Between
Her Majesty the Queen, and
John Robin Sharpe
[1999] B.C.J. No. 54
New Westminster Registry No. X050427
British Columbia Supreme Court
New Westminster, British Columbia
Shaw J.
Heard: November 9, 10, 12, 20, and 24 to 26, 1998.
Judgment: filed January 13, 1999.
(33 pp.)
Counsel:
T.A. Schultes, for the Crown.
John Robin Sharpe, appeared in person.
[para1] SHAW J.:-- The accused John Robin Sharpe
challenges the constitutionality of child pornography
provisions set out in Section 163.1 of the Criminal Code. Mr.
Sharpe contends that the impugned provisions violate the
Canadian Charter of Rights and Freedoms, and in particular
Sections 2(a), 2(b), 2(d) and 15.
[para2] A voir dire has been held to hear the
constitutional challenge. This is my ruling.
[para3] There are four charges against Mr. Sharpe.
Count 1
He, on or about the 10th day of April, 1995, at or near
Surrey, in the Province of British Columbia did have in
his possession for the purpose of distribution or sale,
child pornography: computer discs containing a text
entitled Sam Paloc's Flogging, Fun and Fortitude - A
Collection of Kiddiekink Classics, contrary to Section
163.1(3) of the Criminal Code.
Count 2
He, on or about the 10th day of April, 1995, at or near
Surrey, in the Province of British Columbia did have in
his possession child pornography: computer discs
containing a text entitled Sam Paloc's Flogging, Fun and
Fortitude - A Collection of Kiddiekink Classics, other
writings and photographs, contrary to Section 163.1(4) of
the Criminal Code.
Count 3
He, on or about the 13th day of May, 1996, at or near the
City of Vancouver, in the Province of British Columbia
did have in his possession, for the purpose of distribute
or sale, child pornography: books, manuscripts and
stories, contrary to Section 163.1(3) of the Criminal
Code.
Count 4
He, on or about the 13th day of May, 1996, at or near the
City of Vancouver, in the Province of British Columbia
did have in his possession child pornography: books,
manuscripts, stories and photographs, contrary to Section
163.1(4) of the Criminal Code.
[para4] The evidence indicates that there were two
seizures of materials from Mr. Sharpe. The first was by
Canada Customs. That seizure was of computer discs containing
a text entitled "Sam Paloc's Flogging, Fun and Fortitude, A
Collection of Kiddie Kink Classics." As a result of that
seizure Mr. Sharpe was charged with Counts 1 and 2. The
second seizure was at Mr. Sharpe's home pursuant to a search
warrant (the validity of which will be contested at a later
point in this trial). That seizure was of a collection of
books, manuscripts, stories and photographs said by the Crown
to constitute child pornography. Many of the seized
photographs are of nude boys displaying their genitals or anal
regions.
[para5] The challenges by Mr. Sharpe are on s-s. (4) and
s-s. (1)(b) of s. 163.1 of the Criminal Code. Subsection (4)
prohibits simple possession of child pornography. Subsection
(1)(b) sets out part of the definition of child pornography,
that part including material which counsels or advocates the
commission of sexual offences against children.
[para6] Section 163.1 of the Criminal Code reads:
(1) In this section, "child pornography" means
(a) a photographic, film, video or other visual
representation, whether or not it was made by
electronic or mechanical means,
(i) that shows a person who is or is depicted
as being under the age of eighteen years
and is engaged in or is depicted as
engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is
the depiction, for a sexual purpose, of a
sexual organ or the anal region of a
person under the age of eighteen years; or
(b) any written material or visual representation
that advocates or counsels sexual activity with
a person under the age of eighteen years that
would be an offence under this Act.
(2) Every person who makes, prints, publishes or
possesses for the purpose of publication any child
pornography is guilty of
(a) an indictable offence and liable to
imprisonment for a term not exceeding ten
years; or
(b) an offence punishable on summary conviction.
(3) Every person who imports, distributes, sells or
possesses for the purpose of distribution or sale
any child pornography is guilty of
(a) an indictable offence and liable for
imprisonment for a term not exceeding ten
years; or
(b) an offence punishable on summary conviction.
(4) Every person who possesses any child pornography is
guilty of
(a) an indictable offence and liable to
imprisonment for a term not exceeding five
years; or
(b) an offence punishable on summary conviction.
(5) It is not a defence to a charge under subsection (2)
in respect of a visual representation that the
accused believed that a person shown in the
representation that is alleged to constitute child
pornography was or was depicted as being eighteen
years of age or more unless the accused took all
reasonable steps to ascertain the age of that person
and took all reasonable steps to ensure that, where
the person was eighteen years of age or more, the
representation did not depict that person under the
age of eighteen years.
(6) Where the accused is charged with an offence under
subsection (2), (3) or (4), the court shall find the
accused not guilty if the representation or written
material that is alleged to constitute child
pornography has artistic merit or an educational,
scientific or medical purpose.
(7) Subsections 163(3) to (5) apply, with such
modifications as the circumstances require, with
respect to an offence under subsection (2), (3) or
(4), 1993, c.46.s. 2.
[para7] Mr. Sharpe invokes the following provisions of the
Canadian Charter of Rights and Freedoms:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and
other media of communication;
. . .
(d) freedom of association.
15.(1) Every individual is equal before and under the law
and has the right to the equal protection and equal
benefit of the law without discrimination and, in
particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex,
age or mental or physical disability.
[para8] The Crown relies upon s. 1 of the Charter:
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and
democratic society.
SIMPLE POSSESSION: SUBSECTION (4)
[para9] I will deal first with Mr. Sharpe's contention
that s-s. (4) of s. 163.1 is unconstitutional.
[para10] It will be observed on reading s-s. (4) that the
word "possesses" is not limited; any purpose will suffice to
make possession of child pornography a crime. Subsection (4)
is to be contrasted with s-s. (2) and s-s. (3) which prohibit
possession for purposes of publication, sale or distribution.
[para11] The Crown led evidence from two expert witnesses.
The first was Detective Noreen Waters of the Vancouver Police
Department. She is an expert in the investigation of child
pornography. She testified that with the advent of the
Internet there has been a veritable explosion of the
availability of child pornography. She observed that as a
result of simple possession charges laid under s-s. (4), the
police have been able to obtain search warrants and carry out
searches which have assisted them in finding child molesters.
Detective Waters also pointed out that children are abused
when they are exploited in the production of filmed or
videotaped pornography.
[para12] The second expert witness was Dr. P.I. Collins, a
specialist in Forensic Psychiatry, particularly with respect
to sexual deviancy and pedophilia. Dr. Collins is a clinician
(as distinct from a researcher) who specializes in treating
persons with sexual deviancy problems. His patients include
homosexual pedophiles, men whose sexual preference is boys.
[para13] Dr. Collins offered several reasons why, in his
view, child pornography is harmful to children. The first is
that some pedophiles show children sexually explicit
depictions of children with adults, or adults with other
adults, in order to lower inhibitions and to make the depicted
conduct appear to be normal. The second is that pornography
excites some child molesters to commit offences. The third is
that child pornography augments or reinforces the "cognitive
distortions" of pedophiles. Dr. Collins explained that
cognitive distortions are erroneous beliefs by which
pedophiles justify their aberrant behaviour. Examples of
cognitive distortions are that child-adult sex is natural and
that it does no harm to children. The fourth reason offered
by Dr. Collins is that children are abused in the making of
pornography and that pornographic films or photographs are a
record of their abuse.
[para14] To support his views Dr. Collins relied upon
certain studies, two of which were put in evidence. The first
was by W.L. Marshall, Ph.D., entitled The Use of Sexually
Explicit Stimuli by Rapists, Child Molesters, and
Non-offenders, published in the May 1988 Journal of Sex
Research, Vol.25, No.2. This article addresses the "inciting"
element of pornography. Dr. Marshall states, at p.284:
One very important set of observations of the present
study concerns the use of sexually explicit materials by
sex offenders as an inciter to commit their illegal
behaviors. Slightly more than one third of the child
molesters and rapists claim to have at least occasionally
been incited to commit an offense by exposure to one or
the other type of the sexual materials specified in this
study.
[para15] It should be noted that the materials used in the
study were sexually explicit "hard core" pornography. Dr.
Marshall points this out, at pp.283-84:
It is important to recall that the sexually explicit
materials of interest in this study refer to what is
often called "hard-core" pornography; that is, depictions
that are very explicit, showing genital contact, etc. and
which leave nothing to the imagination. Also the content
of these explicit materials was restricted to either
depictions of sex with children or sex between adult men
and women that was either mutually consenting or forced
by the man upon the woman. Therefore, the present
findings cannot be construed as relevant to any broader
issues concerning pornography in general.
[para16] The second article referred to by Dr. Collins is
entitled Use of Pornography in the Criminal and Developmental
Histories of Sexual Offenders by D.L. Carter, R.A. Prentky,
R.A. Knight, P.L. Vanderveer and R.J. Boucher of the
Massachusetts Treatment Centre. The study was published in
the Journal of Interpersonal Violence, Vol.2, No.2, June 1987,
p.196. The purpose of the study was to examine possible
differences between rapists and child molesters in exposure to
and experience with pornography. The subjects of the study
were convicted rapists and child molesters.
[para17] The study found that child molesters have a
greater exposure to pornography than rapists and use it more
often than rapists in association with criminal offences. The
study also showed that child molesters use pornography more
often than rapists to relieve impulses to commit offences.
Under the "Discussion" part of the study, the authors state,
at p.205:
Child molesters, however, indicated significantly more
exposure than rapists in adulthood and were more likely
both to use such materials prior to and during their
offences and to employ pornography to relieve an impulse
to commit offenses.
[para18] The phenomenon of pornography relieving impulses
to commit offences was further addressed, at p.207:
The "use of sexual materials to relieve an impulse to
commit an offense" (item I) was our test of the
"catharsis hypothesis," the notion that the use of
pornography relieves pent-up sexual tension that might
otherwise be directed at an individual. We found support
for this hypothesis among child molesters. That is, child
molesters report that they were more likely than rapists
to employ pornography as a means of relieving an impulse
to act out. This finding should not be construed to
suggest that pornography functions to inhibit sexual
acting out. The use of pornography to relieve an impulse
does not preclude its role in intensifying an already
active, and in many cases rich, fantasy life. Such
intensification is supported by the greater use of
pornography prior to offenses by child molesters. Thus if
an individual is prone to act on his fantasies, it is
likely that he will do so irrespective of the
availability of or exposure to pornography.
(underlining added)
[para19] The study used a broad selection of sex
materials, from depictions of nude individuals on the one
hand, to depictions of persons engaged in explicit sexual acts
on the other. The materials included photographs, films,
cartoons, magazines and books. Despite the wide range of
materials used, the study did not address the differences in
effect of the kinds of pornography (explicit sex or simply
nudes) on the persons being studied. However, the article
reported on earlier studies which found that "mildly erotic
stimuli" inhibited aggression while "highly erotic stimuli"
increased aggression. The authors state, at p.197:
Earlier studies reported that exposure to pornography
inhibited aggression (Baron, 1974: Frodi, 1977).
Subsequent studies, however, have found that although
mild erotic stimuli inhibited aggression, highly erotic
stimuli in fact increased reported aggression in a
laboratory setting.
[para20] Dr. Collins testified that pedophiles often used
pornography as an aid to masturbation. He was asked about the
relieving effect versus the inciting effect of pornography.
He was unable to say whether the relieving effect or the
inciting effect was greater, but noted that a study on the
subject is underway at the present time by a Dr. Ronald
Langevin.
[para21] There was no evidence led of any study
demonstrating that "cognitive distortions" cause any
significant increase in the danger that pedophiles pose to
children. However, as was pointed out in the Carter et al
study, a person who is prone to act out his fantasies will
likely do so irrespective of the availability of or exposure
to pornography. In my view, without reasonable supporting
evidence, I should give only minimal weight to the "cognitive
distortions" point.
[para22] As for written material which counsels or
advocates illegal sexual relations with children, there was no
evidence to show its harmful effect. However, in my view, it
is reasonable to assume that the dissemination of such
material does pose some risk of harm to children.
[para23] I make the following findings of fact based upon
the evidence:
1. Sexually explicit pornography involving
children poses a danger to children because of its use by
pedophiles in the seduction process.
2. Children are abused in the production of filmed
or videotaped pornography.
3. "Highly erotic" pornography incites some
pedophiles to commit offences.
4. "Highly erotic" pornography helps some
pedophiles relieve pent-up sexual tension.
5. It is not possible to say which of the two
foregoing effects is the greater.
6. "Mildly erotic" pornography appears to inhibit
aggression.
7. Pornography involving children can be a factor
in augmenting or reinforcing a pedophile's cognitive
distortions.
8. There is no evidence which demonstrates an
increase in harm to children as a result of pornography
augmenting or reinforcing a pedophile's cognitive
distortions.
9. The dissemination of written material which
counsels or advocates sexual offences against children
poses some risk of harm to children.
Legal Analysis
[para24] Crown counsel concedes that s-s. (4) violates the
guarantee of freedom of expression set out in s. 2(b) of the
Charter. I agree with this concession. Crown counsel
contends however that s-s. (4) is saved by s. 1 of the Charter
as being a reasonable limit prescribed by law which is
demonstrably justified in a free and democratic society.
[para25] Crown counsel does not concede that there has
been any violation of s. 2(a), s. 2(d) or s. 15 of the
Charter.
[para26] Because of the Crown's concession that s-s. (4)
violates s. 2(b) of the Charter, the dispute becomes whether
s-s. (4) may be justified under s. 1 of the Charter.
[para27] Insofar as counsel and I are aware, the
constitutionality of s. 163.1 has thus far been addressed in
only one other court decision, Ontario (Attorney General) v.
Langer (1995), 97 C.C.C. (3d) 290 (Ont.Ct.Gen.Div.); leave to
appeal to S.C.C. refused (1995), 42 C.R. (4th) 410n. In
Langer, the court dealt with an application by the Crown to
forfeit paintings and sketches seized from an art gallery.
The paintings and sketches depicted explicit sexual relations
between adults and children. The court held that the
depictions had artistic merit and did not pose a realistic
risk of harm to children, and ordered that the paintings and
sketches be returned to the person from whom they had been
seized.
[para28] The learned trial judge, McCombs J., dealt with
the constitutionality of s. 163.1. In a researched and
detailed decision, he held that s. 163.1 violated s. 2(b) of
the Charter but was justified under s. 1.
[para29] In dealing with s. 1, McCombs J. addressed the
proportionality tests set out in R. v. Oakes (1986), 24 C.C.C.
(3d) 321 (S.C.C.). In respect of the "minimal impairment"
test, he said, at pp.325-26:
This objection ignores the reality that, on the basis of
the opinion evidence which I have accepted, private
possession of child pornography poses a realistic risk of
harm to children, by reinforcing cognitive distortions,
fuelling fantasies, and its potential use in "grooming"
possible child victims. It is entirely reasonable and
within the legitimate objectives of Parliament to
criminalize private possession of child pornography.
[para30] The final proportionality test addressed by
McCombs J. was the weighing of the legislative objectives of
s. 163.1 against the effects of the prohibitions. He said, at
pp.327-28:
The final branch of the proportionality test includes a
weighing of the legislative objectives against the
effects of the legislation. Even if legislation otherwise
meets s. 1 criteria, a provision will not constitute a
reasonable limitation if its effects are so deleterious
that they outweigh the importance of its objectives.
The child pornography provisions, designed to protect
children, do indeed limit the fundamental freedom of
expression. However, in the contextual approach that is
required, it is appropriate to bear in mind the type of
expression that has been limited. As Dickson C.J.C.
observed (Keegstra, supra, at p.47):
... it is equally destructive of freedom of
expression values, as well as the other values which
underlie a free and democratic society to treat all
expression as equally crucial to those principles at
the core of s. 2(b).
The expression inherent in the production of child
pornography is not crucial to the principles which lie at
the core of freedom of expression. There is no evidence
to support the contention that the effects of the
legislation are so deleterious that they outweigh the
pressing and substantial objective of the legislation.
[para31] On my reading of Langer, it is evident that the
court did not deal with the "weighing of effects" test
formulated in Dagenais v. Canadian Broadcasting Corp. (1994),
94 C.C.C. (3d) 289 (S.C.C.). As noted above, the s. 1
analysis in Langer ended with the weighing of the legislative
objectives against the effects of the legislation. Dagenais
was not cited, likely because it had only recently been
decided and may not have been drawn to the court's attention.
[para32] The "weighing of effects" test in Dagenais was
articulated by Lamer C.J.C., who said, at pp.324-25:
While the third step of the Oakes proportionality test
has often been expressed in terms of the proportionality
of the objective to the deleterious effects, this court
has recognized that in appropriate cases it is necessary
to measure the actual salutary effects of impugned
legislation against its deleterious effects, rather than
merely considering proportionality of the objective
itself. For example, in Reference re: ss. 193 and
195.1(1)(c) of the Criminal Code (Man.) (1990), 56 C.C.C.
(3d) 65, [1990] 1 S.C.R. 1123, 77 C.R. (3d) 1, Dickson
C.J.C. (who characterized the objective of the impugned
Criminal Code solicitation provisions as the curtailment
of the social nuisance caused by the public display of
the sale of sex) applied the third step of the
proportionality analysis by considering (at p.76) whether
"the obtrusiveness linked to the enforcement of the
provision, when weighed against the resulting decrease in
the social nuisance associated with street solicitation,
can be justified in accordance with s. 1".
(emphasis added)
and further, at p.325:
In my view, characterizing the third part of the second
branch of the Oakes test as being concerned solely with
the balance between the objective and the deleterious
effects of a measure rests on too narrow a conception of
proportionality. I believe that even if an objective is
of sufficient importance, the first two elements of the
proportionality test are satisfied, and the deleterious
effects are proportional to the objectives, it is still
possible that, because of a lack of proportionality
between the deleterious effects and the salutary effects,
a measure will not be reasonable and demonstrably
justified in a free and democratic society. I would,
therefore, rephrase the third part of the Oakes test as
follows: there must be a proportionality between the
deleterious effects of the measures which are responsible
for limiting the rights or freedoms in question and the
objective, and there must be a proportionality between
the deleterious and the salutary effects of the measures.
[para33] In my view, it is appropriate in the present case
to consider the proportionality between the deleterious
effects and the salutary effects of the prohibition of simple
possession of child pornography.
[para34] I will now enter upon the weighing process.
First, the salutary effects. The prohibition combats
practices and phenomena which, at least arguably, put children
at risk. These include: the use by some pedophiles of
sexually explicit images in the grooming process leading to
sexual relations with children; the abuse of children in the
making of pornography and the preservation of that abuse in
photographs or films; the confirmation or augmentation of
cognitive distortions of some pedophiles; the incitement of
some pedophiles to commit offences against children; and the
advocacy or counselling of the commission of sexual offences
against children.
[para35] There are factors which go to the weight to be
attached to the effectiveness of the prohibitions in
combatting the foregoing practices and phenomena. There is
no evidence which demonstrates any significant increase of
danger to children related to the confirmation or augmentation
of cognitive distortions caused by pornography. There is no
evidence that "mildly erotic" images are used in the "grooming
process." Only assumption supports the proposition that
materials that advocate or counsel sexual crimes with children
have the effect of increasing the occurrence of such crimes.
Sexually explicit pornography is used by some pedophiles to
relieve pent-up sexual tension. A person who is prone to act
on his fantasies will likely do so irrespective of the
availability of pornography. There is no evidence that the
production of child pornography will be significantly reduced
if simple possession is a made a crime.
[para36] I turn now to consider the detrimental effects.
I start by repeating s. 2(b) of the Charter:
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and
other media of communication.
[para37] Freedom of expression plays an important role in
this case. The personal belongings of an individual are an
expression of that person's essential self. His or her books,
diaries, pictures, clothes and other personal things are
intertwined with that person's beliefs, opinions, thoughts and
conscience. In Ford v. Quebec (Attorney General), [1988] 2
S.C.R. 712, dealing with the right of people to use the
language of their choice, it was held that "freedom of
expression" should be broadly interpreted. The court said, at
p.749:
It is also the means by which the individual expresses
his or her personal identity and sense of individuality.
That the concept of "expression" in s. 2(b) of the
Canadian Charter and s. 3 of the Quebec Charter goes
beyond mere content is indicated by the specific
protection accorded to "freedom of thought, belief [and]
opinion" in s. 2 and to "freedom of conscience" and
"freedom of opinion" in s. 3. That suggests that "freedom
of expression" is intended to extend to more than the
content of expression in its narrow sense.
[para38] The court included "individual self-fulfilment
and personal autonomy" within freedom of expression: (supra,
at p.767). The same notion was articulated in R. v. Keegstra
(1990), 61 C.C.C. (3d) 1 (S.C.C.) by Dickson C.J.C. at p.49:
Another component central to the rationale underlying
s. 2(b) concerns the vital role of free expression as a
means of ensuring individuals the ability to gain
self-fulfillment by developing and articulating thoughts
and ideas as they see fit.
[para39] The proportionality tests under s. 1 of the
Charter include a consideration of the fundamental values that
underlie the Charter. In Keegstra, supra, Dickson C.J.C.
said, at p.29:
... the balancing exercise in s. 1 is not restricted to
values expressly set out in the Charter.
[para40] Dickson C.J.C. at p.29 cited the following
passage from R. v. Oakes, supra, at p.346:
The court must be guided by the values and principles
essential to a free and democratic society which I
believe embody, to name but a few, respect for the
inherent dignity of the human person, commitment to
social justice and equality, accommodation of a wide
variety of beliefs, respect for cultural and group
identity, and faith in social and political institutions
which enhance the participation of individuals and groups
in society. The underlying values and principles of a
free and democratic society are the genesis of the rights
and freedoms guaranteed by the Charter and the ultimate
standard against which a limit on a right or freedom must
be shown, despite its effect, to be reasonable and
demonstrably justified.
[para41] What weight will be given to these values will
depend upon the particular circumstances. As Dickson C.J.C.
said in Keegstra at p.29:
Undoubtedly these values and principles are numerous,
covering the guarantees enumerated in the Charter and
more. Equally, they may well deserve different emphases,
and certainly will assume varying degrees of importance
depending upon the circumstances of a particular case.
[para42] One significant value underlying the Charter is
the individual's reasonable expectation of privacy. It is
well described in R. v. Dyment (1988), 45 C.C.C. (3d) 244
(S.C.C.) per La Forest J., at p.254:
The foregoing approach is altogether fitting for a
constitutional document enshrined at the time when,
Westin tells us, society has come to realize that privacy
is at the heart of liberty in a modern state: see Alan F.
Westin, Privacy and Freedom (1970), pp.349-50. Grounded
in man's physical and moral autonomy, privacy is
essential for the well-being of the individual. For this
reason alone, it is worthy of constitutional protection,
but it also has profound significance for the public
order. The restraints imposed on government to pry into
the lives of the citizen go to the essence of a
democratic state.
[para43] An important aspect of privacy is an individual's
right of privacy in his or her own home. In the present case,
the police entered Mr. Sharpe's home pursuant to a search
warrant and seized his collection of materials alleged to be
pornographic.
[para44] The case law on freedom of expression reflects
the Charter's concern for the right of privacy. R. v.
Keegstra, supra, deals with the constitutionality of the
Criminal Code ban on the wilful promotion of hatred against
identifiable groups (s. 319(2)). The prohibition expressly
excluded "private conversations" and this exclusion was an
important factor in the court (by a 4-3 majority) upholding
the legislation. Dickson C.J.C. for the majority said, at
p.56:
In assessing the constitutionality of s. 319(2),
especially as concerns arguments of overbreadth and
vagueness, an immediate observation is that statements
made "in private conversation" are not included in the
criminalized expression. The provision thus does not
prohibit views expressed with an intention to promote
hatred if made privately, indicating Parliament's concern
not to intrude upon the privacy of the individual.
[para45] Canada (Human Rights Commission) v. Taylor,
[1990] 3 S.C.R. 892, deals with a provision of the Canadian
Human Rights Act which prohibits repeated communication by
telephone of any matters likely to expose others to hatred or
contempt. The constitutionality of the legislation was upheld
by a 4-3 decision. Dickson C.J.C. for the majority dealt with
the privacy point, at pp.936-37:
I do not disagree with the view that telephone
conversations are usually intended to be private; it is
surely reasonable for people to expect that these
communications will not be intercepted by third persons.
Moreover, in determining in Keegstra that the criminal
prohibition of hate propaganda in s. 319(2) of the
Criminal Code is not constitutionally overbroad, I relied
to an extent upon the fact that private communications
were not affected. The connection between s. 2(b) and
privacy is thus not to be rashly dismissed, and I am open
to the view that justifications for abrogating the
freedom of expression are less easily envisioned where
expressive activity is not intended to be public, in
large part because the harms which might arise from the
dissemination of meaning are usually minimized when
communication takes place in private, but perhaps also
because the freedoms of conscience, thought and belief
are particulary engaged in a private setting.(underlining
added)
[para46] McLachlin J. for the minority also addressed the
question of privacy. She said, at p.967:
The benefit obtained from prohibiting private
conversations between consenting individuals is arguably
small, since only those who are already receptive to such
messages are likely to be interested in receiving them.
On the other hand, the invasion of privacy may be
significant. Without suggesting that prohibition of
offensive telephone calls could never be justified, the
fact that private communications are banned cannot but
enhance the significance of the infringement of the
rights of the individual effected by s. 13(1) of the Act.
[para47] R. v. Butler (1992), 70 C.C.C. (3d) 129 (S.C.C.),
addresses the constitutionality of the obscenity provisions of
the Criminal Code. The court by a 7-2 majority upheld the
obscenity provisions. Writing for the majority, Sopinka J.
took account of the fact that the prohibitions did not touch
the private use or viewing of obscene materials. He said, at
p.166:
Fourthly, while the discussion in this appeal has been
limited to the definition portion of s. 163, I would note
that the impugned section, with the possible exception of
s-s. (1) which is not in issue here, has been held by
this court not to extend its reach to the private use or
viewing of obscene materials.
[para48] I will now specify what I consider to be
detrimental effects arising from the prohibition of simple
possession of child pornography.
[para49] First and foremost, the invasion of freedom of
expression and personal privacy is profound. Further, the
prohibition extends to all persons including those who make no
harmful use of pornography. They may be collectors of
pornography, whether out of prurient interest or simply out of
curiosity, but with no harmful intent. The prohibition also
includes pedophiles who, instead of preying on children, use
pornography for very private purposes, such as relief from
their affliction by masturbation. As noted earlier, sexually
explicit pornography is used to relieve pent-up sexual tension
of otherwise potential aggressors. Whether or not this
cathartic effect outweighs the harm caused by the possession
of pornography is not known, but it is nonetheless a
significant factor to take into account. The ban includes
"mildly erotic" pornography, such as is included in
s-s. (1)(a)(ii), although the evidence indicates that "mildly
erotic" pornography has the effect of reducing sexual
aggression against children. As for materials that counsel or
advocate sexual offences against children, there are no doubt
collectors who are not affected by such literature, but who
are nonetheless subject to criminal sanctions arising from
mere possession. A magazine or a newspaper may contain some
material said to be pornographic. Although the balance of the
publication may be quite within the law, the offending
material will make possession of the magazine or newspaper
illegal: R. v. Popert (1981), 58 C.C.C. (2d) 505 (Ont.C.A.).
Purchasers of such publications will have to become their own
censors.
[para50] I turn then to weigh the salutary effects against
the detrimental effects. In my opinion, the detrimental
effects substantially outweigh the salutary effects; the
intrusion into freedom of expression and the right of privacy
is so profound that it is not outweighed by the limited
beneficial effects of the prohibition.
[para51] As pointed out earlier, an individual's personal
belongings are an expression of that person's essential self.
Books, diaries, pictures, clothes and other belongings are
personal and private expressions of their owner's beliefs,
opinions, thoughts and conscience. The simple possession
prohibition deals with a very intimate and private aspect of a
person's life and, in my view, that fact should be given
considerable weight. I find that the limited effectiveness of
the prohibition is insufficient to warrant its highly invasive
effects.
[para52] In arriving at this conclusion, I have taken into
account that the Criminal Code contains what I consider to be
powerful measures to tackle the problem of harm to children
arising from pornography. Under s-s. (2) and (3) of s. 163.1,
the making, printing, publishing, importing, distribution,
selling or possessing of child pornography for the purpose of
publication, distribution or sale, are made criminal. These
measures aim not only at the sources but also at the means of
dissemination of child pornography. In addition, the
obscenity provisions under s. 163 provide an element of
protection of children. See R. v. Butler, supra, p.151.
[para53] In conclusion, I find that s-s. (4) fails the
"weighing of effects" proportionality test formulated in
Dagenais and is therefore not saved under s. 1 of the Charter.
As s-s. (4) is in violation of s. 2(b) of the Charter and is
not justified under s. 1, s-s. (4) must be and is declared
void.
[para54] Mr. Sharpe also raised s. 2(a), s. 2(d) and s. 15
of the Charter. In light of the conclusion I have reached in
respect of s. 2(b) and s. 1, I need not address s. 2(a),
s. 2(d) and s. 15.
[para55] It follows from the declaration that s-s. (4) is
void that Counts 2 and 4, being based upon s-s. (4), must be
and are dismissed.
DEFINITION OF CHILD PORNOGRAPHY: SUBSECTION (1)(b)
[para56] All of the charges against Mr. Sharpe involve
written materials or discs of texts of written materials. The
Crown alleges that these materials come within the definition
of child pornography set out in s. 163.1(1)(b). I repeat the
whole of s-s. (1) and emphasize the portion of the definition
that Mr. Sharpe attacks.
163.1(1) In this section, "child pornography" means
(a) a photographic, film, video or other
visual representation, whether or not it
was made by electronic or mechanical
means,
(i) that shows a person who is or is
depicted as being under the age of
eighteen years and is engaged in or
is depicted as engaged in explicit
sexual activity, or
(ii) the dominant characteristic of which
is the depiction, for a sexual
purpose, of a sexual organ or the
anal region of a person under the age
of eighteen years; or
(b) any written material or visual
representation that advocates or counsels
sexual activity with a person under the
age of eighteen years that would be an
offence under this Act.
[para57] Mr. Sharpe contends that s-s. (1)(b) is void as
being in violation of s. 2(a), s. 2(b), s. 2(d) and s. 15 of
the Charter. The Crown again concedes that freedom of
expression is violated under s. 2(b) of the Charter but
contends that the definition in s-s. (1)(b) is saved by s. 1
of the Charter.
[para58] I need not deal with s-s. (1)(b) in respect of
its relationship to the simple possession prohibition under
s-s. (4) as I have already ruled that s-s. (4) is void and
have dismissed Counts 2 and 4.
[para59] Counts 1 and 3, however, charge Mr. Sharpe with
possession "for the purpose of distribution or sale" and those
charges are based upon s-s. (3) which forbids possession of
child pornography for the purpose of distribution or sale. It
is therefore in the context of s-s. (3) that I must determine
the constitutionality of the definition in s-s. (1)(b).
[para60] Because of the Crown's concession that
s-s. (1)(b) violates the freedom of expression provision of
the Charter, the issue again becomes whether the impugned
provision is justified under s. 1.
[para61] I agree with the Crown's contention that
s-s. (1)(b), at least in the context of s-s. (3), is justified
under s. 1 of the Charter. I have reviewed all the tests in
Oakes, supra, and the further test in Dagenais, supra, and am
of the view that the Crown must succeed on all of them. I do
not believe I need go into the same detail as I did earlier in
respect of s-s. (4). However, some considerations that I find
significant are set out below.
[para62] The dissemination of materials that counsel or
advocate sexual abuse of children must pose some risk to
children. Possession for the purpose of sale or distribution
of such material can hardly be justified on any level of
reasoning.
[para63] Possession for the purpose of sale or
distribution is far less invasive of an individual's freedom
of expression and right of privacy than a total ban on
possession.
[para64] The type of material covered by s-s. (1)(b) is
strictly limited to that which advocates or counsels sexual
crimes against children. Mr. Sharpe is concerned that the ban
might interfere with advocacy by pedophiles to persuade
Parliament to change the age of consent laws and other matters
of concern to pedophiles. I do not read s-s. (1)(b) as
outlawing that kind of advocacy.
[para65] There are numerous protections available to
ensure minimum infringement of freedom of expression. In
Langer, supra, McCombs J. said, at p.323:
Section 163.1 includes a number of defences designed to
ensure minimal infringement of freedom of expression.
Section 163.1(6) provides for a defence based either on
artistic merit, or an educational, scientific, or medical
purpose. Section 163.1(5) provides for a defence based on
an honest belief, arrived at through due diligence, that
the material does not depict anyone apparently under the
age of 18 years. Moreover, the legislation imports from
the obscenity provisions, a defence based on the public
good (s. 163.1(7), and s. 163(3) and (4)).
[para66] Additional protection arises from the principle
of reasonable doubt which is applicable to all elements of a
criminal offence including, in the present case, the issue of
whether any given materials fall within the s-s. (1)(b)
definition.
[para67] Mr. Sharpe relies on Iorfida v. MacIntyre (1994),
93 C.C.C. (3d) 395 (Ont.Ct.Gen.Div.) which deals with a
provision of the Criminal Code prohibiting the distribution of
"instruments or literature for illicit drug use." The
prohibited literature was defined in part as that which
promotes, encourages or advocates the production, preparation
or consumption of illicit drugs. The court held that the
words "or literature" must be severed from the offence
provision as being in violation of s. 2(b) of the Charter and
not justified under s. 1.
[para68] In my opinion Iorfida is distinguishable from the
present case. In Iorfida the court said, at p.411:
The enactment of s. 462.2 expanded the prohibition and
publication to include all literature which promotes or
glamorizes illicit drug use. This takes the prohibition
much beyond what was already covered in a counselling
offence. It must also be remembered that the express
objective of s. 462.2 is to prohibit expression. Its
objective is not to prevent imminent criminal conduct.
The purpose of the statute is to prevent the free flow of
information touching on the wisdom of Parliament's own
laws.
[para69] As noted earlier, I do not consider that the
prohibition in the present case prevents "the free flow of
information touching upon the wisdom of Parliament's own
laws."
[para70] For the foregoing reasons, I find that despite
violating the freedom of expression under s. 2(b) of the
Charter, the definition in s-s. (1)(b) in the context of
s-s. (3) is justified under s. 1 of the Charter.
[para71] I will now consider Mr. Sharpe's contentions of
violations of s. 2(a), s. 2(d) and s. 15 of the Charter. In
this regard, the Crown contends that these provisions have not
been violated. I agree.
[para72] With respect to s. 2(a), the guarantee of freedom
of conscience does not extend to the point where
manifestations of conscience injure others: R. v. Big M. Drug
Mart Ltd. (1985), 18 C.C.C. (3d) 385 at 425 (S.C.C.).
[para73] In R. v. M.S. (1996), 111 C.C.C. (3d) 467
(B.C.C.A.), leave to appeal to S.C.C. dismissed, 112 C.C.C.
(3d) vii, it was argued that the incest provisions of the
Criminal Code violate s. 2(a) of the Charter. The court
rejected this argument, holding that s. 2(a) of the Charter
had no application. Donald J.A. for the court said, at
pp.483-84:
I think this argument is utterly specious. The criminal
law fundamentally deals with right and wrong. The
Criminal Code gives expression to our society's moral
principles. Section 155 seeks to prevent the harm to
individuals and to the community caused by incest. The
fact that the offence is rooted in a moral principle
developed within a religious tradition cannot support a
claim for interference with the freedom to believe or not
to believe under the Charter.
The appellant's reliance on the Big M Drug Mart, supra,
case is inappropriate. Sunday observance imposed on all
persons, regardless of their beliefs, is plainly
different from a law against harming others. For the good
and order of our community, obedience to laws such as
s. 155 cannot be a matter of choice governed only by
private conscience.
[para74] There is no doubt that s-s. (1)(b), in
conjunction with s-s. (3), seeks to prevent harm to children.
It aims at persons who contribute to that harm by distributing
materials which advocate or counsel sexual offences against
children. To paraphrase Donald J.A. in R. v. M.S., for the
good and order of our community, obedience to such a law
cannot be a matter of choice governed only by private
conscience.
[para75] It follows that Mr. Sharpe's submission based
upon s. 2(a) of the Charter must be rejected.
[para76] Freedom of association under s. 2(d) of the
Charter is the right to join with others in lawful common
pursuits and to establish and maintain organizations and
associations. This freedom does not confer on a group the
right to do that which would be unlawful if done by an
individual. In Reference Re Public Service Employee Relations
Act (1987), 38 D.L.R. (4th) 161 (S.C.C.), McIntyre J. said, at
p.229:
It follows from this discussion that I interpret freedom
of association in s. 2(d) of the Charter to mean that
Charter protection will attach to the exercise in
association of such rights as have Charter protection
when exercised by the individual. Furthermore, freedom of
association means the freedom to associate for the
purposes of activities which are lawful when performed
alone. But, since the fact of association will not by
itself confer additional rights on individuals, the
association does not acquire a constitutionally
guaranteed freedom to do what is unlawful for the
individual.
[para77] In R. v. M.S., supra, Donald J.A. considered an
argument that s. 2(d) protects the right of an adult to
associate with a young person for the purposes of sexual
activity. He said, at p.474:
The appellant's argument that his freedom to associate in
a sexual relationship with his daughter is infringed by
s. 155 of the Code, proceeds on the footing that the
Charter must be given a broad interpretation.
On that basis any crime which prohibits an activity
necessarily involving the interaction of two persons in
the pursuit of a common objective engages s. 2(d) and
must be justified under s. 1.
This poses the question whether "association" has any
limits. In my opinion there are limits. They arise from
the purpose behind s. 2(d) which is essentially to
protect an individual's right to participate in
collective activity. The notion of freedom of association
addresses social, not sexual, intercourse. Historically,
the causes advanced by associations must often forbidden
or oppressed by tyrannical authority were not concerned
with intimate relationships but with broader issues
affecting the community.
[para78] Donald J.A. relied on R. v. Skinner (1990), 56
C.C.C. (3d) 1 (S.C.C.) which holds that communication between
a prostitute and a customer for the purpose of obtaining
sexual services is not protected by s. 2(d).
[para79] I find that s. 2(d) of the Charter has no
application to the present case.
[para80] The final provision of the Charter which Mr.
Sharpe claims is applicable is s. 15, the guarantee of
equality without discrimination. In R. v. M.S., supra, the
court dealt with a submission that the incest provisions of
the Criminal Code discriminated against fathers who wished to
have sex with their daughters. The point was rejected.
Donald J.A. said, at pp.482-83:
I will assume for brevity, but without deciding the
point, that the appellant meets the first part of the
test, namely, that s. 155 creates a distinction between
him and those who would choose a sexual partner other
than their daughter and in that sense he is not equal
under the law. I think the argument that the distinction
is discriminatory must fail.
In the first place, the appellant cannot bring himself
within a "discrete and insular minority" (a phrase used
in Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143 (S.C.C.), and repeated in Turpin, supra) which
has suffered historical prejudice in Canadian society.
Wilson J. alluded in Turpin at 1333 to indicia of
discrimination: "stereotyping, historical disadvantage or
vulnerability to political and social prejudice". The
appellant attempts to define himself according to a
sexual preference but any analogy to the position of
homosexuals in our society is strained beyond credulity.
The appellant's inclination or desire to mate with his
daughter is not a group or individual characteristic that
bears any resemblance to the anti-discriminatory purposes
of s. 15.
Parliament's prohibition of incest is society's
expression of sexual mores. This is the role of
Parliament and the courts must respect that role in the
administration of s. 15(1). As Wilson J. observed in R.
v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906 at 930-31, 59
C.C.C. (3d) 161 (S.C.C.) in the context of a claim that
the Code discriminated against men who would have sexual
intercourse with girls under 14 because women are not
prohibited from having sexual intercourse with boys under
14:
In my view, it is not this Court's role under
s. 15(1) of the Charter to decide whether a female
who chooses to have intercourse with a boy under
fourteen merits the same societal disapprobation as
a male who has intercourse with a girl under
fourteen. These issues go to the heart of a
society's code of sexual morality and are, in my
view, properly left for resolution to Parliament.
The appellants also submit that s. 146(1) of the Code
discriminates against males because males under the age
of fourteen are denied the same protection as s. 146(1)
affords to females under the age of fourteen. Only a
young female can obtain the conviction of her seducer
under this provision. Once again, however, I think it
important to bear in mind that the legislature has chosen
to punish a male who engages in a form of penetration to
which only a male and a female can be parties. The
legislature has concluded that sodomy or buggery are
forms of penetration that should be dealt with
separately: see, for example, s. 155 of the Code. Once
again we are faced with distinctions aimed at
biologically different acts that go to the heart of
society's morality and involve considerations of policy.
They are, in my view, best left to the legislature.
[Emphasis added.]
In deciding whether a distinction is discrimination under
s. 15(1) we must examine the questioned law in the larger
social, political and legal context because "[i]f the
larger context is not examined, the s. 15 analysis may
become a mechanical and sterile categorization process
conducted entirely within the four corners of the
impugned legislation": Turpin at 1332. Viewed in that
context, the evidence in this case demonstrates that the
law makes a relevant, rational distinction concerning
sexual choice, between those who would have sex with
their daughter and those who would not. The personal
attribute which the appellant says leads to
discrimination goes to the very reason for the law: it is
the proclivity to engage in behaviour that exploits the
child, harms the well-being of the family and hence the
community, and genetically endangers the offspring of the
relationship.
[para81] I adopt the foregoing reasoning in R. v. M.S. and
find that s. 15 has no application to the present case.
[para82] In summary, I reject Mr. Sharpe's attack on the
constitutionality of the definition of child pornography set
out in s-s. (1)(b) in the context of s-s. (3) of s. 163.1.
[para83] CONCLUSIONS
1. Subsection (4) of s. 163.1 of the Criminal Code
is declared void as being in violation of s. 2(b) of the
Charter and not justified under s. 1.
2. Counts 2 and 4 of the indictment are dismissed.
3. Mr. Sharpe's constitutional attack upon
s-s. (1)(b) in the context of s-s. (3) of s. 163.1 of the
Criminal Code is dismissed.
SHAW J.