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 Tuesday’s stunning decision by the British Columbia Supreme Court - namely, that it is perfectly fine to possess violent, dehumanizing child pornography, as long as it is the product of one’s imagination - brings to mind another infamous case, involving the prosecution of former Toronto lawyer Harry Kopyto. In that case, Mr. Kopyto was convicted of contempt of court for suggesting judges and cops stick together. Later on, at the Court of Appeal, Chief Justice Peter Cory tossed out the conviction, stating that judges should expect such critiques. “The courts are bound to be the subject of comment and criticism,” wrote Justice Cory. “Not all [judgments] will be sweetly reasoned.” In the string of decisions of Canadian courts concerning admitted pedophile Robin Sharpe - one in 1999, one in 2001, the other this week - comment and criticism have not been in short supply, and for good reason. Criticism, very shortly, has given way to outrage. The first occasion of outrage came in June 1999. Back then, the B.C. Court of Appeal issued a 74-page ruling concerning Sharpe, in which the court’s majority offered up little in the way of “sweet reasoning.” A little background is worthwhile, here. Mr. Sharpe, a 65-year-old retired urban planner, was charged in 1995 and 1996 with possessing child pornography. Customs officials and police found computer disks, books, stories and nude photographs of children in his possession. One document was titled “Flogging, Fun and Fortitude - A Collection of Kiddiekink Classics.” One collection of stories, penned by Sharpe himself, described acts of rape and torture against children as young as six years. In January 1999, a B.C. Supreme Court judge dismissed two of the possession charges against Mr. Sharpe - who had represented himself in court - on the grounds that the law under which he had been prosecuted was contrary to the Canadian Charter of Rights and Freedoms. Dozens of similar B.C. cases involving child pornography ground to a halt. A later effort by the Reform Party to persuade the federal government to invoke the notwithstanding clause - and, in effect, reinstate the possession of child pornography law in B.C. - was defeated in the House of Commons. Await the B.C. Court of Appeal’s judgment, the Opposition was told. When the appeal was heard in April 1999, it became quickly apparent that all was not well with the Crown’s case. Justice Mary Southin astounded many present in her Vancouver court when she repeatedly interrupted the Crown Attorney to state that she did was not comfortable “pontificating” about whether street children in Brazil should be victimized by pornographic pedophiles. Said the judge: “Some of these people, whether we like it or not, isn’t it a fair assumption that they did it for money?...What right do we have pontificating about what street kids do in Brazil?” If that sort of logic was not offensive enough, media reports quote Justice Southin going on to question whether criminalization of child pornography was even worthwhile. Referring to Prohibition laws in the United States, she stated: “Look at the results. It did not stop anything. It just made it worse.” Justice Southin, unfortunately, wrote for the majority in the appeal of R. v. Sharpe. Rejecting the sworn testimony of police officers and experts with many years of experience in pursuing pedophiles, she returned to a discussion of what she called “the so-called Third World.” The exploitation of children in these countries is not the fault of pedophilic predators, she seemed to suggest: instead, the “underlying cause is economic...[in such countries] the population has a grim choice - starvation or exploitation.” Economics, apparently, was some kind of justification for the sexualization of children. This is slightly better than blaming the victim, but only slightly. That was the first outrageous court decision. The second came in January 2001, in Ottawa. Given Madame Justic Southin’s commentary. it was not surprising that the B.C. Court of Appeal decision provoked an outcry - and that it ended up in the Supreme Court of Canada. What was very surprising, however, was that the nation’s highest court greatly broadened a loophole in the law - to permit the likes of Mr. Sharpe to argue that writings which propagandize the rape of children was defensible as “art.” Wrote the Supreme Court: “…artistic merit should be interpreted as including any expression that may reasonably be viewed as art.” Those few words would enable Mr. Sharpe to make a mockery of a key section of the antichild pornography law. This week, back in a B.C. courtroom, he did precisely that. In a 48-page-decision - the third outrageous decision of the courts - the B.C. Supreme Court suggested that it had no option but to apply the Supreme Court of Canada’s ridiculous “artistic merit” defence. Mr. Sharpe’s written fantasies about the rape and torture of children, therefore, somehow were transformed into “art.” The Supreme Court, and the two B.C. courts, have combined to render Canada less safe place for our children. Possession of child pornography, whether the product of a camera or one’s imagination, does two terrible things. First, it legitimizes the sexualization of children. Decades of expert analysis shows that child pornography more than occasionally prompts pedophiles to attack children. Secondly, as any student of capitalism will know, the desire to possess something inevitably creates a market. In this terrible case, the product of Robin Sharpe’s dark imagination creates an actual market for his ilk to violate, and destroy, those children Justice Southin referred to - the ones found on the dirty back streets of Brazil. Proof of that is not hard to find. Having been handed another victory by the B.C. Supreme Court, Robin Sharpe promptly announced his intention to get his child pornography stories published, so that others can experience his art. The federal government cannot now do what was done in 1999 - namely, leave the matter to the courts. The courts have spoken, and the courts have gotten it wrong. It is now for Parliament.
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