My comments on the Law
and the decision of the Supreme Court of Canada
MAY 2008 (originally posted September 2001)
The idea of a special law to deal with child pornography law had been advocated for some time although after the Butler decision explicit material, except for simple possession, was specifically covered by obscenity laws. The Conservative government facing an election was anxious to impress the public and amongst other legislation a child pornography law was drafted. It is unlikely that the government was concerned about the details of the law, they primarily wanted a law to point to as an accomplishment in the coming election campaign. As originally submitted to the Standing Committee on Justice the child pornography bill would have been not much more restrictive than American laws which generally restrict their concern to the depictions of actual children. The draft bill was limited to depictions of sexual activity involving children. Prohibiting depictions of sexual organs and written material were not mentioned.
The broad and highly restrictive law which emerged is primarily due to the efforts of certain members of the Standing Committee on Justice, notably Tom Wappel, then Liberal Party Justice Critic. Family values conservatives of all parties dominated the committee. Chris Axworthy who had earlier sponsored his own private members bill on child pornography was one of the two NDP members. Tom Wappel was behind the invitation of Detective Noreen Wolff (later Noreen Waters), whom he knew through church connections. The other police witness was Inspector Bob Matthews of Project P who had taken a course on child pornography with the FBI and had helped draft Chris Axworthy’s private member bill. They were the heads of Canada’s two largest anti-porn squads and the only police witnesses to appear. Bob Matthews later boasted that he got five out the six things he asked for, one of them being the inclusion of simple possession as an offence. Noreen Wolff’s great crusade was to criminalize written material that “advocates” sex with children, the NAMBLA Bulletin in particular. This and another provision which could be used to prohibit depictions of almost all childhood nudity were never included in the draft bill, and as far as the public and the witnesses appearing before the committee were aware, were not part of the proposed legislation. It was only on the last day after people in the media, entertainment and the arts were finally allowed to speak that the two new provisions were added to the Bill. Parliament which had no opportunity to consider the additions gave the bill its Third Reading later the same day. It was a triumph of deception. Canadians didn’t really know what they were getting but they didn’t complain. I find it difficult to believe things just happened that way. As I see it the moral zealots like Tom Wappel deliberately and deceitfully manipulated the committee and the bill was essentially snuck through Parliament at the last minute. Ian Waddell, the other NDP member on the committee was the only M.P. to suggest that there was a civil liberties aspect to the legislation and in a speech in Parliament came out against prohibiting written material. But he did not vote against the bill which passed unanimously.
The Western World’s most restrictive pornography laws had arrived with barely a critical argument heard in the media although a few certainly tried to raise their voices. And most Canadians probably smugly felt that they had something new to be proud of. Canada, like Afganistan under the Taliban but in a different way, has become a world leader in moral correctness. Strident anti-porn crusaders in other countries now clamour for “Canadian style” laws.
UNIQUE AND UNUSUAL ASPECTS OF R.v.SHARPE
It was the first, and only time that a defendant acting on his own without a lawyer has successfully challenged the constitutionality of a section of the Criminal Code. This fact was barely noted by the media.
It was the first, and only time that Parliament voted on using the “notwithstanding clause” to overturn a court decision by suppressing the freedoms respected by the Charter of Rights and Freedoms. A record number of more than 300,000 of names on petitions demanding this were presented to Parliament. Parliament was confronted by a well organized wave of moral outrage and liberal indignation. The motion to implement the clause was only narrowly defeated after dissident government M.P.s were pressured to tow the line. It was reportedly the first time in British Columbia that a judge received death threats as a result of a legal decision (e.g. not a conviction). The defendant also received death threats.
There two other quite unusual aspects. The Crown insisted that the appeal on the constitutional question be heard before the trial proceeded. Chief Justice McEachern agreed, telling me to save my breath. Had the trial proceeded in the normal fashion I would have either been convicted or acquitted on the more serious distribution charges and any other appeals arising out of trial could have been heard at the same time. Fast tracking to the Court of Appeal put me at a considerable disadvantage. The more detailed understanding of the arguments and trial evidence were not available. If Judge Shaw had ruled that the possession offence was constitutional I would likely have changed that plea to guilty on at least one photo and argued that my erotic boy stories did not “advocate or counsel”, whatever those words are found to mean, and that the stories had “literary merit”.
The other highly unusual thing at that time was that the Crown was allowed to submit new evidence at the appeal level. The Court of Appeal is not a trier of fact, and new evidence is seldom considered. The appeal was over points of law, I was not on trial, the possession law was. The new evidence was an affidavit from Detective Inspector Bob Matthews, the Head of Project P Canada’s largest anti-porn squad. He was not so much concerned about the possession offence as such but as a way to get his foot in the door to seek out actual sexual abuse. He reasons that where there’s porn there’s likely to be abuse. The law is needed to make it easier to enforce laws against sexual abuse. He argues that a law can be justified not so much on its own merits but as a means of facilitating the enforcement of other laws. Another example could be a law to require mandatory, frequent and universal urine testing to make it easier to enforce other drug laws. If the Crown was allowed to submit new evidence I wanted to do the same on the question of harm but my lawyers strenuously opposed this.
THE LAW’S PIONEERING ASSAULTS ON LIBERTY
This law pioneered two major extensions of state power into the privacy and freedom of the individual. For the first time the simple possession of expressive materials was criminalized. Never before had written material or images of any sort been prohibited. This was unprecedented in our legal tradition but it was all but ignored at the time. And for the first time written advocacy was specifically prohibited. Even mere possession of material deemed to advocate illicit sex involving children became illegal. For example a statement such as: I think most sixteen year olds would benefit from having sex with their teachers becomes patently illegal to even possess a record of. I assume its use in an illustrative context is allowed. All this happened with barely a whimper from Canadians. They didn’t know what was happening. Not since the criminalization of recreational drugs in the early Twentieth Century has there been such a huge extension of state power into the individual’s right to be left alone. That failed experiment in repressing liberty has claimed over a million Canadians as casualties and cost more than the total national debt, and it continues to add several hundred annually to its hefty body count. It may be more than ironic that the period since the proclamation of the Charter of Rights and Freedoms in 1982 has witnessed an accelerated erosion of personal freedom largely as a result of Supreme Court decisions.
The law also marked the first time that courts were expected to rule on, or deem material which is legally unknowable for the ordinary person. Unlike obscenity, people have no way of knowing what constitutes child pornography beyond the vague words of the legislation and what the police may say. Materials banned by obscenity laws and anti-hate laws can be possessed. While not commercially distributed they may enter the country as personal possessions or be written or created by people. They can be privately viewed, lent or given to others. They are knowable.
I was of course disappointed by the Supreme Court’s decision but I was not surprised. The Court’s decision in my case is first of all a very socially conservative decision that places minimal emphasis on freedom of expression. In this it probably reflects the judges’ own conservative values and opinions as much as any deference to Parliament. If they were bothered by the law it was probably more due to the law’s flawed drafting than any burden it imposed on the public. The decision was also consistent with most of their previous Charter rulings involving freedom of expression. Our Supreme Court judges are fond of saying that unlike the U.S. there are no absolute rights in Canada. They are in a unique position to ensure this.
Chief Justice McLauglin begins the majority analysis by claiming: “Until it is known what the law catches it cannot be determined if the law catches too much.” While this sounds reasonable it belies the fact that there had probably been over a hundred possession convictions which could have provided a very clear picture of what was being caught.
The law as affirmed by the Court envisions child pornography as a highly toxic material the mere possession of which of which creates a significant risk of harm to children. In a widely quoted excerpt they state: “Child pornography is inherently harmful to children and society,... This harm exists independently of dissemination or any risk of dissemination, and flows from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children.” This statement smacks of mysticism. Child pornography is broadly defined and it may include videos, photos, drawings, paintings, sketches, books, articles, jottings and diaries. In the hands of the “pedophile” it may incite them to commit sexual assault. It is seen as capable of warping men’s thinking and a tool for the seduction of children. In a statement which reveals their thinking and their toxic vision of what it is they say: “exposure to child pornography may reduce paedophiles defences and inhibitions against sexual abuse of children. Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem accepted.” Any children actually involved in the making the photos and videos are assumed to abused degraded by the experience. They describe their vision of the horrors inflicted on the children: “The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.” In fact most teen porn actors are recruited from hustlers, not the other way around. Their latter point accepts the notion that the abuse is repeated every time the material is used. The Court envisions the child being abused again every time the pedophile masturbates to the image. Some child TV and movie stars must have been abused millions of times if this is true. It is as if child porn is something like a magic voodoo doll you stick pins in. This is mysticism passing as legal wisdom. The decision by upholding the prohibition and accepting the most far fetched speculations about a reasoned risk of harm reinforces the idea that child porn has powerful toxic and mystical properties. This is akin to the Taliban’s belief that the sight of women’s bare heads or naked ankles incite men to infidelity and rape. If women’s heads and ankles are always covered in public it makes it plausible that their exposure would indeed incite rape. The fact that Western women survive with bare heads, wearing short skirts and even nude at some beaches is as irrelevant to the Taliban as the lack of evidence that porn functions as the Court claims. The Court’s ultra conservative minority holds that there is a reasonable apprehension of harm to children from a person being in possession of one’s own recorded thoughts about certain illicit acts. As mullahs the minority would no doubt try to ban nudity in private. The Court accepts the most hysterical claims about the capacity of child porn to put children at a significant risk in the face of its growing abundance and easy availability. It must be miraculous that any child has survived unscathed.
The Court recognizes that harm is a “pivotal question” and asks what standard of proof of child pornography’s harm is required. Quoting from themselves in the Butler decision they say only “a reasoned apprehension of harm” is needed. Compare this with the standard in criminal law where, at least in theory, it is “beyond a reasonable doubt”. In civil law the standard of proof is the “balance of probabilities”. When the law itself is on trial, as it is in a constitutional challenge such as mine, the standard is mere plausibility. For a “rational connection” to exist The Crown has only to claim that the law in question could advance its own intent. It’s as if only the flimsiest of alibis could get an accused acquitted. For example, the prohibition of drugs is assumed to reduce their use and the problems associated with their use. This rational connection is demonstrably untrue as the prohibition has provided strong motivation to spread the use of the prohibited substances. But it is enough.
The evidence they use is the testimony of Dr. Collins which I tried to challenge but which my lawyers glibly accepted. I have analysed the five part theory extensively elsewhere. The Court discounts the trial judge’s reservations about cognitive distortions and inaccurately accuse him of demanding scientific proof. The transcript would have been useful. The court, equating pedophiles with child molesters which even Dr. Collins avoids, focuses their arguments on them and their presumed thinking. They clearly see pornography, probably especially the written, as persuasive and want to reduce whatever messages it might convey. Isn’t this thought control?
The Court sees no need for proof for the contention that child porn incites men to assault children. The trial judge had been aware of the catharsis theory of child porn that it acts as a substitute for actual assaults and he gave some weight to this countervailing view and could not say one way or the other. At this the Court has the audacity and generous hypocrisy to claim: “Absent evidence as to whether the benefit from sublimation equals the harm of incitement ... this conclusion seems tenuous.” Suddenly they demand for a more rigorous approach than applies the other way around. The Court follows Dr. Collins lines of reasoning on grooming. I conceded it happens, but adolescents anyway would be much “vulnerable” to legal adult porn, alcohol or drugs. They conclude that there is ample evidence, buttressed by experience and common sense to validate the law. The Court affirms that the relationship between the law and the good that it is supposed to do can be quite tenuous and does not require any empirical evidence. The “reasoned apprehension or risk of harm” used to justify laws can be as little as concerned speculation.
WHAT THE COURT SAYS ABOUT IMAGES
The Court sees the law as only targeting “blatant pornographic material”. The law deals with both “sexual activity” and “sexual organs” and the Court, agreeing with Dr. Collins, makes no distinctions between depictions of actual children in photos and videos and works of the imagination such as drawings, paintings and comics.
The term “explicit sexual activity” [section 1.(a)(i)], they suggest, only catches “depictions of sexual intercourse and other non trivial sexual acts.” They rule: “The law does not catch possession of visual material depicting only casual sexual contact”, like kissing and hugging. “Certainly a photo of teenagers kissing at a summer camp will not be caught.” The law is only intended to catch material “at the extreme end of the spectrum” and they contend that “explicit sexual activity” should be given a restrained interpretation. However “a video of a caress of an adolescent girl’s naked breast” if “graphic depicted and unmistakably sexual.” might be caught. Fondling is presumably not trivial and can presumably be blatantly pornographic and at the extreme end of the spectrum of sexual activity. The ruling fails to clarify just what is “explicit sexual activity”.
When it comes to images where the “dominant characteristic” is the depiction of a “sexual organ” for a “sexual purpose” [section 1.(a)(ii)] the Court is even less specific. They deliberately avoid defining “sexual organ”, and although they again suggest a “restrained interpretation”, they only specifically exempt eyes and lips. The definition is to be left to case law which can reflect values and circumstance. Certainly female breasts will be sexual organs. There could be a question with little girls who don’t have breasts as to whether they would still have sexual organs on their chests for the purposes of the law. And what about boys? They don’t say if bare bums are anal regions. The Court says: “a child in the bath will not be caught” and: “Families need not fear prosecution for taking pictures of bare bottomed toddlers at the beach or children playing in the back yard, given the requirement that the dominant purpose be sexual.” The meanings of “dominant characteristic” and “sexual purpose” depend on whether “a reasonable viewer” looking at the depiction objectively and in context would see the sexual organ as the dominant characteristic of the image and that it is depicted for a sexual purpose. A reasonable viewer who’s unfamiliar with pictures of nudity or who has only seen nudes in the context of legal porn could honestly equate the two, and see them as “intended to cause sexual stimulation to some viewers.” “Some viewers” are presumably pedophiles. What the Court seems to be saying is would a reasonable viewer think that the image would arouse some pedophiles. An expert Crown witness such as Dr. Collins could testify that almost anything might arouse a pedophile and it would not be unreasonable for a reasonable observer to agree. Or is the reasonable viewer a mind reader? All this puts an enormous weight on the court’s perception of the defendant. The “character” of the accused rather than his behaviour may determine his fate.
At the voir dire the prosecutor, the judge and myself had agreed that pornography is intrinsic to the material itself. The Court however abandons this concept and rules that child pornography unlike obscenity can be a relative thing. The Court supports the idea that the same image could be pornographic in one context but not in another. By placing a photo in an album of sexual photos it could acquire sexual purpose. This supports the theory of collateral materials which has been used against men by arguing such things as that the expressions and poses of a depicted child are similar to those found in pornography. Or, that similar material has been found in the homes of convicted pedophiles. This can be used to weave a web of suspicion around a defendant as happened in the case of Viktor Schlick. The decision invites the absurdity that certain materials would cease to be child pornography if they passed from the possession of someone thought to be a pedophile to someone not so labeled. It also invites the persecution of people based on perceptions. It invites the lower courts to subvert the basic principle that laws apply equally to everyone. Obscenity on the other hand is intrinsic to the material itself and independent of where it is located or who has it.
The provision about depictions of sexual organs is so broad that it almost makes the provision about depictions of sexual activity redundant as the former would catch almost all of the latter. The only exception would seem to be where the subjects engaged in the sexual activity are clothed or the sexual organs are concealed by the composition of the image.
Probably most of the images that will be involved in child pornography prosecutions will come the Internet. Much of this is basically nudist material with little or no sexual activity but capable of having some sexual purpose read into it by a Crown expert. A conviction may only require one in a hundred images to be so interpreted. The Court’s ruling does very little to clarify what images people may feel free to possess. Teenage girls trading some commercially available Japanese manga comics which depict sexual organs and activity could be subject to ten year sentences. The first criterion of an offence is that it must be “proscribed by law” so that people know what is a crime. The first two convictions in B.C. following the decision involved no sex of any sort but only the depiction of the immature breasts of the accuseds’ daughters. In both cases the girls and their families suffered. Children were victimized by a law that is supposed to protect them. For some psychiatrists like Dr. Collins it is axiomaticly impossible that exposure is harmful. In addition publication bans in small communities are ineffective and stigmatization is particularly acute.
The Court’s refusal to clarify the definitions generally and the weight they give to context probably means it will be many years before there will be any standardized approach to deeming material as child porn. In the meantime people will have to careful with any problematic images or text they possess. With the help of junk science wielded by Crown forensic psychiatrists and others in the caring professions the police and prosecutors will probably be able to convict most of those they set out to.
WHAT THE COURT SAYS ABOUT WRITING
The Court gives mixed messages about what “advocates or counsels” [section (2)(b)] means. They say that written material must “actively induce” or “encourage” certain sexual offences with children. “Mere” descriptions of criminal acts are not caught. This seems fairly clear and would not catch much material if defined as obvious attempts to facilitate criminal acts. But the Court also sees the prohibition as applying to material that “viewed objectively, sends the message that sex with children can and should be pursued.” This is anything but clear. We all know that messages can be subtle, many of the most effective ones are. We also know that messages can be cleverly contrived where none exist by reading meanings into things and psychologizing people. A determined prosecutor and clever Crown witnesses could find all sorts of positive, sex with kids is OK, messages even in some commercially available material. Some advertisements have been condemned for this reason. Who knows what a “reasonable observer” might see if he thinks that the accused may be some sort of deviate. This “sending messages” definition is extremely broad and no doubt subtle or contrived positive messages could be seen as “actively inducing”.
However the Court cannot blatantly offend the arts community and much of the public by criminalizing classic works of literature whose acceptance gives lesser talents some latitude to explore things. Lolita, The Decameron and Plato’s Symposium can’t be touched, at least not yet. The works of cultural anthropologists and political activists employing rhetoric in seeking a lower of age of consent also get specifically excused. By analogy, broad discussion of child and adolescent sexual behaviour in polemics and fiction should be possible. But who can predict what a “reasonable observer” influenced by junk science might conclude? However all expression beyond the boundaries set by culturally accepted works could be problematic. At my lower court hearing Dr. Collins stopped just short of advocating that academic studies fundamentally challenging his assumptions, “pseudoscience” he calls them, should be prohibited.
There is a vast quantity of erotic stories of various kinds and qualities involving children available on the Internet. Many would not technically violate the law as they do not deal with criminal sexual acts. The many stories where children are flogged, often severely by teachers, fathers, police officers, slave masters etc., would appear to be perfectly legal masturbation fantasies. Stories of children having sex amongst themselves are common and probably would not be caught. Material that would clearly be caught include stories where a man abducts, tortures and rapes children. So would sensitive loving stories such as between a caretaker and a handicapped adolescent who has no normal sexual opportunities. And some stories of all kinds would have significant literary merit.
The Court did not comment on political expression such as the NAMBLA Bulletin, which probably triggered the prohibition of written material in the first place, except to say it would be legal to advocate lowering the age of consent. For a court in a democracy to say that people have the right to advocate changes in the law is hardly reassuring. It should go without saying like a person’s right to breathe. For advocacy to be meaningful it cannot be restricted to rhetoric if ideas are to be made broadly available and comprehensible. They need to be fleshed out in other forms such as fiction and art so that they can be explored.
Under the “sending messages” criterion the courts will be able to make what they want out of the “advocates or counsels” provision so long as they do’nt tread too heavily on the sensibilities of the arts and academic communities. For the ordinary person their fate may depend more on how the court views them rather than what they possess or have done.
WHAT THE COURT SAYS ABOUT THE DEFENCES
The defences provided in the law, which the Court very clearly backs up and strengthens, are often diametrically opposed to the main thrust of the law. As defined by the Court the defences, particular that of artistic merit, rip the law to shreds for any one with a pretense to smarts, creativity or respectability. The artistic merit defence is apparently open to everybody. Artistic merit is almost democratic as talent doesn’t have to be that great. “Any objectively established artistic value, however small, suffices to support the defence.” In theory this could legalize some, but certainly not all, of the most erotic and explicit boy porn videos ever made. Or a beautiful Japanese manga drawing I found on the Net showing two young boys in frenzied sexual action where the erotic power of the image flows from the artist’s generous talent. Case law may tend to set a higher standard for artistic merit especially for material downloaded or e-mailed. The ordinary guy or gal who downloads some teenage action and gets caught somehow, and those males specifically targeted as pedos are in most danger. Entrapment and stings should prosper. The decision on artistic merit leaves things open to prosecute, if not to convict, underground culture zines which contain expression many find bizarre. This means they would at least face the costs of mounting a defence and of witnesses to certify the work as having “artistic merit”. Financial persecution is very effective against the poor.
The Court suggests that therapeutic purposes might meet the requirements of the “medical purpose” defence. Suppose a man suffers from an enlarged prostrate and is advised to masturbate to treat the problem. Some doctors advise this therapy. He has no partner so he tries pornography to inflame his desire in order to ejaculate. The only stuff that seems to work is child pornography depicting ten year olds. The man is clearly a pedophile of sorts. Should he have his therapy? The “public good” defence is a claim that the illegal act was beneficial. Breaking into a cabin to make an emergency phone call is one example. The police and prosecutors, and possibly some clinical researchers, could use this defence to justify their possession of child pornography. It is not clear if “materials that promote expressive and psychological well-being” would cover those that a person might require for successful masturbation regardless of the health of his prostate gland.
The most obvious inconsistency is the reinforcement of the “artistic merit” defence in direct opposition to the main thrust of the decision. This makes a mockery of the harm theory used to justify the law. If a photo, drawing or text is so egregious, so toxic that mere possession of it creates a reasoned apprehension of harm to children then how can the same thing if it has “artistic merit” be reasonably construed as legal to possess and presumably distribute? It doesn’t magically become benign. The Supreme Court’s decision has the “protection of children” trump freedom of expression and then they have “artistic merit” trump the protection of children. If a photo, drawing or writing has artistic merit it is likely to be more persuasive or more effective in abetting whatever evil child pornography supposedly promotes. Unless one believes that child porn is harmless to begin with the defence creates an absurd situation.
While the Court is able to perceive a “reasonable apprehension of harm” in some of the most far fetched situations a majority had problems when it came to justifying the prohibition of one’s private journals and self created works, although even here they see some risk in allowing people to possess what they have created. They also recognize the anomaly of teens not being able to record their own legal sex activity. They read in specific exemptions for these categories. The minority sees these exemptions as a potential menace to children. In both cases the material could not be shown to others and presumably they could not survive their creator and would have to be destroyed. These materials the majority conceded posed only a nominal risk of harm to children and were a deeply private form of expression. This is the basis of the exceptions they read into the law.
THE DECISION’S PIONEERING STEPS
In addition to the pioneering nature of the law the decision also breaks new ground in legal history. In defining the exceptions the Court enunciates the completely new and novel legal concept of “occulted possession” where something can be possessed by its creators but never shown to anyone else. Heretofore possession has always included the right to privately show, share, give or bequeath the thing possessed. The Court’s radical innovation in fundamental legal concepts went unnoticed at the time. The decision was silent on whether a person could convey the fact that they held something in occulted possession so presumably one could. One might legally write a friend, “I’ve written this great story about a teacher and his twelve year old student and they spank each other before they have sex, but I can’t let you read it.” While the decision only applies the concept of occulted possession to certain kinds of child pornography it could be a precedent for other things such as hate literature. However it should still be legal to produce and sell do it yourself books which provide instructions on how to make your own child pornography, or hate literature.
The decision endorses junk science. The Court adopts questionable psychiatric concepts and lends legitimacy to dubious applications of theories such as collateral material and cognitive distortions. By boldly venturing into an area where materials are judged by the context of their location and perceptions about the possessor the Court is saying that the law is partly based not on what you do but what the court thinks you are. Equality before the law is compromised.
The Court also chose to rule on the constitutionality of the law with very incomplete and lopsided evidence available on the pivotal question of harm. At the voir dire I represented myself with scant financial, research or legal resources. I had some misgivings at the time about taking on the ambitious task of challenging the law by myself. Failure could make it more difficult for others. But then no one else was trying or interested. I tried but was unable to get any support or encouragement from Canada’s libertarian establishment. The British Columbia Civil Liberties Association wrote me that they supported the possession offence and that included written material such as the NAMBLA Bulletin. The Crown suffered no such limitations and without warning brought in Dr. Peter Collins, a high powered psychiatric expert witness who had an impressive string of victories in child porn cases. At the appeals this imbalance was further skewed by my lawyers who stubbornly refused to develop significant evidence favourable to me in the exhibits, testimony and findings from the voir dire. When the Crown was allowed to enter new evidence they also refused to do the same. This imbalance in evidence was noted at the Supreme Court hearings by Frank Addario speaking for the Criminal Lawyers Association. He submitted that for this reason the Court was not in a position to consider the law’s constitutionality. The Court however had no such qualms and saw the uncontested evidence of Dr. Collins as adequate.
The imbalance was further augmented by the references selected to inform the decision in the “Authors Cited”. The two case comments from legal journals cited read like private factums for upholding the law. One academic begins his article by simply stating, “the judgment (my original acquittal) is just wrong.” Any more favourable academic comment was excluded. Similarly, of the three social science references, one was by an academic who had lobbied for the law and the others had actively promoted stricter laws in the general area. I don’t know if the Court selected these references themselves or whether they were chosen by their clerks whose biases have been questioned before. There is a disturbing consistency in the ideological positions of the sources. Recently Supreme Court judges have complained of insufficient resources.
The decision does very little to clarify the law. It is minimalist. The Court deliberately left refining the meaning of many terms to case law. In doing so they imply that lower courts should, more or less, do what they think appropriate. Within the extremely flexible terms of the decision they are given considerable latitude in deeming what is child pornography. Applying the Supreme Court approved junk science concepts of “cognitive distortions” and “collateral material” judges and juries could convict on the basis of the most marginal material if they didn’t like the defendant. The decision provides no general guidelines as to what people can feel secure in possessing, including some commercially available art, magazines and books. The decision could seem to allow these materials to be deemed pornographic in the possession of some particular accused, but not generally. Cognitive distortions are modern heresies, and include opposition to certain accepted theories and contemporary conventional wisdom. Interpretations, deemings and penalties can and will vary not only from case to case but also from region to region reflecting local media and sensitivities. The ruling invites the police to continue pursuing the most marginal of cases in terms of the material. Liberal families with sex positive values will remain open to persecution for their lifestyle. The law will continue to function as a family wrecking instrument.
Viewed one way the decision is a confused piece of junk law. It is logically inconsistent and intellectually dishonest. It can be seen as the work of narrow legal minds with no more concern about principles than the politicians who appointed them. Only politically, and perhaps in a rather cynical manner, does this inconsistency make sense. One might say the decision is logically absurd yet politically astute. Social conservatives and hysterical liberals get their morally satisfying law, the criminal justice system gets a supply of people to arrest, convict, imprison and therapize and the artistic and academic communities get their interests protected. The law becomes a very flexible one that can and will be applied in highly discriminatory ways.
One way of understanding both the law and the decision is to see them as basically targeting “pedophiles” as they are now mythologically constructed. This can explain leaving the definitions open to very broad interpretation in order to convict and harass suspected deviates while at the same time strengthening the defences to assuage and protect respectable groups. This allows the police, prosecutors and courts considerable latitude to apply the law selectively. It would be a mistake to think that a particularly invidious defendant could easily get off on an artistic merit defence. Looking at it this way the inconsistency largely disappears. The purpose of the law is to get the pedophile. In order to accomplish this objective the criminal justice system is prepared to sacrifice the welfare of many supposed victims whether they be street kids or children in families. Kids have already been unintended although at times necessary victims of the law. Both the law and the decision are offender centred rather than child centred. Given the accepted theories of harm children are supposedly protected by denying pedophiles access to child pornography and discouraging masturbation. The idea is to stop pedophiles from having fantasies, which are believed to incite them to commit offences. This is the basis of the sex offender treatment pursued by Dr. Collins. This the rock on which the law is built. The law and the decision are falsely reassuring. Even evidence submitted by Dr. Collins suggested that a large majority of child sex offenders are not preferential pedophiles, but rather incest offenders and those who opportunistically assault children and who would have little interest in child pornography.
Despite this I believe that the Court’s affirmation of the law was sincere. It is likely that its members share the pervasive moral panic about kids and sex which intensified with the “open season on children” hysteria that followed my original acquittal. It is also true that the decision was astute. The public was reassured. Both the populist and corporate right, the PCs, mainstream feminists and most human rights types would have been outraged had my acquittal been upheld. The government would have had to redraft the legislation, this time under intense scrutiny from the media and interests groups. It would be awkward, it would be difficult to sneak in measures without public discussion. It would be potentially divisive and would strain relations between the Court and Parliament. From this perspective upholding the law was the civicly responsible thing to do.
— Robin Sharpe.
Content of this website is released with ‘copyleft’ license, that is you are free to copy, redistribute or use it for your own purposes provided you retain the present copyleft notice including my name and contact information, allowing others to subsequently reuse the material. Robin Sharpe, crankyman98@gmail.com.