The Honourable Madam Justice Southin

Concurring Reasons by: (P. 82, para. 132)

The Honourable Madam Justice Rowles

The Honourable Chief Justice McEachern (P. 129, para. 220)

[1] The Crown appeals from a judgment of the Honourable Mr. Justice Shaw pronounced the 13th January, 1999, acquitting the accused of counts two and four of this indictment:

[2] Upon a voir dire at the commencement of the trial of the indictment, the learned judge held that s. 163.1(4) of the Criminal Code, enacted in 1993 by S.C. 1993, c. 46, is inconsistent with s. 2(b) of the Charter ["Everyone has the following fundamental freedoms: ... freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;"], was not saved by s. 1, that is to say, it is not a "reasonable limit ... as can be demonstrably justified in a free and democratic society" and, by virtue of s. 52 of the Constitution Act, 1982, is "of no force or effect".

[3] The learned judge dismissed the accused's constitutional attack upon subsection (1)(b) in the context of subsection (3) of s. 163.1 of the Criminal Code. Because that dismissal was upon a voir dire and there is no right of appeal from a ruling on a voir dire as such, either by the Crown or the accused, should the accused be tried hereafter and convicted on either or both of counts one and three, he will have the right to address that constitutional issue upon an appeal to this Court.

[4] For that reason, I think it would have been better had this case gone to trial on counts 1 and 3 before this appeal was brought on for hearing so that all issues of constitutionality arising on s. 163.1 could be addressed in one appeal.

[5] The learned judge's conclusion on the constitutionality of subsection 163.1(4) generated a great deal of outrage in the media. I infer that many of those who gave vent to their outrage knew nothing whatever of the text of s. 163.1. What, in their ignorance, they conjured up in their minds was the spectre of a judge giving judicial approval to sexual exploitation of the prepubescent, whether of the male or female sex, contrary to the will of Parliament.

[6] In this judgment, when I myself use the word "child", in contradistinction to when I am quoting someone else's words, I mean those below the age of puberty. At common law, these ages were deemed to be twelve for a girl and fourteen for a boy. As, however, fourteen is the age of consent in Canada and has been, for girls, for over one hundred years (see the Criminal Code, 1892, s. 269), I define a "child" as anyone under the age of fourteen years.

[7] I appreciate that in the latter part of this century, fifteen, sixteen and seventeen-year-olds have been considered barely more than children. Our forebears thought no such thing. Boys were sent to sea at thirteen or fourteen and girls could be apprenticed to domestic service, with their consent, at twelve. Boys under eighteen, by lying about their age, fought in the Forces in both wars. The late Mr. Justice Harry McKay of this Province joined the army when he was sixteen and went to war. I shall have more to say on this point of adolescents not being children, hereafter.

[8] The term "adolescent" is defined by The Shorter Oxford English Dictionary, 3d ed. (London: Oxford University Press, 1973) at 27, thus:

and "adolescence" is defined as:

[9] As I understand it, the ages given are a reflection of the process of physical maturation. Thus, in males, the broad bones generally do not complete their maturing until the male is about 25. When I use the term "adolescent", however, I mean anyone between fourteen and eighteen.

[10] By "adult", I mean anyone over eighteen.

[11] "Pornography" and "obscenity" are words which mean different things to different people. In common speech, expressive materials are pornographic or obscene - the words mean more or less the same thing - if the speaker thinks they go too far; they are bawdy or ribald if they are within the speaker's standards of taste and morality.

[12] In so remarking, I do not overlook that Sopinka J., in R. v. Butler, [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449, 70 C.C.C. (3d) 129, said there was some pornography that was not obscene within the meaning of the Criminal Code.

[13] One cannot determine the constitutionality of any legislation unless one first analyzes what the legislation in issue prohibits. I begin, therefore, with that question.

[14] The section in issue is this:

[15] As subsections (5)-(7) import part of s. 163, I quote the whole of that section:

[16] Because s. 163.1(1)(b) forbids possessing materials which advocate or counsel (that is to say, it does not address advocating or counselling such activity) sexual activity with a person under the age of eighteen years that would be an offence under this Act, one must next ask what is comprised in those words.

[17] At the time this section was enacted, there were a number of provisions in the Criminal Code concerning sexual activity with children and adolescents:

[18] If one imports subsection (1) of s. 163.1, as I understand its effect in light of the judgment of the Ontario Court of Appeal, into subsection (4), subsection (4) means:

[19] By s. 22 of the Criminal Code:

[20] Thus, if A counsels B to have sexual intercourse with C, who is thirteen, and B does so, A is guilty of the offence of sexual assault. If A counsels B to procure for a consideration the sexual services of C, who is seventeen, and B does so, A is a party to the offence enacted by s. 212(4). But I do not understand s. 22 to address itself to what may be called encouraging criminal activity generally.

[21] I consider it right to assume that Parliament was not intending, by subsection (b) in the context of subsection (4), to simply reiterate s. 22. What it was intending to do was make criminal the possession of what might be called propaganda for sexual acts which are in themselves unlawful.

[22] I shall return hereafter to the question when and in what circumstances it is acceptable in a free and democratic society to make criminal the possession of any written materials. It is sufficient to note at this point that I consider this the critical question in this case.

[23] The learned judge was at a substantial disadvantage as the accused was not, before him, represented by counsel. In this Court we have had, in the best tradition of the bar, the assistance on behalf of the accused of Mr. McKinnon, Q.C. and Mr. Peck, Q.C.

[24] In coming to his conclusion on subsection (4), the learned judge made certain findings which he called findings of fact:

[25] On what, in the evidence, was referred to as "cognitive distortions", a concept I shall explain more fully hereafter, the learned judge said:

[26] The learned judge then addressed the judgment of 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 which McCombs J. addressed the proportionality tests set out in R. v. Oakes, [1986] 1 S.C.R. 103, 24 C.C.C. (3d) 321.

[27] He noted that McCombs J. had not referred to the elucidation of the Oakes test by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, 94 C.C.C. (3d) 289.

[28] On that footing, Mr. Justice Shaw said that it was appropriate to consider the proportionality between the deleterious effects and the salutary effects of the prohibition of simple possession of child pornography.

[29] On the salutary effects, he said:

[30] On the question of detrimental effects, he said:

[31] He concluded that the detrimental effects to the possessor of such material by there being a crime of possession outweighs the benefit of the section in question.

[32] In the trial, a principal witness for the Crown was Detective N. M. Waters who, under her maiden name of Wolff, had given evidence before the Parliamentary Standing Committee on Justice and the Solicitor General in January 1993 and again in June 1993 when it considered "child" pornography. Her evidence before the learned judge on the nature and pervasiveness of such materials is not significantly different from that which she gave to the Committee. Having been accepted as an expert in the investigation of "child" pornography, Detective Waters began her evidence before the learned judge, thus:

[33] The Internet is now the chief means of distribution:

[34] She was asked to describe what she perceived to be the difficulties before the enactment of Bill C-128 in the investigation of matters concerning the material to which she had referred. She took the position that s. 163, the "obscenity" section, was essentially of little or no use in the suppression of the kinds of material to which she had referred.

[35] In justification of the section at issue, she testified:

[36] To borrow the words of Brennan J., dissenting, in Osborne v. Ohio, 495 US 103, 109 L Ed 2d 98, 110 S Ct 1691 (1990), this is an argument that possession laws are an essential element of a successful enforcement strategy against production and distribution. The argument did not find favour with him and it finds little favour with me, nor is it at all clear that Parliament enacted subsection (4) for that purpose. I do not say that Parliament cannot enact (except by the use of the notwithstanding clause) legislation which infringes s. 2 for the purpose of making easier the detection and prosecution of activity which is incontrovertibly criminal. That question is not before us. What I do say is that it ought not to do so unless there is compelling evidence, preferably by reference to actual events, that there is no other practical solution. In R. v. Feeney, [1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609, the Supreme Court of Canada condemned police conduct although, in the circumstances there described, the police, in one view of the evidence, had no practical alternative.

[37] By so commenting, I am not impugning the good faith of Detective Waters in her testimony on this aspect. But she spoke in generalities and did not produce, for instance, the files on any of the matters to which she referred.

[38] The remainder of the witness's evidence in chief addressed the materials that were seized from the accused under two search warrants. I should make it clear here that what the witness was describing in the earlier part of her testimony is not specifically related to the charges now in issue.

[39] The second witness for the Crown was Dr. Peter Ian Collins, who was tendered by the Crown as an expert in forensic psychiatry, and particularly in sexual deviance and pedophilia. He did not give evidence, so far as I recall, before the Standing Committee. Dr. Collins is an assistant professor of the Department of Psychiatry, Faculty of Medicine, University of Toronto, and a forensic psychiatrist attached to the Toronto police service. The learned judge accepted him as an expert in the area for which he was offered as an expert witness and no issue is taken with that conclusion. He began by answering the question, "What is pedophilia?", to which he responded:

[40] Because the Crown relies heavily on the evidence of Dr. Collins, which as Crown Counsel noted below is essentially the same as the evidence accepted by the learned trial judge in Ontario (Attorney General) v. Langer, supra, I must set it out in some detail. The gist of the evidence is that pornography in which the subject matter is young persons is reprehensible and dangerous in three ways:

[41] I shall explain each of these in detail.

[42] This phrase has, to me, an ordinary meaning - to accept as fact that which is not so, e.g. to believe the earth does not move. In the jargon - using that word in its correct and not pejorative sense - of psychiatrists, the meaning, as I understand Dr. Collins, goes beyond factual issues into issues of morality, and issues said to be of "fact" but which may be issues of opinion. Thus, Dr. Collins testified:

and later, in cross-examination:

[43] In cross-examination, he said then:

[44] If Dr. Collins had limited his evidence on this point to children, I would have no difficulty with it. To believe that a child could not only not be harmed by premature sexual conduct, but also take pleasure in it, seems to me an absurdity, and, therefore, a "cognitive distortion". But to believe that sexual congress between an adolescent and an adult (who may only be eighteen) may be a good thing or, at least, is not an unmitigated evil, is not, in modern Canada in which many adolescents, by their own choice, are not chaste, a "cognitive distortion". I may think it would be better if they were, but that is a matter of morality not reality.

[45] What Dr. Collins said was this:

[46] Modern adolescents are in many parts of this country taught about sex in school. Some are no doubt eager to begin, and others not so eager. But they are not generally ignorant. How could they be in light of modern films and television which may leave something to the imagination but not a great deal?

[47] This proposition of Dr. Collins put forward as justification for the legislation encompasses not only the proverbial dirty old man approaching a ten or eleven-year-old, but also the twenty-year-old bent on seducing a seventeen-year-old girl and using a copy of the Kama Sutra or any one of a number of salacious magazines for the purpose.

[48] Dr. Collins said, in part:

[49] Here, Dr. Collins was addressing what he refers to as "collateral material".

[50] Later, he said:

[51] He then referred to an article by Dr. William Marshall, who did give evidence before the Standing Committee, which contained this passage:

[52] On the emphasized passage, I comment that, if accepted, it could provide, and perhaps should provide, justification for clamping down on the sale of pornographic movies, the participants in which are over eighteen and which I understand are freely available on Granville Street.

[53] In addition to the viva voce evidence to which I have referred, the learned judge had before him:

Exhibit 6: Hearings of the Standing Committee on

Justice and the Solicitor General [in 1993]

Exhibit 21: Report by W.L. Marshall, Ph.D. entitled

"The Use of Sexually Explicit Stimuli by

Rapists, Child Molesters, and Nonoffenders"

Exhibit 22: Report entitled "Use of Pornography in the

Criminal and Developmental Histories of

Sexual Offenders"

[54] In this Court, a plethora of other material was put before us, including, on behalf of the Crown:

on Hate Propaganda in Canada (The Cohen Report)

(Ottawa: Queen's Printer, 1966)

Excerpts from Report of the Committee on Sexual Offences
Against Children and Youths (The Badgley Report)

(Ottawa: Queen's Printer, 1984)

Excerpts from Report of the Special Committee on Pornography
and Prostitution (The Fraser Report) Vol. I and Vol. II

(Ottawa: Queen's Printer, 1985)

Pornography Prevention Act 1996 (The Senate Report)

(U.S. Senate, August 1996)

Child Pornography Prevention Act 1996,

Public Law 104-208 110 Stat. 3009-26

Protection of Children from Sexual Predators Act 1998,

Public Law 105-314 112 Stat. 2974

Convention on the Rights of the Child (1989)

Declaration of the Rights of the Child (1959)

Excerpts from Implementation Handbook for the Convention on

the Rights of the Child (Hodgkin, R. and Newell, P.)

(UNICEF, 1998)

Enforcement Act 1995 No. 63 -- New South Wales, Australia

Enforcement Act 1995 No. 90 -- Victorian Parliament,

Australia

-- Statutes of New Zealand 1993

Criminal Justice Act 1988 s. 160

Criminal Justice and Public Order Act, 1994 s.84-s.86

Foreman, J. "Can We End the Shame? -- Recent Multilateral

Efforts to Address the World Child Pornography Market"

(1990) 23 Vanderbilt Journal of Transnational Law 435

Lanning, K.V. "Cyber 'Pedophiles': A Behavioural Perspective",

1998 11 (4) The APSAC Advisor 12

Belsey, M. "Commercial Sexual Exploitation of Children: The

Health and Psychosocial Dimensions" (New York: World

Health Organization, 1996) prepared for the United

Nations Stockholm 1996 World Congress Against Commercial

Sexual Exploitation of Children

Forde, P. and Patterson, A. "Paedophile Internet Activity"

(1998) 97 Trends and Issues in Crime and Criminal Justice

1 [Australian Institute of Criminology]

Lederer, Laura

National Legislation on and International Trafficking in

Child Pornography (1996)

- Centre on Speech, Equality and Harm

University of Minnesota Law School

Debates of the Senate, (June 16, 17 & 23, 1993),

34th Parliament, Vol. 134, No. 155, 156 & 159

Excerpts of the Proceedings of the Standing Senate Committee

on Legal and Constitutional Affairs (June 21 & 22, 1993 -

Issues #50 & 51)

Irish Child Trafficking and Pornography Act, 1998

[55] We also had cited to us, as I have already indicated, the judgment of the United States Supreme Court in Osborne v. Ohio, supra, which addressed a statute of the State of Ohio making criminal the possession of "child pornography".

[56] I shall say no more about it except this: that, to the extent to which, if at all, American authorities on their Constitution, are of value in Canada, I agree with the animadversions of Brennan J. on making "possession" a crime.

[57] As to all the other material, I take from it that other countries are concerned with the sexual exploitation of children and have attempted to legislate with a view to diminishing such exploitation. Nonetheless, no one appears to know how much there is of it, or whether it is more prevalent now than heretofore. If, as was suggested in argument, what is happening is that much of the material emanates from so-called third world countries whose children are being exploited for the delectation of paedophiles and hebephiles, then we might ask ourselves how it is that these countries permit their young people to be so exploited. My own view is that the principal underlying cause is economic. Some third world countries are desperately poor. Others are not poor, but their wealth is so unevenly distributed that a large part of the population has a grim choice - starvation or exploitation.

[58] On this appeal, the Crown's position is set out in what learned Crown counsel called an overview of the appellant's position, thus:

[59] I do not understand counsel for the Attorney General of Canada to take any significantly different position and, with all respect, Mr. Danson and Ms. Gordon, who appeared for intervenors supporting the Crown's position, do not appear to me to have had anything significantly different to say from what was said by counsel for the Crown. Mr. Staley, for his client, did have something different to say and I shall address that later.

[60] The respondent has made here a much broader attack on s. 163.1(4) than was made in the court below. Counsel, on his behalf, submitted the impugned provision was unconstitutional, not only on the basis of an infringement of s. 2(b) of the Charter but also on the basis of a violation of ss. 7 and 8:

[61] They do not assert that Parliament could not craft on this subject a provision which would pass constitutional muster. To put it another way, they do not say that protecting children from sexual exploitation is not a pressing concern. They say simply that this section fails the proportionality test.

[62] The argument of Mr. McAlpine, for the British Columbia Civil Liberties Association, was to the same effect, although perhaps with somewhat different emphasis. I quote from his factum:

[1] First, paragraph 163.1(1)(a) is overly broad by capturing the possession of visual images of the sexuality of children and young persons that are purely the products of their creators' imaginations and involve no children or youth in its production. This includes images which are self-authored and never disseminated.

[2] Second, paragraph 163.1(1)(a) overreaches by including all pictures that record explicit sexual acts involving youth or young adults who are or appear to be aged 14 to 17. Many sexual acts engaged in by persons who are or appear to be aged 14 to 17 are perfectly legal and are not defined as sexual exploitation by the Criminal Code. This overbreadth even extends to capture possession of pictures of one's own legal sexual activity.

[3] Third, paragraph 163.1(1)(b) is overly broad by capturing written or visual representations, including those which are self-authored, that are purely the product of a creators' imagination. It is submitted that is not possible to advocate or counsel the commission of a sexual offence involving children or youth without communicating that message to others.

[4] Fourth, paragraph 163.1(1)(b) is overly broad in not explicitly exempting legitimate debate concerning the age of consent to sexual activity.

[5] Fifth, paragraph 163.1(1)(b) discriminates on the basis of sexual orientation by criminalizing the advocacy or counselling of only one kind of consensual, non-exploitative, non-commercial sexual act involving persons aged 14 to 17, namely, anal intercourse, a sexual act of particular significance to gay men and youth.

[63] For the reasons I have given earlier, I do not consider that s. 163.1(1)(b) has the effect which Mr. McAlpine asserts although I agree with him that Parliament intended that effect.

[64] In their factum, counsel for the respondent says of the learned judge's findings

[65] With respect, it does appear to me that the so-called "legislative" facts, insofar as they are based on what is broadly called social science, are more a matter of opinion than fact.

[66] Furthermore, social scientists and psychiatrists like Dr. Collins are not men from Mars observing the world and recording what they see from a vantage point of pure detachment. Nor, for that matter, are judges. To a greater or lesser degree, we all view the world encumbered by our own education, values and experiences. In the word "experience", I include, for it is perhaps the most powerful of experiences, what we have read.

[67] With one exception, I do not find it necessary to agree or disagree with the learned judge's findings, but I do agree with what he said in the second of his findings, simply because I hold the opinion that it is morally wrong to use children, as I define that term, for sexual purposes, in which I include the production of erotica.

[68] On the 13th May, 1993, Parliament gave first reading to Bill C-128 of the Third Session of the Thirty-fourth Parliament, 40-41-42 Elizabeth II, s. 2 of which was:

[69] On the 3rd June, 1993, Bill C-128 was referred to the Standing Committee on Justice and Solicitor General. Before the government introduced Bill C-128, there had been proceedings before the Standing Committee on Justice and Solicitor General concerning so-called child pornography and, indeed, a private member's bill had been introduced.

[70] There are significant differences between the original proposal and the statute which was enacted one month later:

[71] R. v. Butler, supra, addressed itself to s. 163 and R. v. Keegstra, [1990] 3 S.C.R. 697, 61 C.C.C. (3d) 1, to s. 319 of the Criminal Code. Both therefore engaged the Supreme Court of Canada in a consideration of the interplay between s. 1 and s. 2(b).

[72] That being so, I shall limit my consideration of authorities to those judgments only.

[73] Before I come to them, and bearing in mind Lord Sankey's caution, given it is true in the context of the division of powers under ss. 91 and 92:

I propose (a) to address Mr. Staley's submission, which is founded on the preamble; (b) to comment on the words of s. 1; and (c) to consider whether any limit on possession of expressive materials can be justified in a free and democratic society.

[74] This is the preamble:

[75] Mr. Staley says that the Supreme Court of Canada has said in such cases as Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, 88 D.L.R. (4th) 193, that the entrenchment of the rule of law in the preamble is a recognition of the fact that it is a cornerstone of our form of government.

[76] Therefore, he submits, it follows that the other branch of the preamble must also be a cornerstone of the Charter and cannot be ignored in its interpretation.

[77] In his words:

[78] I accept that the law of this country is rooted in its religious heritage.

[79] But I know of no case on the Charter in which any court of this country has relied on the words Mr. Staley invokes. They have become a dead letter and while I might have wished the contrary, this Court has no authority to breathe life into them for the purpose of interpreting the various provisions of the Charter.

[80] See Everywoman's Health Centre Soc. (1988) v. Bridges (1990), 54 B.C.L.R. (2d) 273, 62 C.C.C. (3d) 455, in which an argument similar in import to that of Mr. Staley, although not directly founded on the Charter, was rejected by this Court. The words of the preamble relied upon by Mr. Staley can only be resurrected by the Supreme Court of Canada.

[81] This is section 1:

[82] The clause which begins "subject only to" contains twenty words, but the critical words are an adverb, "demonstrably", and three adjectives, "reasonable", "free" and "democratic". The trouble with adjectives and adverbs is that their meaning is elastic to a far greater degree than is the meaning of a verb or a noun. Capable draftsmen, whether of statutes or private instruments, avoid them.

[83] "Reasonable" is a word which is used in the law in many different contexts. We have, in the law of negligence, the "reasonable man", in the arrest and warrant sections of the Code, "reasonable grounds" or "reasonable belief", and in the criminal law, "reasonable doubt", the proper explanation of which to a jury still defies a satisfactory solution, perhaps 150 or 200 years after it first came into common legal use in that context.

[84] In the present context, I take "reasonable" to mean founded in reason. Such a definition requires one to remember that, on some matters, there may be more than one opinion, none of which is properly characterized as unreasonable.

[85] As to "demonstrably", the dictionary meaning of the adjectival form is: "1. Capable of being shown or made evident; occas. = Evident (obs.). 2. Capable of being proved conclusively 1551." (Shorter Oxford English Dictionary, supra, at 517).

[86] As to "free and democratic", they are words that mean whatever one chooses to make them mean. None of us is truly free. We are all hemmed in by innumerable laws, many of them excessively busybodyish, and by social pressures. Judges, for instance, are severely limited in their rights of expression under s. 2 by the Canadian Judicial Council and no one has argued that the limits so imposed are not within s. 1.

[87] As to "democratic" we are not and never have been a democracy, using the word as Aristotle used it.

[88] In paragraph 10 of his factum, Mr. McAlpine remarked:

[89] But there was such a law during the First World War. By an order in council promulgated under the War Measures Act, 1914, entituled "Prevention of Circulation of Objectionable Matter" (see Statutes of Canada, 1919, lxviii):

[90] In the Second World War, the Regulation was different (Canada Gazette, 1940, p. 2226):

[91] Thus, in 1940 in even more fearful circumstances, simple possession of subversive materials was not made a crime and, indeed, on 17th January, 1940 (Canada Gazette p. 2295) it was enacted that it was a defence to any prosecution under those Regulations to prove that the accused intended in good faith merely to criticize or to point out errors or defects in the Government of Canada.

[92] Other than the 1914 order in council, I know of no Canadian legislation except the section here in issue which has ever made the simple possession of any expressive material a crime. It is not a crime to possess expressive material which advocates genocide, it is not a crime to possess expressive material which is seditious, and it is not a crime to possess that which is obscene.

[93] Since the great case of Entick v. Carrington (1765), 2 Wils 275, [1558-1774] All E.R. Rep. 41, 19 State Tr. 1029, a man's personal thoughts, opinions, expressions and beliefs as disclosed by his books and papers have been thought immune from intrusion.

[94] There is good reason for such freedom from intrusion being a profound constitutional value. This has been the century of the Gestapo and the KGB - of a state encouraging betrayal by children of their parents to the authorities, of smashing down doors and burning books, all in the name of some concept of the greater good. Even if the possession of material which advocates or counsels crime may lead to the inference that the possessor has bad thoughts and thence to the conclusion that he might or even will commit the crime thus advocated, it is not within our political ethic to make the possession itself a crime. It is that notion which goes deep in our history which is at the root of the requirement that proof of treason requires proof of an overt act.

[95] I conclude, therefore, that legislation which makes simple possession of expressive materials a crime can never be a reasonable limit in a free and democratic society. Such legislation bears the hallmark of tyranny.

[96] In so concluding, I am not rejecting the concession of counsel that the protection of children from sexual exploitation is a pressing and substantial concern of our society. I am saying that some other way than making simple possession of this sort of material a crime ought to be found to attack it.

[97] If I am wrong in this conclusion, and that it is legally possible in a free and democratic society to make simple possession of expressive materials a crime, then the broad issue in this case is whether the dangers which Crown counsel asserts the evidence in this case "demonstrates" are so grave as to warrant Parliament doing what it has done here.

[98] In R. v. Keegstra, supra, at issue was this provision, at 715:

[99] Of s. 1, Dickson C.J.C. said, at 736:

[100] He then discussed in turn: (1) the objective - are the concerns of Parliament pressing and substantial in a free and democratic society?; (2) proportionality - are the means chosen to further the objective proportionate to the ends? This raises these subsidiary questions: (i) Is there a rational connection between the legislation and the parliamentary purpose? (ii) Is the legislation tailored to be a minimal impairment of the freedom guaranteed by s. 2(b)?

[101] In the context of this case, the proportionality question might be put thus: Is s. 163.1(4) a measured and appropriate response to the phenomenon of pornography of the kind in issue whatever it may be?

[102] In R. v. Butler, supra at 460 (S.C.R.), Sopinka J. began by saying:

[103] The case before us would be of the same order if we were addressing the other provisions of s. 163.1, that is to say, those which deal with making and distributing the materials defined as child pornography.

[104] Subsection (1)(b) has about it a most curious aspect. It makes possession of materials which advocate or counsel a certain form of criminal activity a crime, although counselling or advocating such activity is not itself a crime.

[105] It is as if the Criminal Code made it a crime to possess a book which counsels or advocates the overthrow by force or violence of the government but did not make it a crime to advocate publicly the use of force or violence for such a purpose.

[106] To give another example, it is as if Parliament made it a crime to possess Mein Kampf on the ground the book is inherently evil but had never enacted s. 319.

[107] For this reason alone, s. 163.1, when analyzed, has about it, at least in the context of subsection (1)(b) imported into subsection (4), an air of unreality.

[108] The critical issue in Butler was the meaning of subsection 163(8):

[109] The case in truth turned on the meaning of "undue". Having set out the "Community Standards Test" and the "Dehumanizing Test", Sopinka J. said, at 483:

[110] He then divided, for the purposes of his analysis, pornography into three categories, at 484-85 (S.C.R.):

[111] This passage was drawn to our attention by counsel. But Mr. Justice Sopinka, who was not addressing legislation which made simple possession a crime, did not explain what he meant by "children". There was, of course, no need for him to do so because that was not what was in issue. I note, also, that as the charges against the accused have never been tried, we have no findings as to whether anything seized from him fell within the first two of Mr. Justice Sopinka's categories of pornography.

[112] Addressing the objectives of the legislation, Sopinka J. said this, at 493:

[113] On the minimal impairment requirement of the proportionality test he wrote, at 506:

[114] Whether one should take from this passage that Sopinka J. might have held a different opinion on the constitutionality of s. 163 if private possession had been proscribed by it, I cannot say.

[115] I come to attempting to apply these authorities to the legislation at hand.

[116] Had chapter 36 of the Statutes of 1993 had a preamble as did chapter 30 of the Statutes of 1997, the task would be much less difficult.

[117] Was the objective of the statute: (1) to stop persons under eighteen being used in the making of films and photographs which are sexual in content on the footing that being so used is harmful to the participants, (2) to prevent materials of such a nature from getting into the hands of others whether above or under the age of eighteen who being sexually stimulated by them might in consequence sexually interfere with other persons under eighteen, (3) by subsection (b) especially to discourage the publication of materials which counsel or advocate that which the section refers to, the thesis being that persons who might acquire such materials will not do so from fear of criminal sanction and the market will therefore dry up? Even if all of these were objectives, was there the additional, and perhaps constitutionally objectionable, purpose of making it easier for the police to build a case against an accused on the making, sale and distribution of such materials? It was, as I have already noted, the thrust of the evidence of Detective Wolff before the Standing Committee that it would be easier to proceed if possession were sufficient to obtain a warrant to search. In other words, the warrant thus legally obtained might provide fruits of a search sufficient to support a prosecution under subsections (2) or (3).

[118] There is in this exercise of determining the objective or objectives of a statute without a preamble a serious difficulty. How is the purpose of Parliament to be deduced? Surely, it cannot be from the speeches of individual members. Here the problem is compounded by the fact that when the section was enacted, a common form of sexual congress between males was proscribed for those under eighteen, but later the proscription was declared of no force and effect under s. 52.

[119] In attempting to discern the objective, I take it that it is permissible to assume that Parliament knew what the Supreme Court of Canada had said in R. v. Butler approximately a year and a half earlier.

[120] Unfortunately, it is not clear to me whether in R. v. Butler the Supreme Court of Canada was concerned with harm to the actors in pornographic material or with harm to the viewers who might then have corrupt thoughts or with the harm the viewers might be instigated to inflict upon others. This difficulty about the objectives affects the other branches of the Oakes test as it has been explained in R. v. Keegstra and R. v. Butler. In addressing the final question in the proportionality test, "Is the legislation tailored to be a minimal impairment of the freedom guaranteed by s. (2)(b)?", the question is not the objective but the consequence.

[121] Whatever the objective of this statute truly was, I consider subsection (1)(b) in the context of subsection (4) fails the proportionality test.

[122] First, a legislative provision which makes criminal the possession of material which advocates certain behaviour when advocating that behaviour publicly is not itself a crime seems to me to lack all reason. That which is not "reasonable" cannot be a "reasonable limit".

[123] Secondly, the subsection was patently rooted in the belief of at least some members of Parliament that s. 159 was constitutionally sound law. That belief was erroneous.

[124] Thirdly, and most importantly, to make criminal the private possession of expressive material of any kind is or ought to require the most compelling evidence of necessity.

[125] What then of subsection (1)(a) of s. 163.1 in the context of subsection (4)? This provision I repeat for convenience:

[126] As I read subsection (a), it does not, for instance apply to books. The possessor of a copy of the Satyricon or of the poems of Catullus would not be caught by it. But, as Mr. Peck pointed out, it would cover the case of an eighteen-year-old taking salacious photographs of his seventeen-year-old girlfriend.

[127] The subsection would be less troubling if it were confined to persons under the age of fourteen years.

[128] Mr. McAlpine, in his submission which I have quoted supra, says that the definition in subsection (a) is overly broad in two respects. For convenience, I repeat what he said:

[6] First, paragraph 163.1(1)(a) is overly broad by capturing the possession of visual images of the sexuality of children and young persons that are purely the products of their creators' imaginations and involve no children or youth in its production. This includes images which are self-authored and never disseminated.

[7] Second, paragraph 163.1(1)(a) overreaches by including all pictures that record explicit sexual acts involving youth or young adults who are or appear to be aged 14 to 17. Many sexual acts engaged in by persons who are or appear to be aged 14 to 17 are perfectly legal and are not defined as sexual exploitation by the Criminal Code. This overbreadth even extends to capture possession of pictures of one's own legal sexual activity.

[129] I agree with him.

[130] Thus, as this legislation stands at present, it does not survive the proportionality test.

[131] For these reasons, which differ to some extent from those of the learned judge below, I would dismiss this appeal.

"THE HONOURABLE MADAM JUSTICE SOUTHIN"  

[132] The issue on this appeal is not whether Parliament was justified in enacting legislation to protect children from the abuse and exploitation occasioned by the production and dissemination of child pornography. The parties and all of the intervenors were in agreement that it was. The contentious question is whether one of the provisions in the legislative scheme enacted for that purpose is unconstitutionally overbroad.

[133] The concept of constitutional overbreadth was explained by Cory J. in R. v. Heywood, [1994] 3 S.C.R. 761 at 792-93, 94 C.C.C. (3d) 481:

[134] I have had the advantage of reading in draft the reasons for judgment of Madam Justice Southin. While I agree with my colleague that the appeal should be dismissed, I prefer to give my own reasons for reaching that result.

[135] In the trial court, the Crown conceded that s. 163.1(4) of the Criminal Code of Canada, which makes it an offence to possess anything defined in s. 163.1(1) as child pornography, violates freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. The Crown has not resiled from that position on appeal but argues, as it did in the court below, that the violation can be justified under s. 1 of the Charter.

[136] On 23 June 1993, Bill C-128, An Act to amend the Criminal Code and the Customs Tariff, received Royal Assent. The Act amended the Criminal Code on several matters, including the creation of child pornography offences under s. 163.1. The whole of s. 163.1 is set out below and the subsection under constitutional attack has been underlined:

[137] Section 2(b) of the Charter provides:

[138] Section 1 of the Charter reads:

[139] The Crown conceded both here and in the court below that s. 163.1(4) of the Criminal Code impairs freedom of expression and therefore constitutes a violation of s. 2(b) of the Charter. Accordingly, the arguments on the appeal focused on whether the violation is justified under s. 1.

[140] In R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, the Supreme Court of Canada set out the analytical framework for determining, under s. 1 of the Charter, whether the violation of a Charter right could be justified as a reasonable limit in a free and democratic society. The analysis to be conducted under s. 1 was summarized in Egan v. Canada, [1995] 2 S.C.R. 513 at 605, 124 D.L.R. (4th) 609, in a passage subsequently quoted with approval in Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624 at 684-85, 151 D.L.R. (4th) 577, and in Vriend v. Alberta, [1998] 1 S.C.R. 493 at 554, 156 D.L.R. (4th) 385:

[141] It is common ground in this case that Parliament had a valid objective in passing legislation with criminal sanctions to protect children from the harm associated with child pornography. Counsel did differ to some extent in the way in which they framed the objective of the legislation.

[142] The appellant argues that the legislative scheme encompassed within s. 163.1 aims to protect children from the many evils of child pornography, including direct harm to children, both in the making of child pornography and the creation of a permanent record of that abuse. The legislation is also aimed at preventing indirect harm to children, which is said to come about in three ways:

The Crown contends that child pornography may also harm society more broadly by desensitizing and legitimizing attitudes concerning the sexualization of children. It is also the Crown's contention that criminalizing the possession of child pornography helps to eradicate the clandestine market for child pornography and facilitates police enforcement efforts in this area. As may be seen from the foregoing summary, the appellant's position is that the objectives of s. 163.1, taken as a whole, are multifaceted and go well beyond protecting actual children used in the production of child pornography.

[143] The respondent frames the legislative objectives of s. 163.1 in more restrictive terms. The respondent submits that, "the legislative objective of s. 163.1 as a whole is to protect children from being victims of sexual abuse and/or exploitation". The respondent readily concedes that this objective relates to concerns which are pressing and substantial but argues in the second stage of the s. 1 analysis that the legislative means chosen, in part, to realize the objective are not proportionate to its effects.

[144] The assertion that s. 163.1 of the Criminal Code, taken as a whole, including its prohibition on simple possession, is directed at concerns that are pressing and substantial in Canadian society is not in contention. The danger which the production and existence of child pornography poses to children is evident from the conclusions of the Report of the Committee on Sexual Offences Against Children and Youth (the "Badgley Report") (Ottawa: Queen's Printer, 1984), Volume 1, at 101, and the Report of the Special Committee on Pornography and Prostitution (the "Fraser Report") (Ottawa: Queen's Printer, 1985), Volume 2, at 629, as well as from the opinion evidence given in the trial court in this case by Dr. Collins.

[145] Moreover, the need to protect children from all forms of sexual exploitation and child abuse is reinforced by the terms of the United Nations Convention on the Rights of the Child ("UNCRC"). The UNCRC is the most widely ratified human rights treaty in history with 191 countries, including Canada, having ratified it. Article 34 of the UNCRC reads:

[146] The Supreme Court of Canada has held that international human rights obligations taken on by Canada can constitute evidence that an objective is pressing and substantial for the purposes of the s. 1 analysis: R. v. Keegstra, [1990] 3 S.C.R. 697 at 749-55, 61 C.C.C. (3d) 1. That would be particularly so with a treaty reflecting as widespread an international consensus as the UNCRC.

[147] The conclusion that s. 163.1 embodies a valid legislative objective is further reinforced by the fact that most free and democratic societies impose some restriction through the criminal law on this type of expression. Mr. Justice Sopinka, in R. v. Butler, [1992] 1 S.C.R. 452, 70 C.C.C. (3d) 129, made a similar reference in support of his conclusion that restricting obscenity constitutes a valid legislative objective (at 497 S.C.R.):

[148] Before moving to the proportionality analysis, I think it is important to reiterate that Parliament had a valid legislative objective in enacting the legislative scheme in s. 163.1. Section 163.1 as a whole is directed at preventing harm to children, specifically in the form of sexual abuse or exploitation caused, both directly and indirectly, by the production and existence of child pornography. I agree with the appellant that it is important to recognize that the valid objectives of the legislation do extend beyond the prevention of the direct harm to children which results from their involvement in the production of child pornography.

[149] When considering whether the proportionality test is satisfied, it is important to bear in mind the nature of the expression that is being restricted and its proximity to the core values protected by s. 2(b) of the Charter. The values which the Supreme Court of Canada has recognized as underlying the protection of freedom of expression are the search for truth, participation in the political process, and individual self-fulfilment: see Keegstra, supra at 762-67. The "core" of protected expression relates to these underlying values. As Cory J. put it in R. v. Lucas, [1998] 1 S.C.R. 439 at 459, 123 C.C.C. (3d) 97:

[150] In Keegstra, supra, Dickson C.J.C., made the following observations (at 760 S.C.R.):

[151] In Butler, supra, Sopinka J. held that obscenity did not fall within the "core" of protected expression (at 500 S.C.R.):

[152] Similarly, child pornography cannot be said to lie close to the core of protected expression. No other conclusion is possible given the strong statements from the Court that obscenity (Butler, supra), hate propaganda (Keegstra, supra), and defamatory statements (Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129), among others, lie far from the core of protected expression.

[153] However, the fact that child pornography does not lie close to the core of protected expression cannot be used to circumvent the s. 1 analysis. The burden still lies with the Crown to justify the infringement. As Madam Justice McLachlin cautioned in her minority opinion in R v. Lucas, supra, at 486-87:

[154] I turn now to consider the three aspects of the proportionality analysis, which are:

[155] While the Crown bears the burden of establishing all the elements under the s. 1 analysis, including rational connection and minimal impairment, that does not mean that the Crown must show that the government has enacted the "perfect" legislative scheme: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 at 1138. As Dickson C.J.C. stated in Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927 at 994, 58 D.L.R. (4th) 577, in which the constitutionality of legislation restricting advertising directed at children was in issue:

[Emphasis added.]

and further, at 999:

[156] The latter comments were adopted and applied by Sopinka J. in Butler, supra at 505, and are particularly apposite in the case at bar, given the legislation's objective of protecting children, a most vulnerable group, from sexual exploitation and abuse.

[157] This point becomes significant in the present case in relation to the indirect harm to children which may be caused by the existence of child pornography. While the harm caused to young children who are used in the making of child pornography is undisputed, the social science evidence is inconclusive with regard to some aspects of the indirect harm said to flow from child pornography. As the appellant points out in its factum, the debate on some of these issues has existed among behavioural scientists for many years and it is very likely to continue in the future.

[158] To use the words of Butler, supra at 504, what the Crown has succeeded in showing is a "reasoned apprehension of harm" to children resulting both from the potential use of child pornography by paedophiles and from the desensitization of society to the use of children as sexual objects. Having shown a reasoned apprehension of harm based on the available social science evidence, Parliament is not constitutionally obligated to await exact proof on these issues before taking legislative action to protect children from these risks.

[159] The legislative scheme enacted in s. 163.1 of the Criminal Code attacks the child pornography industry at every stage: production, importation, distribution, and possession. Subsection (4) of s. 163.1, which prohibits possession of child pornography as defined in subsection (1), cannot be said to fail for want of a rational connection when the Crown has shown that children are put at risk by the creation and existence of that form of expression. The problem with subsection (4), if there is one, must lie in its potential overreach.

[160] The respondent's central argument on his constitutional challenge to the prohibition on possession of child pornography is one of overbreadth. He argues that the legislation, while pursuing a valid objective, overreaches in a constitutionally impermissible manner.

[161] The respondent concedes that the criminal law can, and should, proscribe the simple possession by an adult of certain types of child pornography. Such material would include photographic, film, video, or other images of an actual child under 14 years of age and, in some circumstances, between the ages of 14 and 17, which show a child engaged in, or depicted as engaged in, explicit sexual activity of a kind that would constitute an offence under the Criminal Code. The respondent submits, however, that the prohibition on simple possession of child pornography found in s. 163.1(4), when read in conjunction with the definition of child pornography found in s. 163.1(1), makes criminal the private possession of a much wider range of materials. He submits that s. 163.1(4) extends beyond that which is needed to advance Parliament's legislative objective of protecting children from the kinds of harm, both direct and indirect, that are associated with child pornography. The respondent's position is that, to the extent that s. 163.1(4) does extend beyond its legislative objective, it is constitutionally unsound because of its overbreadth.

[162] In R. v. Heywood, supra, Cory J. had occasion to discuss the concept of overbreadth and to review the jurisprudence which surrounds it. His comments were made in the course of determining whether a section of the Criminal Code, which prohibited anyone convicted of a sexual offence, regardless of whether the offence involved a child, from loitering in such places as a park, violated s. 7 of the Charter. Mr. Justice Cory first differentiated the related concepts of vagueness and overbreadth at 792:

He continued at 792-93, speaking again in the context of a s. 7 analysis:

[163] Mr. Justice Cory cautioned, however, that the court must exercise a measure of deference in scrutinizing legislation for overbreadth (at 793):

[164] Later in his reasons, Cory J. noted, at 803, that his comments applied with equal force to the minimal impairment branch of the s. 1 analysis.

[165] In the context of constitutional challenges based on alleged infringements of Charter rights, the Supreme Court of Canada has approved the use of reasonable, hypothetical examples to illustrate the constitutional deficiencies of legislation. This mode of analysis was first adopted in relation to a constitutional challenge to legislation alleged to violate s. 12 of the Charter, which guarantees the right not to be subject to cruel and unusual punishment: R. v. Smith, [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97; R. v. Goltz, [1991] 3 S.C.R. 485, 67 C.C.C. (3d) 481. In Heywood, supra, Cory J. applied this reasoning to show that the impugned legislation in that case was impermissibly overbroad under s. 7. In that regard, he stated at 799:

[166] This mode of reasoning is also well suited to determine whether a provision found to violate s. 2(b) is justified under s. 1. An example of such reasoning may be found in the judgment of McLachlin J. in R. v. Zundel, [1992] 2 S.C.R. 731 at 772, 75 C.C.C. (3d) 449. The problem of overbreadth, like that of vagueness, is of particular importance where a statutory provision is found to violate freedom of expression because of the chilling effect that such a law could have on constitutionally protected expression which falls outside the intended ambit of the law. Reasonable hypothetical examples serve to illustrate the unintended reach and potential effect of such a provision.

[167] It is essential to recognize that the respondent's overbreadth argument is directed solely to s. 163.1(4), which makes it an offence to possess child pornography, as defined in s. 163.1(1). This point cannot be over-emphasized. Nothing in the respondent's argument, or the overbreadth analysis that follows, speaks to the other more serious offences contained in s. 163.1. Possession for the purposes of publication and possession for the purposes of distribution or sale are already proscribed by sections 163.1(2) and(3), respectively. By implication then, subsection (4) is solely targeted to the private possession of child pornography. The British Columbia Civil Liberties Association ("BCCLA"), in its written argument on this point, observes that it is not aware of another Canadian criminal law, either current or historical, that provides for a sentence of incarceration for the mere possession of expressive material.

[168] Section 163.1(4) can be distinguished on this basis from the obscenity provision at issue in Butler, supra. The fact that the obscenity provision under constitutional attack in Butler did not extend to private possession was one of five factors that led Sopinka J. to the conclusion that the provision there in question involved a minimal impairment of freedom of expression. He stated at 506-07:

[169] Chief Justice Dickson, in Keegstra, supra, made a similar observation in finding that s. 319 of the Criminal Code minimally impaired freedom of expression. He emphasized that the prohibition on the wilful promotion of hatred did not extend to private communications (at 772-73):

[170] Chief Justice Dickson expanded on this reasoning in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at 936-37, 75 D.L.R. (4th) 577:

[171] Rather than the extent of criminalization being limited to dissemination of child pornography, the impugned law makes private possession of expressive material a criminal offence. Making it an offence to possess expressive material when that material may have been created without abusing children and may never be published, distributed or sold, constitutes an extreme invasion of the values of liberty, autonomy, and privacy protected by the rights and freedoms enshrined in the Charter.

[172] In R. v. Dyment, [1988] 2 S.C.R. 417, 45 C.C.C. (3d) 244, the Supreme Court of Canada considered the interrelationship between privacy, liberty, and the essence of a democratic state. Mr. Justice La Forest, speaking for a majority, described the Court's Charter jurisprudence with respect to privacy as being (at 427-28 S.C.R.):

[173] Mr. Justice La Forest expanded on this idea in Thomson Newspapers v. Canada (Director of Investigation & Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 at 517, 54 C.C.C. (3d) 417. In the course of finding there to be a lower expectation of privacy in business records, he stated the rationale for according constitutional protection to the concept of privacy:

[174] Section 163.1(4), by proscribing the mere possession of expressive materials, including the recording of one's own thoughts and the works of one's own imagination profoundly violates freedom of expression.

[175] The fact that s. 163.1(4) is directed only to the private possession of expressive material, as opposed to some form of dissemination to others, reduces substantially the likelihood that any potential harm to children will be prevented through the imposition of criminal sanctions. While the impugned provision is unlikely to alter appreciably the harm caused to children, the extent to which it trenches upon the values of liberty, autonomy, and privacy that lie at the heart of a free and democratic society is increased dramatically. It is against this background that the impugned subsection must be subject to minimal impairment scrutiny.

[176] The respondent's submission that s. 163.1(4) is overbroad focuses on three areas: (1) the expressive materials caught by the definition of child pornography; (2) the age of persons depicted in child pornography who would be caught by the provision; and (3) the range of persons who are potentially liable to criminal sanction under the provision. Again, all of the respondent's arguments on overbreadth are made solely within the context of the offence of simple possession under s. 163.1(4).

[177] I will examine the arguments in turn as well as some hypothetical examples that illustrate the reach and effect of the impugned provision. The subsection which defines child pornography is set out again for convenience of reference:

[178] Respondent's counsel argues that the definition of child pornography found in s. 163.1(1) captures and proscribes a continuum of materials which ranges from explicit representations of real infants being sexually abused to materials which cannot be said to pose any danger to children. For that reason the use of the evocative and clearly emotive phrase "child pornography" in the definition section must not be allowed to displace or pre-empt a careful inquiry into precisely what materials would be captured by it.

[179] I agree with respondent's counsel that the definition in s. 163.1(1)(a), by the inclusion of the phrase "or other visual representation", would extend to works of the imagination which do not involve the participation of any actual child or youth in their production. This would include all sketches, drawings, sculptures, and computer-generated images of persons under the age of 18 which depict the sexual content described in subsections (i) and (ii), and which lack "artistic merit" or an "educational, scientific or medical purpose" necessary to engage the defence found in s. 163.1(6).

[180] The definition in s. 163.1(1)(b) similarly captures a wide range of material which would not involve the participation of any actual children or youth in their production. This is particularly so because subsection (1)(b) includes written material that advocates or counsels sexual activity with a person under 18 years of age that would constitute an offence under the Criminal Code. The inclusion of written material is particularly troublesome in the context of the possession offence.

[181] Cases such as Keegstra and Butler recognize that the government may well have a legitimate interest in preventing an individual from promulgating harmful and repugnant thoughts, but that interest goes only so far as to justify the offences of publishing or distributing and possibly exhibiting written materials. In relation to child pornography, it is important to note that publishing and distributing such written materials are already caught by the offences created by subsections (2) and (3) of s. 163.1.

[182] The justification for criminalizing publication and distribution of harmful and repugnant thoughts does not extend to the criminalization of the private recording of a person's own thoughts, albeit dangerous or repugnant ones, where those thoughts are not shared. To meet the requirement of minimal impairment, the appellant would have to get over the difficult hurdle of showing some reasoned apprehension of harm that flows from the private possession, as opposed to the dissemination, of a recording of a person's own thoughts.

[183] The inclusion of the materials described above, which do not involve any harm to actual children in their production, can be justified only with reference to the indirect harm to children that may be caused by the existence of child pornography. The indirect harm thought to be occasioned by the existence of child pornography was referred to by Dr. Collins in his testimony in the trial court. That harm could be occasioned by the existence of the described material may be open to question but, in any event, by comparison with material involving actual children, material which does not is likely to pose less danger of indirect harm. In his testimony before the trial judge, for example, Dr. Collins made only a single reference to the use by paedophiles of works of the imagination such as drawings. Though Dr. Collins described in detail the various kinds of indirect harm caused by child pornography, though grooming, incitement, and the reinforcement of cognitive disorders, his observations appear to refer predominantly to the use of visual depictions of actual children.

[184] Similarly, the legislative history of s. 163.1 provides scant evidence of concern with any kind of harm to children caused by works of the imagination. The two most comprehensive and influential public reports on the subject of sexual exploitation and abuse of children in Canada are the Badgley Report and the Fraser Report. The Badgley Report did not identify works of the imagination as increasing the risk of the sexual exploitation of children, and it recommended limiting child pornography legislation to visual depictions that use actual children or youth in their production (Vol. 1, at 102-03). The Fraser Report appears to have been primarily concerned with the use of actual children and youth in the production of child pornography (Vol. 2, at 584-85, 629-32), though the report also recommended proscribing any material which advocates or encourages the sexual abuse of children (Vol. 2, at 635-36).

[185] Despite the obvious fact that no actual children could be harmed in the creation of works of the imagination, the appellant, in its written argument, invited the court to infer that there is a comparable risk of indirect harm to children from the simple possession of such materials. In my view, given the lack of social science evidence regarding the effect of works of the imagination, a court should be reluctant to draw such an inference. That seems to me to be particularly so considering the profound violation of freedom of expression and privacy which results from making the private possession of works of a person's own imagination a criminal offence.

[186] Respondent's counsel pointed out another way in which the definition of child pornography captures materials that may be produced without the involvement of any actual children or youth. The definition in s. 163.1(1) includes adults who are "depicted as being under the age of eighteen years". While the concept of "dress down" pornography may not be assailable as such, it is not at all clear why the age chosen for the cutoff point for depictions of sexual activity is the same as that for actual participation in sexual activity, namely 18 years of age. The appellant has not shown that any harm could flow from the depiction, by adult actors, of an activity which in itself is perfectly legal, namely sexual activity involving persons between 14 and 18 years of age that does not fall within the relationships prohibited under the Criminal Code (s. 153(1), sexual exploitation; s. 212(4), payment for sexual services; or s. 271, sexual assault).

[187] I note that the definition of child pornography in s. 163.1(1) of the Criminal Code goes significantly further than do its counterparts in other common law countries. Child pornography is dealt with in the United States at the federal level in Title 18, Part 1, Chap. 10 of the United States Code ("U.S.C."), under offences relating to the "sexual exploitation and other abuse of children". The legislation is directed solely at visual depictions of actual children, including depictions that have been manipulated or "morphed" by a computer. The Child Pornography Protection Act 1996 ("CPPA") expanded the definition of child pornography in s. 2256(8) of 18 U.S.C. to include the latter category of morphed images.

[188] The United States legislation does not criminalize the possession of either written materials or visual representations that do not involve images of actual children. The fact that the legislation is so limited has been identified by the American courts as being crucial to its passing constitutionality scrutiny. The United States Supreme Court, in New York v. Ferber, 458 U.S. 747 (1982), upheld a New York statute that prohibited visual material that depicted a person under 16 years of age engaged in a sexual performance. In describing the limited class of materials caught by the legislation, Justice White referred to the type of material which the state would be constitutionally barred from proscribing (at 764-65):

See also Osborne v. Ohio, 495 U.S. 103 (1990), in which the U.S. Supreme Court upheld an Ohio statute that restricted its application to pictures of actual children in a state of nudity.

[189] The constitutionality of the CPPA's prohibition on possession of child pornography was recently upheld by the United States First Circuit Court of Appeals in U.S. v. Hilton, [1999] WL 44725 (1st. Cir. (Me.)), but as in Ferber, supra, the court did so on the basis of the very limited range of materials that were proscribed by the legislation. Justice Bownes found that the legislation was carefully drafted to capture only manipulations of real images which are "virtually indistinguishable from the banned photographic depiction" of actual children. He continued at 10, stating:

[190] It would appear from these statements that American legislation has been found to pass constitutional muster largely, if not only, because of the very carefully delineated range of materials to which it applies.

[191] England similarly restricts its child pornography legislation to photographs and pseudo-photographs (i.e., morphed images) involving real children. The relevant statutes are the Protection of Children Act 1978, and s. 160 of the Criminal Justice Act 1988, both as amended by ss. 84 and 86 of the Criminal Justice and Public Order Act 1994. Again, these provisions do not extend to either written materials or works solely of the imagination.

[192] The child pornography legislation in both Australia and New Zealand does include written materials, however. The Commonwealth of Australia in the Classification (Publications, Films and Computer Games) Enforcement Act 1995 describes a category of materials, classified as "RC" or Refused Classification, which is directed to child pornography. This definition in turn provides the basis on which the criminal law of all Australian states proscribe child pornography. New Zealand addresses child pornography in the Films, Videos and Publications Classification Act 1993. Publication is defined in this respect to include written materials. The legislation in Australia, however, like that in England, is limited to depictions of children who are, or appear to be, under 16 rather than 18 years of age, as in the Canadian legislation.

[193] Turning to the second aspect of the respondent's argument on overbreadth, the criminal sanction in s. 163.1(4) applies with equal force to the very persons it is purportedly designed to protect. The subsection would apply to all persons under the age of 18 years who possess proscribed materials describing their own sexual activities. Given the broad definition of child pornography discussed above, this would potentially include a photograph or crude sketch made by a person under 18 of himself or herself either in a state of nudity or engaging in lawful sexual activity. It could also apply to all persons under the age of 18 years who participated in the production of proscribed materials. As the legislation is drafted, there is nothing to prevent a child or youth involved in the making of child pornography from being found criminally liable under s. 21 of the Criminal Code as a party to the offence of making child pornography contrary to s. 163.1(2).

[194] It is instructive in this regard to compare the criminal law of the Australian State of Victoria. Section 70(1) of the Crimes Act 1958 proscribes the possession of child pornography, but subsections (2)(d) and (2)(e) provide a defence where the person charged can prove:

[195] The Australian provision provides just one example of a legislative effort to tailor the law so as to most effectively advance its objective, that of protecting children, while simultaneously impairing freedom of expression to the least degree possible.

[196] The respondent's third submission on overbreadth is that it criminalizes the possession of child pornography by persons who are no danger to young persons. This point will be taken up in the examples discussed below, but the argument must be approached with some caution. Any possession offence, by its nature, will unavoidably extend to those persons who possess the proscribed material or object for reasons other than those contemplated by Parliament in originally proscribing the material or object. To draft legislation so as to restrict its application explicitly to paedophiles or those who would otherwise pose a danger to children would be difficult, if not impossible. Rather than being, as the respondent submits, a third and independent aspect of overbreadth, it seems to me that this argument is perhaps better understood as a corollary of the overbreadth argument with respect to materials. If child pornography is defined to include an excessively broad continuum of materials, some of which cannot be shown to pose a danger to children, the range of individuals potentially liable under the possession offence in subsection (4) will correspondingly likely include a range of individuals who likewise pose no danger to children.

[197] The difficulties with the impugned legislation are the product of the interaction and combination of these various aspects of overbreadth, and the full extent of the difficulties is not apparent until this interaction is considered. Several simple hypothetical examples illustrate the potential overreach of the simple possession offence in subsection (4). A person who sketches a drawing or cartoon which depicts a person under 18 years of age engaged in explicit sexual activity would be liable under s. 163.1(4) despite the fact that the materials are self-authored and never shown to anyone. Anyone who simply sketches and keeps a crude drawing of the sexual organ (which may include breasts: R. v. Chase, [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97) or anal region of a person under the age of 18 years would be caught by s. 163.1(4). A couple, even a married couple, who record their own sexual activity would be criminally liable if one or both were between 14 and 17 years of age, even though the act depicted is lawful and the material remains in their private possession. A narcissistic 17 year old youth, to take another example, would be criminally liable if he simply took an erotic nude photograph of himself and kept it in his private possession. A person could be prosecuted under s. 163.1(4) for possessing a self-authored statement, perhaps even a diary entry, which advocated sexual offences with persons under 18 years of age even though that material is only a written record of the author's private thoughts and is never disseminated or shown to anyone.

[198] This latter example illustrates the degree to which s. 163.1(4) is truly only one step removed from criminalizing simply having objectionable thoughts. The Charter should never, or perhaps only where the most pressing need is demonstrated, permit the state to regulate an individual's private recorded thoughts, no matter how objectionable those thoughts may be. As the BCCLA state in their written submissions:

[199] The examples given above amply illustrate the government's failure to tailor the impugned legislation in the manner suggested.

[200] B. Blugerman and L. May, in their article "The New Child Pornography Law: Difficulties of Bill C-128" (1993) 4 M.C.L.R. 17, provide a final example to illustrate the potential reach of s. 163.1. They note difficulties in interpreting the phrases "explicit sexual activity" and "sexual organ", and they conclude at 27:

[201] It is important to remember that each of the individuals described above would be at risk of a criminal prosecution and conviction under s. 163.1 and with it, the horrific stigma associated with being labelled a child pornographer. In none of these examples, and others like them, has the Crown demonstrated a reasoned apprehension of harm sufficient to justify restricting an individual's freedom of expression in this manner.

[202] The defence of artistic merit or educational, scientific or medical purpose contained in subsection (6), while playing an important role generally in reducing the impairment of freedom of expression, is incapable of addressing the particular overbreadth described above. As these examples demonstrate, s. 163.1(4) overreaches most profoundly by reaching too far and too haphazardly into an individual's private life, thought, and expression.

[203] The defence contained in s. 163.1(6), with its focus on protecting expression with some expected public benefit or value, is not directed to the overbreadth problem identified above. The phrase "artistic merit", for example, as McCombs J. noted in Ontario (A.G.) v. Langer (1995), 97 C.C.C. (3d) 290 at 315 (Ont. Gen. Div.), lv. to app. to S.C.C. dismissed (1995), 42 C.R. (4th) 410n, imposes an objective standard. Where the overbreadth concerns lie, as they do in the case at bar, with the private possession of records of an individual's most intimate thoughts, imaginings, and conduct, it is not appropriate or adequate to address those concerns with a defence predicated on some notion of public benefit. Subsection 163.1(6) does contribute a crucial aspect to minimal impairment; however, it is not an aspect that is appropriate to the overbreadth concerns identified here. The statutory defence leaves a large range of expression unprotected for which no reasoned apprehension of harm can be shown.

[204] Moreover, it is not enough in these cases to fall back on the discretion of those enforcing the law. As McLachlin J. stated in Zundel, supra at 773, the discretion of Crown prosecutors and the police cannot make good a finding of overbreadth:

See also the comments of Lamer J. (as he then was) in Smith, supra at 1078.

[205] Section s. 163.1 as a whole is aimed at the valid and laudable objective of protecting children from the harms of sexual exploitation and abuse, but s. 163.1(4) overreaches by criminalizing a vast range of conduct for which no reasoned apprehension of harm can be shown. Even given the low value accorded to type of expression at issue in this case, the impugned legislation cannot be shown to minimally impair freedom of expression.

[206] It is worth recalling that courts in the past have struck down legislation to uphold the rights and freedoms enshrined in the Charter even where the impugned legislation has been directed at the most laudable and pressing objectives. In fact, this has included legislation specifically directed at protecting children from becoming victims of sexual offences: Heywood, supra. Further examples include RJR-Macdonald Inc. v. Canada (A.G.) [1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1; Smith, supra; and R. v. Hess, [1990] 2 S.C.R. 906, (sub nom. R. v. Nguyen; R. v. Hess) 59 C.C.C. (3d) 161. Where a provision has been found to be impermissibly overbroad, it is no answer for the government simply to fall back on the importance of its objective in enacting the legislation. To countenance such an approach would ultimately eviscerate the rights and freedoms guaranteed by the Charter.

[207] As Justice Brandeis admonished in his dissenting judgment in Olmstead v. U.S., 277 U.S. 438 at 479 (1927), the courts must remain vigilant in safeguarding constitutionally protected liberties even, or perhaps especially, in those cases where the government's legislative purpose is praiseworthy:

[208] It is also my view that, in addition to failing at the minimal impairment stage, the impugned legislation would also fail for want of proportionality between its salutary and deleterious effects.

[209] In Dagenais v. C.B.C., [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12, Lamer C.J.C. reformulated the last stage of the proportionality analysis. He emphasized that the government must demonstrate the existence of proportionality between the deleterious effects and the salutary effects of the legislation, in addition to proportionality between the deleterious effects and the legislative objective, broadly stated. The Chief Justice explained the reason for this development at 887-88:

[210] The Chief Justice continued at 889, clarifying the meaning of "proportionality":

[211] Mr. Justice Bastarache, in Thomson Newspapers Co. (c.o.b. Globe and Mail) v. Canada (A.G.) (1997), [1998] 1 S.C.R. 877, 159 D.L.R. (4th) 385, considered the reformulation brought about in Dagenais, supra. He described the distinct purpose of the third stage of the proportionality analysis (at 969):

[212] The specific provision challenged in the case at bar is subsection (4), read in the context of the definition of child pornography contained in s. 163.1(1). It is therefore the salutary and detrimental effects of the offence of simple possession of child pornography, distinct from its dissemination, which must be considered at this stage of the s. 1 analysis.

[213] The detrimental effects of s. 163.1(4) on freedom of expression and personal privacy are substantial. By providing a sentence of incarceration for the possession of recorded thoughts and expression, including one's own thoughts and expression, the legislation trenches deeply upon the core values enshrined in the Charter and essential to a free and democratic society. The definition of child pornography in s. 163.1(1) captures a vast range of materials, a significant portion of which cannot be shown to pose a danger to children, especially when the materials remain in the private possession of their creator. The far-reaching definition of child pornography, in the context of a simple possession offence, also raises the spectre that legitimate and non-harmful expression will be chilled as individuals are forced, in the words of the trial judge, to become their own censors.

[214] The salutary effects of s. 163.1(4) are insufficient to outweigh its manifest detrimental effects. As Lamer C.J.C. explained in Dagenais, supra, one must isolate and consider the salutary effects of the impugned provision specifically. In this case, one must consider the value added by a simple possession offence, given the existence of other offences within s. 163.1 which specifically proscribe the manufacture, publishing, importation, sale, and distribution of child pornography, as well as possession for the purposes of publication or distribution. These other measures, as well as the obscenity provisions in s. 163, target much of the harm associated with child pornography, and they do so in a manner that impairs Charter rights and freedoms to a significantly lesser degree than does a simple possession offence. While a possession offence undoubtedly contributes in some measure to law enforcement efforts in this area, it does so at a substantial cost to the rights and freedoms guaranteed by the Charter. The limited salutary effects of the impugned provision are not proportionate to its profound invasion of freedom of expression and privacy.

[215] As the Crown concedes, the provision in the Criminal Code making it an offence to possess child pornography infringes freedom of expression, which is protected by s. 2(b) of the Charter. The appeal in this case is directed to the question of whether, under s. 1 of the Charter, the limitation on the guaranteed right to freedom of expression can be demonstrably justified in a free and democratic society.

[216] The objective of the legislative scheme embodied in s. 163.1 of the Criminal Code is to prevent harm to children, specifically in the form of sexual abuse or exploitation caused, both directly and indirectly, by the production and existence of child pornography. That the need to prevent such harm is pressing and substantial is uncontentious.

[217] The particular legislative provision which was challenged is s. 163.1(4), which makes possession of child pornography, as that term is defined in s. 163.1(1), a criminal offence. The provision does not fail for want of a rational connection but, for the reasons I have endeavoured to explain, the salutary effects of s. 163.1(4) are insufficient to outweigh its manifest detrimental effects.

[218] Section 163.1(4) of the Criminal Code does not meet the proportionality test under the s. 1 Charter analysis, and is constitutionally overbroad.

[219] Accordingly, the Crown's appeal fails.

"THE HONOURABLE MADAM JUSTICE ROWLES"  

[220] The Respondent was charged on a four-count indictment. Two of the charges were laid under Criminal Code s. 163.1(4), which prohibits the simple possession of child pornography as defined in the Code. Traditionally, judges would have used the Latin phrase "possession simpliciter" to differentiate between possession without any qualifiers and more complex kinds of possession, such as possession for a particular purpose. I prefer to use the more easily understood term "simple possession" but this is not to suggest that the word "possession", in the context of this case, is an insignificant matter. The issue in this case is whether s-s. 4 is constitutionally valid.

[221] At trial the Respondent argued that s-s. 4 infringes upon freedoms, particularly freedom of "...thought, belief, opinion and expression" guaranteed by the Canadian Charter of Rights and Freedoms (hereinafter "the Charter"), and that this infringement cannot be justified under s. 1 of the Charter. The trial judge accepted this submission. As a result, he found s. 163.1(4) to be unconstitutional and of no force and effect. The accused was therefore acquitted on counts 2 and 4.

[222] Counts 1 and 3 were laid under s. 163.1(3), which deals with the importation, sale or possession of child pornography for the purposes of distribution or sale. These counts were also challenged at trial on constitutional grounds, but that challenge was not successful and no appeal has been taken on that question. These counts have yet to be tried.

[223] The Crown, supported by some intervenors and opposed by others, appeals against the acquittal of the Respondent on counts 2 and 4 for simple possession of child pornography.

[224] I wish to make two observations. First, because this case has attracted wide public interest, I shall attempt to explain my decision in the plainest possible language. I shall not quote from many of the relevant Supreme Court of Canada authorities on the Charter because they have been quoted often enough in many other cases, and I pause to observe that brief quotations taken from the text of much longer decisions are not always easy to understand.

[225] Second, the case we have to decide is a different case from that decided by the trial judge. He was asked to declare Code s. 163.1(4) unconstitutional because it banned the possession of any kind of child pornography. On this appeal the Respondent concedes that possession of some kinds of child pornography should be unlawful, but argues that the definition of child pornography contained in s. 163.1(1) is too broad because it criminalizes the possession of pornography, as defined, even if it does no harm to children. This is sometimes called an overbreadth argument, meaning that the legislation is broader than necessary to achieve its essential purpose of protecting children. In a classic overbreadth case, for example, the Supreme Court of Canada, relying upon s. 12 of the Charter, struck down a law that required a minimum sentence of seven years for importing certain narcotic drugs into Canada. It was argued that such a harsh sentence could be totally unnecessary in the case of a young person importing a single joint of marihuana into Canada. Similarly, the attack on s. 163.1(4) in this case is really an attack upon the offence of possession of child pornography based upon the breadth of the definition of "child pornography", which I shall quote presently.

The Fresh Evidence

[226] The first question to decide is whether an affidavit sworn by Detective Inspector Robert Matthews of the Ontario Provincial Police, tendered by counsel for the intervenors, Canadian Police Association (CPA), Caveat (Canadians against Violence Everywhere, Advocating its Termination) and Canadian Resource Centre for Victims of Crime, should be admitted as fresh evidence on this appeal even though it was not tendered at trial.

[227] There is no doubt that Detective Inspector Matthews is a knowledgeable police officer with special expertise in the area of child pornography. The essence of his evidence is that child pornography, as opposed to adult pornography, is spread more clandestinely, usually through the Internet, and is much more difficult to investigate. He believes that the offence of possession of such material is an essential police tool that assists police officers to discover who is creating and distributing child pornography and to locate and seize child pornography, often by the use of a search warrant, more easily than would be the case if investigations were confined solely to offences of importing, producing and distributing child pornography.

[228] While there could be strong arguments against the admission of this evidence, it is apparent that the contents of the affidavit are very straightforward, and I doubt if the arguments of counsel for any party would be materially different if the evidence were not received. In fact, Mr. Peck did not seriously oppose the admission of this evidence. He said it was unnecessary and irrelevant. Moreover, as the attack is really upon the definition of child pornography, the evidence in question goes some distance in explaining why the definition is so broadly stated but it does not directly affect the legal questions we have to decide. In these circumstances, I would admit Detective Inspector Matthews's affidavit into evidence, as I expect our decision will be appealed further and the courts should not deny themselves whatever possibly relevant information that may be available.

[229] The definition of child pornography is contained in Code s. 163.1(1), but it must be read and considered along with s-s. (6). These sections provide:

[230] Subsection 4, under which the charges in this appeal were laid, provides:

[231] As already mentioned, other sub-sections of s. 163.1 prohibit the importing, making and distribution of child pornography as well as its possession for the purposes of distribution and sale. Those sections are not directly involved in this case except that counsel for the Respondent argued they provide as much protection for children as can be achieved by legislation, thereby making the prohibition of simple possession unnecessary.

[232] The underlying question on this appeal is whether the simple possession of child pornography (as defined) that may have been created without abusing children and which may never be published, distributed or sold creates a sufficient risk of harm to children that it should be an offence for anyone to possess such material, for any purpose or for no purpose at all. The question of whether the material found in the possession of the Respondent was created without abusing children is, of course, a different question that can only be determined upon a trial.

The Facts

[233] At trial, Shaw J. described the underlying facts and the challenges advanced by the Respondent as follows:

[234] To the above, I should add that there was included in the material seized some other items of material including a sketch of a nude boy obviously under the age of 18 (and probably under the age of 14) with an erect penis.

[235] It seemed to be assumed by all parties that much of the seized material may fall within the present definition of child pornography in the Criminal Code, but that question will ultimately have to be determined at a trial if it is found that the prohibition against possession is valid.

[236] Some of these boys appear to be Asian. In my view it does not matter where these photographs were taken because if they were taken abroad, Canada's responsibilities under Article 34 of the International Convention on the Rights of the Child, which Canada ratified on December 13, 1991, are in no way confined to the protection of children residing in Canada. The Respondent did not argue otherwise.

[237] At trial, the Respondent relied primarily on ss. 2(b) and 15(1) of the Charter. On appeal, however, he also relied upon ss. 7 and 8, but no significant reliance was placed upon s. 15. The relevant Charter sections are in these terms:

[238] At trial, the constitutional framework for the Respondent's argument was simply that s. 163.1(4) of the Criminal Code purports to prohibit the simple possession of child pornography while the Charter, on the other hand, guarantees the freedoms described in s. 2(b). Section 52 of the Constitution provides that the Charter is a part of the supreme law of Canada, and any law that is inconsistent with the Charter is of no force or effect to the extent of such inconsistency.

[239] The Crown conceded at trial that s. 163(4) is inconsistent with s. 2(b) of the Charter, leaving the real question whether the section can be "saved" under s. 1 of the Charter. No such concession has been made with respect to ss. 7 and 8. The concession regarding s. 2(b) was probably made because the Supreme Court of Canada has given such a broad meaning to the freedoms guaranteed by Charter s. 2, particularly freedom of thought, belief, opinion and expression. As already mentioned, I do not propose to quote representative passages from the many decisions of the Supreme Court of Canada that have described the nature of the right guaranteed by s. 2(b). Instead, I shall summarize this freedom by saying that it has been construed to include the right, particularly in one's own home, to express one's "essential" self by reading, writing and possessing books, diaries, pictures, clothes and other personal things that are intertwined with one's private beliefs, opinions, thoughts, curiosities and conscience. The conclusions of the trial judge depended almost entirely upon the very broad interpretation the Supreme Court of Canada has given to s. 2(b).

[240] Unlike the United States, where it has been held that pornography is not constitutionally protected, the Supreme Court of Canada has developed a multi-phased inquiry, sometimes called an "analysis" or a "balancing", to determine whether a Charter "freedom" may be limited by lawfully enacted legislation such as s. 163.1.

[241] The effect of the concession made at trial by the Crown, subject to the provisions of s. 1 of the Charter, is that the s. 2(b) freedom includes a legal and constitutionally protected right and personal freedom to possess explicit, sexually suggestive pictures of nude children even though they fall within the definition of child pornography.

[242] Although the Crown conceded that s. 163.1(4) infringed s. 2(b) of the Charter, it argued that the provision was saved by s. 1 of the Charter. It provides:

[243] The first step in the analysis is to require the party seeking to justify a Charter infringement (in this case the Crown) to establish by a preponderance of evidence that the infringing law - in this case s. 163.1(4) prohibiting simple possession - is a reasonable limit on the freedoms in question that can be demonstrably justified in a free and democratic society.

[244] Because of the way this case was argued at trial, it was not necessary for the trial judge to consider some of the complicated stages of the required s. 1 analysis, as developed by the Supreme Court of Canada. Instead, he went directly to the "balancing" or "weighing" required in the final stage of what is called the proportionality test. The position taken by the Respondent's counsel on this appeal, however, will require me to deal with all the stages of the analysis in due course. Before I do that, however, it will be useful to discuss some other matters.

[245] Section 7, which has been quoted above, guarantees life, liberty and the security of everyone's person. Of these, only "liberty" and possibly "the security of the person" could be engaged in the context of this case. Liberty, of course, is a multi-dimensional concept. It involves at least two important aspects. First, liberty implies that, generally speaking, we must be free to conduct our private lives as we would wish. At the very least, this involves a right to see, think, read, write and enjoy whatever we wish, subject only to valid laws. Theoretically, this could include the right to possess child pornography. However, it seems to me that such a right, if guaranteed, would be protected by the more specific language of s. 2(b) particularly as that section has been interpreted by the Supreme Court of Canada. Second, "liberty" and "security of the person" could import the right not to be searched unreasonably, or to have privacy rights invaded unreasonably by the state. Again, as will be seen in a moment, this right is fully protected by the more specific language of s. 8.

[246] Thus, with respect, I do not view "liberty" rights protected by s. 7 as adding anything to the rights protected by ss. 2(b) and 8. An analogy can be drawn with R. v. Smith, [1987] 1 S.C.R. 1045, where in dealing with a minimum sentence under the Narcotic Control Act, the Supreme Court of Canada chose to focus only on s. 12, which specifically guarantees freedom from cruel and unusual punishment, rather than consider the more general terms of s. 7. I believe that is the approach I should follow and therefore do not propose to say anything further about s. 7.

[247] Section 8 provides a specific guarantee against unreasonable search and seizure. In this case, the seizures were carried out pursuant to statutory authority (a Customs seizure and a search warrant) that was not directly challenged. Recourse to this section, therefore, could arise only if the seizures were based upon an invalid law. Thus, in my view, s. 8 adds little if anything to the weight of counsel's submissions. Either the offence, as defined, is impermissibly broad and cannot be justified under s. 1 (in which case it should be struck down), or it is valid legislation that can be used as the basis for searches and seizures authorized by law.

[248] This is not to say that the risk of searches and seizures is not a valid basis for real concern about the privacy rights of our citizens. The law has always recognized that privacy, particularly in our homes, and the sanctity of our private papers are precious rights. These are clearly important factors in considering the Respondent's overbreadth argument.

[249] As already mentioned, the trial judge, after setting out his findings, turned directly to the proportionality part of the s. 1 analysis upon which the case at trial was decided. This part of the analysis requires the court to weigh the benefits of the prohibition against its deleterious or harmful effects. Generally speaking, if the prohibition limits a guaranteed right or freedom but the benefits of the prohibition are demonstrably more important than a guaranteed freedom, then the provision may be saved. However, if the harmful effects of the prohibition on freedoms protected by the Charter are greater than the benefits of the prohibition, then the provision cannot be justified and must be regarded as legally inoperative even though it has been enacted by Parliament.

[250] Dr. Collins, a prominent psychiatrist with expertise in pornography, explained that it is common for pedophiles to collect pictorial images of children as well as writings which have pedophiliac themes, for the purpose of fuelling their fantasies and increasing their "cognitive distortions" that child-adult sex is normal. Dr. Collins also said that "most pedophiles are seductive in their approach to children and they perceive their selfish desire for sexual gratification as being healthy for the child."

[251] Dr. Collins described this approach to seduction as a "grooming" process whereby pedophiles often use child pornography to try to lower the inhibitions of the child "... to convince them that sexual contact is healthy."

[252] In another part of his evidence, Dr. Collins testified that "... some pedophiles use erotic material solely for masturbatory fantasies, and won't go on to offend." However, he also said that there is enough evidence, both research and clinical, to support the view that child pornography is used in pedophiles' "fantasy stage" and that some will go on to act on their fantasies and offend by seeking to have sexual contact with children.

[253] With respect, it seems to me the trial judge basically accepted this evidence in his paras. [12] to [22]; yet he went on to comment that harm to children usually comes from "hard core" depictions, and that pornography could inhibit aggression in some cases and make it worse in others.

[254] While most of the evidence was given in terms of photographic depictions, the trial judge found it reasonable to assume that the dissemination of written material also poses "some risk of harm to children".

[255] The trial judge made a number of findings as follows:

[256] It will be noted that findings 1, 2, 3, 7 and 9 recognize that some forms of pornographic material can cause harm to children. However, some of these findings do not expressly deal with child pornography as defined, and some of them refer to hard core or highly erotic pornography (explicit sex or sex and violence) which are not necessarily relevant or useful distinctions for our analysis of the definition of child pornography. The important question is whether any particular material falls within the definition of child pornography, not whether the material is "highly" or "mildly" erotic. Whether it is hard or soft pornography, or filled with violence or not, is not relevant except to the extent that it helps to categorize the material as child pornography, some other kind of pornography, or possibly not pornography at all.

[257] It is apparent that the focus at trial was on the harm child pornography can do to children. As already mentioned, the Respondent admitted that possession of some kinds of pornography is harmful to children and should be prohibited.

[258] The benefits of the prohibition identified by the learned trial judge are described in the following passage from his Reasons for Judgment:

[259] In the following paragraph from his Reasons, the trial judge then discussed the weight that he considered should be given to these "advantages". He said:

[260] It is apparent that the trial judge was not persuaded by the evidence that the protection of children was enhanced by the prohibition against simple possession of this material. I pause to note, however, that while recognizing in his finding #2 (quoted above) that "children are abused in the production of filmed or videotaped pornography", the trial judge seems not to have included on the "advantages" side of the balancing process the fact that simple possession of pornography creates a market for it. Without that market, production of some kinds of child pornography - which the trial judge found by its nature involves abuse of children - and profits from distribution and sale likely would be greatly reduced. As well, in focussing on the use and effects of pornography by pedophiles, the trial judge does not seem to have given sufficient consideration to the fact that the prohibition against possession reduces the abuse of children involved in making child pornography and, less directly, its distribution and sale into a market fuelled to some extent by those who choose to possess such material.

[261] The trial judge then turned to consider the detrimental effects of the prohibition. He referred to extensive Supreme Court of Canada jurisprudence about the importance of freedom of expression, which has been extended by the Court to include concepts not usually considered part of ordinary expression. As already explained, these authorities refer, for example, to the expression of a person's "essential self" through his or her personal belongings; the "...right of a person to ensure the ability to gain self-fulfilment by developing and articulating thoughts and ideas as they see fit"; "...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 the right of privacy in one's own home.

[262] The trial judge then stated his views on the detrimental effects of the prohibition against simple possession in these terms:

[263] The trial judge then turned to the "weighing" process:

[264] As can be seen, the trial judge concluded that the effectiveness of s-s. (4) in protecting children from pedophiles or other forms of sexual abuse was so limited that it did not warrant the invasive effects of the prohibition. What I understand the learned trial judge to mean is that the danger to children posed by the simple possession of child pornography was so uncertain on the evidence before him, that its value was outweighed by the invasive effects of the prohibition on the right of private expression in a "very intimate and private aspect of a person's life."

[265] With respect, I believe this analysis, which seems to concentrate on the "possessor's" perspective rather than on the protection of children, is concerned largely with the protection of children from persons who might, directly or indirectly, be aroused dangerously by the simple possession of such material. Even if it were accepted that such risk is not sufficient to justify interference with the rights of those who wish to possess such material (a conclusion with which I respectfully disagree), the analysis does not give sufficient weight to the abuse (accepted as a matter of fact by the trial judge in his finding #2) done to children in the production of child pornography and the risk of future exploitation of other children as a consequence of creating a market for this kind of material.

[266] In my judgment, the inadequate weight given to these factors in the judge's analysis constitutes legal error that is sufficiently serious to permit us to undertake our own independent assessment of these competing factors.

[267] I wish to add a further comment. Some of the judge's specific findings demonstrate first that children are at risk from the possession of child pornography and second, that the prohibition against possession of child pornography does have some effectiveness in protecting children. If the exploitation of children in the making of pornography had been taken into account in the judge's weighing of advantages and disadvantages of the prohibition, I am far from satisfied that he would have reached the same conclusion.

[268] It follows, subject to the specific "Findings" of the trial judge, that the constitutionality of s. 163.1 is at large, and I turn, therefore, to consider the matter in light of the additional submissions we received which were not before the learned trial judge. As already mentioned, the Crown in this case conceded that s. 163.1(4) infringes the rights of the Respondent arising under s. 2(b) of the Charter, thus making a full s. 1 analysis necessary.

[269] The first stage in any s. 1 analysis is to determine the purpose of the legislation. The Respondent agrees that s. 163.1 was enacted "...for the protection of children from being sexually abused and/or exploited through child pornography." This would include the "indirect harm" of desensitization of attitudes generally regarding sexualization of children by written or visual material. According to the evidence, such abuse can take many forms such as being exploited in the production of pictures, videos and movies; being abused by persons sexually aroused wholly or in part by such material; or being "groomed" for sexual abuse by being shown pictures etc., as a device for persuading vulnerable youths that various kinds of deviant sex is normal and usual. The trial judge doubted the extent of the danger of the second two possibilities arising from simple possession, and the Respondent's counsel relied on the absolute prohibition in s. 163.1(2) against "making" child pornography as an argument against the necessity of prohibiting simple possession. I have no doubt the purpose of s. 163.1(4) as part of a comprehensive prohibition against child pornography is a legitimate legislative initiative for the protection of children.

[270] The next stage of the analysis is to apply the various parts of the test for the application of s. 1 established by the Supreme Court of Canada.

[271] The first step is to consider whether the objective to be served by the legislation in question is sufficiently important to warrant overriding a constitutionally protected right. I have no doubt that the protection of children in the context of this case is sufficiently important for such a purpose.

[272] There are three parts to the second branch of the test.

[273] The legislation must be fair and not arbitrary, carefully designed to achieve its objective, and it must be rationally connected to that objective. During argument in this Court, it was noted that ss. 163.1(a) and (b) were amended into their present form on the last day of Parliamentary debate. These amendments added certain visual representations "for a sexual purpose" and any written material or visual representations advocating or counselling sexual activity to the definition of child pornography. Consequently, counsel argued, the legislation was not carefully designed and seriously overreaches its proper objectives in protecting children by criminalizing some conduct that would not harm children.

[274] I am not able to accept that argument. Considering the importance of the objectives of the legislation, I am not prepared to second-guess Parliament on either the scope of the definition it chose, particularly when it added the qualifications and exemptions I have already described, or on the prohibition of simple possession. The fact that these amendments were made near the end of the debate is not particularly significant having regard to the fact that Parliament obviously decided, during the debate, that these amendments were necessary if the legislation could be expected to achieve its important purpose. In any event, it is conceded by the Respondent that possession of some pornographic material should be prohibited, and it cannot be assumed that the definition was not carefully drafted by legislative counsel and carefully considered by Parliament before it was adopted.

[275] I have no doubt that the definition is rationally connected to the objectives of the legislation since it describes, and limits, the subject matter of the various offences included in the section. The question of whether the prohibition against possession, as defined, overreaches the objectives of the legislation may best be considered in the minimal impairment part of the test, to which I now turn.

[276] As already mentioned, counsel's submissions were largely that the prohibition against simple possession went farther than necessary to achieve the objectives of the legislation - the "overbreadth" argument. They sought to support this argument by examples where, for no social benefit, persons might be criminally sanctioned by the "innocent" or non-harmful possession of child pornography. These arguments, of course, arise out of the definition of that term in s. 163.1 (a) and (b), quoted earlier including, of course, written material.

[277] Counsel's arguments are based partly on the fact that the prohibition involves the depiction of anyone under the age of 18 years, when the age of consent for almost all forms of sexual activity in Canada is only 14 years.

[278] On this part of the case, I wish to comment that I do not consider the age of consent (14 years) for most sexual activity to be relevant to the analysis. Parliament fixed the age of consent at 14 years for reasons not likely to have included consideration of child pornography. The age at which Parliament deemed a person capable of consenting to sexual activity was chosen to avoid criminalizing conduct that Parliament thought should not be criminalized. It may be that 14 is too young and that the age of consent should be 16 or even 18. That, however, is a policy decision for Parliament. There are other examples of age "floors" in the Criminal Code that seem more relevant - the law prohibits paying for sex from anyone under age 18, for example - but the issue here is the age below which children are to be protected from exploitation by means of child pornography. That is an entirely different question from others that might be thought to arise under other provisions of the Code.

[279] As well, counsel argues that a person, in the exercise of privacy rights, could conceivably possess child pornography in the form of self-made sketches, writings or other material that did not involve a child in its creation. The person in possession might not intend or expect that the material would ever be seen or used by anyone other than the creator. Thus, the argument goes, possession of the material could not harm a child. But there is still a possibility that material of the kind in question in this case could cause harm to children: it may enhance cognitive distortions or get accidentally passed around.

[280] Counsel described a number of possibilities where, they argued, there should be no criminal responsibility. I shall only mention two examples in each category.

[281] With respect to the definition in s. 163.1(a)(i):

[282] With respect to s. 163.1(a)(ii):

[283] With respect to s. 163.1(1)(b):

[284] I pause to point out that the definition of child pornography in s. 163.1(1)(a)(i) does not include "implicit" sexual activity; the definition in s. 163.1(1)(a)(ii) excludes anything not depicted for a sexual purpose; that anything alleged to be child pornography under s. 163.1(1)(b) must "advocate" or "counsel" illegal sexual activity with a person under 18 years (which must therefore require private or public publication of some kind); and further, anything that has artistic merit or an educational, scientific or medical purpose is exempt. Anyone who has accidental possession of child pornography, such as by purchasing a magazine without examining its contents, might not have the requisite mens rea for the offence depending upon a number of circumstances. Thus, in my view, the likelihood of anyone being criminalized by the kind of innocent possession described by counsel is extremely remote.

[285] It must also be remembered that photographs or other depictions of a young couple (under the age of 18) who record their sexual experiences for private purposes could end up in the possession of others and become harmful to children. Further, some who would claim an innocent purpose could actually be purveyors of child pornography. It would not be easy to draft language that would serve the legislative purpose of this section and at the same time protect every possible possessor of pornographic material who cannot bring himself or herself within the exceptions contained in the definition described above, particularly the exception under s-s. (6) for material that has artistic merit or an educational, scientific or medical purpose. As I have already said, this definition seems to provide an exemption from criminal liability for almost all conceivable kinds of innocent possession.

[286] If the prohibition against possession of child pornography should be deleted from the Criminal Code or be struck down because of overbreadth or otherwise, it would not only be lawful for those who wish to possess the recorded product of their own imaginations, but it would also be lawful for them to show such material to children as I do not believe showing something without parting with its possession constitutes publication or distribution. The same would apply to other "possessed" material, howsoever obtained, including material produced through the abuse of live models, thus creating a market for such material and enhancing greater risk of harm to children. Moreover, without sub-section (4), it would be lawful for anyone to maintain inventories of child pornography with impunity, and they could be prosecuted only if an offence against sub-sections (2) or (3) could be established.

[287] While it is not for me to say whether or how s. 163.1 might be amended, it seems to me that there would in almost every possible scenario still be a risk of harm from works of imagination or other innocent private possession through cognitive distortions and fuelled fantasies. There is, in my view, a distinction between private thoughts and thoughts recorded, which Parliament has recognized.

[288] I doubt if it would be possible for Parliament, even with the assistance of Legislative Counsel, to re-draft this definition in such a way that such persons would be absolutely protected. However, the minimal impairment rule does not require scientific perfection. Thus, the fact that some anomalies may arise is not fatal. In this case they are very remote and likely to arise very infrequently. Considering the infinite varieties of child pornography, the many different ways it can be created and used, and the harm Parliament believes it causes to children, I do not believe the minimal impairment rule is offended by this definition.

[289] As the Respondent's counsel agrees that the possession of some kinds of child pornography should be prohibited, any lack of proportionality must be found in the definition.

[290] I agree with the Respondent's counsel, and with counsel for the Civil Liberties Association, that the law has always sought to protect the privacy of our citizens, including their private papers, and the law must always be vigilant to ensure that the state does not intrude unnecessarily into our private lives. At the time of the amendments to the Divorce Act in 1986, which greatly broadened the grounds for divorce, it was said that the State has no place in the bedrooms of the nation. Similarly, it is argued, the State has no right to censor what kind of written and pictorial material we possess, particularly if it does not present a likely harm to children. I agree with counsel that the definition we are considering could criminalize some conduct that does not present a serious risk of harm to children although instances of this would be very rare. It must be noted, however, that the protection of persons possessing child pornography, for any purpose, is so far removed from the core values of the Charter that it rates very low on any scale of importance, and the general right of our citizens to the privacy of their lives is threatened hardly at all by this definition.

[291] I stress that the balancing is not just between the admitted risk of harm to children by simple possession against a right of innocent enjoyment of child pornography. Rather, the balancing is between the risk of harm to both children and society as a whole by simple possession, against the right of every person, innocent or nefarious, to possess any kind of child pornography for innocent, predatory or commercial purposes. Possession for purely innocent purposes cannot be assured by any legislation and it is impossible to know how much harm will be done to children by allegedly innocent possession. Future harm to children cannot be predicted with any degree of accuracy. Any real risk of harm to children is enough to tip the scales in favour of the legislation in the context of this case.

[292] Thus, it seems to me, Parliament, without creating any additional "sexual" offences, has considered it necessary, in order to carry out its legislative purpose, to require that anyone who imagines or muses about sex with children, refrain from recording or possessing such material lest it get into the wrong hands and cause harm to children. In weighing the role of this definition in carrying out the Parliamentary purpose of s. 163.1 for the protection of children, against the unlikely harm to someone who might wish to possess such material for innocent purposes, I am unable to say that Parliament went so far beyond what was necessary that we should strike down this legislation. No doubt, other words could have been chosen for the definition, but I doubt if there is a perfect definition, and a different definition might cause more rather than less harm. This recognizes, as I have already said, that there is a possibility (which I regard as extremely remote) that someone may offend against this section without any intention of harming children. There is always a risk that a law may have some unintended consequences, but any balancing of the risk of harm to children against the risk of harm to "innocent" possessors of child pornography as defined must be resolved in favour of children.

[293] Thus, on balance, I find that the beneficial effects of s. 163.1(4), prohibiting the possession of pornographic material as defined for the protection of children, outweigh the importance of a right likely to be enjoyed by those extremely few persons who may wish to possess such material for private innocent reasons. I believe the section satisfies the proportionality test.

Conclusion

[294] I would allow the appeal, set aside the acquittals, and direct that the trial of the Respondent proceed on all four counts of the indictment.

"THE HONOURABLE CHIEF JUSTICE McEACHERN"