Vancouver Sun - Top Stories
Last Updated: Tuesday 19 January 1999  TOP STORIES

Surrey judge dismisses new child porn charges

The Vancouver Sun

Neal Hall and Lori Culbert Vancouver Sun
Charges of possession of child pornography were dismissed Monday in Surrey provincial court after a judge said he was bound by a B.C. Supreme Court ruling that the law covering such cases is invalid.

But Attorney-General Ujjal Dosanjh said the province will seek adjournments of similar cases in lower courts in an attempt to prevent other charges being thrown out.

He also said the province has appealed last week's judgment in which Justice Duncan Shaw struck down the law prohibiting possession of child pornography, saying it was a profound invasion of freedom of expression and privacy.

"Our position on the appeal is that the possession of child pornography provisions in the Criminal Code of Canada are constitutionally sound," Dosanjh said.

"Crown counsel will seek to expedite this appeal, as this case may have a significant impact on other similar cases before the court."

The announcement of the appeal came amid a groundswell of public outrage over the judge's finding that the Charter rights of a Vancouver man to possess alleged child pornography outweighed the need to protect children.

"The bonehead should be removed from the bench," CKNW talk-show host Peter Warren suggested Monday morning during an emotional discussion of the issue with callers, most of whom had not read the judge's 33-page written decision.

"This is one more example of social engineering where the courts make laws rather than Parliament," said Reform MP Reed Elley (Nanaimo-Cowichan).

In Surrey provincial court Monday, Judge James Jardine dismissed similar charges of possession against Javier Jose Escude, 41, who was charged after police seized alleged child pornography from his home.

The Crown may decide to appeal the dismissal of the charges, Surrey administrative Crown counsel Lothar Kiner said Monday.

In Victoria, Liberal justice critic Barry Penner said there are about 25 such cases before the courts across B.C.

He said the Surrey case "demonstrates why it is so important to launch an immediate appeal, because lower court judges will be bound by this decision."

Penner said his office has been inundated with faxes, letters and e-mail from people opposed to Shaw's ruling in the case of Vancouver resident John Robin Sharpe, 65.

Sharpe, who represented himself in court, was charged with possession of child pornography under subsection 4 of Sec. 163.1 of the Criminal Code after customs officials and police seized computer discs, books, stories and photographs depicting nude children.

Shaw said he accepted that children are abused during the making of sexually explicit pornography, but he said there is no evidence production will be significantly reduced if simple possession is a crime.

However, Shaw dismissed Sharpe's constitutional arguments related to two charges of possession of child pornography for the purpose of sale and distribution. Sharpe will stand trial on those charges Feb. 1.

The Sharpe decision is not binding on judges of the B.C. Supreme Court.


Section 163.1 (1) of the Criminal Code, law struck down in a B.C . Supreme Court judgment last week, defines child pornography as:

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of 18 years and is engaged in explicit sexual activity or

(ii) 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 18 years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under this Act.

Ran with factbox "WHAT THE CRIMINAL CODE SAYS" which is appended to the end of story.

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