Mr. Speaker, like the members who spoke before me, when I read the decision by Mr. Justice Shaw of British Columbia regarding child pornography, I was very surprised.
What surprised me was that a well-educated judge living in a society that tolerates some things but not others, an adult member of that society, could interpret a piece of legislation as he did. I was very surprised by the judge's interpretation of the legislation and by his intellectual contortion of certain provisions of the Criminal Code and of the Canadian Charter of Rights and Freedoms.
This is no small matter. It is a very serious one. I can understand that parliamentarians would wish to sit down and look at what is not working in this legislation.
I do not wish to go over all the ground again, because I think the House has been well informed. I merely wish to recall, as other members have done before me, the provisions of sections 163.1(3) and 163.1(4) which we are examining, specifically the mere possession of child pornography, which is an offence under these sections.
The individual was charged and the police officers conducted a search. What they found in his apartment was serious: 14 boxes of child pornography. There was enough to wonder if he was intending to sell it, which was probably why he was charged under section 163.1(3).
What did he rely on in his defence? He relied on section 2 of the Canadian Charter of Rights and Freedoms, which talks about the fundamental freedoms of conscience, religion, thought, belief, opinion, expression and so on. He even relied on the equality provisions in section 15 of the Charter.
That was his right. The Charter gives him that right. We live in a free and democratic society, with rights and obligations, and he had the right to use the Canadian Charter of Rights and Freedoms as a defence. It was, in fact, the only defence open to him, given the material found in his apartment.
I think that the crown did what it had to do. It tried to demonstrate that, even if the freedom of expression as guaranteed by the charter had been violated, such violation was justified in a free and democratic society. That is what section 1 states; the section 1 test, for those who have some knowledge of these inner workings, is what they tried to demonstrate before the judge.
What is important to note in order to understand what happened next is the case made by the crown in this matter. The crown called in experts.
One of the witnesses, a female detective with the Vancouver police—which also explains why the section was adopted in 1993 or 1994—testified that the Internet led to a surge in the availability of child pornography. She said that indictments for simple possession enable the police to obtain search warrants, which help identify pedophiles.
Why did the lawmaker provide for that? Simply because the lawmaker knew about it. Evidence has been heard from various people, including psychiatrists. These professionals were invited by the crown to testify in this matter. According to an expert in this field, every study done on the behaviour of these deviant men and women—primarily men in the case of pedophilia—shows that child pornography is a danger to children. He gave very compelling evidence to that effect.
The point was made that child pornography may encourage pedophiles to commit sexual abuse. I think that this borders dangerously on the test under section 1 of the Canadian Charter of Rights and Freedoms.
However, one of the judges who heard the evidence came to a different conclusion. Justice Shaw ruled that it had not been clearly demonstrated that child pornography caused direct injury. I do not know on what planet this judge lives, but this was his ruling.
However, I think his interpretation of the legislation in his decision was fairly twisted. He did note the following “Explicit pornography involving children entails a certain risk to the children because of the use pedophiles might make of it”. This is no mean observation. But it did not prevent him from reaching a different conclusion.
He also said “Children are abused in the production of pornographic films”. That is obvious. In a video of acts adults commit with children, the child is being abused. The proof is clear. In addition there are people behind the cameras and in the room doing the filming and then there are maniacs who buy these films and watch them. Clearly the child has been abused.
The judge stated that there was no proof there would be less production of pornographic films if simple possession of this type of material were criminalized. I think the judge made a mistake with the evidence I saw in the decision. I think this finding was proven wrong.
The judge mentioned that “freedom of expression plays an important role in this matter. An individual's personal effects assume the person's particular character, their personality. A ban on simple possession acts on a very intimate part and interferes with an individual's right to privacy”. According to his point of view, this is hugely important.
I think this is where the judge himself went awry. There is one route he should not have taken—and that is when he weighed the pros and cons of all this. I think the judge really erred in law in his assessment.
The judge added that “—an important aspect of every person's right to privacy is the ability to enjoy that freedom in one's own home”. I fully agree with that view. In this case, the police went to Mr. Sharpe's home to seize his collection of material, which was presumed to be of a pornographic nature. Indeed, 14 boxes of pornographic material were seized.
To violate a person's freedom of expression and right to privacy is a serious matter. The prohibition of possession applies to any person, including those who use pornographic material in a dangerous manner, and they may be collectors of such material, regardless of their interests. However, these people are not necessarily dangerous. And, given the evidence heard by the court, it is not obvious that he is right.
In balancing these views, the judge concluded that the first test of the charter of rights was not met and that the individual had to be acquitted.
I think that decision is totally wrong and that we in this House must do something.
The first step is to support the official opposition's motion, as it is worded in the Order Paper. I agree with the wording used by the Reform Party. However, I do not agree with the amendment it moved and the inclusion of the word “immediately”. I cannot agree with the inclusion of that word. Therefore, I will vote against the amendment to the motion, but I will support the main motion, since we are part of a process. I agree with the Parliamentary Secretary to the Minister of Justice regarding the section of the act that was invalidated by the judge. It is true that the act is currently not in effect in British Columbia.
But this does not prevent the police from doing their job. This does not prevent the crown prosecutors from continuing to examine cases, prepare them and so forth. Let us wait and see how the Court of Appeal judges rule. Let us wait for their reaction to what they have just heard, for they are members of society too. They are aware that the lawmakers in the House of Commons find this trial level decision unacceptable.
I am convinced that right-thinking judges, judges with solid legal training, Appeal Court judges who know how to listen to what is going on, will overturn this trial level decision. We will probably not have the opportunity or the need to go as far as invoking the notwithstanding clause in section 33 of the Charter.
However, and I will close with this, should the Court of Appeal uphold the trial level decision, that will be the time for lawmakers, for members of Parliament, to unite and invoke the notwithstanding clause. I think that it is premature to do so today.