Madam Speaker, the Reform Party calls upon parliament and the government to take legislative initiatives to strike down and reach a decision on the British Columbia lower court decision concerning child pornography.
The motion invites the government to take all legislative measures necessary to reinstate the law and to invoke section 33 of the Constitution commonly known as the notwithstanding clause.
I thought it might be useful for members on all sides of the House to actually review the sections of the law that are applicable to this case, particularly section 163.1 and the definition of child pornography:
a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) 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—
The accused is charged under two sections. The first is subsection (3):
Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of—
Also subsection (4) which says “every person who possesses”. There are two offences here: possession for the purpose of and simple possession. As indicated, Mr. Sharpe was charged with subsections (3) and (4), namely possession for the purposes of distribution and possession of child pornography.
I would like to note that the U.S. Federal Court of Appeals as recently as last week quoted the Canadian legislation favourably in upholding the constitutionality of that law.
Child pornography is a curse that all members of the House view with distaste. It is something that has to be addressed and has attempted to be addressed on both sides of the border.
Mr. Sharpe in turn claimed his fundamental freedoms, particularly section 2(a) of the charter, freedom of conscience; section 2(b), freedom of expression and opinion; section 2(d), freedom of association; and section 15(1), equality rights under the charter. He claimed all those sections with respect to the possession charge. With respect to the possession for the purposes of, he simply claimed section 2(b).
The crown acknowledged that there is a limitation on the freedoms pursuant to section 1 of the charter and that the rights and freedoms of the rights of citizens are subject to reasonable limits as prescribed by law and as can demonstrably be justified in a free and democratic society. Then the judge went into an analysis of the evidence that was before him.
Subsection 3, possession for the purpose, was upheld as valid constitutional law. I will not deal with that. The section that has members opposite concerned is with respect to what is known as simple possession. It was found to be void and unconstitutional. I thought a review of the decision would be appropriate and in order, given the level of rhetoric the House enjoyed.
Page 7 of the decision indicates that sexually explicit pornography involving children possesses a danger to children because of its use by pedophiles in the seduction process. Children are abused from the production of film or videotaped pornography. Highly erotic pornography incites some pedophiles to commit offences. Highly erotic pornography helps some pedophiles relieve pent-up sexual tension.
It is not possible to say which of the two foregoing effects is greater. Mildly erotic pornography appears to inhibit aggression. Pornography involving children can be a factor in augmenting or reinforcing the cognitive distortions of pedophiles. There is no evidence which demonstrates an increase in the harm to children as a result of pornography augmenting or reinforcing the cognitive distortions of pedophiles. The dissemination of written material which counsels or advocates sexual offences against children poses some risk to the harm of children.
The crown conceded that this is a violation of one's guaranteed freedom of expression but argued that it was a reasonable limit within the limits of the law. Only one case was cited, the attorney general v Langer, in which the law was actually held to be a valid law. Section 163.1 was explicitly held to be valid and thereafter the paintings themselves were returned to the accused.
In dealing with that case Judge Shaw says that Judge McCombs did not do “a proportionality test”. A proportionality test is nothing other than a fancy way of saying risk benefit analysis; in other words weighing the legislative objective against the effects of the legislation. The question becomes whether to use a legislative hammer, i.e. the Criminal Code, to kill the impugned behaviour in the context of our charter.
Several other tests are referred to in the course of the decision but the judge concluded that in his view it was appropriate to the present case to consider the proportionality test between the desultory effects and the salutary effects on the prohibition and possession of child pornography.
He then went through a weighing process and made the conclusion that there was no evidence which demonstrated any significant increase in danger to children related to the confirmation or augmentation of cognitive distortions caused by pornography. That is a conclusion with which many of us would have some serious difficulty. I quote it:
There is no evidence which demonstrates any significant increase of danger to children related to the confirmation or augmentation of cognitive distortions caused by pornography. There is no evidence that “mildly erotic” imagines are used in the “grooming process”. Only assumption supports the proposition that materials that advocate or counsel sexual crimes with children have the effect of increasing the occurrence of such crimes. Sexually explicit pornography is used by some pedophiles to relieve pent-up sexual tension. A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography. There is no evidence that the production of child pornography will be significantly reduced if simple possession is made a crime.
With respect I believe the judge was wrong. I believe the House believes the judge was wrong. When it comes down to it, we are talking about a question of values. Surely it is the right of parliament to expect that it can create an environment in which it wants to see Canadian children raised.
Children should be free of the fantasies of adults and free of the abuse that this is something of a false test, and it is a false test. There will never be an empirical test that says if a possesses child pornography it therefore follows that b will be harmed. We cannot do it. We are human beings. It does not work. The test appears to be objective but I submit it is quite naive. It is nothing other than legal fiction.
It is up to parliament to express its view that this test is nonsense. Canadians believe that it is a Canadian value that possession of this material leads to harm and is degrading to our society.
I can do no better than to quote from a letter sent to my hon. colleague from Greenwood—Broadview dated today's date by Mr. Danson, the lawyer for the Mahaffy and French families, who should know something about this issue. He said:
Both the Supreme Court of Canada and the Supreme Court of the United States have concluded that the use of children to make sexual pictures is child abuse. Simply put, child pornography is a direct product of child sexual abuse and constitutes a permanent record of a child's sexual exploitation.
Once Judge Shaw arrived at the conclusion he arrived at, it follows that consideration of the detrimental effects will be pro forma. Judge Shaw believed that the invasion of personal freedom and privacy were profound and therefore by a circuitous bit of reasoning used his earlier findings as the basis for his findings that the detrimental effect of an invasion of privacy was a fact that overwhelmed the issue concerning possession. In the interest of time I will not quote it.
I believe Judge Shaw's findings are wrong. He used a false test which has led to absurd conclusions. I suggest all members support the attorney general in her intervention and await the decision of the appeal court. The House could only do one thing that is more absurd than Judge Shaw's reasoning, and that is support the motion.
I quote from the final page of Mr. Danson's letter:
I know in bringing forward this motion in Parliament today they are motivated by genuine, honest and good intentions, but I have to say to you that on this one, the Minister of Justice is absolutely correct and should be fully supported.