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Northern exposure

International | Canada's Supreme Court will decide whether child porn is mere "free expression" deserving of protection

Issue: "Cuban conundrum," Feb. 5, 2000

As Canada goes, so goes the United States? If so, one case just heard in the Supreme Court of Canada, and another expected to be heard later this year, portend trouble south of the border.

The first assault concerns child pornography. In January 1999, Justice Duncan Shaw of the British Columbia Supreme Court dismissed charges of possessing child pornography against retired civil servant John Sharpe. Mr. Shaw struck down the law covering possession of child pornography (in Mr. Sharpe's case, 6,000 photos of nude boys, some in sexual acts with adults, along with pedophilic stories) because it violated his right to "freedom of expression" and his "reasonable expectation of privacy."

Thus for the last year, Canadian police have been unable to prosecute pedophiles for simple possession of child pornography. The B.C. Court of Appeals upheld the dismissal last June and the Supreme Court of Canada heard the case on Jan. 18. A decision is expected by this summer. The now-defunct possession law allowed a maximum sentence of five years in prison. The laws against the production, sale, and distribution of child pornography remain in effect.

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The legal issues center around the definition of "child pornography" and whether the possession law is "overbroad"; that is, whether it limits freedoms beyond what is necessary to protect children. The law as written makes it a crime to possess any visual or written materials that depict or advocate sexual activity involving children or youths under 18. Canada's age of consent for sexual activity is 14; it is legal for a pair of 15-year-olds to have sex, but not for them to take pictures of themselves in the act.

Mr. Sharpe and his lawyers argued that, while taking pornographic pictures or videos of actual children is exploitative, writing stories or sketching pictures without involving children harms no one. Therefore, the possession of stories or drawings should not be a crime. They also claimed that there is no conclusive evidence that all child pornography causes users to abuse children, and that some types of kiddie porn may actually reduce abuse by providing pedophiles with an "outlet" for their fantasies.

The B.C. Civil Liberties Association, which is intervening in the case, argued that "State efforts to coerce individuals into holding or abandoning thoughts, beliefs, or opinions, no matter how evil or repugnant they may be if acted upon, are the hallmarks of a totalitarian society." The CLA equated prosecutors with George Orwell's "thought police."

Opponents of the recent rulings argue that mere possession of any kind of child pornography causes harm. They contend that it lowers the inhibitions of those who use it, making them more likely to act out their fantasies, and that pedophiles use "mildly erotic" materials, such as Mr. Sharpe's stories, to "groom" potential victims by convincing them that sexual activity between adults and minors is natural and acceptable.

Chief Justice Allan McEachern of the B.C. Court of Appeals dissented from his court's decision. He argued that allowing the possession of any type of child pornography harms children by creating a market for more, thus encouraging production. In contrast, majority opinion author Madam Justice Mary Southin implied during the hearing that the court should not rush to criminalize mere possession of child pornography. "Perhaps the view Canadians have about child pornography may change over time," she mused, "perhaps to the point where it becomes acceptable."

Janet Epp Buckingham, general legal counsel for the Evangelical Fellowship of Canada, agrees that the Sharpe rulings reflect a liberalization in Canadian law and society of attitudes toward sexuality: "There is an element here of people saying, look, this has to do with a man's sexuality and we shouldn't be really judgmental." How is the Supreme Court of Canada likely to rule? "I never thought it would get this far," says Ms. Epp Buckingham. "I'm not as optimistic as I was about what will happen at the Supreme Court level."

In the second case before the Supreme Court of Canada, Trinity Western University in Langley, B.C., is suing the B.C. College of Teachers, the provincial teacher-certification authority, because it refuses to accredit the school's education program. Canadian courts have held that sexual orientation is protected, says BCCT registrar Doug Smart. Therefore, the Christian college's requirement that students and faculty abstain from homosexual behavior (along with adultery and premarital sex) makes the school an "inappropriate" place to train public-school teachers.

TWU's Executive Vice President Guy Saffold contends that the BCCT is violating the school's right to religious freedom. When a government body can withhold benefits simply for holding a view, says Mr. Saffold, "we're moving into dangerous waters." The case may not be heard until fall, and a decision could be several months after that.

Les Sillars
Les Sillars

Les directs the journalism program at Patrick Henry College in Purcellville, Va., and is the editor of WORLD's Mailbag section.

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