The sexual abuse of children increasingly preoccupies the courts and the media. From the ever increasing list of Indian residential school lawsuits and spectacular charges against politicians accused of decades-old sex crimes, to the shocking revelations in minor hockey, the tales come in a ceaseless barrage. The sense of public outrage is palpable, as is the desire for justice. But sometimes the justice system seems wholly oblivious to the public mood. A stunning example of this occurred when British Columbia Supreme Court Justice Duncan Shaw ruled January 19 that the charges of child pornography possession against John Robin Sharpe violated his freedom of expression under the Charter of Rights and Freedoms.

"In one sense, it's shocking. In another, it is completely predictable," says Ted Morton, professor of political science at the University of Calgary. "The Supreme Court of Canada laid the foundations for this by relying on moral relativism in its decisions. The only criteria for something being a crime is harm to others." Humphrey Waldoch, Vancouver author and retired lawyer, agrees. "Under the Charter, the government has the onus of proving justification for curtailing liberty for these activities," he says. "The government doesn't care. It failed to prove its case."

The power of the Charter to erase the Criminal Code is particularly evident in the Sharpe case. The 65-year-old retired civic planner represented himself in court. Unable to afford a top lawyer or obtain legal aid to mount a Charter appeal, yet unwilling to plead guilty, he concluded that he would have to plead his own case. His successful strategy: "I argued freedom of consciousness. One has the right to be in possession of one's own thoughts."

And, according to the ruling, to be in possession of child pornography. Mr. Sharpe, a divorced father of two grown sons, was first caught with child porn in April 1995, at a Canada-U.S. border crossing near Surrey. Customs officials seized computer disks containing Sam Paloc's Flogging, Fun and Fortitude: A Collection of Kiddie Kink Classics, which in a Globe and Mail interview Mr. Sharpe claimed to have written himself, as well as "other writings and photographs of nude boys displaying their genitals or anal regions," according to court documents.

Just over a year later, in May 1996, police arrived at Mr. Sharpe's apartment in Vancouver's Kitsilano neighbourhood. They arrested him and seized 14 boxes of books, computer disks and photographs. Mr. Sharpe told the Globe that one of the arresting officers described his writings as "the sickest stuff she had ever come across." In her application to obtain the search warrant this policewoman said Mr. Sharpe's pornography included "extremely disturbing and graphically described sadomasochistic sex acts between young boys and adults. Some of the boys were described as under the age of 10 years." But Mr. Sharpe, who came out of the closet as a homosexual when he was 39, is proud of who he is and of his tastes in pornography. In fact, he has developed a philosophical justification for adult-child sex. "Things are defined as abuse that are not seen as abuse by the participants," he told the National Post. "People want the law to protect their moral sensibilities rather than protecting the people involved." Mr. Sharpe refused BC Report an interview, claiming he disapproved of columnist Link Byfield's opinion on spanking. "I know that Link Byfield favours child beating," he said. "And I knew I wouldn't get a fair shake [in the magazine]."

Asked directly if he has had sex with children by Canadian Press reporter Ian Bailey, Mr. Sharpe denied illegal relations with anyone under the age of consent (14 in Canada), but his comments were rich in ambiguity. He mentioned that he travels extensively, and there are countries where intergenerational sex is a common, if not strictly legal, practice. "You can legally have sex and that has happened. Sure," he said. "We're not talking about coercion or anything forced. Legally, yes. Not coercion."

Mr. Sharpe expressed optimism that Mr. Justice Shaw's decision presages further liberalization of Canadian laws. The ruling is binding only in British Columbia, but if the appeal ultimately winds up in the Supreme Court, the result will apply to the whole country. "Hopefully it's a step in rolling back a lot of oppressive laws enacted in Canada in the name of protecting children," he told the Post. He will soon find out. Now that he has been acquitted on the charge of simple possession, his trial on charges of possessing child pornography for the purpose of distribution commences February 1. Within a week of Justice Shaw's decision, Attorney General Ujjal Dosanjh announced the province would appeal. He was joined last week by Justice Minister Anne McLellan, who is seeking permission for a rare government intervention at the Court of Appeal stage. That week over 70 federal Liberal backbenchers called on the government to invoke the Charter's notwithstanding clause if the Supreme Court of Canada upholds the original verdict.

Mr. Justice Shaw admitted in his judgment that he believes trafficking in child porn is still a crime, even if simple possession is not. "The dissemination of materials that counsel or advocate sexual abuse of children must pose some risk to children," he wrote. "[The law against] possession for the purpose of sale or distribution is far less invasive of an individual's freedom of expression and right of privacy than a total ban on possession."

Many observers wondered how distribution of child porn poses a risk to children while possession does not, but that was only one of several mystifying aspects of the judgment. Mr. Justice Shaw, described as conservative by colleagues and legal observers, based his decision on a process of "weighing of effects," where the social detriment of a criminal activity must outweigh the invasion of Charter freedoms to be reasonably justified.

The judge found that sexually explicit pornography involving children poses a danger to children because they are abused in its production. He also accepted that pedophiles use pornography to seduce children, by reassuring them that sex is normal, and he noted that "highly erotic" porn incites some pedophiles to commit offences. But, he concluded, "There is no evidence that the production of child pornography will be significantly reduced if simple possession is made a crime." (Mr. Justice Shaw is now under special protection after receiving a death threat. Mr. Sharpe said he was "saddened and shocked" by the threat.)

In his evaluation of harm Mr. Justice Shaw chose not to consider the landmark Butler decision by the Supreme Court of Canada. That 1992 obscenity ruling defined harmful material as that which "predisposes persons to act in an anti-social manner, in other words, a manner which society formally recognizes as incompatible with proper functioning." The risk of harm did not have to be proven scientifically; public belief in the risk of harm was sufficient. But the Butler case involved a Winnipeg shopkeeper who sold and rented hard-core pornography. Mr. Justice Shaw said it did not apply in the Sharpe case because "the prohibitions did not touch the private use or viewing of obscene materials."

Nor did the judge rely much on Vancouver police detective Noreen Waters' testimony. An expert in child-sex crimes, she testified that as a result of simple possession charges, the police have been able to obtain search warrants which helped them in finding and convicting child molesters.

But Mr. Justice Shaw was very sensitive to Mr. Sharpe's Charter rights. "The personal belongings of an individual are an expression of that person's essential self," he wrote. "The court included 'individual self-fulfilment and personal autonomy' within freedom of expression."

He added, "one significant value underlying the charter is the individual's reasonable expectation of privacy." (A word that appears nowhere in the Charter.) He supported the idea that privacy is grounded in physical and moral autonomy, essential to the well-being of the individual and at the heart of liberty in a modern state. "The intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition [of possession of child pornography]."

Mr. Justice Shaw's Charter arguments were buttressed by a couple of sociological observations. In his opinion pornographic material may have a cathartic effect that could reduce pedophilic aggression against children; hence banning it could be detrimental to child safety.

Al Riediger, an Edmonton psychologist who works in sexual abuse and forensic psychiatry, has some reservations about these conclusions. "When you fantasize about something, you get a rush. Soon you have to fantasize about more intense things to get the same rush," he says. Many studies and other experts affirm this observation.

For example, psychologist Victor Cline from the University of Utah, drawing on his clinical experience, asserts that "pornography provided very exciting and powerful fantasies" that quickly caused addiction in his clients, followed by escalation, where "they required more explicit, rougher, more deviant and 'kinky' kinds of sexual material to get their 'highs' and 'sexual turn-ons.'"

"When you meet your needs through fantasy, they get more explicit and stronger and you will tend to act them out more," says Dr. Riediger. "It doesn't work to rely on fantasy material to stop aggression."

The 1985 Report to the U.S. Attorney General Commission on Pornography highlighted a study of 600 junior high-school-aged or older people who reported on their involvement with pornography. About one-fifth said they had imitated acts they had seen in porn within a few days of exposure. Many other studies show marked changes in aggressive and deviant attitudes resulting from pornographic desensitization.

Mr. Justice Shaw is correct in his assertion there is no evidence that proves a cause-and-effect relationship between child porn and pedophilia, except in the production of the material. "It is argued that anything less than compelling proof of a causal connection between the consumption of pornography and the enactment of sexually violent behaviours is wanting," agrees Dr. James Weaver, a researcher at Auburn University.

Dr. Weaver adds however, "A substantial and robust correlation emerges between the availability of pornography and the incidence of sexually abusive behaviours." Numerous studies have found that a majority of convicted pedophiles report consuming child porn before committing their crimes. Pornography enriches offenders' imaginations, asserts Dr. Weaver, lowers their inhibitions and inculcates the belief that "everyone does this."

Yet, Dr. Riediger points out two things. "People can find child pornography regardless of what we do. And if no material is available, they will use their fantasy." With or without pornography, some pedophiles will still offend, and even make their own child porn in the process.

Neither the imprecision of social science nor the expanded justifications flowing from the Charter satisfy the many critics of Mr. Justice Shaw's decision. Newspapers and radio call-in shows were awash with the rage of people who spared little thought for the judge's legal and scientific hair-splitting. Some of Mr. Sharpe's Vancouver neighbours reacted by putting up posters warning parents to keep their children away from him.

The populist fury was welcomed by long-time critics of the Charter and judicial activism, who hope the energy can be harnessed to their cause. "How can a single judge make a decision to knock down a law?" demands Gwen Landolt, a Toronto lawyer and vice-president of REAL Women. "The purpose of the law is not to infringe on people's life, but to protect children. It's pretty clear this law was justified." Ms. Landolt suggests that such liberal interpretations of the Charter's freedom of expression guarantees give licence to extreme social deviance. "If we're all allowed to do whatever we want to express our essential self, there would be anarchy and social upheaval," she says.

"The Charter certainly has been used to manipulate social values," observes Ms. Landolt, who once worked in the same Vancouver law firm as Mr. Justice Shaw and was shocked at his ruling. "Here, it was used for social engineering. The judge obviously thinks child pornography is okay."

Ms. Landolt points to other examples of judges using the Charter to radically reshape the law, even in the face of widespread public resistance. The Supreme Court's 1988 abortion ruling, for instance, found that though Parliament does have the right to outlaw abortion, its method of doing so offended against the equal treatment requirement of the Charter.

And in Vriend, last year's major gay rights case, the Supreme Court ruled that sexual orientation must be specifically protected under Alberta's Individual Rights Protection Act, although the province's elected representatives had refused to do so for years. The court did rule against same-sex pension benefits in 1995, but did at the same time write "sexual orientation" into the Charter. That enabled the Ontario Court of Appeal to rule in favour of same-sex spousal benefits.

"The slippery slope has turned into a landslide," says Kari Simpson, executive director of the Citizens' Research Institute. "Our 'self-society' has moved from free love to swing love to gay love. Now it's child love."

Ms. Simpson's fear is that although the Sharpe decision is likely to be overturned, it is a key development in an incremental legal process that will lead to the legalization of intergenerational sex. University of Calgary criminologist Augustine Brannigan suggests the law could move in that direction, but only after much more study of child and pedophile psychology and sexuality. "We don't have a good understanding of the motivation of pedophilia," he says. "It's deeply ingrained and we don't know how they get that way. They don't become pedophiles just because of porn.

"Freud wrote about the sexual lives of children, but it never gained institutional dominance," adds Prof. Brannigan. "A frost was thrown over the question because of men abusing young females. If there's a sexual life in childhood, then it should be permissible. But society won't go there."

"Pushing sexuality on a child is just not going to happen," says University of Calgary law professor Chris Levy. "The sections prohibiting pedophilia have been challenged, but have failed." He stresses, however, that the possession of child pornography is a matter of taste, far removed from molesting children.

But a willingness to legalize the possession of child porn implies a tacit acceptance of the pedophilia that occurs in the production of such material. Small wonder, then, that people like Ms. Simpson have little faith that judges like Mr. Justice Shaw or legal experts like Prof. Levy will uphold the laws banning intergenerational sex forever.

"The only criteria for what's right is if I want it. Morality is irrelevant," observes political scientist Morton. "The court's persistent and extensive misinterpretation of the Charter over the last decade is predictable."

Prof. Morton says it is no coincidence that another B.C. Supreme Court judge recently ruled that the Surrey School Board could not keep sex education books promoting homosexuality out of primary schools. "The opposition was related to the religious beliefs of the parents and trustees," he says. "They want to divorce public policy from beliefs of right and wrong."

"We should get ready for a lot more of this," warns Prof. Morton. "I hope it's not upheld, but I wouldn't predict that it won't be." BCR

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