The recent decision of the B.C. Supreme Court which found that, despite a risk of harm, there was a “right” under the Charter of Rights and Freedoms to possess child pornography, reveals a flawed approach to “freedom of expression” and the concept of “privacy.” What is striking about the decision is that the notion of the person it shows is dangerously individualistic and, if allowed to stand, will lead to further weakening of a rich sense of community.

It may be said that people have duties, obligations and commitments as well as rights. Our life together would be a pitiful thing if we had only rights to assert against each other. Surely, many of our richest relationships and encounters are based, not on “rights,” but on such things as generosity, compassion, kindness, self-sacrifice and, most important, love. But the law seems more and more to focus on a view of “rights” that boils down to individualism, and partakes less and less of a view of the person as inherently relational, part of which also involves having obligations to other people and the wider community.

One such duty is to develop a higher view of others, to see them as ends, not as means, and to minimize those areas that dehumanize or degrade others. But is degradation one of those areas where, like our new false “moral” language, “values” are in the eye of the beholder? If child porn, why not fake snuff films, bestiality or you name it? After all, as the mantra of modernity goes: “You have your values and I have mine.”

The public outrage that has followed the B.C. court decision suggests “community standards” still have some coalescing power and that they have been breached. It was “community standards,” after all, that were upheld as valid in the Supreme Court of Canada’s landmark Butler decision in 1992, when that court upheld the definition of obscenity in the Criminal Code despite the difficulty of establishing a link between the images portrayed and harm. The Charter does not require the courts to adopt the emaciated notion of individualism that is exemplified in this case, but it is clear such a view has been developing for some time.

What the courts have failed to note is that freedoms such as “privacy” and “expression” are not unqualified goods in themselves. They may be limited for compelling reasons. They are good insofar as they do not serve manifestly bad ends. Our laws protecting privacy and the free development and exchange of ideas are intended, ideally, to provide for the conditions necessary for each individual to develop his own character and life, and for all of us to pursue truth.

There is no meaningful search for truth going on in the contemplation of what is euphemistically called “inter-generational sex.”

Laws designed to favour a moral vision of what it means to be human are not required to serve the morally reprehensible nor to give them “private” space. The courts’ unwillingness to uphold a moral standard on the personal level shows not openness, but the chaos of our current dominant “rights theory” and its weakness when faced with a claim to “leave me alone to do what I want.” But truncated individualism will only lead to fragmentation of community life that is already rife with loneliness and increasing despair. Perhaps it is not surprising that there is something of infantile rage in the arguments employed by pedophiles in their claims to do what they want with some of the weakest amongst us.

According to a recent report of the National Foundation for Family Research and Education, suicide among children aged 10 and 14 years increased by more than 1,000 per cent – 1,367 per cent allowing for population change – between 1955 and 1995. Young people are, in a sense, the “canaries” of our society, and one awash in individualist rhetoric such as ours cannot afford to be cavalier about what happens when human life is seen to have no sense of purpose or meaning. The “market” for kiddie porn is an expanding one. The court’s decision makes it more likely to grow, not less. If the court is truly concerned about the “harm” of such pornography being available and distributed, allowing a supposedly private place for consumption will simply drive that “market” underground.

The court’s attempt to saw the baby in half and allow private pornography to live while killing the public part is misguided. Things that are argued for in the privacy of the bedroom soon have a way of being “required” learning material in public school classrooms once a little time and the politics of “equality” challenges have worked their way through the system. And the inclusion by activist judges of a completely open-ended category of “sexual orientation” in the Charter and provincial human rights legislation, ought to give us pause before we determine that consuming child porn is the essence of a person’s being. That sounds like protected “sexual orientation” to me—just the kind of thing gay activists recently denied would occur when arguing against those who said including that vague term “sexual orientation” in human rights legislation would lead to claims by pedophiles.

However artfully judges try and squirm around that fact, the allowance of a place for this kind of “private vice” amounts to a certain kind of acceptance. The moral character of contemporary society has been revolutionized by just such subtle adjustments in the past.

We need, and soon, a frank acknowledgement that the court is involved in moral analysis, and then to have a debate about morals, not “values” and unhinged notions of “privacy.” We need to be willing to acknowledge openly that some kinds of activity are so destructive of a rich sense of human life and the continuance of moral traditions that they must be outlawed. Child pornography in all its forms is one such category.

We ought to be intolerant of such things, and judges must become more confident about saying so and not reaching for some sort of “compromise” solution that drives an unworkable wedge between the private and the public. The current fear of moral judgment amounts to a kind of “moral phobia” and has reached the crisis point, imperilling public confidence in our institutions of law and government.

Certainly the law cannot and ought not to attempt to monitor imaginations, no matter how perverse. But child pornography is a different issue. The moment that imagination takes form and is descriptive of sex between adults and children, or portrays children in provocative sexual ways, the line has been crossed and possession of the stories, images or what have you becomes criminal.

Since the B.C. court judgment, the accused has been quite candid about the role of child pornography in the campaign for acceptance of pedophilia—to present pedophiles as just misunderstood and morally acceptable. What this decision shows beyond a doubt is that contemporary approaches to “rights” unhinged from any concomitant moral vision of the person or community are capable of furthering extraordinary fragmentation on the personal and social level.

The legal tradition has long understood that certain things are malum in se – or “evil in themselves.” Recognition and appropriate use of this concept is necessary for a flourishing society and, if properly understood, it may be incorporated within both “principled pluralism” and “meaningful tolerance.”

If the courts don’t get this correct on appeal, then the Charter provides a democratic possibility for Parliament to override the ruling – a provision under Section 33 unfortunately used too little so far.

Iain Benson is the senior research fellow for the Centre for Renewal in Public Policy, an Ottawa-based think tank. This article appeared originally in National Post, and is reprinted here by permission of the author.