Last Updated:Friday - 09/24/2010

Gov't abdicates responsibility

The federal government deserves to be strongly rebuked by the Canadian people for its refusal to use the "notwithstanding" clause to ensure that the possession of child pornography remains a crime in this country. The government's refusal is an abdication of moral responsibility and stands in blatant disregard of the outrage Canadians felt last month over a British Columbia lower court ruling that the law against possessing child pornography violates the Charter of Rights and Freedoms.

Justice Minister Anne McLellan's lackadaisical response was to say the government will wait for "the wisdom and advice" of the Supreme Court before deciding what, if anything, it will do. What may happen in the interim is apparently of no concern to her.

And Prime Minister Jean Chr‚tien claims that since, as justice minister himself, he introduced the law against child pornography 18 years ago, we should trust him on this issue.

He would be more deserving of trust if he would use another provision he also helped to introduce - the "notwithstanding" clause, without which the charter never would have been passed and without which Canada would be in danger of losing any claim to being a democracy.

The government claims use of the "notwithstanding" clause - the provision which allows Parliament or provincial legislatures to override the charter - would set a dangerous precedent. It is true that this provision can be abused if it is used to suppress the rights of already persecuted minorities. It is, however, correct and prudent to use it to protect moral standards and the common good.

The federal government has never invoked the "notwithstanding" clause since the charter came into effect in 1982. It has, instead, repeatedly bowed to the false god of individual rights when court rulings have, for example, left the country with no law on abortion and entrenched a right to homosexual activity.

If even the current situation does not necessitate the use of the "notwithstanding" clause, we can only ask, "If not now, when?"

One can only conclude that Ottawa will never use the override provision and that it was only included in order to win approval for a controversial charter. One can only conclude that the federal government prefers that the courts make the country's laws regarding politically sensitive moral issues. The charter can be a handy tool to absolve the government for the moral state of the country.

In that light, it is important to note that we have a charter of rights, but no charter of responsibilities. One cannot really blame the courts for leading the country on a downward spiral of moral licentiousness. Legislators have given them the legal basis to create a climate of permissiveness, but no basis to improve that climate.

In his ruling in the case of Robin Sharpe, Justice Duncan Shaw made many admissions. He agreed that sexually explicit child pornography represents a danger to children because pedophiles use it in seducing children. He agreed that exposing children to such material can lead them to accept that the conduct depicted is normal or acceptable.

Shaw agreed that children are abused in making such material and that the photographic record of this abuse constitutes continuing abuse. He agreed that pedophiles themselves come to see child-adult sex as acceptable by exposure to such pornography.

Despite agreeing with all these points, he nevertheless ruled that a law against possessing child pornography represents an undue restriction on the individual's right to self-expression. It's up to the Supreme Court to rule whether he was legally right. But it's up to elected officials to speak with one voice and say that such a conclusion is morally insane. The "notwithstanding" clause exists precisely so that elected officials can say that. It is intolerable in a civilized society for them not to exercise that right.

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