Mr. Speaker, it is not all that clear that Justice Shaw failed to follow the direction provided by the Supreme Court of Canada in the Sharpe decision, because questions are still being asked. No authority has decided to appeal from this decision, so it cannot be all that clear.
In considering an issue such as this, my first thought is that we must look for similarities with other approaches to the criminal code. The strongest analogy that I can see is with hate propaganda. I am not the first one to mention this. Others have looked at the issue of pornography in relation to hate propaganda. Just as hate propaganda must incite, promote or advocate something, so too must child pornography.
Looking at the Shaw decision by the Supreme Court of British Columbia, one realizes that even if that court had not accepted the concept of artistic merit, the accused would have been acquitted anyway. According to the judge who heard the evidence, who examined the documents, who examined the entire matter in a mature manner, knowing full well that this was a highly visible case, the prosecution was not able to prove beyond a reasonable doubt that these works advocated or counselled sexual activity with a person under the age of 18 years. There was no incitement.
Our society abides by the rule of law. We are told this with such frequency in this House that the hon. member must realize it, as must all other members as well. The offence of which a person is accused must be looked at closely. If one wishes to be defended properly, and if one wishes to have a decision based on law, the charges must be looked at. The judge then decides whether the crown has proven its case beyond all reasonable doubt. This is the basis of criminal law in Canada. The crown must prove its case beyond all reasonable doubt.
Is this too much to prove in this case? That is another debate. However, for as long as these rules of law, which have been in place since time immemorial, have not been changed, they have to be applied. This is how criminal law works. The charges must be proven beyond all reasonable doubt.
The judge heard the evidence, saw the pictures, viewed the videotapes, and reached the conclusion that, as far as incitement is concerned, there was none present. That is why Justice Shaw reached the conclusion he did.
This may not be satisfactory to us, but that is not the judge's fault. He merely applied the rules of law. When all is said and done, when these are properly applied, when the evidence has been properly provided, it is my opinion that counsels for both the crown and the defence are satisfied with the way things have been done, particularly with the guidelines provided by the highest court in the land, the Supreme Court of Canada.