TORONTO and VANCOUVER -- The Supreme Court of Canada will declare a winner on Friday in a mighty clash between the principle of free expression and the need to suppress child pornography.
The court announced the date for its judgment yesterday, two years after a 67-year-old Vancouver man, John Robin Sharpe, succeeded in having the B.C. Supreme Court strike down a federal law prohibiting the possession of child pornography. (The B.C. decision was upheld by the B.C. Court of Appeal; the B.C. government then appealed to the Supreme Court of Canada. It is the ruling on that appeal that is to be released this week.)
The 1999 B.C. Supreme Court decision unleashed a torrent of political and media criticism, including calls for the immediate use of the Charter of Rights and Freedoms' notwithstanding clause to override the decision.
Mr. Sharpe said yesterday that waiting for the decision has been an ordeal, and that he has grown increasingly pessimistic about his chances.
"It's been a long, long wait; a long time to be in limbo", he said. "It has taken over my whole life. It dominates my existence."
A former city planner who now works as a handyman, Mr. Sharpe said his hopes took a dive when he watched a video of the Supreme Court hearing shortly after it was held.
He was particularly bothered by one judge who dismissed as radical a statement that possession of expressive material is an absolute freedom.
"That was something that was always accepted and legal, up to two years before I was busted", he said.
Mr. Sharpe said he was also disheartened by a recent ruling in which the court refused to strike down provisions allowing Canada Customs to decide what material coming into the country is obscene.
The child-pornography law was created because legislators felt that if they were going to combat the scourge of child pornography on the Internet, they had to go beyond simply outlawing the production, distribution, and sale of child pornography. They felt it could only be stamped out by reaching down to the consumer.
The law prohibits the possession of visual material, real or imagined, that depicts children in a predominantly sexual context. It also prohibits written material that implicitly or explicitly advocates the commission of a sexual offence against a child.
Federal lawyer Cheryl Tobias told the appeal hearing that if pedophiles have a constitutional right to free expression, "it is dwarfed by the interest of children in our society. In my submission, we ought not sacrifice children on the altar of the Charter."
Critics have denounced the law as a half-baked political attempt to appease public fears. They argue that criminalizing sketches or writing created for an individual's own private satisfaction amounts to nothing less than thought control.
Alan Young, a law professor at York University's Osgoode Hall Law School, said yesterday the possession law is simply not needed.
"Clearly, we should be targeting producers and distributors", he said in an interview. "I don't think the police are right in saying that possession is an indispensable component of the entire project to eradicate child pornography."
If the court chooses to strike down the legislation, it is likely to provide suggestions as to what sort of legislation would be constitutional. In keeping with recent decisions, the judges would also probably provide Parliament with a grace period in which to repair its legislation.
Regardless of the outcome on Friday, Mr. Sharpe faces two remaining charges of possessing child pornography for the purposes of distribution.
However, in contrast to the profound social issues raised by the controversial case, the 67-year-old defendant's fate has become almost incidental.
Mr. Sharpe said yesterday that the negative publicity surrounding the case has made it extremely difficult for him to find work.