Child Porn BC Appeal

National Post - July 1, 1999
Possession of child porn legal:
B.C. appeal court Celebrating Canada's 132nd birthday on Parliament Hill:
PM won't intervene until Supreme Court makes final ruling
Robert Fife in Ottawa, Jennifer Prittie in Toronto, and Mark Hume in Vancouver
National Post, with files from The Canadian Press OTTAWA, TORONTO, AND VANCOUVER

Jean Chretien, the Prime Minister, yesterday rejected opposition demands that he recall Parliament to allow legislators to rewrite Canada's law against possessing child pornography, which the B.C. Court of Appeal yesterday struck down as unconstitutional.

Upholding a lower court decision, the appeal court ruled that the possession of child pornography is not a crime in B.C. Lawyers in other provinces can now point to the B.C. case when defending their clients, although the ruling is not binding on courts elsewhere.

Two out of three B.C. Court of Appeal judges found yesterday that the B.C. Supreme Court was correct when it dismissed charges against John Robin Sharpe, a Vancouver man who openly advocates sex between adults and children.

"It is not a crime to possess expressive material which advocates genocide, it is not a crime to possess expressive material which is seditious, and it is not a crime to possess that which is obscene," wrote Justice Mary Southin, who delivered the judgment.

"I think I'm feeling good about it," Mr. Sharpe said outside court, moments after the ruling. Richard Peck, Mr. Sharpe's lawyer, said he is pleased by the ruling. "I thought this was a case that could have gone either way," he said.

Preston Manning, the Reform party Leader, yesterday called on the prime minister to recall Parliament to pass new child-pornography laws or to use the notwithstanding clause to strike down the decision. "I believe that parents and grandparents across the country are appalled by the decision of the B.C. Appeal Court, which in effect put the demands of adults to possess child pornography ahead of the protection of children from that pornography," he said.

Mr. Manning attacked the ruling's "legal hairsplitting," as well as the government's willingness to let the courts settle the matter. "When this issue was raised in the Parliament before, [Anne McLellan, the Justice Minister,] faithfully insisted that if you let the B.C. Appeal Court do its work, that it would put the protection of children from pornography ahead of any other demand," he said. "Now she has been proven to be dead wrong. We don't think you can wait for a further appeal now."

But Mr. Chretien said the federal government must allow the Supreme Court of Canada to make a final ruling on possession of child pornography before taking any action. "We will have to let due process take place," Mr. Chretien said.

Ujjal Dosanjh, the Attorney General of B.C., told a press conference yesterday that the case will have to be appealed to the Supreme Court of Canada. "There is some urgency. We want to make sure we bring certainty as quickly as possible," he said, noting that three dozen child pornography cases are on hold in B.C. courts.

Anne McLellan, the federal Justice Minister, took great pains yesterday to stress to Canadians the court ruling does not mean that Canada's borders are open to the distribution of child pornography. "There are those out there who will choose to alarm people unnecessarily but let me be absolutely clear that the laws in this country in relation to production, ... distribution, ... importation continue to be in full force, in effect, in nine provinces and three territories," she told reporters.

Ms. McLellan said the government believes the Supreme Court will overturn the decision. "We believe the law to be constitutional," she said.

John Dixon, spokesman for the B.C. Civil Liberties Association, which intervened in the appeal court hearing, said the use of the notwithstanding clause would amount to "grandstanding" and "craven political pandering."

The child pornography in Mr. Sharpe's possession seized by customs agents and police in 1995 and 1996, included photographs of naked boys and a story he had written, Sam Paloc's Flogging, Fun and Fortitude - A Collection of Kiddie Kink Classics. Mr. Sharpe was charged with two counts of possessing pornographic material and two of possessing for the purposes of distribution or sale. The distribution case is to be heard separately in the fall.

Richard Peck, Mr. Sharpe's lawyer, had argued that the law essentially made it illegal for a citizen to even have thoughts about child pornography. The acquittal, now upheld by the B.C. Supreme Court, also extended to a charge for possessing books, manuscripts, stories and photographs depicting child pornography.

At the Supreme Court of B.C., two justices, Mary Southin and Anne Rowles, ruled in favor of Mr. Sharpe, outvoting Allan McEachern, the Chief Justice of B.C., who wanted to see Mr. Sharpe retried on all counts. In delivering the judgment, Justice Southin attacked the media for its reporting of Mr. Sharpe's original acquittal, which triggered a wave of criticism, and a death threat against the presiding judge. "I infer that many of those who gave vent to their outrage knew nothing whatever of the text [of the Criminal Code]," she said.

An individual's thoughts, opinions, expressions and beliefs as disclosed by his books and private papers are thought immune from intrusion, she said. "There is good reason for such freedom from intrusion being a profound constitutional value. This has been the century of the Gestapo and the KGB - of a state encouraging betrayal by children of their parents to the authorities, of smashing down doors and burning books, all in the name of some concept of the greater good."

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 National Post - July 1, 1999 Judges draw on absurd examples Mark Hume In a less sensitive age, John Robin Sharpe would have been called a dirty old man, and sent to jail. Today, thanks to the courts of British Columbia, he is a crusader for human rights -- a champion for those who value freedom of thought.

In a stunning decision here yesterday, the British Columbia Court of Appeal shook the government's pornography laws by ruling that Parliament had gone too far in making it illegal for someone to possess child pornography.

Sharpe, who thinks it's just fine for adults to have sex with children, came out of court smiling. At first acting by himself, but now backed by Richard Peck, a powerful and persuasive lawyer, he has twice challenged Canada's child-pornography laws and won.

Earlier this year, the Crown lost a prosecution against Sharpe when a B.C. Supreme Court judge dismissed two possession charges against him, saying the law infringed on his rights to self-expression.

The Court of Appeal was even stronger in condemning the law, Justice Mary Southin even conjuring up images of the Gestapo and KGB "smashing down doors and burning books."

This is what they would have you believe we have been saved from.

In fact, Sharpe's apartment was searched by a couple of RCMP officers who knocked on his door and served a warrant.

Only then did they take possession of his collection of photographs, books, manuscripts, stories and computer disks in which children are depicted as not only having sex with adults, but liking it.

That is a common theme of child pornographers -- the kids, even when they are as young as five, want it.

The courts heard, and accepted as fact, expert testimony that child pornography serves several purposes for those who collect it. Certainly the most disturbing fact is that such material is commonly used to "groom" children.

First a paedophile befriends a child. Then he engages in "innocent play." A favourite technique of paedophiles is to have wrestling matches while wearing only underwear. Then the selected victim is shown the naughty pictures. Once they get the idea, they are guided into sexual acts.

The judges knew this. They also knew that pornography incites some paedophiles to commit offences. Studies have shown that more than one-third of the child molesters and rapists claim to have at least occasionally been incited to commit an offence by sexually explicit material, and 55% of that group deliberately used pornographic stimuli

in preparing to offend.

Clearly, pornographic material is a trigger for a large number of child molesters.

But the courts ruled it is OK for Sharpe to have whatever kind of child pornography he wants, because to restrict him would infringe on the rights of others who have no interest in sex with children.

Judge Southin, for example, said that the law as it now stands "encompasses not only the proverbial dirty old man approaching a 10- or 11-year-old, but also the 20-year-old bent on seducing a 17-year-old girl and using a copy of the Kama Sutra or any one of a number of salacious magazines for the purpose."

Or how about this example, cited by Justice Anne Rowles, who also thought the pornography law too sweeping:

"A couple, even a married couple, who record their own sexual activity would be criminally liable if one or both were between 14 and

17 years of age, even though the act depicted is lawful and the material remains in their private possession. A narcissistic 17-year-old youth, to take another example, would be criminally liable if he simply took an erotic nude photograph of himself and kept it in his private possession. A person could be prosecuted . . . for possessing a self-authored statement, perhaps even a diary entry, which advocated sexual offences with persons under 18 years of age, even though that material is only a written record of the author's private thoughts and is never disseminated or shown to anyone."

Another example cited was of a filmmaker shooting a scene in which a juvenile, or even an adult playing a juvenile, has her breast fondled. Under the current law, a court could conceivably rule that the scene is pornographic and send the filmmaker to jail for 10 years.

That has never happened, of course, and if it did there would be cries

of outrage. But the judges let that pass, as they drew on examples that seemed absurd when compared to the realities of child molestation.

Judge Rowles said the law is "only one step removed from criminalizing simply having objectionable thoughts."

She said the law "as a whole is aimed at the valid and laudable objective of protecting children from the harms of sexual exploitation

and abuse, but [it] overreaches by criminalizing a vast range of conduct for which no reasoned apprehension of harm can be shown."

All the judges agreed that the sexual exploitation of children is morally repugnant, but two of them, Judges Southin and Rowles, flatly rejected the government's attempt to come to grips with that problem.

Certainly Parliament, when it tackled the thorny issue of child pornography, wasn't thinking of the 14-year-old married couples that make home videos of their sex. And they failed to think of the 20-year-olds out there -- apparently they are legion -- who are using the Kama Sutra to seduce 17-year-olds.

We know Parliament wasn't thinking of filmmakers producing movies in which a 17-year-old gets her breasts felt up -- because this is the

same government that has been giving out grants for the making of sexually explicit movies.

What parliamentarians were thinking about were children. They were thinking about the little kids who are sexually abused.

The government wanted to give the police more power to seek out adults who abuse to search their homes, to seize the material, much of which depicts violent sex, and to put them in jail.

In its ruling, the B.C. Court of Appeal would toss all that out. It seeks a clinically precise law that would protect children from sexual exploitation, while at the same time allowing people like Mr. Sharpe to collect the type of material used to groom victims.

Such a law may be impossible to draft. But one thing is abundantly clear. While the issue is being pondered, children are being abused.

The law as drafted by Parliament may not be perfect. But until the B.C. courts got involved, it was helping the police and making life uncomfortable for child pornographers. Now we are told to rest easy, because the courts have protected us from the thought police, the Gestapo and the KGB.

In her judgment, Judge Southin says judges aren't from Mars. Sometimes, you have to wonder.

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