CRIMES OF THE IMAGINATION
National Post, January 11, 2000
When a notorious child pornography case goes before theSupreme Court next week, Canadians
will be confronted byissues most of us would prefer not to think about.
Lawyers for JohnRobin Sharpe, the British Columbia man acquitted by lower courts in 1999 of
possessing illegalmaterial, will argue that this country's child porn law is too broad. They willargue
that although somesexually oriented material involving children should be against the law,
criminalizing storiesand sketches that are purely works of the imagination amounts to declaring
certain ideas"thought crimes" -- a la George Orwell novel, 1984.
No matter how muchthe sexual abuse of children disgusts us, Mr. Sharpe's lawyers are hardly the
first to make thispoint. Organizations such as the Canadian Civil Liberties Association (of whichI
am a member of theboard of directors) have been raising it for years.
Almost everyoneagrees that the sexual exploitation of real children by adults should be acriminal
offence. But suchbehaviour was against the law long before Canada's child porn legislation,
rushed throughParliament in 1993, criminalized the mere possession of a vast array ofmaterial.
Mr. Sharpe has notbeen charged with molesting actual children. Rather, he has been charged with
being in possessionof sexually oriented material involving persons under the age of 18. But if no
real children wereharmed by its production why should it be illegal?
Although it'sperfectly legal for a 16-year-old girl to have sex with her 17-year-oldboyfriend, if
that girl sketchesthe two of them in a sexual embrace, our laws say she has just manufactured
child pornography.Should her mother discover the sketch and not immediately destroy it, both the
girl and her motherwould be in possession of child porn. Should the girl show the sketch to one of
her friends, shebecomes a distributor of child porn.
Many of the peopleaccused of being child pornographers in recent years have hardly been
unabashedpaedophiles. Computer bulletin board operators in several provinces have beenraided,
arrested, had theirequipment seized, and been subjected to the ordeal of criminal proceedings
because a tinyportion of the sexually oriented material on their boards involved fictionalstories
that technicallycontravened the law. In some cases, these stories included nothing more risque
than teen sex.
Nor should we forgetthat one of the first people to be charged under the child porn provisions
was artist EliLanger. His paintings, evocative works of the imagination exploring the trauma
suffered by sexuallyexploited children, were seized from the walls of a Toronto art gallery within
months of theenactment of the legislation -- despite prior police assurances that the arts
community had noreason to be concerned about the law.
How the arrest,stigmatization, prosecution, financial crippling in the form of legal fees, and
imprisonment of suchpeople does anything to fight real sex abuse remains a mystery.
Yet while there's noreason to believe Canadian children became safer when these deeply flawed
clauses were added toour Criminal Code seven years ago, should the Supreme Court strike down
these provisions,opportunistic politicians and ill-informed media commentators will no doubtraise
But before they do,they might ask themselves why we don't throw the authors of murder
mysteries (or truecrime books) in jail. If short stories about having sex
Isn't it odd that weconsider reading about murder harmless entertainment, but reading about sex
and children acriminal offence worthy of imprisonment?
Isn't it strange thatwe trust murder-mystery-buying Canadians to use hunting rifles responsibly --
and yet we thinkthese same Canadians so suggestible that mere words and images will turn theminto paedophiles?