R. v. Sharpe

R. v. Sharpe
Collection
Supreme Court Judgments
Date
2001-01-26
Neutral citation
2001 SCC 2
Report
[2001] 1 SCR 45
Case number
27376
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 27376
Decision Content
R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2
Her Majesty the Queen Appellant
v.
John Robin Sharpe Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Nova Scotia,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Attorney General for Alberta, the
Canadian Police Association (CPA),
the Canadian Association of Chiefs of
Police (CACP), Canadians Against
Violence (CAVEAT), the Criminal
Lawyers’ Association, the Evangelical
Fellowship of Canada, Focus on the
Family (Canada) Association, the British
Columbia Civil Liberties Association, the
Canadian Civil Liberties Association,
Beyond Borders, Canadians Addressing
Sexual Exploitation (CASE), End Child
Prostitution, Child Pornography and
Trafficking in Children for Sexual Purposes (ECPAT)
and the International Bureau for Children’s Rights Interveners
Indexed as: R. v. Sharpe
Neutral citation: 2001 SCC 2.
File No.: 27376.
2000: January 18, 19; 2001: January 26.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for British Columbia
Constitutional law – Charter of Rights – Freedom of expression – Child pornography – Whether possession of expressive material protected by right to freedom of expression – Canadian Charter of Rights and Freedoms, s. 2 (b).
Constitutional law – Charter of Rights – Right to liberty – Whether Criminal Code prohibition of possession of child pornography infringing right to liberty – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4) .
Constitutional law – Charter of Rights – Freedom of expression – Child pornography – Crown conceding that Criminal Code prohibition of possession of child pornography infringing freedom of expression – Whether infringement justifiable – Canadian Charter of Rights and Freedoms, s. 1 – Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4) .
Criminal law – Child pornography – Criminal Code prohibiting possession of child pornography – Scope of definition of “child pornography” – Defences available – Criminal Code, R.S.C. 1985, c. C-46, s. 163.1 .
The accused was charged with two counts of possession of child pornography under s. 163.1(4) of the Criminal Code and two counts of possession of child pornography for the purposes of distribution or sale under s. 163.1(3) . “Child pornography”, as defined in s. 163.1(1) of the Code, includes visual representations that show a person who is or is depicted as under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity and visual representations 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 18 years. “Child pornography” also includes visual representations and written material that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under the Code. Prior to his trial, the accused brought a preliminary motion challenging the constitutionality of s. 163.1(4) of the Code, alleging a violation of his constitutional guarantee of freedom of expression. The Crown conceded that s. 163.1(4) infringed s. 2 (b) of the Canadian Charter of Rights and Freedoms but argued that the infringement was justifiable under s. 1 of the Charter . Both the trial judge and the majority of the British Columbia Court of Appeal ruled that the prohibition of the simple possession of child pornography as defined under s. 163.1 of the Code was not justifiable in a free and democratic society.
Held: The appeal should be allowed and the charges remitted for trial.
Per McLachlin C.J. and Iacobucci, Major, Binnie, Arbour and LeBel JJ.: In order to assess the constitutionality of s. 163.1(4) , it is important to ascertain the nature and scope of any infringement. Until it is known what the law catches, it cannot be determined that the law catches too much. Consequently, the law must be construed, and interpretations that may minimize the alleged overbreadth must be explored. In light of Parliament’s purpose of criminalizing possession of material that poses a reasoned risk of harm to children, the word “person” in the definition of child pornography should be construed as including visual works of the imagination as well as depictions of actual people. The word “person” also includes the person possessing the expressive material. The term “depicted” refers to material that a reasonable observer would perceive as representing a person under the age of 18 years and engaged in explicit sexual activity. The expression “explicit sexual activity” refers to acts at the extreme end of the spectrum of sexual activity – acts involving nudity or intimate sexual activity represented in a graphic and unambiguous fashion. Thus, representations of casual intimacy, such as depictions of kissing or hugging, are not covered by the offence. An objective approach must be applied to the terms “dominant characteristic” and “for a sexual purpose”. The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region in a manner that is reasonably perceived as intended to cause sexual stimulation to some viewers. Innocent photographs of a baby in the bath and other representations of non-sexual nudity are not covered by the offence. As for written material or visual representations that advocate or counsel sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code , the requirement that the material “advocates” or “counsels” signifies that, when viewed objectively, the material must be seen as actively inducing or encouraging the described offences with children.
Parliament has created a number of defences in ss. 163.1(6) and (7) of the Code which should be liberally construed as they further the values protected by the guarantee of free expression. These defences may be raised by the accused by pointing to facts capable of supporting the defence, at which point the Crown must disprove the defence beyond a reasonable doubt. The defence of “artistic merit” provided for in s. 163.1(6) must be established objectively and should be interpreted as including any expression that may reasonably be viewed as art. Section 163.1(6) creates a further defence for material that serves an “educational, scientific or medical purpose”. This refers to the purpose the material, viewed objectively, may serve, not the purpose for which the possessor actually holds it. Finally, Parliament has made available a “public good” defence. As with the medical, educational or scientific purpose defences, the defence of public good should be liberally construed.
The possession of child pornography is a form of expression protected by s. 2 (b) of the Charter . The right to possess expressive material is integrally related to the development of thought, opinion, belief and expression as it allows us to understand the thought of others or consolidate our own thought. The possession of expressive material falls within the continuum of intellectual and expressive freedom protected by s. 2 (b). The accused accepts that harm to children justifies criminalizing possession of some forms of child pornography. The fundamental question therefore is whether s. 163.1(4) of the Code goes too far and criminalizes possession of an unjustifiable range of material.
The accused also alleges that s. 163.1(4) violates his right to liberty under s. 7 of the Charter , arguing that exposure to potential imprisonment as a result of an excessively sweeping law is contrary to the principles of fundamental justice. It is not necessary to consider this argument separately as it wholly replicates the overbreadth concerns that are the central obstacle to the justification of the s. 2 (b) breach. The s. 1 analysis generally, and the minimal impairment consideration in particular, is the appropriate forum for addressing over broad restrictions on free expression.
In adopting s. 163.1(4) , Parliament was pursuing the pressing and substantial objective of criminalizing the possession of child pornography that poses a reasoned risk of harm to children. The means chosen by Parliament are rationally connected to this objective. Parliament is not required to adduce scientific proof based on concrete evidence that the possession of child pornography causes harm to children. Rather, a reasoned apprehension of harm will suffice. Applying this test, the evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. With respect to minimal impairment, when properly interpreted, the law catches much less material unrelated to harm to children than has been suggested. However, the law does capture the possession of two categories of material that one would not normally think of as “child pornography” and that raise little or no risk of harm to children: (1) written materials or visual representations created and held by the accused alone, exclusively for personal use; and (2) visual recordings created by or depicting the accused that do not depict unlawful sexual activity and are held by the accused exclusively for private use. The bulk of the material falling within these two classes engages important values underlying the s. 2 (b) guarantee while posing no reasoned risk of harm to children. In its main impact, s. 163.1(4) is proportionate and constitutional. Nonetheless, the law’s application to materials in the two problematic classes, while peripheral to its objective, poses significant problems at the final stage of the proportionality analysis. In these applications the restriction imposed by s. 163.1(4) regulates expression where it borders on thought. The cost of prohibiting such materials to the right of free expression outweighs any tenuous benefit it might confer in preventing harm to children. To this extent, the law cannot be considered proportionate in its effects, and the infringement of s. 2 (b) contemplated by the legislation is not demonstrably justifiable under s. 1 .
The appropriate remedy in this case is to read into the law an exclusion of the two problematic applications of s. 163.1 . The applications of the law that pose constitutional problems are exactly those whose relation to the objective of the legislation is most remote. Carving out those applications by incorporating the proposed exceptions will not undermine the force of the law; rather, it will preserve the force of the statute while also recognizing the purposes of the Charter . The defects of the section are not so great that their exclusion amounts to impermissible redrafting and carving them out will not create an exception-riddled provision bearing little resemblance to the provision envisioned by Parliament. While excluding the offending applications will not subvert Parliament’s object, striking down the statute altogether would most assuredly do so. Accordingly, s. 163.1(4) should be upheld on the basis that the definition of “child pornography” in s. 163.1 should be read as though it contained an exception for: (1) any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use. These two exceptions apply as well to the offence of “making” child pornography under s. 163.1(2) (but not to printing, publishing or possessing child pornography for the purpose of publication). The exceptions will not be available where a person harbours any intention other than mere private possession.
Per L’Heureux-Dubé, Gonthier and Bastarache JJ.: Under our society’s democratic principles, individual freedoms such as expression are not absolute, but may be limited in consideration of a broader spectrum of rights, including equality and security of the person. The Crown conceded that the right to free expression was infringed in all respects, unfortunately depriving the Court of the opportunity to fully explore the content and scope of s. 2 (b) of the Charter as it applies to this case. At the same time, it is recognized that, at this stage, our jurisprudence leads to the conclusion that, although harmful, the content of child pornography cannot be the basis for excluding it from the scope of the s. 2 (b) guarantee. No separate analysis under s. 7 of the Charter is required. The s. 7 liberty interest is encompassed in the right of free expression and proportionality falls to be considered under s. 1 of the Charter . The only issue is whether the infringement of freedom of expression is justifiable under s. 1 . Section 1 recognizes that in a democracy competing rights and values exist. The underlying values of a free and democratic society guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights. A principled and contextual approach to s. 1 ensures that courts are sensitive to the other values which may compete with a particular right and allows them to achieve a proper balance among these values. At each stage of the s. 1 analysis close attention must be paid to the factual and social context in which an impugned provision exists.
An appraisal of the contextual factors in this case leads to the conclusion that Parliament’s decision to prohibit child pornography is entitled to an increased level of deference. Child pornography, as defined by s. 163.1(1) of the Criminal Code , is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. Although not empirically measurable, nor susceptible to proof in the traditional manner, the attitudinal harm inherent in child pornography can be inferred from degrading or dehumanizing representations or treatment. Expression that degrades or dehumanizes is harmful in and of itself as all members of society suffer when harmful attitudes are reinforced. The possibility that pornographic representations may be disseminated creates a heightened risk of attitudinal harm. The violation of the privacy rights of the persons depicted constitutes an additional risk of harm that flows from the possibility of dissemination. Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination. Section 163.1 was enacted to protect children, one of the most vulnerable groups in society. It is based on the clear evidence of direct harm caused by child pornography, as well as Parliament’s reasoned apprehension that child pornography also causes attitudinal harm. The lack of scientific precision in the social science evidence relating to attitudinal harm is not a valid reason for attenuating the Court’s deference to Parliament’s decision.
The importance of the protection of children is recognized in both Canadian criminal and civil law. The protection of children from harm is a universally accepted goal. International law is rife with instruments that emphasize the protection of children and a number of international bodies have recognized that possession of child pornography must be targeted to effectively address the harms caused by this type of material. Moreover, domestic legislation in a number of democratic countries criminalizes the simple possession of child pornography.
As a form of expression, child pornography warrants less protection since it is low value expression that is far removed from the core values underlying the protection of freedom of expression. Child pornography has a limited link to the value of self-fulfilment, but only in its most base aspect. Furthermore, in prohibiting the possession of child pornography, Parliament promulgated a law which seeks to foster and protect the equality rights of children, along with their security of the person and their privacy interests. The importance of these Charter rights cannot be ignored in the analysis of whether the law is demonstrably justified in a free and democratic society and warrants a more deferential application of the criteria set out in the Oakes test. Finally, Parliament has the right to make moral judgments in criminalizing certain forms of conduct. The Court should be particularly sensitive to the legitimate role of government in legislating with respect to our social values.
Section 163.1(4) of the Code constitutes a reasonable and justified limit upon freedom of expression. In proscribing the possession of child pornography, Parliament’s overarching objective was to protect children. Any provision which protects both children and society by attempting to eradicate the sexual exploitation of children clearly has a pressing and substantial purpose. Section 163.1(4) is also proportionate to the objective. First, prohibiting the possession of child pornography is rationally connected to the aim of preventing harm to children and society. The possession of child pornography contributes to the cognitive distortions of paedophiles, reinforcing their erroneous belief that sexual activity with children is acceptable. Child pornography fuels paedophiles’ fantasies, which constitute the motivating force behind their sexually deviant behaviour. Section 163.1(4) plays an important role in an integrated law enforcement scheme which protects children against the harms associated with child pornography. Paedophiles use child pornography for seducing children and for grooming them to commit sexual acts. Lastly, children are abused in the production of child pornography. The prohibition of the possession of child pornography is intended to reduce the market for this material. If consumption of child pornography is reduced, presumably production and the abuse of children will also be reduced.
Second, the prohibition of the possession of child pornography minimally impairs the right to free expression. Although s. 163.1(4) is directed only to the private possession of child pornography, children are particularly vulnerable in the private sphere, since a large portion of child pornography is produced privately and used privately by those who possess it. The harmful effect on the attitudes of those who possess child pornography similarly occurs in private. Consequently, prohibiting the simple possession of child pornography has an additional reductive effect on the harm it causes. The prohibition of the possession of child pornography also captures visual and written works of the imagination which do not involve the participation of any actual children or youth in their production; in enacting s. 163.1(4), Parliament sought to prevent not only the harm that flows from the use of children in pornography, but also the harm that flows from the very existence of images and words which degrade and dehumanize children and to send the message that children are not appropriate sexual partners. The focus of the inquiry must be on the harm of the message of the representations and not on their manner of creation, or on the intent or identity of their creator. Given the low value of the speech at issue in this case and the fact that it undermines the Charter rights of children, Parliament was justified in concluding that visual works of the imagination would harm children.
The inclusion of written material in the offence of possession of child pornography does not amount to thought control. The legislation seeks to prohibit material that Parliament believed was harmful. The inclusion of written material which advocates and counsels the commission of offences against children is consistent with this aim, since, by its very nature, it is harmful, regardless of its authorship. Evidence suggests that the cognitive distortions of paedophiles are reinforced by such material and that written pornography fuels the sexual fantasies of paedophiles and could incite them to offend. Although the prohibition in s. 163.1(4) extends to teenagers between the ages of 14 and 17 who keep pornographic videotapes or pictures of themselves, this effect of the provision is a reasonable limit on teenagers’ freedom of expression. A review of adolescent child pornography cases reveals that there is a great risk that they will be exploited in its creation. Hence, while adolescents between the ages of 14 and 17 may legally engage in sexual activity, Parliament had a strong basis for concluding that the age limit in the definition of child pornography should be set at 18. It is not necessary that the provision contain a defence to protect teenagers who are in possession of erotic videos or pictures of themselves. Such a defence would undermine Parliament’s objective of protecting all children, since some adolescents under the age of 18 groom other children into engaging in sexual conduct. There is also no guarantee, even when a teenager is in possession of a pornographic picture or videotape depicting himself or herself, that it was created in a consensual environment. The creation of permanent records of teenagers’ sexual activities has consequences which children of that age may not have sufficient maturity to understand. The Court should defer to Parliament’s decision to restrict teenagers’ freedom in this area. The provision does not amount to a total ban on the possession of child pornography. The provision reflects an attempt by Parliament to weigh the competing rights and values at stake and achieve a proper balance. The definitional limits act as safeguards to ensure that only material that is antithetical to Parliament’s objectives in proscribing child pornography will be targeted, and the legislation incorporates defences of artistic merit, educational, scientific or medical purpose, and a defence of the public good.
Third, when the effects of the provision are examined in their overall context, the benefits of the legislation far outweigh any deleterious effects on the right to freedom of expression and the interests of privacy. Section 163.1(4) helps to prevent the harm to children which results from the production of child pornography; deters the use of child pornography in the grooming of children; curbs the collection of child pornography by paedophiles; and helps to ensure that an effective law enforcement scheme can be implemented. In sum, the legislation benefits society as a whole as it sends a clear message that deters the development of antisocial attitudes. The law does not trench significantly on speech possessing social value since there is a very tenuous connection between the possession of child pornography and the right to free expression. At most, the law has a detrimental cost to those who find base fulfilment in the possession of child pornography. The privacy of those who possess child pornography is protected by the right against unreasonable search and seizure as guaranteed by s. 8 of the Charter . The law intrudes into the private sphere because doing so is necessary to achieve its salutary objectives. The privacy interest restricted by the law is closely related to the specific harmful effects of child pornography. Moreover, the provision’s beneficial effects in protecting the privacy interests of children are proportional to the detrimental effects on the privacy of those who possess child pornography.
Cases Cited
By McLachlin C.J.
Referred to: R. v. Butler, [1992] 1 S.C.R. 452; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Keegstra, [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Zundel, [1992] 2 S.C.R. 731; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Palko v. Connecticut, 302 U.S. 319 (1937); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Edwards, [1996] 1 S.C.R. 128; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Lucas, [1998] 1 S.C.R. 439; R. v. Hurtubise, [1997] B.C.J. No. 40 (QL); R. v. Dionne (1987), 38 C.C.C. (3d) 171; Ontario (Attorney General) v. Langer (1995), 123 D.L.R. (4th) 289; R. v. American News Co. (1957), 118 C.C.C. 152; R. v. Delorme (1973), 15 C.C.C. (2d) 350; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Chaulk, [1990] 3 S.C.R. 1303; M. v. H., [1999] 2 S.C.R. 3; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; Schachter v. Canada, [1992] 2 S.C.R. 679; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Heywood, [1994] 3 S.C.R. 761; Vriend v. Alberta, [1998] 1 S.C.R. 493.
By L’Heureux-Dubé, Gonthier and Bastarache JJ.
Referred to: R. v. L. (D.O.), [1993] 4 S.C.R. 419; R. v. Seaboyer, [1991] 2 S.C.R. 577; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Oakes, [1986] 1 S.C.R. 103; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Mills, [1999] 3 S.C.R. 668; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Keegstra, [1990] 3 S.C.R. 697; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Lucas, [1998] 1 S.C.R. 439; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; R. v. Zundel, [1992] 2 S.C.R. 731; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; R. v. Mara, [1997] 2 S.C.R. 630; R. v. Hess, [1990] 2 S.C.R. 906; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Young v. Young, [1993] 4 S.C.R. 3; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; United States v. Hilton, 167 F.3d 61 (1999); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); R. v. K.L.V., [1999] A.J. No. 350 (QL); R. v. Jewell (1995), 100 C.C.C. (3d) 270; Osborne v. Ohio, 495 U.S. 103 (1990); R. v. E. (B.) (1999), 139 C.C.C. (3d) 100; United States v. Knox, 32 F.3d 733 (1994); R. v. Pointon, Man. Prov. Ct., October 23, 1997; R. v. Geisel, Man. Prov. Ct., February 2, 2000; R. v. Davis, [1999] 3 S.C.R. 759; M. v. H., [1999] 2 S.C.R. 3.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 7 , 8 , 15 .
Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 40(2), (3), (5), (7) to (10), 41 to 44.
Child and Family Services Act, S.M.1985-86, c. 8, ss. 21 to 26, 38(7), 53.
Child and Family Services Act, S.N.W.T. 1997, c. 13, ss. 10, 11(1), 33.
Child and Family Services Act, S.S. 1989-90, c. C-7.2, ss. 2(1)(p), 7, 8, 13, 17, 18(1).
Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, ss. 16 to 19, 25 to 33.
Child Trafficking and Pornography Act, 1998 (No. 22) (Ir.), ss. 2 , 6 .
Child Welfare Act, R.S.N. 1990, c. C-12, ss. 13, 14, 15.
Child Welfare Act, S.A. 1984, c. C-8.1, ss. 17, 18.
Children and Family Services Act, S.N.S. 1990, c. 5, ss. 26(2), (3), 27, 28, 29, 33(1), (3), 34.
Children’s Act, R.S.Y. 1986, c. 22, s. 119.
Classification (Publications, Films and Computer Games) Act 1995 (Austl.) (No. 7 of 1995).
Constitution Act, 1982, s. 52(1) .
Convention on the Rights of the Child, Can. T.S. 1992, No. 3, arts. 1, 2, 9, 16, 19, 32, 33, 34, 35, 37.
Criminal Code (Belgium ), art. 383bis.
Criminal Code, R.S.C. 1985, c. C-46, ss. 22 , 150.1 , 151 , 152 , 153 , 159 , 160(3) , 163 [am. 1993, c. 46, s. 1], 163.1 [ad. idem, s. 2 ], 170, 171, 172, 212(4), 215, 271, 272, 273.
Criminal Justice Act 1988 (U.K.), 1988, c. 33, s. 160.
Criminal Justice and Public Order Act 1994 (U.K.), 1994, c. 33, ss. 84 to 86.
Declaration of the Rights of the Child, G.A. Res. 1386 (XIV) (1959), preamble.
Draft Joint Action to combat child pornography on the Internet, [1999] O.J.C. 219/68, art. 1.
Family and Child Services Act, R.S.P.E.I. 1988, c. F-2, ss. 1(1)(c), 15(1), (1.1), 16(1), 17(1)(b), 19(b).
Family Services Act, S.N.B. 1980, c. F-2.2, ss. 1, 31(5), 32, 33, 51(1), 62(3).
Films, Videos, and Publications Classification Act 1993 (N.Z.) No. 94, ss. 2, 3, 131.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 24.
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, art. 10(3).
International traffic in child pornography, ICPO-Interpol AGN/65/RES/9 (1996).
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography, A/RES/54/263 (2000), Annex II.
Protection of Children Act 1978 (U.K.), 1978, c. 37, ss. 1, 7.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc A/810, at p. 71 (1948), art. 25(2).
Young Offenders Act, R.S.C. 1985, c. Y-1, s. 20 .
Youth Protection Act, R.S.Q., c. P-34.1, ss. 2, 3, 46.
18 U.S.C. §§ 2252(a)(4)(B), 2256 (1994 & Supp. IV 1998).
Authors Cited
Bala, Nicholas, and Martha Bailey. “Canada: Recognizing the Interests of Children” (1992-93), 31 U. Louisville J. Fam. L. 283.
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APPEAL from a judgment of the British Columbia Court of Appeal (1999), 136 C.C.C. (3d) 97, 127 B.C.A.C. 76, 207 W.A.C. 76, 175 D.L.R. (4th) 1, 25 C.R. (5th) 215, 69 B.C.L.R. (3d) 234, [2000] 1 W.W.R. 241, [1999] B.C.J. No. 1555 (QL), 1999 BCCA 416, dismissing a Crown appeal from a decision of the British Columbia Supreme Court (1999), 22 C.R. (5th) 129, 169 D.L.R. (4th) 536, [1999] B.C.J. No. 54 (QL), declaring void s. 163.1(4) of the Criminal Code . Appeal allowed.
John M. Gordon and Kate Ker, for the appellant.
Gil D. McKinnon, Q.C., Richard C. C. Peck, Q.C., and Nikos Harris for the respondent.
Cheryl J. Tobias and Kenneth J. Yule, for the intervener the Attorney General of Canada.
James M. Flaherty, Christine Bartlett-Hughes and Laurie Lacelle, for the intervener the Attorney General for Ontario.
Joanne Marceau and Jacques Gauvin, for the intervener the Attorney General of Quebec.
Daniel A. MacRury, for the intervener the Attorney General of Nova Scotia.
Mary Elizabeth Beaton, for the intervener the Attorney General for New Brunswick.
Shawn Greenberg and Holly Penner, for the intervener the Attorney General of Manitoba.
Joshua B. Hawkes, for the intervener the Attorney General for Alberta.
Timothy S. B. Danson, for the interveners the Canadian Police Association (CPA), the Canadian Association of Chiefs of Police (CACP) and Canadians Against Violence (CAVEAT).
Frank Addario and Michael Lacy, for the intervener the Criminal Lawyers’ Association.
Robert W. Staley, Meredith Hayward and Janet Epp Buckingham, for the interveners the Evangelical Fellowship of Canada and the Focus on the Family (Canada) Association.
John D. McAlpine, Q.C., Bruce Ryder and Andrew D. Gay, for the intervener the British Columbia Civil Liberties Association.
Patricia D. S. Jackson and Tycho M. J. Manson, for the intervener the Canadian Civil Liberties Association.
David Matas, Mark Eric Hecht and Jean-François Noël, for the interveners Beyond Borders, Canadians Addressing Sexual Exploitation (CASE), End Child Prostitution, Child Pornography and Trafficking in Children for Sexual Purposes (ECPAT) and the International Bureau for Children’s Rights.
The judgment of McLachlin C.J. and Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by
The Chief Justice –
I. Introduction
1 Is Canada’s law banning the possession of child pornography constitutional or, conversely, does it unjustifiably intrude on the constitutional right of Canadians to free expression? That is the central question posed by this appeal.
2 I conclude that the law is constitutional, except for two peripheral applications relating to expressive material privately created and kept by the accused, for which two exceptions can be read into the legislation. The law otherwise strikes a constitutional balance between freedom of expression and prevention of harm to children. As a consequence, I would uphold the law and remit Mr. Sharpe for trial on all charges.
3 The respondent, Mr. Sharpe, was charged on a four-count indictment after two seizures of material. The first seizure was made by Canada Customs. It consisted of computer discs containing a text entitled “Sam Paloc’s Boyabuse -- Flogging, Fun and Fortitude: A Collection of Kiddiekink Classics”. Two charges were laid with respect to this material -- one for illegal possession under s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 , and one for possession for the purposes of distribution or sale under s. 163.1(3) of the Code. The second seizure was at Mr. Sharpe’s home pursuant to a search warrant the validity of which will be contested at trial. Police officers seized a collection of books, manuscripts, stories and photographs the Crown says constitute child pornography. Again, two charges were laid – one of simple possession and one of possession for the purposes of distribution or sale.
4 Mr. Sharpe brought a preliminary motion challenging the constitutionality of s. 163.1(4) of the Criminal Code . He does not challenge the constitutionality of the offence of possession for the purposes of distribution and sale, which will go to trial regardless of how this appeal is resolved. Mr. Sharpe contends that the prohibition of possession, without more, violates the guarantee of freedom of expression in s. 2 (b) of the Canadian Charter of Rights and Freedoms . The trial judge ruled that the prohibition was unconstitutional, as did the majority of the British Columbia Court of Appeal. The Crown appeals that order to this Cour