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Should Child Porn be excluded from Charter Free Speech Protection?

Let's keep in mind that speech -- is speech. If it is defamatory or libellous, it can be prosecuted. And if it contains evidence of a crime, it can be used as such in the prosecution of that crime. If speech is a death threat, it can be prosecuted as such.

But speech which explores ideas, or shares knowledge, or expresses unpopular and even repulsive opinion must be protected. Poorly constructed theories are deconstructed in the public arena. Holocaust deniers [like Ernst Zundel] will not ever get far with promoting their ideas as long as the public has access to the testimonials and pictures from the event. These pictures and testimonials are evidence of crimes committed, some of which have not ever been prosecuted or punished.

During January, 2002, Ontario police seized hundreds of thousands of items from the computers of three individuals in Toronto, Thunder Bay and Fort Frances. They claim to have found revolting kiddiporn. We hope that the media will do a thorough investigation to scrutinize the degree of exaggeration or spin in these claims by the police. We strongly suspect that some of the methods used by police cross the line from suspicious to illegal. Further, it would appear to be a cheap ploy to get public support for expansion of their computer crime unit which already has nine officers.

As someone who is online every day I have recently been swamped with sexual images of clearly underage persons coming through e-mail and non-pornographic sites I visit. Maybe these hotshot cops should be going after the servers who put this stuff out, notably Sympatico which shuts down legitimate criticism of the police but dishes out kiddiporn with the worst of them.

If the Vancouver police have seized pictures which are evidence of crimes, that is, photos of underaged persons in sexual acts, they should use that evidence to pursue the actual crime which they are evidence of. And if it is a drawing, well, think what you like about the artist but look at it this way: as long as he/she is drawing a picture, he/she is not doing it, is he/she?

Robin Sharpe case

In his ruling, which has drawn international attention, Mr. Justice Duncan Shaw of the BC Supreme Court this year [1999] dismissed two charges of possession of child pornography against John Robin Sharpe of Vancouver. Judge Shaw said Section 163.1(4) of the Criminal Code -- which prohibits possession of child pornography -- is not a reasonable limit on freedom of expression guaranteed by the Charter of Rights and Freedoms.

In June 1999 the BC Court of Appeal upholds the Supreme Court decision. There are two articles below.

On Jan. 26, 2001, the Supreme Court of Canada released its decision in the case of R. v. Sharpe. The ruling upheld the parts of the country's pornography law that prohibits manufacturing and distribution. However, the court said that people can't be prosecuted for creating photographic or written porn as long as it's designed for their own use and as long as real photos don't show unlawful acts.

OFFSITE comments on the ruling: Supreme Court Rewrites Law to allow Child Pornographers more Freedom

There is more to the Robin Sharpe case than his right to have dirty pictures. The William Bennest case (below) shows the crown knew Sharpe was more than just a collector or a looker. The public's right to know the full story has once more been subverted by crown and defence collusion to keep relevant information from the Court!

Justice Cops make "large" kiddie porn bust in Ontario, May 1999: if this report is true, it tests the stomachs and sensibilities of all of us. Why would a 19 year old man have such material?

As the B.C. Court of Appeal has wisely noted, Canada's anti-child porn law is ill-thought out and should be challenged. Canada's Justice Minister Anne McLellan dangerously allows public opinion to determine her position on this and other controversial matters -- the drug laws for instance. She is a terrible Justice Minister and inJusticebusters hope that the Supreme court is not in any way influenced by her inflammatory statements.

Section 163.1 of the Criminal Code defines child pornography as:

(a) - a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) - that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity

(ii) - the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years

(b) - any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this act.

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Supreme Court will decide child pornography issue

VANCOUVER - A split decision in a Vancouver courtroom on Wednesday, has upheld an earlier court decision in a controversial child pornography case.

The British Columbia Court of Appeal (BCAA) ruling means B.C. will continue to be the only place in Canada where's it's legal to possess child pornography.

Two of the judges ruled the current law goes too far. Anne Rowles calls it an extreme invasion of the values of liberty, autonomy and privacy -- especially since material may be created without abusing children and may never be distributed or published.

Mary Southin went further, saying legislation that bans possession of expressive material cannot be justified as it bears the hallmark of tyranny.

Canada's Justice Minister Anne McLellan rejected those arguments. "We continue to believe, in spite of what the BCCA said, the law is constitutional and we look forward to making those arguments before the Supreme Court of Canada."

McLellan will get her chance. Just ninety minutes after the judges released their reasons, B.C.'s Attorney General, Ujjal Dosanjh, made his move. "I think it's important that the ultimate arbiter of these kinds of issues the Supreme Court speak in this very important issue."

Dosanjh will probably rely on the words of B.C.'s Chief Justice in that appeal.

Alan McEachern was the sole voice of dissent saying any real risk of harm to children is enough to tip the scales in favour of the legislation.

Still, the lawyer who won the appeal, Richard Peck, says the majority rulings show Ottawa is to blame for rushing the law through in 1993. "This legislation, I think we told the court this in argument, was really run through parliament with little meaningful debate."

As for Peck's client, John Robin Sharpe wasn't smiling as he tried to push through a pack of reporters. The man who started it all by successfully challenging the law months ago now says he'd be tempted to plead guilty if he had the chance to do it all over again.

Sharpe admits he's faced mixed reaction to his very public victory. "Some people have come up to me and said I'd like to shake your hand and other people are quite indignant and angry," he said.

The strong emotions and passionate debate are certain to continue in the coming months as the case makes it's way to the Supreme Court.

inJusticebusters have no sympathy with Robin Sharpe's implicit agenda to lower the age of consent! Adults who want to diddle young flesh will get no support from us! Certainly as long as we are shielding minors from sex education which would include how to respond to sexual gestures or touching -- or even words, we must legally proect them. Judith Levine's 2002 book provides a basis for discussing these matters openly.

The unsettling part of this discussion, which has broken wide open in parliament right now, is the eagerness of others, who are as repulsed as we are at child molestation, to oversimplify the law to make it easier for police to obtain of warrants and run ramshackle over people's privacy. So much recent legislation has been directed to accomodating lazy police!

Existing legislation easily allows the cops to move in on Sharpe the minute he acts on his intention to press his flesh against minors!

Sgt. Brian Dueck did not do his duty to protect Kathy from sexual assault because he was lazy. The law was there: he had solid information on which he could have acted! If cops would stop worrying so much about the Internet as some "new uncontrollable technology" and simply treat it as an extension of previous media, they would surely find prosecutors and judges with sympathy for their cases! -- Sheila Steele

Top B.C. court strikes down child-porn law

Possession is legal: judge: Defendant claimed law infringed his constitutional rights

John Robin SharpePossession of child pornography is not a crime, a British Columbia judge has ruled.

"There is no evidence that demonstrates a significant increase in the danger to children caused by pornography," wrote Justice Duncan Shaw of the B.C. Supreme Court in his ruling, which was released yesterday.

The decision is binding on provincial courts in British Columbia. It may be cited in courts outside the province but is not binding on them. The provincial attorney-general's office is considering whether to appeal.

The man who stood accused of four charges of possession of child pornography is John Robin Sharpe, a 65-year-old divorced father of two from Surrey, B.C. He represented himself in the case, arguing the prohibition against the possession of child pornography was an infringement of his right to freedom of conscience under the Charter of Rights and Freedoms.

In April, 1995, police found computer discs in his home containing a text entitled Sam Paloc's Flogging, Fun, and Fortitude -- A Collection of Kiddiekink Classics, among other pornographic writings and photographs. A year later, another search of his home turned up more pornographic books, manuscripts, and stories involving children.

The material was graphic and explicit, including photographs of nude boys displaying their genitals.

Mr. Sharpe openly admits that he likes child pornography, and defends the practice of what he calls "inter-generational sex."

"This is not a confession. But intergenerational sex, particularly involving adolescent boys, is a practice of long standing in society," he said in an interview yesterday.

A former community planner in Ottawa, Saskatoon, and for the Comox-Strathcona Regional District on Vancouver Island, Mr. Sharpe defended himself, rather than hire a lawyer to represent him.

He has also been charged with distributing child pornography and will appear in court Feb. 1.

The Crown argued that possession of child pornography puts children at risk from paedophiles. A specialist in forensic psychiatry, who treats people with sexual deviancies, testified that pornography excites some child molesters to commit offences and reinforces erroneous beliefs paedophiles use to justify their aberrant behaviour.

At the very least, Dr. P.I. Collins testified, the children shown in the photographs are abused in the making of pornography, and pornographic films or photographs are a record of their abuse.

Judge Shaw wrote that "only assumptions" support the idea that child pornography incites people to have sex with children.

"A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography," his decision states.

He writes that it's debatable that laws against possessing child pornography protect children and, given that fact, do not justify invading someone's privacy.

"Books, diaries, pictures, clothes and other belongings are personal and private expressions of their owner's beliefs, opinions, thoughts and conscience," he wrote. "The simple possession prohibition deals with a very intimate and private aspect of a person's life and, in my view, that fact should be given considerable weight. I find that the limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects."

Judge Shaw struck down the section of the Criminal Code dealing with possession of child pornography, saying it contravened charter rights of freedom of thought, belief, opinion, and expression. This could affect the cases of child pornography already before the courts in B.C.

A spokesman for the criminal justice branch of the Ministry of the Attorney-General said a decision will be made next week on whether to appeal the decision.

"If it's not overturned, it's a very disturbing precedent," Nicholas Bala, a law professor at Queen's University in Kingston, said. "I don't think he gave enough weight to the harmful effects of child pornography, particularly the fact that some of this material is produced using children."

Pierre Gratton, press secretary to Anne McLellan, Justice Minister, said he is aware of the ruling.

"We continue to be concerned with anything having to do with child pornography and we will closely review this decision," he said.

A 1992 Supreme Court ruling on pornography upheld the ban on child pornography and makes it difficult to understand Judge Shaw's ruling, Julius Grey, a Montreal constitutional lawyer and McGill University law professor, said.

Justice John Sopinka, the late chief justice of the Supreme Court who wrote the court's unanimous ruling in the 1992 Queen v. Butler pornography case, called it "a reasonable restriction on freedom of expression."

Such acts, Judge Sopinka wrote, "appeal only to the most base aspect of individual fulfillment" and don't merit constitutional protection. In upholding the partial ban, the Supreme Court took into consideration the lack of concrete evidence linking pornography with social ills.

Mr. Grey said the 1992 decision means there's a strong chance Judge Shaw's decision will be overturned on appeal.

This U.S. story shows pursuit of kiddiporn bounty can bring out the perv side of a reporter!

Child porn ruling is the real scandal

Should a press pass be license to break the law -- even if the reporter's in pursuit of a legitimate story?

And while you're cogitating over that one, here's something else to chew on: What if the felony in question is something as abhorrent as child pornography?

That's the question du jour among cyber libertarians and free-speech advocates, following a ruling by a U.S. District court judge that a radio reporter can't use the First Amendment as a defense.

The reporter, Larry Matthews, a freelancer for National Public Radio, was charged with 15 felony counts of receiving and sending child pornography over the Internet.

As you might imagine, the usual suspects lined up on both sides of the issue. But there were some surprises -- most notably the chairman of the Society of Professional Journalists' ethics committee -- who said reporters should never break the law to get a story, no matter how important the issue.

Matthews, who recently copped a plea (more about that later), maintains that he was working on a story. In 1996, Matthews said he used his home computer to download and send child pornography as part of a story on childporn and the Internet. NPR says it never assigned Matthews to the story.

As part of his research, Matthews entered private online chat rooms frequented by the expected lowlifes who get their jollies looking at naked pictures of kids.

But after he identified himself as a reporter looking to interview participants, Matthews said, he got nowhere. So, in what he called a bid to gain the trust of child-porn enthusiasts, Matthews transmitted images to people with whom he was chatting online.

But federal prosecutors litigating the case believed otherwise. They contended that Matthews was interested in dirty pictures, not a story about how people go online to exchange dirty pictures.

Their case became that much stronger after U.S. District Judge Alexander Williams Jr. ruled that the "law is clear that a press pass is not a license to break the law."

One week later, Matthews decided to cop a conditional guilty plea to one count of transmitting and one count of receiving child pornography.

But this is more of a legal maneuver than an admission. If the Williams ruling is reversed by the appeals court, Matthews will be able to use the First Amendment defense and he'll have a chance to withdraw the plea and get his day in court.

This is all part of an old, increasingly stale debate.

Still unable to agree upon a standard definition of what constitutes pornography, Uncle Sam is playing a dangerous game.

Only Matthews really knows whether he was pursuing a prurient interest or legitimately gathering information for a story.

I suppose, as Judge Williams wrote in his ruling, the reporter could have interviewed law enforcement officials and report on child pornography prosecutions.

But what kind of cockamamie precedent are we setting if reporters' jobs are confined to reprinting officially approved information, using techniques that meet the government's seal of approval?

The prosecution's interpretation of the law -- that intent is irrelevant under the child pornography statute -- may be correct from a legal perspective. But that doesn't mean the powers that be are right. This one deserves another look.

Public deserves answers in Bennest case

When William Bennest walked free from a Vancouver courtroom earlier this month, Lady Justice must surely have shrivelled up and tried to hide behind her blindfold and scales.

The Burnaby school principal was accused of five separate charges all relating to child pornography or to having sex with minors. Somehow, between his first appearance on the charges he faced, and his trial, the Crown agreed to a plea bargain deal with Bennest's lawyer, Peter Leask.

The court was told during sentencing that Bennest had exploited a 12-year-old boy at his school in "explicit child pornography." Yet, it is in the transcripts of the bail hearing where we learn the real nature of the Bennest "beast."

"The Crown's concern is that the accused, because of the nature of the charges, because of his position, and because of the extent, the duration of the offences in question, the accused is a danger to the public generally and if released, the public would not be adequately protected by any terms which Your Honor could impose."

Read those words again. I know, I know, the grammar of the learned counsel is atrocious. But read the words.

This quote is from the bail hearing of Bennest. Words spoken by Crown Counsel Gordon Matei to presiding Judge William Kitchen.

As I explained last week, something happened that convinced the Crown to "do the deal."

At this point we can only speculate on what that was. But in the wake of that speculation, it certainly appears the Crown went to extraordinary lengths to ensure the deal was not only done, but done without the prying eyes of the media focused on it.

In the Bennest case, Crown counsel Craig Webber was scheduled to interview officers involved in the case on Wednesday, Oct. 1. The interviews were cancelled and re-scheduled for the following Monday, Oct. 6.

On Friday, Oct. 3, Bennest's case was called forward, unannounced to anyone other than the characters involved, into Judge Kitchen's court and a plea of guilty entered on the least severe of the pending charges. The remaining charges were stayed by the Crown. When officers showed up on the Monday they were only then told of the deal.

The only plausible explanation for this deception was to ensure the persons most likely to be angry with the deal, the police, were kept in the dark until after the fact, lest they go to the media and blow the whistle.

Kitchen, in giving Bennest a suspended sentence, ("bugger all" in English, for those of you unfamiliar with "legalese") said the kiddie porn possessed by Bennest was, "relatively mild ... not as extreme as many instances of pornography we see." Clearly, the "mountain" of evidence referred to by the Crown in the bail hearing was kept from the judge in the plea bargain.

Bennest was involved in much more than what was placed before the judge. The Crown knew this. The Crown also knew of much more than was outlined in the charges which were laid. Much more.

When police were executing their search warrants, they knew of another teenager from New Brunswick who got mixed up with Bennest after running away from home. The young male came to Vancouver and got caught up in Bennest's sordid web.

Upon the young male's return to New Brunswick, the information concerning Bennest was brought to the local police who provided it to Vancouver investigators on the very day they were applying for search warrants.

Information that was placed into the documents filed by police to obtain the search warrants (lest Crown attempt to deny any knowledge of the facts).

Want more?

Information was developed in the investigation linking Bennest to John Robin Sharpe, who currently stands accused in both Vancouver and Surrey of possessing, making and distributing child pornography. When Sharpe was arrested, police spokesman Anne Drennan, called the seizure of kiddie porn from him the largest in Vancouver's history, with some of the most disgusting material imaginable.

Yet, the Crown stood mute when Kitchen said, in sentencing, that Bennest had no intention of sharing or distributing the child pornography he had made.

Plea bargains happen all the time. The glacial-like justice system would grind to a halt without the back-room deals. That's reality. But, in this case, there was an outrageous breach of trust involved, committed by a school principal by being involved in kiddie porn and, indeed, even manipulating a student from the very school for which he was master, for his own sexual purposes.

Attorney General Ujjal Dosanjh has said he has his officials looking into the matter. He should, considering at whatever level, it was someone employed by his ministry who made the deal. I anticipate the AG will announce an appeal of the sentence. But we should not let it rest at that.

The deal reeks. The public interest is not even close to being satisfied.