Decision of the Supreme Court of British Columbia
Text of the decision concerning the Voir Dire in R. v. Sharpe, concerning the constitutionality of the law concerning material deemed by the Crown to be child pornography.

Date: 19990113
Docket: XO50427
Registry: New Westminster

IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN

HER MAJESTY THE QUEEN

AND

JOHN ROBIN SHARPE

RULING ON VOIR DIRE OF THE HONOURABLE MR. JUSTICE SHAW

Counsel for the Crown: Mr. T.A. Schultes
John Robin Sharpe: Appeared In Person

Place and Dates of Voir Dire: Vancouver, B.C.
November 9, 10, 12, 20, 24, 25 and 26, 1998

[1] 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.

[2] A voir dire has been held to hear the constitutional challenge. This is my ruling.

[3] 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.

[4] 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.

[5] 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.

[6] Section 163.1 of the Criminal Code reads:
163.1(1) in this section “child pornography” means
1. a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
1. 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
2. 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
2. 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
1. an indictable offence and liable to imprisonment for a term not exceeding ten years; or
2. 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
1. an indictable offence and liable for imprisonment for a term not exceeding ten years; or
2. an offence punishable on summary conviction.

(4)Every person who possesses any child pornography is guilty of
1. an indictable offence and liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction.

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.

[7] Mr. Sharpe invokes the following provisions of the Canadian Charter of Rights and Freedoms:
2. Everyone has the following fundamental freedoms:
1. freedom of conscience and religion;
2. 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.

[8] 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)

[9] I will deal first with Mr. Sharpe’s contention that s-s.(4) of s.163.1 is unconstitutional.

[10] 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.

Evidence

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.

[18] 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)

[19] 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.

[20] 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.

[21] 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.

[22] 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.

[23] 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

[24] 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.

[25] Crown counsel does not concede that there has been any violation of s.2(a), s.2(d) or s.15 of the Charter.

[26] 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.

[27] 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.

[28] 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.

[29] 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.

[30] 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.

[31] 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.

[32] 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.

[33] 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.

[34] 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.

[35] 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.

[36] 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.

[37] 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.

[38] 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.

[39] 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.

[40] 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.

[41] 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.

[42] 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.

[43] 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.

[44] 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.

[45] 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)

[46] 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.

[47] 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.

[48] I will now specify what I consider to be detrimental effects arising from the prohibition of simple possession of child pornography.

[49] 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.

[50] 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.

[51] 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.

[53] 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.

[54] 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.

[55] 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)

[56] 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
1. a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
1. 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
2. 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
2. 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.

[57] 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.

[58] 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.

[59] 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).

[60] 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.

[61] 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.

[62] 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.

[63] 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.

[64] 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.

[65] 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)).

[66] 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.

[67] 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.

[68] 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.

[69] 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.”

[70] 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.

[71] 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.

[72] 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.).

[73] 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.

[74] 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.

[75] It follows that Mr. Sharpe’s submission based upon s.2(a) of the Charter must be rejected.

[76] 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.

[77] 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.

[78] 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).

[79] I find that s.2(d) of the Charter has no application to the present case.

[80] 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.

[81] I adopt the foregoing reasoning in R. v. M.S. and find that s.15 has no application to the present case.

[82] 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.

[83] 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.

 

”D.W. Shaw, J.”

Mr. Justice Shaw

  

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