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"Possesing Child Porn No Crime"
B.C. judge rules person's belongings are an 'expression' of 'self'

By Ian Bailey, The Canadian Press, Vancouver

Originally published in The Hamilton Spectator
Saturday, January 16, 1999, Section D3

A B.C. Supreme Court judge has ruled possessing child pornography should not be a crime because laws against it violate the Charter of Rights.

Justice Duncan Shaw ruled that section of the Criminal Code "is declared void" because it contravenes charter provisions guaranteeing freedom of thought, belief, opinion and expression.

"There is no evidence that demonstrates a significant increase in the danger to children caused by pornography," Shaw wrote in the judgement, which was released yesterday.

Until it is appealed, the ruling becomes law in British Columbia. It can be cited in other provincial courts but it is not binding on them.

The case involved pornography possession charges against John Sharpe. Police raided his Surrey home in April 1995, seizing CDs, photos and writings about child pornography.

Sharpe, who defended himself, argued the Criminal Code section covering pornography violated his charter rights.

The Crown argued that possession of child pornography puts children at risk from pedophiles.

But Shaw said "only assumption" supports the idea that materials advocating sex crimes with children actually prompt people to do such things.

"There is no evidence that the production of child pornography will be significantly reduced if simple possession is made a crime," Shaw wrote.

He went on to say that a person's belongings are "an expression of that person's essential self."

Shaw said it is debatable that laws against possessing child pornography protect children, and that's not enough to justify invading someone's privacy.

"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," he wrote.

"I find that the limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects."

Attorney General Ujjal Dosanjh said he has to study the ruling before making a comment or deciding on an appeal.

However, Liberal critic Barry Penner said the province should appeal immediately "to look after children in B.C. and protect them from being abused by sexual deviants."

Sharpe has also been charged with distributing child pornography and will appear in court Feb. 1.

In his ruling, Shaw said distributing child pornography poses a greater risk than simply possessing it. Barring distribution is "far less invasive of an individual's freedom of expression and right of privacy.

"Possession for the purpose of sale or distribution of such material can hardly be justified on any level of understanding," he wrote.

Allan Borovoy, head of the Canadian Civil Liberties Association, said he has long had concerns the law is too broad.

"Even as we recognized there is some repugnant material devoid of redeeming merit, the problem is that if you use the definitions in the Criminal Code, they were capable of reaching to legitimate material and even works of art."


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