Vancouver Sun - Opinion
Last Updated: Tuesday 19 January 1999 OPINION
Society's main concern: Safeguarding children
The law must draw the line between using real children as models for pornography and imaginary ones, even as it guarantees the right to privacy for adults in simple possession.
B.C. Supreme Court Justice Duncan Shaw's ruling last week in favour of child pornography collector John Robin Sharpe sets off an alarm: What about the safety of children?
Mr. Sharpe was charged with possessing child pornography. Mr. Justice Shaw said Mr. Sharpe's rights to freedom of expression and to privacy prevail. He declared the law against possession of child pornography void because it violates those constitutionally protected rights.
Society's overriding concern must be the protection of children. It is worth noting, then, that even after Mr. Justice Shaw's decision most of the Criminal Code's Section 163.1 still stands. That section gives voice to society's abhorrence of people who prey on children for their own or others' sexual gratification.
It defines child pornography as any visual depiction of children engaged in or appearing to be engaged in an explicit sexual activity, and any written or visual material that advocates or counsels sexual activity with a person under 18.
The code goes on to say that anyone who makes, prints, publishes or possesses child pornography for the purposes of publication is a criminal and must be punished. Ditto anyone who imports, distributes, sells or possesses it for the purposes of distribution or sale. Simple possession is also a crime, the law says. The law makes an exception if the material has artistic merit or is for educational, scientific or educational purposes.
It is the prohibition on simple possession the judge has struck down. There are some court judgments with which we struggle, and this is one of them. We agree, reluctantly, with the judge's stress on privacy rights. What people do in the privacy of their homes, provided they do not injure others, should not concern society. Central to a democratic state, as defined in a judgment quoted by Mr. Justice Shaw, are "the restraints imposed on government to pry into the lives of the citizen ... ." The fact that some people fixate on child pornography is disgusting, but it is their business.
But the judge does not distinguish between the use of real and imaginary children in the making of smut. That is a striking mistake, as civil liberties lawyers have pointed out. Here is where we would make Mr. Sharpe's right to privacy subordinate to the safeguarding of children.
Under Mr. Justice Shaw's ruling those could be real children performing sexual acts for Mr. Sharpe's viewing pleasure. In contrast, a collection of child pornography consisting of flights of fancy -- cartoons, drawings, tales of fiction -- and not based on real child models would not raise the same concerns about children's safety.
The appeal court, to which the attorney general is sending this decision, should endorse the first part of Mr. Justice Shaw's decision but remedy his error.
* The above text has been reproduced as faithfully as humanly possible from the original document. However, this reproduction is not, nor intended to be, the official version of the original.