CKNW Editorial
for July 2, 1999

There is nothing more terrible to most of our minds than the sexual molestation of a child. Society quite rightly is revolted by such behaviour. Most of us are revolted by child pornography too. But the case of John Sharpe raises some very important issues as I said at the time Mr Justice Duncan Shaw gave his decision, two days ago upheld in a 2/1 vote in the Court of Appeal.

The first, though not necessarily the more important issue, is whether or not the appropriate sections of the Criminal Code offend against the Charter of Rights and Freedoms. Clearly they do – even the dissenting judge, Chief Justice McEachern implies that the section could do with some fresh draughtsmanship. Under these sections, pictures of quite lawful behaviour, for example of two 18 year olds making love or indeed an adult making love with an 18 year old would constitute pornography. Drawings made by a person for their own use would be pornography and possession would give rise to a charge.

But this leads, I think, into the other more fascinating realm. What is the evil Parliament is trying to cure?

If it is the disgusting habits of a minority then unless those disgusting habits hurt others, the state should butt out. What if an adult draws and even distributes his drawings of kiddie porno? Should that be a crime absent any hard evidence that it does harm? What about some sort of computer rendition which could look very real – are we trying to prevent people seeing that? In short is it the prurient interests of citizens we are trying to control or are we concerned about the safety of children. If the former, Mr Justice Shaw and the majority of the Court of Appeal must be right that this exceeds the power of the state in a free society. However disgusting we find behaviour – and I remind you that common sexual practices like oral sex are disgusting to many people – we have no right to prohibit it if it does no harm.

But there is the more disturbing question – what if the pornography itself involved debasing and molesting children … such as actual children performing sex acts? Surely we would all agree that such material, not because it is salacious in nature, but because it involves actual abuse of children, ought to be banned.

But there is the line of distinction is it not? If we ban pornography because of harm actually done, it’s a no brainer. Of course that’s wrong. And course Parliament ought to prohibit it and provide penalties for those who possess or distribute it.

If, however, we also ban stuff as pornographic without being able to demonstrate any harm to others in it are we not really setting our standards as higher and insisting that others do likewise? In other words are we entitled, in a free country, to ban that which we find disgusting even though we can demonstrate no harm?

I think a lot of Canadians want to do just that. In the name of their own lofty standards they wish to judge those of others.

As I see it then, the case of John Sharpe boils down to these conclusions

The law is so badly worded and so all encompassing that it must be revised.

2.That if the material in question meets the modified standard after the law is changed, and from that material it is a reasonable inference that children have been harmed, both the possession and dissemination of that material must be proscribed by law.

3.If the material, which otherwise might be unlawful does not lead to the reasonable inference that harm has been done to children, it must be permitted however revolting higher minded citizens might find it.

Surely this makes sense. For if we are to prohibit written or drawn material which offends some, even a vast majority of citizens then we can do the same with music, or books or any other form of amusement. The key consideration must be harm to others.

This is a very difficult business, pornography, especially child pornography, for it brings into focus all of our prejudices, some lofty, some not so lofty, and some of them self-congratulatory. But out of all this, surely those who pilloried Mr Justice Shaw ought to have second thoughts and those who made them public ought to apologize.

Which brings me to my final point. Clearly these Criminal Code sections must be redrafted. Justice Minister Anne McLelland, rather than wringing her hands and trying to extract political brownie points for standing with the righteous ought to be busy redrafting the law so that it makes some sense.

The case will go to the Supreme Court of Canada but that doesn’t remove Parliament’s obligation to come up with a law which both protects children but also the rights of Canadians at large, however unpleasant other Canadians may find them to be.