Toronto Star

Monday, February 15, 1999

Pornography Decision

Who is guarding the guardians?

BY ADAM M. DODEK
Toronto Star


B.C. Supreme Court Justice Shaw

Criticism in the wake of B.C. Supreme Court Justice Shaw's decision striking down the possession of child pornography portions of the Criminal Code has been strong and vituperative.

Critics of the decision have launched attacks on three levels.

First, they have attacked the judgment itself as distinct from the judge's reasons for judgment.

In focusing on the stark result in this case where Justice Shaw struck down provisions of the Criminal Code which make it an offence to possess child pornography, critics have attempted to paint this case and the issue in the starkest terms of black and white: child pornography -- bad, attempts to combat it -- good; prosecution of Sharpe -- good, Justice Shaw's decision -- bad.

However, those few people who bothered to read Justice Shaw's relatively short (by judicial standards) reasons for judgment would have discovered a more complex case than the one being attacked in the media.

For starters, while Justice Shaw struck down the possession provisions, he upheld those provisions of the Criminal Code that prohibit the possession of child pornography for the purpose of its distribution or sale.

Moreover, in his reasons, Justice Shaw specifically recognized the harm caused by child pornography but, after engaging in a balancing process, he concluded that the harms caused by suppression of expression outweighed the harms caused by child pornography.

The second level of attack on R. v. Sharpe has centred on the Charter itself and calls to invoke the notwithstanding clause.

While it is appropriate and indeed healthy to debate the use of the notwithstanding clause, it is disturbing to read ludicrous claims that "we no longer live in a democracy" because of the Charter, that "we are governed by non-elected judges," etc. etc. Those who pine for the good ol' days of unfettered parliamentary supremacy are sore losers: they fought this battle between 1968 and 1982 and lost when their champions, the provincial premiers, agreed to the patriation of the Constitution and the enactment of the Charter.

Which leads me to the third, and most disturbing, level of attack: the attack on Justice Shaw personally.

Some critics have crossed the line and levelled attack on the judge himself, claiming that he is out of touch with Canadian values, has endangered our children, is himself a menace to our country, etc.

Most disturbing, Justice Shaw has received death threats as a result of this judgment. When Canadians read in the papers about challenges to the independence of the judiciary and physical attacks on judges abroad, they should no longer smugly assert that "these things just don't happen here." They are happening now.

And no one is rising to Justice Shaw's defence. Recently, the Chief Justice of the country, Antonio Lamer, took the exceptional step of granting an interview to discuss, among other things, Justice Shaw's decision.

The Chief Justice rarely speaks publicly or grants interviews and even more rarely comments on matters of current public debate. His decision to speak out can only be interpreted as an act of desperation necessary to defend the independence of the judiciary because no one else came forward to defend Judge Shaw and the judiciary.

In Parliament, MPs from all parties attempted to score easy political points by attacking child pornography and therefore attacking Justice Shaw's decision. Justice Minister Anne McClellan made tepid remarks about letting the case make its way though the appellate system before considering whether to use the notwithstanding clause.

Neither she nor her cabinet colleagues were prepared to go to bat for Justice Shaw, who is a section 96 judge appointed by the federal government.

The Canadian Bar Association just completed a code of ethics for judges, but appear to lack the moral strength to defend the judiciary under attack. Similarly, the academy and individual members of the bar have been silent, with the notable exception of the Law Society of British Columbia whose voice was unfortunately not projected across the country.

The personal attacks on Justice Shaw are only the most recent example of a disturbing trend to vilify individual members of the Canadian judiciary.

Those who attack the Sharpe decision claim that we no longer live in a democracy. When no one rises to defend the guardians of democracy, I am beginning to think that perhaps they aren't so wrong after all.

Adam Dodek is an S.J.D. candidate at the University of Toronto's Faculty of Law. Next year he will clerk for Madam Justice L'Heureux-Dube at the Supreme Court of Canada.

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