the issue becoming heated, Lloyd McKenzie, public relations officer of the B.C. Supreme Court, told reporters that, in his 40-year legal career, he had never seen a judge targeted by such invective.

In his decision, the judge weighed what he believed to be the prosecution’s evidence of the public danger posed by the possession of child pornography against Sharpe’s right to privacy, and found the Crown’s case wanting.

Shaw said the Crown had failed to make a case for over-riding Sharpe’s rights under the Canadian constitution’s Charter of Rights.

In his ruling, Shaw wrote: “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.”

Sharpe, a self-confessed pedophile, has now appealed his conviction on the other charges and his lawyer Richard Peck, says the laws are too far reaching.

Peck says child pornography does not harm society at large when it is kept in the privacy of the owners’ homes and is never meant to be seen by anybody but the person who made it.

He produced a book of poems by the Roman writer Catullus dating back to 60 BC, which advocated sex between men and boys and noted that, if he changed a few names and copied the poems and police found it in his study, he could be charged under federal law for possession of child pornography.

By the same argument, he said, if he took up sketching and tried to copy work by the painter Rubens, depicting cherubic figures engaged in sex, he also could be arrested on suspicion of possessing child pornography.

But the case has become more than just a debate over the possession of child pornography.

By the time a final verdict – probably by the country’s civil libertarian-leaning Supreme Court – is rendered in the Sharpe case, the vocal debate over the relationship between courts and legislatures may be permanently altered, according to legal circles.

In the past, Canadian courts have broken new ground on issues such as aboriginal and women’s rights, spousal benefits for gays and lesbians, affirmative action, and justice for immigrants.

“This case has sharpened the debate over whether the courts are going too far and what is the proper relationship between the courts and the legislatures,” says Rainer Knopff, a political science professor at the University of Calgary.

“The ruling tends to be seen as an affront to what almost everyone agrees, that child pornography is a bad thing and that we should do everything we can to undermine its production,” he said.

Other critics have called on lawmakers to use their own powers to strike down the court’s decision.

The country’s largest opposition party in Parliament, the Reform Party made a motion calling on the government to use the so-called “notwithstanding clause” of the Constitution, which allows the government to uphold a law even if the courts deem it unconstitutional.

Pending the outcome of the case, the government refused.

Reform’s House Leader, Randy White, issued a press release that claimed that “while the legal industry thinks this is a good idea, there is no reason for elected politicians to go along with this poor decision that hurts children.

“The (governing) Liberals are sitting on the fence, watching the bench they appointed make these ridiculous decisions, allowing morality to slip to an all-time low. The ruling on child pornography was wrong,” White said.

“This case focuses attention on who should have final responsibility for this policy decision – Parliament or the judges,” said Professor Ted Morton, political scientist at the University of Calgary.

Morton believes the case will test the balance of power between courts and legislatures. “If Sharpe’s position is upheld on appeal up to the Supreme Court of Canada, this will become the most important test yet of a government’s willingness to use the notwithstanding clause,” said Morton.

Police are lobbying hard for the law to be upheld, either by the courts or by Parliament.

They say efforts to contain the spread of child pornography in Canada will grind to a halt unless the courts overturn the British Columbia ruling that federal laws violated an individual’s right to freedom of expression.

Police officers “will be placed in a legal straitjacket and the child-pornography industry will flourish,” says Tim Danson, a lawyer representing the Canadian Police Association.

And Ontario Provincial Police Detective-Inspector Don Matthews, head of the countrys largest anti-pornography police unit, said that if possession of child pornography is made legal, “police would be completely stymied in their efforts to combat the spread of child pornography.”

The proliferation of child pornography is increasing because of the Internet, he said.

Before child-pornography legislation was passed in 1993, police found it almost impossible to investigate and prosecute people for collecting and disseminating pornographic material involving children, and were making only one or two arrests a year, Mathews notes.

Without the legislation that is now under scrutiny, “the fight against child pornography will be greatly undermined at the very time that the spread of such offensive material is increasing dramatically,” he says.