Child Pornography Ban Upheld But Critics Fear Major Loopholes; Supreme Court Of Canada Upholds Child Pornography Laws
By Tonda MacCharles
Originally published in The Toronto Star, January 27, 2001
"I don't even think it's up for discussion. In the real world, we have better things to do than worry about two 17-year-olds photographing themselves in consent." —Kevin Frayer/CP
"If people have pornography which they use as a substitute for real partners that serves to protect others." —Bob Matthews, OPP detective inspector, head of anti-child pornography unit
OTTAWA — The criminal ban on possession of child pornography was upheld yesterday, but the Supreme Court of Canada ruled people cannot be prosecuted for certain privately made and privately enjoyed sexually explicit materials.
Federal Justice Minister Anne McLellan and law enforcement agencies who feared the court would strike down the law cheered the ruling, calling it a "victory for Canada's children."
But several children's and victims' rights groups, as well as the Canadian Alliance, warned the court created big loopholes that pedophiles can take advantage of.
The high court decision reverses two controversial lower court rulings and finally sends Vancouver resident John Robin Sharpe to trial on two charges of possession of child pornography.
The decision comes five years after Canada Customs seized from him nude photos of young boys and computer disks storing what investigators called "extremely violent and disturbing" stories of sadomasochistic sex with boys and girls.
A majority of six justices, led by Chief Justice Beverley McLachlin, said Parliament's effort to suppress child pornography, but for two exemptions, is a reasonable limit on the constitutional right to free expression because of the real and potential harm to children.
"Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves," she wrote.
The exemptions effectively create two defences that could be used by Sharpe or any of the 70 to 100 other accused consumers of child pornography facing charges across the country.
They are:
Any written or visual material created privately by a single person and held by that person for his or her eyes alone. This includes personal journals, diaries or drawings that the court called "deeply private expression" warranting constitutional protection.
"To ban the possession of our own private musings falls perilously close to criminalizing the mere articulation of thought," McLachlin wrote.
Any self-created photos, films or videos of lawful sexual activity that are made and held for personal use only, and are created with the consent of the persons depicted. (Under Canadian law, the legal age of consent for sex is 14. The pornography law is tougher, prohibiting depictions of sex with minors under age 18.)
The second category, McLachlin said, would allow photographs taken by a child or adolescent of himself or herself alone and kept strictly private, or a private video recording made by a teenage couple for their personal use.
These "raise little or no risk of harm to children," the court ruled, but still must not be distributed or shared in any way or a prosecution could be launched.
Photos or videos of casual intimacy, such as kissing and hugging, are not outlawed, nor are innocent photographs of a baby in the bath and other depictions of non-sexual nudity, the court said. Only cases involving material that actively advocates or counsels sex with minors under 18 should be prosecuted.
"We think on the whole that Canada's parents can sleep a little more soundly tonight," said Darrel Reid, of Focus on the Family (Canada), an intervenor in the case.
But Reid called the exemptions "loopholes big enough to drive a truck through, " and called on Ottawa to overrule the court, and reinstate the law in full, using its constitutional override power. Three of the nine high court judges dissented on the exemptions in a strongly worded minority ruling that said the law should be upheld in its entirety.
"Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination," wrote Justice Claire L'Heureux-Dube, joined by Justices Michel Bastarache and Charles Gonthier.
Parliament "has the right to make moral judgments in criminalizing certain forms of conduct," and the law "does not amount to thought control" L'Heureux- Dube said. Instead, it sends a clear message to deter the development of antisocial attitudes.
But Sharpe, a self-described avid consumer and creator of sexually explicit photos and stories, yesterday said the court merely created "token exemptions" that have "highly unrealistic assumptions behind" them.
"If people write, they normally discuss their writing with other writers or friends," Sharpe said in an interview. "Writing is not something that's a solitary thing. You cannot create without consultation, without discussion and without, say, showing your work to other people, getting their opinion on the literary merit."
Police seized from Sharpe a collection of 17 stories written by him under the pseudonym Sam Paloc entitled Sam Paloc's Boy Abuse - Flogging & Fortitude, A Collection of Kiddie Kink Classics. The stories depicted very young children, in most cases under the age of 10, engaged in sadomasochistic and violent sex acts, said police.
Also seized were photos of boys, including some as young as 6 or 7 years old, mostly naked, posing so that their genitals are prominently displayed.
Sharpe ridiculed the possibility of proving the consent of the boys in the photos, several of which he says he took. However, he said he plans to try to use the defences when he goes to court on two possession charges. He also faces two other counts of possession for the purposes of distribution.
McLellan yesterday described the court-created exemptions as "very narrow" and "peripheral," and emphasized the court sent a "clear message" that the law, which was rushed through Parliament by the Conservatives on the eve of the 1993 federal election, is constitutional.
"I don't see that this ruling will hamper us in any way," said a jubilant Ontario Provincial Police Detective Inspector Bob Matthews, head of the anti-child pornography unit.
Matthews said the defences could not apply to any of the 41 cases the OPP unit has on hold pending the Sharpe decision, nor to most of the individuals that come to police attention.
"It doesn't matter" that the court allows material that involves consensual sexual activity, he said, because "young children cannot consent."
"How can a 6- or 7- or 8- or 10-year-old consent to sex acts. I don't even think it's up for discussion," he said, adding that "in the real world, we have better things to do than worry about two 17-year-olds photographing themselves in consent."
The high court ruled although there is inconclusive scientific proof that child pornography causes harm to children, Parliament doesn't need "concrete evidence."
Instead, McLachlin wrote, social science evidence, common sense and experience allow the conclusion that kiddie porn is harmful. It reduces moral inhibitions against sexual abuse of children; it fuels fantasies that incite offenders to offend; it is used to groom and seduce victims; and the production of porn that involves real children results in their sexual abuse and degradation, she wrote.
Sharpe was scornful of such claims.
"They deny the obvious common sense reality that people use pornography for masturbation," he said. "And if people have pornography which they use as a substitute for real partners that serves to protect others."
The law already allows three defences to a pornography charge: that the material has artistic merit; an educational scientific or medical purpose; or serves the public good.
Canadian Alliance Leader Stockwell Day said he was relieved by the ruling and hoped that it sent a message to the growing "deplorable" pornography industry in British Columbia, The Star's Caroline Mallan reports.
"We're cautiously pleased that the decision seems to uphold the law, there's a couple of areas that still need to be looked at and we hope that this will send a signal to people who are getting involved in this awful industry, especially in B.C. where the original court case was, that Canada will not be tolerating this type of activity."
Ontario Attorney-General Jim Flaherty has asked for a meeting in Ottawa Monday with McLellan to request immediate action by the federal government to close any loopholes.
Mark Hecht, lawyer for Beyond Borders Ensuring Global Justice for Children, said the law "is now much weaker."
"My guess is that children in this country are potentially at risk," added Scott Newark, special counsel to the Ontario government's Office of Victims of Crime. "That is an awful lot of potential exceptions and exemptions here."
Others, like Patricia de Villiers, of CAVEAT (Canadians Against Violence), were happy with the outcome, calling it a "strong statement" in support of the law.
