-Caveat Lector- http://www.nationalpost.com/ January 27, 2001 High court upholds child porn ban Justices overturn lower court's verdict, allow two exceptions Luiza Chwialkowska National Post OTTAWA - The Supreme Court of Canada unanimously upheld the nation's child pornography law yesterday, releasing a long-anticipated ruling that also set out two exceptions to the law. The ruling means that John Robin Sharpe, the retired B.C. town planner who launched the challenge of the law, will stand trial again on charges of possession of child pornography. The nine justices upheld the law that made it a crime to possess a broad range of child pornography, but they split 6-3 over exempting two categories of material: items such as diaries or drawings created privately and videos or photographs people take of themselves, provided they do not depict unlawful activity and are also for private use. "The limits [the law] imposes on free expression are justified by the protection the law affords children from exploitation and abuse," Chief Justice Beverley McLachlin wrote in the 64-page ruling. "The prohibition captures in its sweep materials that arguably pose little or no risk to children, and that deeply implicate the freedoms guaranteed under [the Charter,]" the ruling read. Three of the judges disagreed with the majority and would have upheld the entire law. In an interview from his Vancouver-area rooming house, Mr. Sharpe said he was disappointed to learn that his legal battle will continue. The 67-year-old said children were meant to have sex, regardless of what the law says. "If God didn't mean children to have sex, then why does puberty happen so early?" he said yesterday. "Why [are] kids capable of sexual urges and sexual fantasies from at least the age of 11 in boys, probably earlier in girls? Did God goof?" The decision will allow dozens of other child pornography cases across the country to resume. As many as 100 prosecutions had been suspended until the Supreme Court ruled on an appeal of decisions by two B.C. courts which struck down the child pornography law. Law enforcement officials applauded the ruling. "The members on the front lines will be please and relieved with the decision," said Constable Grant Obst, president of the Canadian Police Association and member of the Saskatoon Police Services. "We will not have to alter or change our current prosecution of pornography." Tim Danson, who represented police and victims organizations intervening in the case, said the kind of material covered by the two exceptions have never been the sole basis of an investigation, charge or prosecution. Most child pornography is traded on the Internet, and pedophiles who only keep private diaries "don't exist," he said. "Police are not interested in diaries. They are far too busy with respect to serious child pornography." Prosecutors also welcomed the ruling, saying the exceptions imposed by the court will not effect the majority of their cases. Bryan Davies, assistant Crown attorney in Whitby, Ont., is prosecuting two cases involving possession of child pornography that have been on hold pending the ruling in the Sharpe case. He said yesterday that he expects them to return to court immediately. "We are very happy with what the Supreme Court of Canada has done. It would appear to remove any impediment as to why the cases shouldn't go ahead. The rules are very clear," Mr. Davies said. Detective Inspector Bob Matthews, head of the pornography unit of Ontario Provincial Police, said the case will allow police and prosecutors to "clear the backlog" of 41 cases left in limbo in Ontario courts waiting for the decision. It is not clear whether the exceptions will help Mr. Sharpe, who successfully challenged the law as a violation of free speech. Materials seized from his possession in 1995 and 1996 included both short stories and photographs of nude boys in sexual acts. Mr. Sharpe's lawyers had argued the language of the statute was "Orwellian" in its scope, however the court gave a much narrower interpretation to the wording of the statute. The ruling said fictional stories were not covered by the law's ban on "written materials that advocates or counsels sexual activity." "While Nabokov's Lolita, Boccaccio's Decameron, and Plato's Symposium portray or discuss sexual activities with children ... they cannot be said to advocate or counsel such conduct in the sense of actively inducing or encouraging it," the court declared. The decision left intact the law's existing exceptions for work of artistic merit, educational, scientific or medical purpose. However, Justice McLachlin said in upholding the law that children should be protected from becoming either the subjects or victims of child pornography. "Explicit sexual photographs and videotapes of children may promote cognitive distortions, fuel fantasies that incite offenders, enable grooming of victims, and may be produced using real children," she wrote. In a separate opinion dissenting from the ruling setting out exceptions, Justices Claire L'Heureux-Dubé, Charles Gonthier, and Michel Bastarache said they would have upheld the law in its entirety to protect "vulnerable members" of society. Anne McLellan, the federal Justice Minister, said she was very pleased with the decision, but would not say whether the government would make any changes to the law, which she described as "one of the toughest in the world." Vic Toews, Canadian Alliance justice critic, called on the government to allow MPs to review the new exceptions, and to allow Parliament to be the final arbiter of whether they pose undo risk to children. Some victims groups said they feared the ruling will create "loopholes" for pedophiles. "I think they're opening the door and making exceptions. There should be no exceptions for pedophilia. Our children should have 100% protections from judges and politicians," said Rob McNamara, vice-president of Victims of Violence, an Ottawa based group. But the ruling won qualified approval from some groups concerned with civil rights. "The majority Court has moved in the right direction and we are pleased some of the concerns are recognized," said Trisha Jackson, lawyer for the Canadian Civil Liberties Association. <A HREF="http://www.ctrl.org/">www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. 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