INDEPTH: CHILD PORN
The Supreme Court and child porn
CBC News Online | June 22, 2004
Saving children or thought control?
The issue of child pornography is a classic legal balancing act. Lawmakers attempt to weigh the protection of children from sexual exploitation against the protection of free speech and free thought protected in the Charter of Rights and Freedoms.
Lean too far one way, and the courts will strike down the law saying it infringes on the rights of Canadians. Lean too far the other way, and police and Crown attorneys will say they are hampered by toothless laws when trying to catch producers of child pornography.
Let us consider three cases, all connected in some way to the current child pornography law hastily pushed through Parliament in 1993:
Case 1: October 1993, Toronto artist Eli Langer, 27, is charged under the new law for a show of paintings of people engaged in sex. Some appear to be young males under 18. It is the first case involving the new child pornography legislation. A judge rules the works have "artistic merit." The charges are dropped. Despite this, the Ontario government uses a forfeiture application to seize the work as child porn with the intention of destroying it. Eventually the paintings are returned.
Case 2: February 2000, the father of two children in a community near Ottawa is arrested after a technician at a photo lab processes a roll of family snapshots that includes four pictures of the man's four-year-old son "goofing around" without his pyjama bottoms. Police charge him with manufacturing child porn. The man is released on bail on condition he leave the family home. The charges are dropped, but the Children's Aid Society demands a custody hearing and parenting courses for the man and his wife. The man, a recent immigrant from Poland, spends his savings to clear himself.
Case 3: January 2001, the Supreme Court of Canada rules on the case of John Robin Sharpe, 67, a retired city planner in Vancouver charged with possessing child porn. Two lower courts in British Columbia had acquitted Sharpe, citing the Charter of Rights and Freedoms. Sharpe had pictures of boys younger than 14 engaged in sex, and a collection of his own stories titled "Kiddie Kink Classics."
Despite considerable inconvenience, embarrassment and pain to those arrested, the first two cases were clumsily resolved. The third resulted in the current legal status of child pornography in Canada, which some say is too permissive and threatens the safety of children.
The case of John Robin Sharpe
John Robin Sharpe
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Sharpe was arrested in 1995 and charged with two counts of possession of child pornography and two counts of distributing child pornography. In January 1999, the British Columbia Supreme Court acquitted him of possession of child porn. Five months later, the British Columbia Court of Appeal upheld the acquittal, saying the Criminal Code section on possession of child pornography "is truly one step removed from criminalizing simply having objectionable thoughts."
British Columbia appealed to the Supreme Court of Canada. The Supreme Court upheld most of the law, but said people can't be prosecuted for producing written or visual materials, works of their own imagination, for their own use. As well, the court made an exception for photographic images produced for a person's own use, so long as the photos do not show unlawful acts.
The Supreme Court of Canada then sent the Sharpe case back to the British Columbia Supreme Court for retrial in January 2002.
In March 2002, the court found Sharpe not guilty of possessing written child pornography. He was found guilty on two counts of possessing pornographic pictures of children and later sentenced to four months of house arrest.
Justice Duncan Shaw found Sharpe's stories did not advocate committing a sexual crime and had artistic merit, "irrespective of whether the work is considered pornographic."
In March 2004, Sharpe was found guilty of a separate charge, indecent assault, stemming from an incident with a 14-year-old hitchhiker that took place more than two decades ago. He was acquitted of a second charge of sexual assault.
Law hastily made
The child pornography law was rushed through Parliament in less than six weeks, becoming law on June 23, 1993. Afterward, Parliament promptly adjourned for the summer, then a federal election was called in the fall.
Even MPs who helped frame the law say it was a hasty piece of legislation, and so overly broad it would inevitably cause difficulties in the courts and require clarification. They admit, too, that not much thought was given to the protections of the Charter of Rights and Freedoms.
"If it does not pass the test then we will try to correct it later on," George Rideout said in 1993 when he was an MP from Moncton and the associate Liberal justice critic.
Many child pornography cases across Canada have been on hold, pending the ruling of the Supreme Court in the John Robin Sharpe case.
The Criminal Code now defines child pornography as "a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means… that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual behaviour… or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years… or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years…."
The subsection applicable to the Sharpe case says: "Every person who possesses any child pornography is guilty of… an indictable offence and liable to imprisonment for a term not exceeding five years…."
Opponents of the law say it is like "killing a fly with a sledgehammer," that it constitutes "thought control," that people could get five years for innocent sexual doodles, private diaries, and possessing literary classics such as Vladimir Nabokov's "Lolita," even Shakespeare's "Romeo and Juliet" (Juliet was under 18).
The other side – the federal government, most provincial governments, police – say the protection of children from sexual exploitation is more important than protections afforded by the Charter of Rights and Freedoms.
Supreme Court arguments
When the nine Supreme Court justices heard arguments in January 2000, Cheryl Tobias, a lawyer with the federal department of justice, described the new law as a vital tool in "diminishing the market" for child pornography. If pedophiles have a constitutional right to free expression, Tobias said, "it is dwarfed by the interests of children in our society. In my submission," she urged the judges, "we ought not sacrifice children on the altar of the Charter."
The Supreme Court ruling could have gone a number of ways. They could have just tossed the ball back to Parliament.
By their queries in January 2000, three of the nine judges appeared to favour retaining the law, four appeared to favour striking down some or all of the possession law, and two appeared to be swing votes in the case.
An example is a reply from Chief Justice Beverley McLachlin to a lawyer who argued it is highly unlikely that prosecutors would go after someone writing sexual fantasies in a diary or a young girl describing her first sexual experience. "Assuming the legislation is overly broad," McLachlin asked, "can it really be saved by saying, 'Trust us to use it wisely'?"
The police definitely wanted the current law retained, as it gives them an efficient weapon to fight those who sexually exploit children.
Ontario Provincial Police Inspector Bob Matthews, who heads the OPP's child porn unit, says if the possession part of the law were struck down it would "handcuff" the police. "It's the tool we use to enter into a house to gather evidence of the making, the distribution and the importation of child pornography and also to uncover evidence of sexual abuse of children."
The Supreme Court could have tossed the ball back to Parliament, as it did the week before with the decision on Robert Latimer. This time, the top court has taken a pro-active position, distinguishing, for example – as mentioned in the summary of the decision – between sexual nudity and "non-sexual nudity," such as "photographs of a baby in the bath."
Updating for the internet age
The internet brought with it a need for Canadian law specifically designed to deal with online activity. And while child pornography laws predate the growth of the World Wide Web, it has only been recently that they have evolved to keep up with new issues associated with the technology.
In September 2000, federal, provincial, and territorial justice ministers proposed an amendment to the Criminal Code that would make it an offence to use the internet to lure children for criminal purposes. Less than two years later, the government passed an omnibus bill that put the proposal into law.
Enacted July 23, 2002, Bill C-15A brought into force child exploitation laws dealing with two main issues:
1. Child pornography on the internet
Under the Criminal Code, the following are offences, and carry a maximum penalty of 10 years in jail:
- Transmit, or send, child pornography from one person to another.
- Post child pornography on a website, or link to child pornography on a website.
- Export child pornography.
- Possess child pornography for the purpose of exporting, making available or transmitting.
2. Using the internet to lure children
It is illegal to use the internet to communicate with a child for the purposes of committing a sexual act. This offence carries a maximum five-year prison sentence.
This legislation, in part, satisfies Canada’s commitments to a UN protocol on the rights of the child. Ratified by 192 countries (the only holdouts being the United States and Somalia), the document is known as the Optional Protocol to the United Nations Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography.
A strength of the protocol is that it prescribes consistent law to deal with child pornography across borders. This is especially important where the internet is concerned, and international boundaries become blurred.
New law, new debate
In December 2002, the federal government proposed new legislation that would remove the defence of artistic merit in cases of works of imagination, such as stories and drawings. Instead, the material would be judged on whether it contributes to the public good.
Arts groups cried foul at the change, saying it could put a chill on artists who work in "edgy areas." They said the Supreme Court gave an exhaustive definition of artistic merit in the Sharpe case.
They also said the wording in the "public good" defence is too vague and may prevent the making of controversial movies, such as The Boys of St. Vincent, which dealt with the abuse of boys in an orphanage in St. John's. Then justice minister Martin Cauchon said the "public good" refers to the "standards of society." Artists shot back that their role is sometimes to challenge the standards of society.
But the bill to amend the definition of child porn died on the ledger when the 2004 election was called. During that election, Michael Briere, the killer of 10-year-old Holly Jones, admitted that his fantasies about children were fuelled by internet child porn, leading to a public outcry on the issue.
The Conservative party questioned both the Liberals and the NDP on their voting record regarding child pornography laws. But the headlines of their news releases – "Paul Martin Supports Child Pornography?" and "The NDP Caucus Supports Child Pornography?" – led both parties to accuse the Tories of resorting to personal attacks and of playing politics with the Holly Jones case.
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