Don't blame the judges

The case of John Robin Sharpe of British Columbia has attracted tremendous media attention.  The public outcry is huge.  "How could he possibly be acquitted?"  This is a very complex legal issue that most people do not understand.  Even if you understand it, you still may not agree with it.

 Our Constitution contains the Charter of Rights and Freedoms.  The Charter guarantees certain individual rights which are necessary in a free and democratic society.  Not all of those rights are absolute.  Certain laws are allowed to infringe on those rights, if they can be justified in our society.  If the law cannot be justified, then the person is acquitted, even if the facts of his case cry out for punishment.

Canadian courts follow a formula to determine if a violation of a person's rights can be justified.  The first part of the formula is that the objective of the law must be important.  In this case, there's no question that preventing children from being exploited in making pornography is important. Secondly, the law that infringes the right must not be arbitrary or unfair, but rather, must be rationally connected to the objective.  Here the court found that the law against possession of child pornography is rationally connected to preventing children from being harmed in the making of child pornography. Thirdly, the law must not go too far.  This is where the law failed.  The Court found that there can be cases where a person could be convicted without doing anything "wrong". Now, you must remember that it is perfectly legal for two 14-year-old people to have consensual sex.  The age of consent for consensual sex is generally 14.  The child pornography laws classify a "child" as a person under 18. So, it is legal for a pair of 14-year-olds to have sex, but if either of them take a picture of it, they will be breaking the law.  Likewise for the 18-year-old who takes a naughty picture of his 17?year?old girlfriend.  He will be guilty of making child pornography, and anyone with a copy of the snapshot will be guilty of possession.

It simply does not make sense make possession of certain "pornography" illegal, when the actions depicted in the pornography are completely legal. Now, if the law for child pornography was limited to pornography depicting people under 14, the law would probably have been upheld, and Mr. Sharpe might have been convicted (assuming the porn in his case depicts or describes children under 14). Some people might also say that the age of consent is too low, and should be older than 14.  That is a debate about public morals, not law, and I don't intend on discussing it here.

The Sharpe case has been heard by the Supreme Court of Canada.  Many legal commentators, me included, are predicting that they will uphold the acquittal.  Don't blame the judges: it's not their fault.  It is the fault of the government, by creating a law that is not consistent with what is legal and not legal in this country.