HOW FAR HAVE WE FALLEN

From globeandmail.com, Friday, March 29, 2002

How far have we fallen?
A child pornography decision shows how far society has fallen into the pit of the permissible, warns law professor IAN HUNTER
IAN HUNTER

For possessing certain photographs, described by the trial judge as "nude boys displaying their genital or anal region," John Robin Sharpe was convicted of a crime. But for a collection of stories that he wrote, summarized by one expert witness as "boys being kidnapped by people with power and then systematically tortured," Mr. Sharpe was acquitted. Why? Because, held the trial judge, these stories had "artistic merit."

"Mr. Sharpe shows skill in the literary quality of his work and the literary devices that he uses," Mr. Justice Duncan Shaw wrote, "although not to the level of most established writers . . ."

Mr. Sharpe is a 68-year-old retired city planner in Surrey, B.C., a man our parents and every generation that preceded us would have called a "pervert," defined by the Oxford English Dictionary as someone "who turns aside from the right course; to lead astray or corrupt." But in our politically correct and sensitive times, we do not apply such words to people.

Let us retrace Mr. Sharpe's perambulations through the Canadian courts.

When arrested, Mr. Sharpe had in his possession books and computer disks with such titles as Sam Polac's Flogging and Kiddie Kink Classics. He was charged under Section 163.1 of the Criminal Code with possession of child pornography.

At trial, he argued that Canadian law could not restrict his pleasures. Two British Columbia courts agreed with him. But last year a divided (6-3) Supreme Court of Canada effectively rewrote the Criminal Code section, then ordered a new trial.

A specialist in forensic psychiatry had testified at Mr. Sharpe's trial that child pornography lowers adult inhibitions about sex with children; it also may excite some child molesters to commit offences.

The trial judge found that sexually explicit pornography poses two dangers to children; first, in the making of the material; second, in its potential to incite pedophiles to commit offences. Nevertheless, Mr. Justice Shaw held the Criminal Code sections unconstitutional.

Why? Because Section 163.1 restricted "freedom of expression" and could not, he held, under Section 1 of the Charter be justified as "a reasonable limit . . . demonstrably justified in a free and democratic society."

Mr. Justice Shaw's original trial decision provoked controversy. The judge received threats. In Parliament, the Opposition demanded that the government invoke the Constitution's "notwithstanding" clause. Instead, the government appealed.

A divided B.C. Court of Appeal also held Section 163.1 unconstitutional. Madam Justice Mary Southin demonstrated why the "slippery slope" argument worries some people when she reminded counsel that Lady Chatterly's Lover had once been thought pornographic but is now considered tame. "I don't know how you draw the distinction," she said.

A majority of judges in the Supreme Court of Canada held that Section 163.1 was overly broad. However, instead of striking it down, the court ruled that its defects could be cured by "reading in" two exclusions; henceforth, the section would not apply to 1) self-created written or visual materials; or 2) pictures that do not depict unlawful sexual activity, if created and held by the accused alone. Having thus redrafted the Criminal Code, without any assistance from Parliament, the court ordered a new trial.

Implicit in the majority decision was the view that a complete ban on child pornography, of any type and however generated, is contrary to Charter "values." I do not doubt the majority was right about this.

Its decision opens the door to what courts, and in due course, their academic supporters and sycophants, will no doubt call a "dialogue" on legitimate and illegitimate sexual contact with children.

The three dissenting Supreme Court judges started from the principle that no individual freedom is absolute. They would have deferred to Parliament on both the seriousness of child pornography (which they called "inherently harmful to children and society"), and the means that Parliament had chosen to combat it. "It is clear," they wrote, "that the possession of child pornography contributes nothing to the search for truth."

Ah, but there's the rub. The postmodern world no longer believes in the search for truth; indeed, deconstructionists tell us that the very word "truth" is a meaningless anachronism. "You have your truth, I have mine" is all that a postmodernist will say about what, in our universities, are now called "truth statements."

Behind the split Supreme Court decision in Sharpe was a deeper split, a division brought about by a change of incalculable depth in how we understand truth, morality, and, ultimately, ourselves. Are we creatures made in the image of God with moral duties and responsibilities? Or are we autonomous, pleasure-seeking agents responsible to no authority higher than ourselves? If the latter, then why should Mr. Sharpe be denied his sordid pleasures?

Ours is the first generation to require a justification for prohibiting child pornography. Some time ago, we lost a once-shared consensus, derived from our Judeo-Christian heritage, on what is right and wrong, good and evil. Fyodor Dostoyevsky has one of his characters in The Brothers Karamazov say: "Without God, everything becomes permissible."

Of course, Mr. Sharpe's conviction at his retrial demonstrates that we still have some restriction on the possession of child pornography. Just not on works of the imagination, at least those which meet a minimal threshold test of "artistic merit." Perhaps, that is as it should be. Perhaps works of the imagination are too ephemeral to be susceptible to legal regulation.

But I find it difficult to shake from my memory some words of Hilaire Belloc, written nearly a century ago, but chillingly prescient about 21st-century society: "We sit by and watch the barbarians. In the long stretches of peace, we are not afraid. We are tickled by his irreverence, his comic inversion of our old certitudes and our fixed creed. We laugh. But as we laugh we are watched by large and awful faces from beyond; and on those faces there is no smile."

Ian Hunter is professor emeritus at the University of Western Ontario law school.