Porn law exceptions raise concerns
OTTAWA, ON - Do works of the imagination intended for private use constitute a possession of pornography charge if "real" children are not involved? The Supreme Court of Canada says no, and that has raised major concerns from many sectors.
The Court ruled January 26 that a 1993 law banning the manufacture, distribution and possession of child pornography stands—with two exceptions. Written or artistically created materials created for private purposes are exempt, as are personal recordings, videos or photos that do not depict illegal sexual activity. If the items in question are not distributed, the Charter of Rights and Freedoms protects their creator.
The court challenge began in Vancouver five years ago, when police raided the home of John Robin Sharpe, 67, and charged him with possession after finding pictures of nude boys and a collection of stories he wrote describing sex acts with children.
Sharpe contested that his freedom of expression under the Charter was violated. Two lower courts in B.C. agreed, throwing the case out, and sending it to the higher court.
Family, child and victim advocates, provincial governments, and police groups have repeatedly petitioned the courts to support the 1993 pornography law in its entirety. However, only three of the nine Justices wanted the entire law upheld.
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Artistic license is no excuse when it comes to endangering children, says Jay Barwell, director of communications for Focus on the Family Canada. "The fact is we're still talking about abuse of children. Is there any real justification for [pornography] whether it's artistic expression or private expression? It's not a legitimate use of children in any way. It's a convoluted argument."
Focus president Darrel Reid says that he is pleased with the overall outcome, but outraged that freedom of expression as it relates to child pornography is even an issue.
"This case should never have become an issue before the courts, let alone the highest court in the land," Reid says. "Who could have imagined, even a generation ago, that anyone would question who was more deserving of protection—child pornographers or innocent children?" he says.
Some groups have raised concerns whether the exceptions allowed by the court will prove to be dangerous loopholes. On the surface free expression and privacy may look innocent, says Roy Beyer, president of the Canadian Family Action Coalition, but the old adage "what goes in, must come out" applies.
The court has sent a message that possessing pornography "doesn't really harm a person as long as it doesn't involve children," he says. In actual fact, he says, the decision "reinforces something not healthy… it's just a matter of time until the person will act on what he is feeding himself."
"Every window that you [open] gives a bit of an opportunity for those who are peddling child pornography," agrees Janet Epp Buckingham, general counsel for the EFC. But, she says, "the exceptions are really very narrow."
Manufacturing and distributing pornography is still illegal, she says, and are criminal acts. "You can think whatever you want, but as soon as you start to express it and letting people know about it, it becomes a question of whether it's a criminal act. As soon as you act on your thoughts about child pornography, it's something different."
Now that the court has ruled, dozens of pornography-related cases put on hold during the deliberations can proceed.
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