March 1999 Cover
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Canadians win a right to privacy
Canada nearly came apart at the seams last month. Was it a fresh row over provincial secession that
nearly pushed parliament to invoke emergency powers? No, the furor can be traced to a gay man in Vancouver.
John Robin Sharpe, acting as his own attorney, convinced a British Columbia Supreme Court judge to strike
down the part of Canada's kiddie porn law that bans private possession of erotic stories or images involving minors.
What people keep in their homes is "an expression of that person's essential self," Justice Duncan
Shaw declared in his decision. "His or her books, diaries, pictures, clothes, and other personal things are
intertwined with the person's beliefs, opinions, thoughts, and conscience." Possession of words and pictures relating to
the sexuality of minors could be used for legitimate purposes, Judge Shaw said, such as slaking desires illegal to
act upon. Or such material could be possessed incidentally or unknowingly. Making mere possession
of pornography illegal, the judge ruled, was too deep an intervention into people's private lives as to violate
the Canadian Constitution's Charter of Rights and Freedoms.
Praised by many civil libertarians, Justice Shaw's decision provoked furor in other quarters.
After receiving a death threat, police assigned the judge special protection. In Ottawa, parliamentarians proposed
to instantly nullify Shaw's decision using special emergency powers-- a measure that failed, though only with
the federal government condemning the decision, and vowing to write new laws or even amend the Constitution
if Shaw's ruling were not struck down in the courts.
Ironically, Justice Shaw's decision was no great victory for free expression. While striking down the
ban on possession, the judge upheld all other parts of Canada's sweeping 1993 kiddie porn law, including
provisions that make writing an essay or doodling a picture punishable by ten years in prison.
When it comes to presenting underage sex, Canadian law makes no distinctions among
photographic depictions, stories, political writing, or paintings. Nor does it distinguish between five-year-olds, youths of
17, or 25-year-olds who merely "look like" teenagers: all is kiddie porn under the law.
Sharpe, a 65-year-old retired city planner, has been published in gay magazines such as
Passport and Sodomite Invasion
Review, a Canadian literary journal. He was stopped by Canada Customs in 1994 as
he crossed the border with copies of stories he had written in his luggage. A year and a half later, police raided
his apartment, seizing 14 boxes of manuscripts, books, and photos, some of nude adolescents.
Sharpe had no legal background when he decided to defend himself before British Columbia's
Supreme Court. He didn't have money for a lawyer, and the lawyers he talked to wanted him simply to plead guilty.
Because Sharpe had multiple copies of some material, provincial prosecutors are charging him also
with "intent to distribute" porn, on which he faces a separate trial. But that case is on hold while Sharpe
appeals Justice Shaw's ruling that upholds the ban on writings. British Columbia and the federal
government, meanwhile, are appealing Shaw's ruling on possession.
But for now, Sharpe is elated at his legal victory. "Hopefully," he says, "it's a step in rolling back a lot
of oppressive laws enacted in Canada in the name of protecting children." **
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