First published: Jan 31, 2001
The Supreme Court of Canada’s decision on child pornography is not a victory for the Liberal government or civil libertarians, as touted last week. In fact, it is a failure.
The court upheld the current law challenged by British Colombian John Robin Sharpe, a 67-year-old former urban planner who was charged in 1999 with possession of child pornography and possession of child pornography for the purpose of distribution.
The law bans the possession of materials ranging from explicit photos of exploited children to works of fiction. But the court set out two exceptions: it protects diaries or drawings created privately and videos or photographs that people take of themselves for private use provided they do not depict unlawful activities.
The purpose of these exceptions is aimed at protecting freedom of expression and personal privacy.
Three of the nine justices disagreed with the exceptions, saying the court should uphold the entire law. Justices Claire L’Heureux-Dube, Charles Gonthier, and Michel Bastarache argued parliament has every right to restrict individual free speech in order to protect the collective rights of children. It was argued the right of freedom of expression is “not absolute, but may be limited in consideration of a broader spectrum of rights, including equality and security of the person.”
Coming from a journalist, who believes strongly in the rights of freedom of expression and freedom of speech, it may seem strange to be arguing against this court decision. Freedom of expression is sacrosanct. But what we are talking about is not the musings of Galileo about the universe, much to the chagrin of the Catholic Church.
These laws are protecting a man’s fantasies about having sex with children. Sharpe is quoted as saying, “If God didn’t mean children to have sex, then why does puberty happen so early.”
We are not protecting ideas that would raise our society to its highest aspirations or some greater truth. We are shielding material that leads to sexual abuse of innocent children, no matter how you cut it.
And that is what the dissenting views were trying to say. By creating any type of child pornography we are stoking the lowest values in our society. These values cannot be compared to others we cherish.
Child pornography also promotes an attitude toward children that is damaging. Even consumed in the privacy of one’s home, it only fans sexual fantasies that will sooner or later find expression in the outside world. This material makes children into objects for sex, ignoring them as human beings.
We need tough laws and tougher penalties when it comes to dealing with child pornography. Heck, this could be a good place to start for the return of the death penalty. Children harmed through sexual abuse or the creation of child pornography can never have their lives restored. They suffer a lifetime of pain. For what?
The scales of justice do not balance.
The tenants of social justice and equality demand we protect the rights of the most vulnerable members of our community. When it comes to children, there cannot be any reasonable, rational case made for anything less than full protection.
Freedom comes with inherent responsibilities. Nobody is trying to take away the freethinking that pushes our society to expand its ideas and ideals. Nor is anyone trying to push the state into the bedrooms of the nation. Certainly we can all see the rights of adults (those over 18) must be upheld.
While civil libertarians might faint over such an unsophisticated argument, this issue is not some intellectual musing meant for the university debating society. This question lies at the bottom of our deepest feelings, a place that rarely finds adequate words for expression. Despite our inability to say what we feel, we cannot ignore it.
Justice Minister Anne McLellan was quick to embrace the court’s decision. She did not announce what the government’s next step would be, saying she did not want to rush into anything.
Sorry, but that won’t do. Since 1982, parliament has been trying to create anti-porn legislation. Admittedly, dealing with adult porn presents its own set of problems around freedom of expression, but child pornography isn’t in the same league.
The lack of clarity of the current legislation also meant other offenders had a two-year holiday waiting for a constitutional challenge. Some 40 child pornography cases in Ontario have been held up. None of these will find the Supreme Court’s decision helpful to their defence, according to experts.
There is no time to waste. The government should move quickly to introduce provision that reflects the very core values of our community. The Supreme Court has missed on this one. It may have interpreted the law of our land, but has not successfully reflected its true values.