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Father Paul Shanley
Should
Child Porn be exempt 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
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?
But you'd better watch out
if you're in Saskatoon. Ex-cops Hatchen
and Munson picked up Darrell Night
and drove him to the edge of town where another guy 's frozen
corpse was found a few nights later. And all Darrell did was
flip them a bird! -- Sheila Steele, January, 2000
Sharpe allowed new trial :
CBC
Backgrounder on the Sharpe case, Jan. 26, 2001 This links
to full text of decision.
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. Public
deserves answers in Bennest case 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!
B.C.
Court of Appeal Decision to overturn Sharpe's acquittal.
Justice Cops make ``large''
kiddie porn bust in Ontario, May 5, 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 photographic, film, video
or other visual representation, whether or not it was made by
electronic or mechanical means,
- 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
or
- 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
- 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.
Supreme Court will decide
child pornography issue
Jun 30, 1999, Newsworld
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.
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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!
See
Electric Frontier Canada for more on this.
|
Saturday, January 16,
1999 April 27 update on
this story: Thoughtful observations from B.C. Court of Appeal
Top B.C. court strikes
down child-porn law
Possession is legal: judge:
Defendant claimed law infringed his constitutional rights
Francine Dube National Post,
with files from Mark Hume, Elena Cherney and The Canadian Press
 Possession
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
By Charles Cooper,
ZDNN July 9, 1998
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.
Risky business
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.
Bad precedent
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.
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
