Church and State are always in hot pursuit of sin and sedition. They hate having to stop at boundaries made up of such soft values as freedom of conscience and imagination and privacy.
One of the great struggles of western civilization has been to check this inquisitorial zeal of religion and government; and since the 17th Century, the view has gradually taken hold that, if there must be censorship, it will be confined to that which is actually uttered, expressed, sold, distributed, and published. In the privacy of their own thoughts, imaginations, libraries, and (more recently) bedrooms, the citizenry are to be left unmolested and unimproved.
Against this background, a criminal offence that targets expression materials that are merely possessed rather than actually uttered or published must be seen as an inherently dangerous innovation in our laws. On this point, the B.C. Civil Liberties Association strongly endorses the reasons of Justice Shaw of the Supreme Court of B.C..
This said, the BCCLA has always recognized that children present special problems in connection with free speech.
We have never held, for instance, that teachers in elementary schools, such as James Keegstra, have an expression right to teach whatever they feel like, because we do not judge school-children as possessing the critical competence to protect themselves from harmful error. Keegstra, we argued, should have been fired for incompetence rather than prosecuted for ideas that—however loathsome and hurtful—must be accorded the freedom of a democratic forum.
Similarly, there are special expression rights problems when the incompetence of children to consent to sexual activity collides with the special nature of photography. Photographs ordinarily require that something actually happen in the world in order to make their production possible. Photographs of the sexual use of children arguably extend the actual abuse of the children represented in them—just as the knowing possession of stolen property extends the harm of theft. Because of this, the BCCLA has long held that possession of photographs of the sexual use of children can be made a crime, as long as appropriate defences are available to an accused—e.g., that the person photographed was actually of age.
To this extent, therefore, we respectfully disagree with the decision of the Supreme Court of B.C. in the Sharpe case, and agree with the appellant Attorney General of B.C.
Nonetheless, for the reasons cited above, the BCCLA has always insisted that if there is to be a possession offence for child pornography, it must be strictly scrutinized for over breadth. The statute under appeal in this lawsuit was rushed through Parliament in the dying days of the Mulroney administration, and suffers from gross over breadth in four ways:
The law includes not only children (persons under the age of 14, the age of consent to sexual relations in Canada) but also youths (persons between the ages of 14 to 17 who may consent to legitimate sexual relations). Photographs of the sexual activity of 17 year olds may not be presumed to be records of sexual abuse, and need to be treated differently from child pornography. Further, since this is a law that proceeds on the basis of appearances of age, and there are such difficulties in accurately distinguishing ages in the case of what our law calls young persons and young adults, it poses significant danger of unjust prosecution, conviction, and punishment.
The law prohibits not only the possession of photos that were made through the sexual use of real children, but the possession of ideas and images in the form of paintings, drawings, books, etc., that were the product of someone’s imagination and did not involve harm in their production to anyone.
The law prohibits oral or written advocacy of sexual activity with persons under 18 that would prevent public debate about the appropriate age of consent to sexual activity.
Finally, the statute is deficient in terms of the provision of fair and reasonable defences for an accused. For instance, the law does not allow the defence that the person represented in a photograph is actually of age; and young people are not to be permitted the defence that a suspect photograph in their possession is of their own perfectly lawful sexual activity.
We will stress, in our presentation to the Court, that the possession law at issue is an innovative addition to the existing obscenity laws that already prohibit the making, distribution, sale, and publication of child pornography—not to mention the laws that prohibit sexual exploitation and abuse of children under any circumstances. Many commentators—particularly those of our legislators in competition with one another to be seen as the most solicitous of the welfare of children—speak as though section 163.1 of the Criminal Code were the sole legal obstacle between our children and their potential exploiters. This is just wrong, and needs to be identified as such.
In addition to our legal arguments, the BCCLA strongly condemns the personal attacks that have been made on Justice Duncan Shaw of the Supreme Court of B.C. in connection with the Sharpe case. It is as if any mention of sex and children in the same sentence is enough to put both reason and justice to flight. The Shaw decision is a carefully reasoned contribution to a tremendously difficult and sensitive area of law. We believe that it is, in part, wrong; but one of the fundamental features of a community that has decided to be ruled by law instead of mere persons is respect for the judicial process. John Dixon of the BCCLA said today: “The government says that what is in the balance in this lawsuit is the satisfaction of a few perverts against the safety of our children. If that were the whole story, the B.C. Civil Liberties Association would not be here. We are here because we want the court to see that this is a law that also puts in the balance the personal integrity, dignity, and privacy of the minds of Canadian citizens.”