Child Pornography and enforcing the law.
B.C judge strikes down a subsection of the Criminal Code as Unconstitutional.
Peter Timusk
Course: 51.100V
Section: 03
Professor: Barry Wright
Teaching Assistant: Catharinah Faux
Introduction:
The charter is law related to the constitution. Sections 1, Section 24
and Section 33 of the charter are significant in application of criminal
law. Each section prescribes rights and laws made must not violate these
rights. Judges can decide when a law violates a charter right. Politicians
also react to these decisions. But who has final say?
A judge in B.C. Justice Duncan Shaw ruled that the criminal code was unconstitutional
in it's provisions against the possession of child pornography1
. He did not find that the Section 163.1 against the making of pornography
were unconstitutional just that subsection 4 is unconstitutional. This subsection
deals with possession. The Police were quoted as saying that possession
was essential in making arrests and successful prosecution2
. After this decision from Justice Shaw a member of parliament, Albina Guarnieri
wanted the Prime Minister to use Section 33 of the charter to overrule the
B.C. court3 . In fact, the government promised to aid the defeat of
the decision joining with the B.C government as the case goes on to the
appeal court of B.C. but will not invoke Section 33 (the notwithstanding
clause) .
The rights of the accused in this case were violated. At least this is the
opinion of B.C. court Justice Shaw. And the B.C. courts are influential.
1. Possession of Pornography in the Criminal Law.
A. Possession of Objects.
Possession is an artifact of the capitalist society as much as it is capable
in some cases of conferring guilt when used as evidence. Our culture both
low and high
depends on possession of objects of art.4 It is no surprise too, that the political right would
like to add possession to the Charter as a right. This is the colour of
possession. It is capitalist in modern theory.
B. Legal and Illegal Art.
Possession of objects is not a Charter right. Freedom of expression is a
Charter right. Artists struggle with this in the form of communicating with
the audience and making art that the audience wants to own. The difference
between live music and CDes in a home library makes the point. One is art
production. One is art ownership. Live music is guaranteed because it is
expression. It is also guaranteed under UN
covenants because it is artists sharing their work.
Strip clubs and pornography seem to be the parallels in this case. But laws
keep minors out of strip clubs. They should also keep minors out of the
making of pornography. This is our duty of care for minors.
2. Justice Shaw's Arguments
A. Right to Privacy
Justice Shaw found that the individuals rights to privacy were violated
by subsection 4. He argued that the right to privacy should be interpreted
broadly. That the affects of this law subsection 4 are a grave violation
of the rights of the person. He felt that personal belongings such as, books,
diaries, clothes were the person's thoughts, conscience, beliefs and were
private in nature. He used section 2(b) of the charter to make this decision
and then argued that section 1 made subsection 4 of section 163.1 unconstitutional5
.
B. The use of pornography for further crime
Justice Shaw reviewed the theory of behaviour in regards pedophiles and
felt that in this case possession was not likely to increase the chances
of pedophelia6 .
3. Journalists, legitimacy and this case.
A. Who should be involved in this case? Who should make the laws in regards
pornography? Should the source of the law be statute? The Criminal code
is codified law. Can journalists report law cases and be neutral? Can judges
and politicians be neutral in cases likes these?
B.Journalists sensationalise and ignore real rights issues.
Often I have read arguments by the editors of the paper who seem to be always
at complete odds with what I have been lead to believe is good and right.
This is politics. It's the politics of journalists vs. children and parents.
The victims are children. Politicians, judges, and journalists all, maybe
parents, and were once children. Can then a victim of child pornography
become a judge or politician? Or would the trauma mean these careers would
be inaccessible?
Again the argument is always made by pornographers that their freedom of
expression is at stake. And therefore all of the people in society should
be wary that our freedom is at stake. Of course, freedoms are important
and human rights are very important. They are of paramount importance. But
while some people are using human rights to practice pornography by this
decision, the disabled are ignored by the same human rights. Economic rights
don't get the same front page coverage as this case is getting. Security
of the person especially children should get attention but does not. This
is because the newspaper itself has more of a stake in freedom of expression
issues. This is not their fault but the nature of expression, it is written
unlike the example of economic rights or the rights of the disabled. But
is it a right to possess material that is made by injuring others?
Pornography is an exciting issue. This reporting of this case will sell
newspapers. Biased reporting of the psychotic will also sell newspapers.
This is not right. Labelling terrorists mentally ill will fan the flames
of hatred. But the Government in the USA can make laws overriding other
laws in an effort to attack terrorism. The government is not going to override
the decision of the influential BC court using section 33.
C.Politicians seem to be very moral and may be right7 .
Maybe politicians should make the laws. Certainly journalists don't make
laws. They report on crime and law. A politician can be a very moral person.
They can write laws which can be informed by the engines of government.
The research can be done, the reports can come in, and all that is necessary
can be compiled to make a good law. A judge can only work so hard and perhaps
does not really know an issue in the case as well as a politician can know
it.
4. Lawmaking and pornography
A.Lawmaking and what a judge needs to rule on today.
The judge had to study pedophelia. Was this right? The judge had to rule
that possession of pornography was ok and part of the right to privacy.
B.Would a politician be neutral or better?
Would a politician getting calls about pornography sales in her riding not
gain from a different ruling and would that politician not be the best to
have final say. But this would not be neutral and residents or as the politician has it constituents
of the riding would be able to push the politician.
The politician might only have time to study so many issues even with the
vast resources of the government. Whereas a judge could study each case
and the issues individually. And if the politician was a member of an opposition
party or lesser status then resources might be very thin.
5. So who do we trust?
Children who trust pedophiles suffer. Children must trust their parents
and can similarly suffer incest or neglect. But who do we as citizens trust
politicians? Or do we trust judges? Trusting journalists never works. They
just want to sell newspapers. Politicians want to be elected or have other
power needs. Judges too may have power needs. So do we have to trust them
at all? Yes, the nature of our laws means we must at times trust judges
and at times if not trust at least listen to the wisdom of the politicians.
This will mean we will have more cases like the one examined in this paper
and we will be in more trouble as a society because of rulings on cases
like these.
1 Neal Hall,
"B.C judge strikes down law against porn," Ottawa Citizen, Saturday,
January 16, 1999, 1 , ' In a 33-page written judgment released yesterday,
Mr Justice Duncan Shaw found subsection 4 of Sec 163.1 of the Criminal Code
violated the rights of freedom of expression of John Robin Sharpe, dismissing
two charges of possession of child pornography against him.'
2 Derek McNaughton, "How
law against possession aids police," Ottawa Citizen, Tuesday, January
26, 1999, 1 , ' Possession was the whole linchpin says Julian Fantino, the
police chief who led the investigation into "Project Guardian,"
an extensive probe into child pornography.'
3
Tim Naumetz,"PM must reverse child-porn ruling, backbenchers say,"
Ottawa Citizen, Tuesday, January 26, 1999,1. ' ...and urges Mr. Chretien
to consider using the special constitutional clause that allows parliament
and provincial legislatures to override Canada' Charter of Right and Freedoms.'
4 Stephen Willats, Intervention
and Audience, p3, 'The dominance of the object-based artwork has to be understood
in the light of its role as a projector of emulative idealisations, and
here there is an inescapable link between the dominant ideology of property
in society, and the favouring by that society of the artwork as object.'
5 Neal Hall, "The decision
on child porn," Ottawa Citizen, Saturday January 16th, 1999, B7.
6
Neal Hall, B7.
7 Kirk Makin,'Many judges
uneasy with charter powers',The Globe and Mail, December 22nd, 1998, A1.
