A weak squeak of courage

One of the most disturbing things about the John Robin Sharpe kiddie porn ruling is that it may well go down in history as one of the most courageous decisions of the court of Chief Justice Beverley McLachlin.

On Jan 26, the Supreme Court Of Canada upheld Canada’s child pornography laws. But the majority decision, written by McLachlin herself, created two exemptions. First, the law shouldn’t include self-authored materials – journal entries or drawings that are entirely for personal use. Second, it shouldn’t include visual recordings – photos or videos created for private use that don’t themselves show unlawful sexual activity.

So if a 16-year-old and a 17-year-old take a picture of themselves having sex, they’re not guilty of possessing child pornography (as long as they don’t show it to anyone else). This scenario was illegal a month ago.

The justices – in a six to three decision – also make clear that child pornography doesn’t include baby photographs, nor such classic works as Nabokov’s book, Lolita. It doesn’t include political advocacy about the legal age of consent. And it doesn’t include anthropological work discussing the sexual practices of adolescents in other cultures, describing those teenagers as healthy or well adjusted.

That the court even had to say all this is a stunning example of just how broad the definition of child pornography is.

And given the hysteria over the constitutional challenge to Canada’s child pornography law, it is impressive that the court was prepared to address the most egregious parts of the law.

It’s even more impressive given the court’s recent history.

The judges are clearly spooked by the attacks that have raged in the pages of the National Post for the last two years. According to this view of “judicial activism,” the Supreme Court has been guilty of writing laws instead of just applying them, and commandeering the role of Parliament.

This is a critique started by a couple of Alberta academics several years ago. Ted Morton and Rainer Knopf wrote extensively about how the Supreme Court, equipped with the Charter Of Rights And Freedoms, is stealing the role of the elected House Of Commons. At the time, these two were so on the fringe of academic comment that most of us just ignored them. Sure, they were the heroes of rightwing rags like the Alberta Report, but we still ignored them. And we laughed when they called us members of the “Court Party.”

Along came the National Post. Suddenly, Morton and Knopf’s critique of judicial activism was front page news. Each new Supreme Court Of Canada decision was met with a barrage of critique of the court overstepping its institutional competence.

For example, when Delwin Vriend was fired for being gay, the court held that the Alberta human rights act violated the charter by failing to prohibit discrimination on the basis of sexual orientation. The judges read “sexual orientation” into the act – causing an uproar. How dare the court legislate?

And then came the decision in M versus H, in which the judges held that the opposite sex definition of spouse in Ontario family law violated the equality rights of gay men and lesbians. Even though the court sent the law back to Queen’s Park to fix, the National Post again denounced the judges for going too far.

The National Post certainly didn’t limit its vituperative attacks to gay and lesbian rights. Aboriginal rights, women’s rights, as well as the rights of criminal defendants, all shared in the limelight. Pretty much everyone other than corporations were cast as special interests groups, intent on hijacking the agenda and role of the court.

Rather suddenly, the judicial activism critique had acquired legitimacy. It had gone mainstream.

The court appears to be taking at least part of the criticism to heart.

Under the leadership of Chief Justice McLachlin, the court has charted a new, highly deferential course. Just look at the recent decision in the border censorship of book and video shipments to Little Sister’s book shop. After harshly condemning the practices of Canada Customs and its highhanded treatment of the shop, the judges refused to strike down the law.

Instead, the judges chose to just trust Canada Customs to stop behaving badly.

Given all this, there was reason to doubt whether the court would dare venture into the terrain of kiddie porn, and actually suggest that Parliament had not done such a good job with the legislation.

But it did. It used its power to write two important exemptions into a very poorly drafted law. And it is to be commended for daring to do so.

But there’s still a lot of bad stuff remaining.

Children do need to be protected from sexual abuse. But unlike equivalent laws in the US, our child porn law isn’t limited to material in which children were used in its production. It still includes a broad array of works of the imagination.

It still includes self-authored material, if the author shows it to anyone else. It still potentially includes artists and writers, who could be dragged into court to prove that their work has artistic merit (Toronto artist Eli Langer was forced to do just that a few years ago, at great cost.)

And it still justifies an unprecedented invasion of privacy. Possession alone remains an offence.

These are all things that the gay and lesbian community must worry about. We must worry about the invasion of privacy – it’s uncomfortably similar to the arguments used to invade our own privacy.

We must worry about the violation of artistic freedom, since it’s all too similar to the arguments used to violate our artistic freedom. We should be particularly worried about how the law might still affect same sex materials directed to gay and lesbian teenagers. We should be worried about how more general laws are all too often used to target gay and lesbian communities.

This law still tramples on the very civil liberties that are crucial to our survival.

And we should be worried, very worried, that this may be the best that we can hope for from the current court.