2000-03-09
The Supreme Court Handles a Tough One
Is it possible to consider this issue, soberly, and intelligently?
You are probably familiar now with the Robin Sharpe case that is now before the Supreme Court of Canada.
Nobody is saying that Robin Sharpe is a nice man. Sharpe was arrested by the police in Vancouver for possession of child pornography, an offense punishable under the Criminal Code of Canada-- Federal Law. Newspaper accounts are rather sketchy about the details of the arrest, but we know what it is that the law said was illegal: he had, in his possession, images and texts describing sexual acts involving children.
Sharpe did not argue that people should be allowed to create child pornography and sell and distribute it. Most people don’t care about the distinction, but I do. He did argue, in court, that the law as worded was too broad. He argued that the law appeared to make it a criminal offense to even think about having sex with children. The law certainly made it a criminal offense to record such thoughts on paper, even if nobody else ever reads them, or sees them. Robin Sharpe, and his lawyers, and the British Columbia Civil Liberties Union, believe that this part of the law restricts his freedom to think and imagine. It infringes on an individual’s right to have an unfettered imagination. It opens a Pandora’s box of interpretation and analysis that cannot possibly result in just actions by the police. It is not the business of the government, or anyone, to make thoughts illegal.
You have to think carefully about what the law is trying to prohibit here. It prohibits the expression, in any form, of specific imaginary experiences (as well as real experiences). In this case, we are talking about a man who likes to fantasize about having sex with very young boys. But the law is never specific. It doesn’t tell you in advance what kind of person to arrest. Conceivably, a girl having dreams about being molested by a teacher could be arrested for writing them down. Well, we know that we would never arrest such a person, would we? For one thing, in practice, we always assume that the girl, in this instance, is the victim, even if they are her fantasies. The law, however, should never make assumptions. And the law doesn’t help us make the kind of distinctions that might be required: what is imagination? Who is the victim? What is a dream? What is poetry? What is documentation? What is fiction? What if the girl imagined herself as the teacher that was molesint her? There is a raft of issues that could complicate the process of deciding if possession of this particular document or image is a crime. Is there a way to ensure that all of these issues are addressed in a consistent, convincing manner, to ensure that the right person is always punished? In a society that can’t even agree on what the rules are for political secession?
Two lower British Columbia courts have ruled in favor of Sharpe. They have ruled that the law goes too far. They have argued that if the principle is allowed to stand, then it will also be legal to arrest people for thinking and writing other things. It is a bedrock principle of our legal system that all of our citizens have the right to hold personal opinions no matter how unpopular they are. You cannot disobey most laws, but you can criticize them all you want, and advocate for changes to them.
The problem with discussing the issue with anyone is that people find the very idea of child pornography so repugnant that they react very emotionally to the issue and quickly pronounce themselves in favor of any law, no matter how ill-considered, that makes child pornography illegal. The courts, of course, cannot afford to be so cavalier.
Ironically, some of the groups most enthusiastic about keeping the law are the ones who also constantly rant about getting the government off our backs. They claim the government plays an excessive role in our society, when they advocate for the poor, or homosexuals, or other minorities. In this instance, however, they want to give the government extraordinary latitude in dealing with a particular type of activity.
You may recall the hysteria surrounding allegations of Satanic Ritual Abuse in the 1980’s. Similar emotions were at play. The result was a massive “witch-hunt” of mind-boggling proportions, in which dozens of innocent men and women were imprisoned, and hundreds of innocent lives were destroyed. After a few years of sober, second thoughts, and a re-analysis of the way the investigations were conducted, almost all of these cases were tossed out of court. Just a few months ago, charges against Bob Kelly, who was at the centre of one of the most infamous of these cases (the Edenton “Little Rascals” case) were finally dropped. In spite of the fact that superior courts consistently ruled that these investigations were almost criminally sloppy and ill-conceived, no one, to my knowledge, has apologized for destroying the lives of the innocent men and women caught up in these events.
Why did these cases go forward in the first place? For the same reason many people wish to see the Supreme Court uphold the child pornography laws: because they hate child pornography and they are willing to make compromises in order to believe that we are actually doing something about it. These people, including the Reform Party, believe that if the Supreme Court upholds the lower court appeal decisions, then Parliament should invoke the “notwithstanding” clause of the Bill of Rights and enforce the law anyway.
But if the Supreme Court rules that it can be made illegal to possess images and texts that describe illegal acts, it will have established that, in principle, the government can arrest people for what they think and say, instead of only for what they do.
In fact, that principle is already at play in Canada in our hate laws. A person can be arrested for publishing documents that promote hatred or contempt for people based on their race, nationality, religious beliefs, or ethnic origin. Many people think that these are good laws too. I don’t. I despise racism, but I believe that freedom of expression is the very foundation of freedom and democracy and should never be compromised for any other principle. Without freedom of expression, we cannot even guarantee that discussions about the law, including the pornography laws, will be allowed to take place.
For the same reason, I abhor the language laws in Quebec. Yes, it would be a tragedy to see the French language in North America die. But it is a greater tragedy that people can be arrested for saying something in the wrong words. It is absurd. If French deserves to survive, it will survive for the right reasons. If not, we should mourn it’s passing.
Right now, most of us think we have a reasonably fair and just government. But if we didn’t, the government could use this case as a precedent to justify arresting people who disagree with them on other things.
It is always a challenge to persuade people that it is important to fight for the rights of people we don’t like. We’d rather, often, just bash them in the teeth. We are short-sighted and stupid sometimes. We forget that every time we chisel away at these rights even a little, we establish the conditions under which our own freedoms can eventually be suppressed.
The Supreme Court should uphold the appeals courts and invalidate the child pornography laws. Then Parliament should enact a new law that omits the offending portions. It’s really no big deal. The law can continue to make it illegal to create or sell or distribute child pornography. The police can still arrest molesters and abusers. No stores will be allowed to display, for sale, the forbidden items. We will still be able to read the Bible (which, under certain circumstances, could fit the definition of “pornography” that some would like to see enacted into law).
I don’t know if people imagine that this one particular part of the child pornography law goes very far in terms of prevention anyway. It doesn’t.
It merely allows the police to arrest people for thought crimes.