PART SIX: THE SUPREME COURT & BEYOND(incomplete)
OTTAWA JANUARY 2000
My red eye flight didn't arrive until 8:AM on the day my case began. It was bitterly cold even for Ottawa and I was unprepared for it. It went down to -25 celsius with a wind chill of -56 while I was there. Even taking taxis to and from my Rideau Street hotel/motel I was still maybe twenty minutes late for the start of the hearing which began at 9:45. The Supreme Court is in a severe chateaux style building in contrast to the more frivolous neogothic of the adjacent Parliament Buildings. The marbled interior is in a muted traditional style of some sort with gestures to art nouveau and is distinguished only by bands of a beautiful red marble along the stair balustrades. The high red and dark panelled courtroom is not all that big and only seats about sixty spectators. I found a seat at the back. John Gordon was speaking, but the room's acoustics and sound system were such that I missed much of what he was saying. This was true of most speakers and it wasn't until I was able to watch the Canadian Public Affairs Channel video of the proceedings almost two months later did I get a full appreciation of want went on. I had very little contact with my lawyers in Ottawa except for brief conversations during breaks. I felt they avoided me.
A Toronto man who had been convicted of child pornography accosted me at lunch break the first day and we went out to a Sub Stop for a snack. He had come all the way to meet me and I was grateful for his support. He told me he had been caught in an Internet sting set up by American police agents, served five months in jail but managed to keep his family including two teenaged daughters together. They had been supportive throughout.
The media as I expected was on to me at every opportunity and I refused several requests. I tried to come up with "sound bites" to feed the media. It's not that easy. NO EVIDENCE OF INDIRECT HARM from child pornography. I would quote Detective Waters' TIDAL WAVE of child pornography but no EVIDENCE of INCREASE OF ABUSE. And WE NEED THE CHARTER TO PROTECT US FROM IGNORANT AND CAPRICIOUS POLITICIANS, read the record and you will understand. I did an interview with the CBC TV morning show. I have never watched it and did know what to expect. They wired me up and left me alone in the studio. I was waiting for at least the cameraman to return when I began hearing questions over the earphones. I was live on TV. The lights were in my eyes but it wasn't as bad as at VTV in Vancouver where I was almost cringing from the glare. A friend thought it might be deliberate to make me look ill at ease. Manipulating subjects is part of the cameraman's art. I wasn't pleased with my interview although I never saw any of it or most of my coverage. The media scrums in the Supreme Court lobby I should have kept briefer. Don't be nice to them if you're pariah.
R. v. SHARPE: The VIDEO
John Gordon for the Appellant, the Attorney General of B.C. began by listing 6 essential areas he wanted to discuss:
Gordon pointedly noted that contrary to Madame Justice Southin's assertion, the respondents and the BCCLA have conceded that the possession of expressive materials is not an absolute right. I can remember vainly trying to get my counsel to adopt Southin's position, it closed the gate, it backed the original ruling that was appealed, and it was clear and meaningful. They could, I argued, fall back on their categories if necessary but they should not be advanced as our first choice.
As for privacy Gordon mentions other laws that reach into the home notably s. 172: "Every one who, in the home of a child (under 18) participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice, and thereby endangers the morals of the child or renders the home an unfit place for the child to be in" can get two years imprisonment. He mentions a recent case where a conviction was obtained where a child found and played a video that their parents had made of themselves having sex, thus he claimed, endangering the child's morals. Gordon submitted that this law sets a precedent for the state to invade the privacy of the home. The child probably boasted to his buddies at school.
He claims law needs to be broad to catch material that puts children at risk. He says the law was not intended to catch material such as images of teenagers kissing, Norman Rockwell's famous painting of a boy shown naked above the waist bathing in a kitchen tub or written descriptions of sixteen year olds having safe sex. He says that drawings and sketches must be included because there is a "continuum of harm" from photographs depicting explicit sex to crude drawings of children where the genitals or anal region are dominant.
He also argues that some sketches might be made from live models. How are we to know? He defends the outer reaches of the definitions because children are unable to distinguish differences, and refers to what Dr. Collins said about the kinds of material appealing to pedophiles. In terms of "advocates or counsels", he quotes the definition of "counsel" in s. 22 and he says written material must go beyond mere description to presenting the illicit sexual activities depicted as good and valuable for the participants.
The Court asks him if a badly written (no artistic merit) novel similar to Nabokov's LOLITA would meet the definition of child pornography. Gordon feels it is a borderline case. When asked by the Court about a teenage girl's explicit diary where she describes a (presumably prohibited) sexual experience in positive terms he has problems deciding if it should be covered. Material can fall into the wrong hands.
He argues that the writer, even if she had not intended it to be seen by others, creates a risk that it might be shown to others with resultant harm to society and children. Gordon in his zeal to push the continuum to the limits of conjectural harm invited claims of overbreadth. The invasion of privacy is being justified by the possibility that material may escape, be lost or stolen, and fall into the hands of a pedophile. The importance he attaches to escape seems to assume that child pornography is both toxic and rare, something like surviving smallpox specimens. Porn is however abundant and any lost will likely end up in the garbage or in the hands of the police. Gordon argues that if material were stolen the original possessor would be guilty of possession (mens rea) and should be prosecuted because his possession created the risk of dissemination through theft.
I thought the argument was far fetched but some members of the Court seemed to take the point seriously. Gordon says people should be able to advocate lowering the age of consent but they should not be able to advocate sexual activities that would become legal if the age was lowered. I suspect that this would make it illegal to argue that certain prohibited sexual activities are beneficial to the participants which is a rational way to argue for changing the age of consent. Presumably by his reasoning, one can argue a point but not give examples and the advocacy of legal changes could not be fleshed out by literary exploration.
In cases where images show two participants who appear to be 14 to 17 he asks how do we know the activity is legal? He applies this argument to the only picture of mine showing explicit sexual activity. While the activity depicted may appear to be lawful he says it is not possible to know without the history of production such as whether or not the boys were coerced or given cigarettes or intoxicants. If pictures show a child 14 to 17 with someone over 18 we cannot tell if the adult is the child's teacher or coach so we cannot tell from the picture if the activity is legal or not. Therefore the possibility must be covered. He says that if we exclude apparently lawful activity we lose the ability to capture the actually unlawful. This is like saying it is better that a dozen innocent men be hanged rather than allowing one guilty one go free. John Gordon made his points, all consistent with a very conservative social position, on the continuum. At times he seemed unprepared and spent much time shuffling his papers looking for references, and questions from the Court made him uncomfortable. His presentation may have been stilted by his personal moral viewpoint. He argued the risk of harm to children in the most far fetched hypothetical situations. In contrast to this his continuum has no perspective, he allows no distinctions, he argued as a believer. He was more diligent than brilliant. I watched him a few times on the video.
Cheryl J. Tobias for the Attorney General of Canada has an emotionally inflected voice which added urgency to her submission. She argued that the possession offence is part of a scheme for eradicating child pornography. She relies on the Badgley and Fraser reports and their pre-Internet assumptions about the prevalence of child pornography and markets. Badgley had postulated the ambitious goal of total eradication. She argues a possession offence is needed to cover the use of porn in grooming because that falls short of distribution. Fiction must be prohibited because some of it might actually be true accounts and there is no way to tell. This reasoning speaks for itself. And she claims it could lead to cognitive distortions and be used in grooming. I saw her as a sincere lawyer with apparently little practical understanding beyond official and obsolete reports.
James H. Flaherty, the Attorney General of Ontario was clearly unprepared and seemed unsure of himself and his arguments were superficial. The press picked up on this, unflatteringly. Given his other responsibilities his personal appearance before the Court would seem to be a political gesture. He sees all sexual offences against children as being committed by pedophiles. Even Dr. Marshall puts the figure at about 30% and a recent Canadian Government report had estimated that non incestuous pedophiles were responsible for less than 7% of sexual offences against children. He argues that because Interpol has requested Canada to enact child pornography possession laws we should do so. He says that because there's an international trend towards possession laws that Canada should do the same. It seems that we should rush to give up whatever sovereignty we have left. He emphasizes that if any possession is allowed the material might by theft or loss fall into the hands of pedos. The man is a goof.
Timothy S.B. Danson for the Canadian Police Association described himself as speaking for the police and victims community. He divides the harm of child pornography into production harm where real children are used and consumption harm. He speaks rapidly. He uses an equality analysis approach claiming that all porn sexualizes, objectifies, marginalizes children to the point that their human dignity is violated. Children are an historically subordinated group and child pornography, getting close to hate literature, is the equivalent of group libel. To him, child pornography is like a fifth horseman threatening populations of children. A friend who was in a few sex videos in his teens' got a laugh out of Danson's claims about harm. Danson emphasizes effects and makes dramatic but unsubstantiated claims of millions threatened. He stresses the extreme nature of some material. Then he says, suppose I am Paul Bernardo and not John Robin Sharpe and asks if the Bernardo video tapes are worthy of Charter protection. The Chief Justice advises him that his remarks could be seen as inflammatory. He says that the Matthews affidavit is the most important evidence before the Court. Danson is not a good speaker and tended to get bogged down on minor points.
Robert W. Staley for the Evangelical Fellowship of Canada and Focus on Families argued that child pornography is a violent form, or akin to a violent form, of expression that does not deserve Charter protection. He substantiates this by claiming, "The purpose of a collection (of child pornography) is so that they will ultimately be incited to act out what the material depicts." He makes it sound inevitable. Collecting porn is seen as analogous to gathering strength for an assault. He exceeds Dr. Collins's fanaticism.
David Matas for Beyond Borders and ECPAT argued that international obligations impact our criminal law and that striking down the possession law would put Canada in violation of the U.N. Convention. He also argues that the onus should be on the citizens to prove that their rights are infringed before they challenge the law. Placing the onus on the accused would be an effective way to prevent people like myself from using the Charter. His weakly reasoned arguments did not seem well received by the Court.
Other Provincial Intervenors Selections
Josua B. Hawkes for the Attorney General of Alberta emphasized harm and spoke as a champion of harm resulting from cognitive distortions, particularly written material. Like several other intervenors he turned McKinnon and Peck's concessions of indirect harm against their position. He claims that the legislation is not thought control. People are still free to think and say what they want but: "The creation of a record transforms thought into action". With a risk of harm as in my case the state has an obligation to intervene. He repeats the standard economic arguments claiming their validity has been established by court decisions.
Mary Elizabeth Beaton for the Attorney General of New Brunswick spoke in a soft modulated voice. She reminds the Court of the importance it has placed on indirect harm through attitudinal changes in other cases, notably BUTLER and MARA which dealt with indecent public performances. She presumes that people viewing images they have made, or reading material they have written, could lead to sufficient attitudinal harm to prohibit possession. (All of the material in my case was self made or authored.) She stresses that in finding attitudinal harm it is not necessary to require any proof, only that something violates community standards and the Canadian public does not want children portrayed as sexual objects. She points to our drug laws, ironically I thought, as an example of why possession laws are needed in a scheme of eradication. She argues that just as the law must consider the harm of a single person having one marijuana plant for their personal use so it must extend to written materials that are never circulated. I find the analogy ludicrous given the huge body counts and social devastation flowing from our drug laws.
Sean Greenberg for the Attorney General of Manitoba concentrated on the question of the use of hypotheticals. She reminds the Court of their previous rulings on their use noting that they should not be trivial, far fetched and remote from everyday life. She also points out that the hypotheticals used must fall within the definition and points out that it would be highly unlikely that my counsel's example of a reporter doodling an obscene sketch while covering a trial or the schoolgirl's diary would meet that requirement to begin with. I had made similar arguments to Peck earlier, I thought his hypotheticals too improbable but he insisted on their validity in law. Ms. Greenberg also raises the question of police and prosecutorial discretion claiming that nothing like Respondent's hypotheticals has been prosecuted and saying that the history of the law points to its restrained use. This is refuted by SCHLICK.
My limitations prevented me from understanding the Quebec submission. Nova Scotia raised no new points that I could discern although they claimed that community standards give Parliament the right to legislate morality.
My Counsel's Submissions
Gil McKinnon who concentrated on technical questions of law spoke first while Richard Peck who is more of an orator followed. McKinnon began by claiming that Parliament had gone too far with the legislation. His submission was weak and appeared ineffective. While his attention to detail may have been appropriate in the factum it did not help his oral presentation. He got bogged down in convoluted exchanges with the Court and appeared thrown off stride by some of their questions. On the question of the statutory interpretations of the terms in the law the definition of "person" was most significant. The OED restricts the meaning narrowly to a human being with lawful rights. This is also generally the case in the Criminal Code and in s. 163.1 except where it is used in the three definitions. Here in the context of the law a broader interpretation, which includes fictional persons and visual and computer generated representations, is clear and were assumed by the parties in my case. Without this broad definition neither my writings nor Eli Langer's paintings would have been charged, both cases involving works of the imagination. A member of the Court observed that the narrow interpretation of "person" might well avoid the whole constitutional question. I am not sure if this was a serious suggestion. McKinnon did not take it up and persisted with a broad definition that supported his overbreadth arguments. For similar reasons he argues for a broad interpretation of the "explicit sexual activity" to include kissing and other innocent acts in a sexual context.
The question in the case advanced by the Appellant, and agreed to by my lawyers, was that defined by Chief Justice McEachern in the Court of Appeal decisions. This was whether simple possession of child pornography not using real children creates a sufficient risk of harm to children that it should be an offence. It was about the alleged indirect harm of child pornography.
McKinnon Makes it clear that he supports a wide range of prohibitions on the private possession of child pornography. The case for any meaningful legal possession, the kind that would provide some level of security to the tens of thousands of Canadians harmlessly using suspect material, collapsed. At least two judges indicated their satisfaction with this concession. McKinnon's comments make it clear to the Court that he accepts the basic assumptions and mechanics of Dr. Collins' theories of harm. He speaks glibly about grooming, incitement and cognitive distortions as if their validity was proven beyond doubt. Justice Shaw in his ruling saw cognitive distortions as controversial and pretty well discounts them. Once McKinnon conceded the essential theories of harm, of indirect harm, there was, I suppose, no point in questioning cognitive distortions and the risk of indirect harm. In our factum, however, McKinnon had written, "The Respondent submits that neither reason, logic nor common sense, nor the evidence before this Court, establishes this indirect risk of harm." This was now abandoned in near complete capitulation to the Crown's arguments. He contradicted his own factum. Clearly at some point between entering their factum and the Supreme Court hearing they decided to make another fundamental retreat from freedom of possession and protection of privacy, and to do so without informing me. I could see no reason for this except in terms of defending their personal moral rectitude.
As if desperately trying to find something to defend, something to save face, something with an absolutely minimal potential for indirect harm in accordance with Dr. Collins' theories, my counsel postulated an entirely new concept of possession, a new unprecedented legal form of possession where one could not, for example, show the material to your best friend of forty years. This is patently unrealistic and unenforceable. Possession of anything has always included the assumption, not the government granted right, that possession includes showing it privately to others. Can anyone think of an exception, where something is yours but you can't show it even in private? I felt it was dangerous for my counsel to defy common sense and common law tradition. While people may want to keep their diaries completely private anyone who writes creatively, writes with a reader in mind. It is absurd to assume that a serious writer writes only for himself. It is a most improbable and essentially dishonest hypothetical. I had argued the point with Peck vigorously. He was inventing a novel classification of possession. I call this pioneering legal concept "occulted" possession, because the item or material must be hidden from others.
In this last redoubt of possession McKinnon felt there was only scant evidence in the record that there would be any indirect harm to children through the maker's retention of products of his imagination. But even here the question of whether or not one could reinforce one's own cognitive distortions was raised. A new theory of "self-abuse" based on writing to oneself was advanced. As if to make even this seem bold McKinnon conceded that a vast majority of Canadians might well be upset that someone is writing such stories for themselves. But he submitted, the government is not to be permitted to intrude on that sphere of autonomy without evidence of significant harm. He drew a face saving line just short of complete capitulation. Mendacious or egoless authors might also find some solace. The weaknesses in the expert testimony that Shaw had noted in his ruling were forgotten, its contradictions ignored. McKinnon was a believer. Peck dramatically claims that "To proscribe recording is to proscribe thought." He's right of course. He makes impressive claims for freedom to possess self authored solo works. As for prohibiting them he states: "I defy the state to do that!" He refers to John Stuart Mills' "inner domain of consciousness", he refers to George Orwell quoted in the factum. I thought it insulting. But materials produced through collaboration, which would inevitably involve communication would presumably be excluded. People presumably could talk about what they were writing but not let others read it. Sorry my friend, I can't let you see my novel, the government thinks that anybody who does will start assaulting kids. It was becoming a farce.
McKinnon appeared anxious to demonstrate his rectitude. After all as he was technically defending an accused child pornographer. It was too much for McKinnon, he avoided contact with me personally and any but the most distanced arguments about child pornography. I have reason to feel he disliked me, or what I stood for, and avoided me. He never replied to any points I raised in letters to him. I believe I was a moral problem for him. Perhaps he should have withdrawn from the case. He had devised the Category A child pornography, he had scrapped everything but overbreadth. The petty and improbable hypotheticals "we" used did not, I believe, help. The Manitoba factum had concentrated on our use of hypotheticals and I felt we should have countered it. I had tried to get Peck interested in Viktor Schlick's case partly because he had been convicted on the basis of an absurdly broad interpretation of 163.1 (1)(a)ii for photos of his daughter where her breasts can be seen, but Peck refused. As it was our hypotheticals had little plausible substance and could easily be discounted. The retreat from principle and protection of innocent users was accompanied with much grandiose oratory. At the end there was little worth honestly defending
Peck postulates "no harm to children" hypothetical situations which he claims should not be covered by the law and proposes specific exemptions or defences for them. Towards the end of his submission Justice Gonthier says: "Both you and Mr. McKinnon have conceded that there is a constitutional validity to some sort of possession offence". Peck in a somewhat jocular manner replies: "He's more keen on that concession than I am." The justice observes: "All right, one half of the team says that there's a concession on this." That concession was central to my lawyers' submission. That concession was the major point of contention that I had with them. That concession undercut the whole principle of freedom to possess expressive materials. Until that moment I had not known that my lawyers were in basic disagreement. It explained a number of things. Peck's promise after the appeal hearing to qualify the Category A proposal with an "IF" not only came to naught but category B as well. He may have been sincere when he made the promise but he had obviously capitulated to McKinnon. Richard Peck, the lawyer I retained, had told me that McKinnon was a "legal draftsman" was now admitting before the Supreme Court, that contrary to what he led me to believe, he was not in charge.
At the end of his oral argument two members including the Chief Justice raise the question of remedy, and bring up the question of the extent of the law's inconsistency. Under s. 52 of the Constitution Act which includes the Charter, the Court may strike down a law to the extent of its inconsistency. (This was the case in IORFIDA.) Given the very limited nature of the inconsistencies raised by my counsel's hypotheticals this was a valid point. There was some discussion of exemptions being tacked on to the legislation. I was disappointed and angry. After hearing Chief Justice McLachlin's comments about the risk of harm from mere possession I concluded that my cause was doomed. Peck was at least pretending to be pleased.
I have to wonder at my lawyers' well nigh complete retreat from freedom of expression at the Supreme Court. At the end their position was only marginally different from the Appellant's. They were prepared to accept two minor exemptions, one for self authored works that would never be shown to anyone else and two, that young people could possess sexual images of themselves provided the action was legal. Neither of these exemptions in themselves covered my material; my counsel was no longer defending my acquittal. They were trying to score points for themselves. The materials they spoke of would only in the remotest circumstances be likely to come to the attention of the police anyway. Their diary example, even assuming it was that of a schoolgirl who was rapturous about sex with her teacher, would almost certainly fail any reasonable interpretation of "advocacy" because anything written solely for oneself cannot logically advocate. McKinnon and Peck were captives of their own silly hypotheticals. They had successfully maintained their distance from the evil of child pornography. Lawyers can and do get tainted by the cases they take unfortunately. I told Peck right after the Appeal Court hearing their position simply invited nit picking and this is what they got. They shifted attention away from principles towards details, of where lines might be drawn, of weighting factors and always being on the "safe" side. There was no longer any point in objecting to the police view of the need for possession law. The privacy argument was irrelevant. There was little left worth fighting for.
As long as they could not tackle the question of harm, they could not make a common sense analysis of the correlates and the mechanics/dynamics of harm. Except for vague euphemistic references about self fulfilment they could not question the assertions coming from most intervenors about the negligible, almost inconsequential value of the right impugned. They could not talk about masturbation. That may still be a taboo in the Supreme Court of Canada. The inability of the Victorians to have useable names for parts of the anatomy served to obscure the savagery of judicial and school beatings of juveniles. (THE ENGLISH VICE by Ian Gibson) It is difficult to discuss things if there's no accepted vocabulary. It was impossible to escape the low value ascribed to masturbation without talking about it.
I made this point a number of times with Peck, but I suspect it was too "dirty" for him to deal with. They could not acknowledge that deviant sexual fantasies could be of substantial value to people whose rights should be respected. That value of possession is reflected in the users willingness to accept the risk of prison. The hypotheticals they laboured hardly seem worth Peck's noble words and evocations of John Stuart Mill and George Orwell. They were simply not worth fighting for and from that point of view the whole exercise was a waste of time. Despite the rhetoric my lawyers' submissions were practically an invitation to trash possession rights.
Twice I broached the idea of submitting my own factum. I certainly have a unique and informed view on the situation. Peck was not interested and it probably would not have been allowed by the Supreme Court anyway. I felt that I and my particular interests were not represented at the hearing. My case had been appropriated by lawyers for their own purposes. I had become irrelevant and did not feel welcome. I was interfering in my own case, it was like Larry Myers all over again. I felt betrayed. I felt they had also betrayed free speech in Canada. I had pointed out to Peck that the factum of the Attorney General of Canada had restricted "advocates or counsels" to "horatory and not merely descriptive or approving material." I believe this interpretation would exempt my writing. This is a very significant concession but he chose to ignore it perhaps because it weakened his overbreadth arguments. They had retreated into a situation where legality depended on who possessed an item. We were back to something like Dr. Collins and the bathtub photos where porn was in the presumed eye of the beholder, only here it was the hands of the creator. Something legal in my possession could be illegal in yours. At the voir dire the Court, the Crown and myself agreed to the idea that pornography should be intrinsic to the work, an easy to comprehend, workable rule.
My own thinking on the question of self authored materials is that any possession law provides a strong incentive to archive and distribute material widely to ensure that some copies survive if there is state intervention. This is a common sense reaction. It is quite likely that a prohibition on the possession of written material would be counterproductive by encouraging distribution. The Internet offers a chance at instant immortality for authors.
BCCLA John D. McAlpine
John McAlpine appeared much more confident and effective than he did at the Court of Appeal in April. He began by stating that the issue is the protection of a law, not children. He discusses how the law was passed with good intentions but hastily and with no dialogue with the Court. He asks why the Court should defer to Parliament when Parliament doesn't dialogue with the Court. He challenges the concepts of cognitive distortions and attitudinal harm, so blithely accepted by McKinnon, as not being consonant with freedom of thought and freedom to express moral judgement.
It was almost as if he accepted my definition of cognitive distortions as simply sexual heresy. McAlpine supported as an absolute right the recording of one's own thoughts. Justice Gonthier interjects: "So you take the position that the freedom to record thoughts is an absolute freedom that cannot be restricted whatever the harm it causes?" McAlpine: "Never. That is my position." To which Gonthier replies: "That is a very radical position, is it not?" Madam Justice L'Heureux Dubé reminded McAlpine that this is, "not the first time that this court has said that no freedom is absolute", as if this were something obvious.
Prior to 1993 Canadians had enjoyed absolute freedom to possess any expressive material they cared to and the matter had never been debated or legislatively questioned. Seven years later a Supreme Court justice considers possessing even one's own recorded thoughts a "radical position." I found this frightening and extremely ominous, but then the Court has consistently ruled against freedom of expression. However McAlpine, who had adopted some of Dr. Collins' theories of harm, seemed to think it was almost inevitable that harm would flow from written child pornography. McAlpine does point out the unprecedented nature of the possession offence, and suggests that prohibitions in the name of protecting children could be a precedent for other expression prohibitions. What next? When a member brings up the "artistic merit" defence, McAlpine points out that this is irrelevant to the protection of children and submits that a work with artistic merit might more effectively endanger children. Interestingly a member, perhaps not realizing its significance, said that artistic merit would be balanced against protection of children. This was not the case in LANGER where the paintings were returned not because of their artistic merit but because they did not present a significant risk of harm. Except for his vanilla libertarianism I was impressed by McAlpine's oral submission.
Patricia D.S. Jackson for the CCLA
Patricia Jackson examines the "artistic merit" defence pointing out that "merit" as opposed to "purpose" does not incorporate the fundamental legal principle of mens rea, or intent which establishes guilt. The legislation criminalizes lack of merit. She points out that art is often deliberately controversial and provocative, that is one of its purposes, and that to judge art on the basis of public opinion or community standards involves contradictions. Community standards tend to protect works that least need it. In effect she rejects McComb's decision in LANGER. She submits that the legislation has a chilling effect and this makes it not worth the risk to attempt controversial works like Eli Langer's or "The Boys of St. Vincent's". With something as stigmatizing as child pornography even the laying of charges, without a conviction can have serious effects. She notes that child pornography can have various effects on the viewer; it may confront a person with his own behaviour, it may lead him to question the law, it may cause him to abhor such activity and it may attract him to try such activity.
She then looks at harm and says that the evidence for it in terms of possession does not warrant a frontal assault on freedom of expression. The possible influence of materials on attitudes is no basis for prohibiting possession of expressive material. She doesn't take cognitive distortions for granted like McKinnon and Peck do. She raised the question of creativity and the need to possess thoughts and writing them down. A member of the Court expressed concern about people possessing other people's thoughts. While she said that the Court did not have to make that decision, she personally and the CCLA supported absolute freedom to possess expressive materials. That was the original ruling, that was my position, but it was far beyond what the BCCLA and my counsel could support. Ms. Jackson was a strong, organized speaker who used common knowledge to develop her arguments. I appreciate her unequivocal stand on freedom of possession. It was a welcome message coming after my lawyers had abandoned any substantial defence of freedom of possession.
Frank Addario for the Criminal Lawyers' Association
The Criminal Lawyers' Association intervened because of my case's implications for criminal law policy and its effect on freedom of expression, thought, belief and the right to privacy. Frank Addario submitted that the Court should not make a broad pronouncement about laws that criminalize possession of expressive material because my case lacked supporting records. For example, I called no expert witnesses and entered a limited amount of evidence. There is he claimed insufficient evidence to rule on whether the possession of expressive materials can place children at risk and whether any prohibition is permissible. In this case it is only necessary to determine if the legislation is overbroad. He argued that much of the potential material caught by the definitions was "close to the core values" of freedom of expression. In their factum they state: "The law is an exercise in overkill." They note that "child pornography" is a very stigmatizing term, as I well know, and the definitions cover much material that cannot be justified under s. 1.
The Factum strongly criticizes the arguments given by Detective Mathews in his "fresh evidence" affidavit. Criminalizing possession must be justified on its own, not as means to enforcing other laws. They use the hypothetical example of criminalizing the possession of balaclavas in order to obtain search warrants which in turn could lead to the discovery of balaclava users who rob convenience stores. They point out that privately possessed pornography can be seized if it is "evidence" and it does not have to be made contraband.
"The CLA's position is that there is no justification for proscribing the private possession of expressive material." This libertarian position is also in sharp contrast to that of my lawyers and the BCCLA. Addario argues that if there is to be such a provision then the materials in question must have the capacity to produce harmful effects in order to justify the prohibition. The Factum states: "If harm is the constitutional justification, it can and should be made the touchstone of the proscription as well." He notes that this is the situation in the obscenity laws where the Crown must establish a risk of harm, "an articulable risk of harm in the context of a particular case".
The case of Matthew McGowan discussed earlier is a good example of the approach. He alludes to a similar provision in s. 351 of the Criminal Code which deals possession of burglary tools. While possessing a screwdriver is not generally an offence it may be an offence "under circumstances that give rise to a reasonable inference that the instrument has been used or was intended to be used for" the purpose of burglary. It works in practice with convictions commonly obtained. This would avoid the problem of innocent possession which is a large part of the law's overbreadth and certainly not limited to my counsel's petty hypotheticals. He suggests a requirement similar to the one in s. 351 be added to s. 163.1 (4). He gets several questions from the Court which unsettle him temporarily. I strongly support this approach because it tends to focus on real rather than conjectural problems. I believe anything that emphasizes the nature of the evidence in a specific case, the objective facts rather than mythologies based on mantras and the constructions of supposed experts, tends to serve justice. I argued in relation to the cases of Gary Gramlick and Thomas Jewell that the sex videos should have been shown and discussed in detail in court suggesting that this might have led to a less morally outraged sentencing.
Frank Addario also claims that the defence of "artistic merit" is flawed in that it penalizes young and unknown but sincere artists who could be convicted because of a lack of recognition by the artistic community. As Eli Langer's lawyer he unsuccessfully tried to appeal this elitist approach, claiming purpose rather than merit should be the criteria. The factum concludes by pointing out that upholding the possession law would permit Parliament to criminalize the private possession of "hate literature', "obscenity" and other self authored materials held by the Court to have low constitutional value. No doubt many would applaud such prohibitions.
John Gordon in rebuttal
John Gordon seemed more effective in rebuttal than in his submission. He points out that Peck's interpretation of "advocates or counsels", as evinced by his hypotheticals is broader that the Crown's. Peck's interpretation, Gordon says, would clearly include my stories while he pretends he is unsure. A member asks why I have been charged then. Mr. Gordon sees that as something that would have to be determined by the trier of fact. He later says my stories pose a very real risk of harm to children. Peck's broad interpretation was no doubt intended to support his claim of overbreadth. With a similar purpose at the voir dire I submitted the NAMBLA Bulletin, Brongersma's works and other boylove materials in support of my contention of overbreadth. And Schultes was careful to limit the material he charging me with to avoid overbreadth claims. Gordon effectively mocks Peck's girl's diary hypotheticals and states, correctly I think, that his diary example would not likely be covered by the definition.
He also correctly points out that Peck erred in his diary hypothetical by not distinguishing sexual activity that would be an offence from that which would not be. As to the criticism that the artistic merit defence penalizes inept works he claims that poorly crafted works can be just as dangerous, a doubtful claim I believe. He refers to my stories and doubts, incorrectly, that I would contend that they have artistic merit. He does not believe that the NAMBLA Bulletin would qualify as having artistic merit. I had argued that it had political merit. He ignores the main points raised by Jackson and Addario. Gordon fervently exhorts, "Written material that advocates the commission of sexual offences against a child under the age of 18 years is so noxious, so pernicious, so seriously offensive to the values fundamental to our society that it has no place in society, let alone the marketplace of ideas." He concludes with an emotional appeal for the protection of society's most vulnerable members, its children.
Around the time I was writing up the above I came across a story on the Internet that most emphatically fits the definition of written child pornography. It was a thoughtful, although not technically well written, sexually explicit love story. It was about a forty year old man who was a volunteer in a home for handicapped children, and a crippled boy of eleven whom he befriends. The boy like many in his situation was lonely, unhappy and unloved. As he was unable to walk he would be considered as particularly vulnerable in the standard legal/social jargon. The man was not only many years older and generous but in a position of authority over the boy. All the usual elements for a worst case scenario were there.
The story however was sensitive to boy's special needs and dignity as well as recognizing him as a sexual creature with urges unlikely to be met in the normal course of institutional care. It also made clear some particular problems that the handicapped have with sex. While the man's behaviour was compounded and driven by lust it was presented as commendable. Both partners benefited from the affair. So what if it advocated what would be an offence. How should we judge acts? Can we not as Gayle Rubin suggests judge sexual acts by the pleasure they provide to the participants? The handicapped are often limited in terms of conventional sexual relationships and would probably welcome affairs where they are objects of desire. The story was hardly in Mr. Gordon's words, "noxious" or "pernicious". The story is one I believe that anyone interested should be free to read. I recommend it. People should be able to advocate sex rights for handicapped children and to be effective that would have to include literary exploration of possibilities. Children need much more than protection.
The hearing was over. Gil McKinnon winked at me as he walked by. I had a very brief talk with Peck and Nikos and a few words with Frank Addario. I asked him why the Court dismissed the Langer appeal. He said he thought the Court wanted to wait until there had been more cases in order to assess how the law was working. I never met any of the other intervenors. I descended into the high marbled lobby and dealt with a large media scrum for a few minutes, too long perhaps. Cameras are allowed inside the building. Cameras were also waiting for me on the steps and I was silently followed through the barren snowy grounds of the Supreme Court building as far as Wellington Street. It was about -15 celsius with a good breeze, perhaps the cameramen hoped I would slip on the icy sidewalks. I tried to get a bus back to my hotel but after missing one and getting quite cold I hailed a taxi.
After the Supreme Court hearings I had little to do but wait for their decision. My lawyers assumed the case would be fast tracked with the decision probably coming down in April and then June. And then nothing, I felt let down, for the first time in years my life had no compelling focus. It was frustrating, I wanted to get on with things and make personal decisions but I had no idea when I would be free to do so. A trial date had been set for early November for any charges I might face. The court might decide to deal only with the possession charges leaving the charges of distributing my stories.
After his performance at the Supreme Court I could not see Richard Peck handling my defence at a trial proper. He would give me the type of defence that he felt I needed, in fact there is a professional ethic he could choose to feel bound by. However it would probably not be the type I feel is needed. The law is almost as outrageous as the drug laws and in certain subtle ways worse. It needs to be confronted in its substance, not just the peripherals, the hypotheticals. I expected that I would represent myself again but need advice.
I followed other child pornography cases in the press and on the Internet. My acquittal had not affected enforcement outside of British Columbia. Some were ordinary men who liked looking at pictures of young girls mostly who got caught in a sting. Some cases seemed rather pathetic. I was curious if there were any cases where child pornography actually led to the uncovering abuse but was unable to tell. This was the main police argument for the law. Some child pornography charges appeared to come out of cases that came to the attention of the authorities in other ways.
One reason for fighting on that I hadn’t thought of until I met other victims of the law is the harm that the child pornography law inflicts on the families of those charged. This is much more the case than with charges like drugs, robbery, assault or manslaughter. So your father robs banks? Big deal. But when daddy’s little vice, or the son’s downloads become exposed to the community’s primed opprobrium the strain is enormous. The entire family is attacked. The kids face their peers', teachers' and social workers' suspicions that they’ve been abused. Can you imagine what it would be like for their children at school? Moral charges are much more serious for the family, especially the kids. Many will assume that the kids have been victimized and treat them as such. The neighbours’ kids will also get interrogated and they may have to convince parents, police and social workers they haven’t been abused. And who knows what other "dirt" the authorities may pick up and use to subject kids and their families to more stress. This reinforces community hostility towards the suspects. A wife who stays may be seen as both inadequate and a fool if the husband had kiddieporn. Some families break up, others move and a few survive by courageously facing down the community and trying to live normal lives.
I was anxious to know if I would be free after the decision or whether I would be going back to trial in November as scheduled. I wanted to keep the comfortable Kitsilano apartment I'd had for nine years, at least until the decision came down and I could make plans. But I simply could no longer afford it, I could not find any work as no one would hire me because of my notoriety, and my health had deteriorated to where I lacked the physical stamina to do much sustained renovation work. My only option was to reduce my expenses by finding a cheaper place to live. At the beginning of May I moved into Vancouver's Downtown East Side, Canada's poorest urban census district. Despite being holocaust central with several hundred War on Drugs deaths annually I found it a congenial and tolerant area to live in. Initially I stayed with a friend while maintaining an official residence in the West End, but after a while I moved into a cheap lodging house where I paid half the rent for a room less than a third the size of my previous place. I gave away most of the furniture I'd crafted and tossed out most of my possessions adopting a simpler life style.
Shortly before the decision came down in January 2001 I made the mistake of allowing a CBC Radio reporter to interview me at my place. He assured me of his fairness, was courteous and seemed interested in what I had to say. I didn't hear his broadcast but friends did and reported that he slagged me, my home, repeated other peoples' inventions and said I was drinking scotch at the time. I hadn't had a drink in months as I was on heavy medications for my hep C at the time. I was however drinking a glass of diet ginger ale when he arrived which he somehow assumed was whiskey. I demanded and got an apology (and a transcript) from him when I told him that I didn't want to take the matter further. Anyway, it was through him, I suspect, that everybody else got my address. The day the decision was announced three TV crews arrived at my place. Some managed to get into the building and started pounding at my door. I wouldn't let them in. Inside I was fielding dozens of phone calls from the media and gave several short interviews. I prefer live interviews as they make creative editing difficult. I have given three interviews with a local talk show host in spite of his rabid right wing reputation for this reason. He is professional and fair to the extent that a person like me can expect in the mainstream media. A friend who had to come back later said that soundmen had their mikes to the crack beneath my door trying to record what I was saying. The building manager had to threaten to call the police before the TV crews would leave.
The Supreme Court's decision upheld the law, voiding my acquittals, read in a couple of minor exemptions as crumbs for professed libertarians and it reassured the arts and academic communities. The media seemed pleased with the decision which they only looked at in political terms as a balancing of interests, ignoring what the decision meant in terms of law, privacy and implications for other issues. It was seen as carefully balancing freedom of expression and, the presumed opposite, the protection of children. It would still get the pedos but others could feel a little less threatened. Politically it was an astute decision although it vandalized several fundamental principles in theory and common law. It took me a few readings and only months later did I come to the assessment I give below. As it was intended for separate publishing it is partly redundant with the text.
MY ASSESSMENT OF THE R.v.SHARPE DECISION
Definition of child pornography in the Canadian Criminal Code [added in 1993]
A penalty of up to five years in prison is prescribed for the simple possession of child pornography. Other subsections of 163.1 cover the offences of making, importing and distributing child pornography and the defences of artistic merit and educational, scientific and medical purposes.
HOW THE LAW EVOLVED
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 One dealt primarily with prohibiting the written word and the other was an attempt to come as close to a total ban of childhood and adolescent nudity as they could. Interpretations of "sexual organ", "dominant characteristic" and "sexual purpose" can easily be extended to material which has no sexual content whatsoever. These definitions which can include almost all the material covered by the other section vastly expanded the range of targeted material.
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 Afghanistan 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 analyzed 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 accused's 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 axiomatically 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 don't 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. Jack Watson's "Case Comment: R. v. Sharpe" begins his analysis of Judge Shaw's ruling by stating, "the judgment (my original acquittal) is just wrong." He appeals to democratic consensus and accepts all Crown assumptions, theories and basic arguments. He clearly did not read the transcript. He equates child porn to drugs and argues that it can simply be prohibited as contraband. Any more favourable academic comment such as Wayne MacKay's, "R.v.Sharpe: Pornography, Privacy, Proportionality and the Protection of Children", for example, were ignored.
All three social science references cited not including government documents assume the Crown's theories of harm and suggest more severe measures to deal with sexual abuse. The first of these was Nicholas Bala's article, "Canada: Recognizing the Interests of Children". He had appeared before the committee that drafted the law to encourage more restrictive provisions. The second was Roger Levesque's book, Sexual Abuse of Children: A human Rights Perspective". This is a plea to impose current Western concepts regarding child sexuality and abuse throughout the globe, even specifically to the remote mountain villages in New Guinea using the United Nations and other international organizations. He never questions conventional harm theories and sees abuse in cultural rituals he disapproves of. He champions moral imperialism. The third was Julian Roberts, "Sexual Assault in Canada: Recent Statistical Trends" in which he consistently argues that sex abuse rates are under reported, that the criminal justice system favours those charged, and that enforcement should be stricter with the accused. He relies on radical feminist sources and ideology and biases his interpretation towards the "victim". 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.
While the police, prosecutors and courts have commonly been discriminatory in practice, race is an excellent example, the law itself including high court decisions has avoided this. However the SCC in my decision by venturing into the concepts of collateral materials, where material is to be judged by the context of it location and perceptions about the possessor. The .law is partly based not on what you do but who you are.
The decision repudiates the idea that pornographic quality of material is intrinsic to the material itself. They opted to adopt the idea that whether or not something is child pornography can depend on where it is found and who possesses it. For example, if a picture was found on the same shelf as books of erotica it may be deemed child pornography but if the same picture were found in a family album it may not be. If the person possessing the picture is suspected of being a pedophile it may be child pornographic but if the person is not then the image is innocent. From the words of the decision it is unclear if the Court knew what they were doing when they opened up deemings to contextual considerations. The Court boldly adopts the speculations of certain psychiatrists and legally validates them.
I read through the decision several times trying to make more sense of it. I could not understand how Chief Justice McLauglin could see the breadth of the law as being so limited. In spite of it being the most inclusive law in the Western world she states: "The primary definition of 'child pornography' does not embrace every kind of material that might conceivably pose a risk of harm to children, but appears rather to target blatantly pornographic material." [para.74] It was only when I realized that the Court was viewing the law's definitions in relation to the total range of child images that might be arousing to some pedophiles that it made sense. Given that everything from fashion illustrations to photos of crime victims or boy soldiers might indeed be of interest to some pedophiles the law is indeed limited in scope. Against this standard the law captures probably less than ten percent of the material that is used as child pornography. Only a total ban on images of children could come close to succeeding. McLauglin provides a deep insight into the Court's thinking. Their basic conceptual definition of child pornography relates to their understanding of pedophiles' thinking, it is offender oriented. The fundamental evil is the moral revulsion shared by many at the idea of children being used, "violated" by men using their images for sexual titillation, arousal and orgasm. It's about Sex. The law's covert purpose is to prevent pedophiles from masturbating. So what if evidence submitted by the Crown suggests that only a quarter of child molesters are pedophiles, so what if enforcement sometimes harms kids, a law which targets pedos ipso facto protects children.
THE NEW MORALITY
The mystical theory of child pornography is part of the New Morality that our youth has been indoctrinated with for over a generation. This New Morality is based on particular concepts of equality, sees situations in terms of offenders and victims paradigms, focuses on presumed offenders at the expense of possible victims. It includes such things anti-racism, anti-sexism, anti-homophobia, anti-violence groups and most greens. It believes in the moral power of propaganda or sending messages, and effectiveness of therapy, and the efficacy of legislation. It emphasizes personal rather than social and historical factors. The old Left concern about economic equality is forgotten amid perceived minor inequalities. [psychology is a natural ally and anthropology is a nemesis.] This is the morality that is taught as applied science in the post secondary institutions that supply us with police officers, social workers, health and childcare workers, and court clerks who may do research for and provide Supreme Court judges with expert advice. It is the ideology that pervades popular media which sets and answers questions for the public. This new morality is propagated globally by the UN, international agreements and NGOs which act as moral missionaries to the Third World. It seeks to rescue other societies from their moral underdevelopment by applying Western standards, free trade, uniform laws, and extraterritoriality. They will be cajoled, bribed and shamed into line.
OTHER REACTIONS TO THE DECISION
Most people seemed to welcome the decision seeing it as striking some sort of meaningful balance. The minor exemptions raised the ire of social conservatives who claimed children were put at risk. Craig Jones, then head of the BCCLA was enthusiastic. He is quoted in a book on my case [ON KIDDIE PORN - Sexual Representation, Free Speech & the Robin Sharpe Case by Stan Persky and John Dixon] as saying, "It's almost overwhelmingly a positive decision. I know some people are saying it's giving too much to the civil libertarians, but I can't see a scenario in which a child is actually abused and still not captured by the law as it stands." I can see many situations where children are abused. Mr. Jones adheres to the principle that any conceivable risk to children warrants the suppression of traditional freedoms. Other so called civil libertarians hailed the decision as a "real achievement".
MY COMPLAINTS AGAINST MY LAWYERS
I was unhappy with my lawyers' performance, something that goes back to the Court of Appeal hearings as I've already made clear. I felt that Peck had deceived and betrayed me. I believed that the way he had handled me was unethical although I could see why he chose to defend himself at my expense. The idea of making a formal complaint was already there and when, and on the phone just after the decision was announced, Peck congratulated me on my victory I decided to go ahead. It may have been his victory but it was certainly not mine. I began researching the process at the website of the B.C. Law Society. On February the 9th I wrote the Law Society, attention the Professional Conduct Department. Using the widely accepted CANON OF LEGAL ETHICS I alleged that my lawyers failed to provide me with a full and vigorous defence. [The relevant sections of the CANON are: 3.(2), (4) & (5)] I explained that when I retained Peck he spoke as a strong defender of privacy and free expression principles and was enthusiastic about defending my freedom to possess of expressive materials. I provided a brief history of our relationship and listed the alleged breaches of legal ethics by my lawyers.
At the voir dire I contested the theories of harm and some of my points were acknowledged in part in the trial judge's ruling. Their concession on the question of harm rejected a substantial part of the basis of my acquittal in the lower court ruling. This decision to basically abandon the basis of my acquittal and concede the main thrust of the Appellant's Factum was a dramatic change in the conduct of the defence. They had an ethical professional responsibility to inform me of this with all candour. I would have asked them to withdraw from my case and sought other counsel as I felt it prejudiced my entire case.
According to the Canons I felt that they did not defend my interests "resolutely and without fear of ... public unpopularity." or that they tried "by all fair and honourable means" to obtain for my benefit "any and every remedy and defence authorized by law".
Finally I drew attention to some of Mr. Peck's closing statements in his oral submission before the Supreme Court where he revealed that he and McKinnon had basic differences over conceding the Crown's theories of harm. His failure to discuss this disagreement candidly with me may possibly be explained, but not excused, by his own lack of enthusiasm for the concession. I felt that this was a breach of ethics and bordering on incompetency. I discuss this in more detail below.
Quite simply my lawyers were in a conflict of interest situation. On the one hand they had their professional responsibility to defend me in all legal and honourable ways. On the other hand they had to defend themselves from the widespread opprobrium attached to the topic of child pornography, especially if they were perceived as supporting it in any way. The well known Lorne Goddard/Stockwell Day defamation case in Alberta illustrates the problems suffered by lawyers challenging child porn laws. I was recently informed that Mr. Peck also suffered through his association with my challenge. I have some sympathy for their dilemma having been exposed to widespread stigmatization and vilification myself. It was a difficult, "between a rock and a hard place", situation and they chose to drastically compromise my defense by generally limiting their arguments to "arms length" hypotheticals based on the question of overbreadth. They did not tell me that personal factors were strongly influencing their approach to my case. There was a clear conflict of interest and, I feel, they irresponsibly gambled with my rights and interests to protect perceptions of their own moral rectitude.
The Supreme Court's decision basically gave Peck what he asked for. It was a victory for him. But the exemptions he agreed to certainly did not seem to cover much of my material and would not have secured my acquittal. Peck as my defense lawyer was agreeing to a remedy that would likely lead to my conviction. My very real interests in the case were ignored or sacrificed in his quest for a win. I clearly lost as a result of the decision and go back to trial on the original four charges. However when I spoke to Peck after the decision came down he chose to congratulate me on MY victory. I see no elements of ill intent in my lawyers' conduct, but errors of weakness, an inability to listen and a profound lack of candour.
My lawyers' conduct raises the important question of how people like myself, who become the object of organized moral outrage and public vilification, can find lawyers with the courage to defend them by all legal means. In addition to most clients' desperate desire to avoid further publicity, this reticence, I believe, explains many guilty pleas and tends to erode fundamental justice. If Peck, and to a lesser extent McKinnon and Harris, have breached legal ethics it was for very human and understandable but inexcusable reasons. When popular repugnance for certain offences and/or certain types of defendants it makes it difficult if not impossible for defendants to receive a full and vigorous defence. In my own case if my lawyers breached legal ethics and this compromised my defense then the entire appeal process right up to the Supreme Court level may be seen as tainted.
I provided the Law Society with a review of the evidence available and waited for a reply. Six months later after many more letters the Staff Lawyer writes me that he sees no breach of professional ethics and encloses a copy of Peck's letter rebutting some of my allegations. Peck in his eagerness to excuse himself implausibly reinvents a statement he made before the Supreme Court. I appealed the Staff Lawyer's assessment to the Complaints Committee and filed an additional complaint against Peck. In my letter of August 2Xth to the Law Society I say:
My complaints have been processed very slowly. As I had very little contact with McKinnon and Peck was supposedly in charge they now focus on his conduct. In early November they went to the Complaints Review Committee of the Law Society of B.C. I am not optimistic about getting a ruling in my favour. At this stage it is an internal hearing where I will not be able to confront Peck. I have no intention of laying off and I am told I might have to study administrative law in order to take it any further on my own. I do not know what will happen
COMMENTARIES ON THE CASE & THE SUPREME COURT DECISION
My case has led to several articles and at least one book. Kegan Doyle and Dany Lacombe wrote a long article in the academic journal, Studies in Law, Politics and Society, entitled, "Scapegoat in risk society, The case of pedophile/child pornographer Robin Sharpe". The two SFU professors describe the slanted media coverage of my case which they see as part of a moral panic about children and sex. The current child abuse panic is in part due to the decline in traditional social relationships, such as marriage, friendship and class solidarity, which were once meant to bring security, interdependence and trust. People find in the child, the "iconic status of the child", the last repository of their identity, their last attachment to collective life." The authors explain how the image of the 'pedophile" is constructed in the media and defined as a monster by conventional psychiatric theories that conflate pedophile fantasy with abusive acts. The testimony of Dr. Peter Collins at my voir dire is used as an example. They claim that society paradoxically eroticizes the innocence of children in advertizing and the arts but that anyone who explicitly make the link, such as myself, are "doomed to demonization". They conclude that sexuality plays a significant role in moral panics because it is mystified in Western societies. I am reminded of the testimony of Dr. Collins where he condemns pedophiles because they "demystify" sex.
Shannon Bell, a professor in the Political Science Department at York University and pro sex feminist author, conducted three lengthy interviews with me and wrote an article, "For his her own eyes": "[M]y only camera was my eyes" for the Journal of Constitutional Law. The first part of the title is taken from the Supreme Court decision which established the novel legal concept of occulted possession; the second is a quote from a story in my BOYABUSE collection. (As a potential witness as to the artistic merit of my impugned writing she was entitled to read it.) She takes a deconstructivist approach to the Supreme Court decision where she focuses on "the inconsistencies of a text - its ambiguities, gaps, silences, oddities and overindulgences - to show how the internal logic of the text subverts itself and what/who is excluded from the text." Her main interest is the exceptions and the artistic merit defence.
The first exception, where people can possess their own creations "for his or her own eyes" only, she sees little that might be covered by it. She asks if unpublished material similar to some of the works of de Sade, Swinburne or Burroughs would be deemed child pornography particularly if only people in the criminal justice system, with their particular perspective were to read it. She quotes a passage from de Sade, far more bizarre than any stuff I wrote, which could not meet the criteria of "advocates or counsels" simply because it is so extreme. She points out that the defence of artistic merit only comes into effect after the material is charged as child pornography. At this point major damage to the accused's status, employability, marriage may have already been done. It could prohibit authors showing their unpublished manuscripts to anyone. She discovers a number of contradictions. She analyses Chief Justice McLauchlin's wording and seems to think that my writing would be protected by the artist merit defence. She describes my stories as having a "perverse aesthetic" and puts them in philosophical and literary contexts. I was encouraged and flattered.
Canada's civil libertarians however were generally not bothered by the decision upholding the law. The two exemptions were a welcome crumb as if they really served freedom and liberty. None mentioned what was lost. The book, ON KIDDIE PORN: Sexual Representation, Free Speech and the Robin Sharpe Case by Stan Persky and John Dixon (New Star Books, Vancouver, 2001) claims to provide an insider's view of Canada's child pornography laws. Stan Persky, an acquaintance of many years, is an old 60s radical from the U.S. He writes columns and books about politics, places and young men. John Dixon is a lawyer and currently (late 2001) president of the British Columbia Civil Liberties Association which again wants to intervene in my case. Both teach philosophy at a suburban Vancouver college. The authors are at their best in explaining the political considerations behind the introduction of our child pornography laws.
At the time John Dixon was a senior policy advisor to the Department of Justice and directly involved in the early stages of drafting the child pornography laws. According to them the law was intended to restore unity in the governing Conservative Party government by offering the social conservatives something to placate them after the government introduced various liberal initiatives they opposed. The Bill, originally narrowly focused on depictions of sexual activity like American legislation, was hijacked by the social conservatives of all parties on the Justice Committee. With cabinet shuffles and the exigencies of a forthcoming election the government lost control and the bill ended up as perhaps the most restrictive in the Western world.
The "libertarian" authors, while lamenting that the law went too far, nevertheless support in principle the law's unprecedented incursions into individual privacy and freedom of expression. They are unable or unwilling to challenge the "protection of children" shibboleth and implicitly accept the rationales of the law's proponents. The biggest weakness of the book is the authors' analysis of the Supreme Court decision. For all the "close scrutiny" they apply they fail to understand the significance and implications of the decision. They fail to note that the decision's acceptance of contextual considerations muddies the principle that offences must be "proscribed by law" and also violates the fundamental principle that people are equal before the law.
The authors tend to put a benign face on the Supreme Court decision. They are disappointed, and while they would have drawn the line in a different place, they do not fundamentally criticize it. They may have felt bound by the stated position of the BCCLA. At the appeals the BCCLA, while ostensibly on my side, repudiated the basis of my acquittal in the lower court. As the authors point out the association's brief "gingerly navigated between the lower court decisions to completely overturn the possession clause, and the demand of right wing political forces that the possession clause be left absolutely intact." (p. 174) How political can you get? The BCCLA may also have helped persuade Peck to abandon his original libertarian stance and fall back on arguing overbreadth using implausible hypothetical situations.
What is a libertarian anyway? While Persky and Dixon have nice things to say about me I wish they were less involved in the political considerations and more concerned about the broader implications for privacy and freedom of expression in this country. Unfortunately they become entangled in legal undergrowth and fail to see the forest for the trees. In the end the only thing the authors defend is their own moral rectitude. This is what my lawyers also ended up doing and is part of the reason why I have made formal complaints to the Law Society alleging that they breached their professional ethics.
PREPARING FOR TRIAL
After the Supreme Court decision I was facing a trial on the four original charges. A date had been set for June 2001. As a result of publicity and contacts I had made some anonymous libertarians offered to pay the costs of a lawyer to handle my trial. I gladly accepted and made a trip to Toronto to discuss the case with the lawyer they suggested, Paul Burstein. He has been involved in freedom of expression cases dealing with S&M and marijuana. As he was busy in June and to accommodate witnesses the trial was rescheduled for late January 2002. We have been studying the Sharpe decision, particularly the artistic merit defence and the second exception in the decision in respect to some of my material. While that decision also allows an exemption for self authored works that are never shown to anyone else this is meaningless as no serious author writes without an audience in mind, even if it's only posterity.
Although I did not distribute my BOYABUSE stories I would not claim that never that I never gave copies to other people, and sought their comments as writers do. In addition to the artistic merit defence I claim that my writing does not "advocate or counsel" illicit sex. I question whether fiction ever can. The exemption was designed with the unlikely scenario of teenage girls' diaries containing revelations of positive accounts of sex with their teachers in mind, but could be made to cover other situations. This was one of the petty hypotheticals that Peck and McKinnon laboured with their heroic libertarian rhetoric. It was one of their victories. The other exemption was intended to package the hypothetical situation of teens, preferable married, who videotape their licit sexual activity. It was an awkward anomaly which even many conservatives recognized. Its wording of the Sharpe decision can be interpreted as including any situation where photographic or video images of sexual activity involving persons under 18 years are in the possession of either the photographer or the subject provided that the sexual activity was not illegal and no one else ever viewed them. I saw the broader interpretation as applying to my case.
I could also see using the artistic merit defence to back up the exemption for my photos. I used to do a lot of photography, mainly travel, job and social pictures, and I take some care and pride in my work. In spite of one naughty picture and several others depicting degrees of arousal I could see using contextual arguments to cover them. I would need an expert witness which was not covered by my funding. The Sharpe decision permits contextual considerations. Dr. Collins uses contextual arguments but there seems to be no reason why the defence can't also use them including the context of collateral materials. The naughty picture has a context, there are many photos of the same boys. I took hundreds in a variety of situations. Like perhaps most street kids in Manila they knew where to take film to get bold pictures developed. As for my practice of keeping nude pictures in a separate and private place this is simply for the privacy of the subjects and to avoid imposing on the sensitivities of people of visitors. Is pornography the question of individual images looked at in isolation or as part of the series and collections they belong to? Context is potentially a double edged sword.