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Docket: |
CA025488 |
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Registry: Vancouver |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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BETWEEN: |
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REGINA |
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APPELLANT |
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AND: |
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JOHN ROBIN SHARPE |
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RESPONDENT |
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Before: |
The Honourable Chief Justice McEachern |
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The Honourable Madam Justice Southin |
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The Honourable Madam Justice Rowles |
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John M. Gordon and Kate Ker |
Counsel for the Appellant |
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Gil D. McKinnon, Q.C. Richard C.C. Peck, Q.C., and Nikos Harris |
Counsel for the Respondent |
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Judith A. Bowers, Q.C. |
Counsel for the Attorney General of Canada |
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John D. McAlpine, Q.C. and Andrew D. Gay T.S. Danson |
Counsel for the Intervenor, B.C. Civil Liberties Association Counsel for the Intervenors, |
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Canadian Resource Centre for Victims of Crime, |
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E. Gordon |
Counsel for the Intervenors, |
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R. W. Staley and |
Counsel for the Intervenors, |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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30th June, 1999 |
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Written Reasons by:
The Honourable Madam Justice Southin
Concurring Reasons by: (P. 82, para. 132)
The Honourable Madam Justice Rowles
Dissenting Reasons by:
The Honourable Chief Justice McEachern (P. 129, para. 220)
Reasons for Judgment of the Honourable Madam Justice Southin:
[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:
JOHN ROBIN SHARPE stands charged that/est inculpé qué:
Count 1
He, on or about the 10th day of April, 1995, at or near Surrey, in the Province of British Columbia did have in his possession for the purpose of distribution or sale, child pornography: computer discs containing a text entitled Sam Paloc's Flogging, Fun and Fortitude - A Collection of Kiddikink Classics, contrary to Section 163.1(3) of the Criminal Code,
AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY.
Count 2
He, on or about the 10th day of April, 1995, at or near Surrey, in the Province of British Columbia did have in his possession child pornography: computer discs containing a text entitled Sam Paloc's Flogging, Fun and Fortitude - A Collection of Kiddiekink Classics, other writings and photographs, contrary to Section 163.1(4) of the Criminal Code,
AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY.
Count 3
He, on or about the 13th day of May, 1996, at or near the City of Vancouver, in the Province of British Columbia did have in his possession, for the purpose of distribute [sic] or sale, child pornography: books, manuscripts and stories, contrary to Section 163.1(3) of the Criminal Code,
AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY.
Count 4
He, on or about the 13th day of May, 1996, at or near the City of Vancouver, in the Province of British Columbia did have in his possession child pornography: books, manuscripts, stories and photographs, contrary to Section 163.1(4) of the Criminal Code,
AND AGAINST THE PEACE OF OUR LADY THE QUEEN HER CROWN AND DIGNITY.
[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.
The Meaning of Words
[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:
A.sb. A person in the age of adolescence.
and "adolescence" is defined as:
The process or condition of growing up; the growing age; youth; the period between childhood and maturity, extending from 14 to 25 in males, from 12 to 21 in females.
[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.
The Relevant Legislation
[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:
163.1(1) In this section, "child pornography" means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.
(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
(3) Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
(4) Every person who possesses any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.
(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.
(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3) or (4).
[15] As subsections (5)-(7) import part of s. 163, I quote the whole of that section:
163.(1) Every one commits an offence who
(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or
(b) makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic.
(2) Every one commits an offence who knowingly, without lawful justification or excuse,
(a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever;
(b) publicly exhibits a disgusting object or an indecent show;
(c) offers to sell, advertises or publishes an advertisement of, or has for sale or disposal any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage; or
(d) advertises or publishes an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs.
(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.
(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.
(5) For the purposes of this section, the motives of an accused are irrelevant.
(6) [Repealed 1993, c. 46, s. 1.]
(7) In this section, "crime comic" means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially
(a) the commission of crimes, real or fictitious; or
(b) events connected with the commission of crimes, real or fictitious, whether occurring before or after the commission of the crime.
(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
[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:
1. By the combined effect of s. 271 [sexual assault] and s. 150.1, it is, and was then, an offence to engage in sexual conduct with a person under the age of fourteen. S. 150.1 contains both an exemption and an exception:
(2) Notwithstanding subsection (1) [consent no defence], where an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is twelve years of age or more but under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge unless the accused
(a) is twelve years of age or more but under the age of sixteen years;
(b) is less than two years older than the complainant; and
(c) is neither in a position of trust or authority towards the complainant nor is a person with whom the complainant is in a relationship of dependency.
(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant or is a person with whom the complainant is in a relationship of dependency.
2. By sections 151-153:
151.Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
152.Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years, is guilty of an indictable offence and is liable to imprisonment for a term and not exceeding ten years or is guilty of an offence punishable on summary conviction.
153.(1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who
(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or
(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
(2) In this section, "young person" means a person fourteen years of age or more but under the age of eighteen years.
3. By s. 159(1) and (2):
159.(1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
(2) Subsection (1) does not apply to any act engaged in, in private, between
(a) husband and wife, or
(b) any two persons, each of whom is eighteen years of age or more, both of whom consent to the act.
Although this section, on its face, refers to conduct which may be heterosexual or homosexual, it in fact has its roots in Parliament's decision in 1968 to make homosexual acts between consenting adults no longer a crime [S.C. 1968-69, c. 38, s. 7]. At that time, the age of majority was twenty-one. Section 159 was declared unconstitutional by the Ontario Court of Appeal in R. v. M.(C.) (1995), 41 C.R. (4th) 134, on the ground that it infringed s. 15(1) of the Charter:
15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Crown did not appeal. No argument was addressed to us that the Ontario Court of Appeal erred.
Thus, sexual activity, whether heterosexual or homosexual with a person between the ages of fourteen and eighteen, is not "an offence under this Act" (unless, perhaps, it falls within ss. 266-268; see R. v. Brown, [1993] 2 All E.R. 75 (H.L.)) so long as it does not transgress ss. 153 and 212(4) and (5).
4. By s. 160:
160.(1) Every person who commits bestiality is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
(2) Every person who compels another to commit bestiality is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
(3) Notwithstanding subsection (1), every person who commits bestiality in the presence of a person who is under the age of fourteen years or who incites a person under the age of fourteen years to commit bestiality is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
As bestiality, so far as I know, is a crime rare in Canada in this day and age, whatever might have been the situation in the past, I shall say no more about this section.
5. By s. 212(4) and (5):
(4) Every person who, in any place, obtains or attempts to obtain, for consideration, the sexual services of a person who is under the age of eighteen years or who that person believes is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(5) For the purposes of subsection (4), evidence that the person from whom the sexual services were obtained or attempted to be obtained was represented to the accused as being under the age of eighteen years is, in the absence of evidence to the contrary, proof that the accused believed, at the time the offence was alleged to have been committed, that the person was under the age of eighteen years.
[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:
(4) Every person who possesses
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of fourteen years or the obtaining of sexual services for a consideration of any person under the age of eighteen years or sexual activity which contravenes s. 153
is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
[19] By s. 22 of the Criminal Code:
22.(1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
(3) For the purposes of this Act, "counsel" includes procure, solicit or incite.
[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.
The Judgment Below
[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:
1. Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process.
2. Children are abused in the production of filmed or videotaped pornography.
3. "Highly erotic" pornography incites some pedophiles to commit offences.
4. "Highly erotic" pornography helps some pedophiles relieve pent-up sexual tension.
5. It is not possible to say which of the two foregoing effects is the greater.
6. "Mildly erotic" pornography appears to inhibit aggression.
7. Pornography involving children can be a factor in augmenting or reinforcing a pedophile's cognitive distortions.
8. There is no evidence which demonstrates an increase in harm to children as a result of pornography augmenting or reinforcing a pedophile's cognitive distortions.
9. The dissemination of written material which counsels or advocates sexual offences against children poses some risk of harm to children.
[25] On what, in the evidence, was referred to as "cognitive distortions", a concept I shall explain more fully hereafter, the learned judge said:
[21] There was no evidence led of any study demonstrating that "cognitive distortions" cause any significant increase in the danger that pedophiles pose to children. However, as was pointed out in the Carter et al study, a person who is prone to act out his fantasies will likely do so irrespective of the availability of or exposure to pornography. In my view, without reasonable supporting evidence, I should give only minimal weight to the "cognitive distortions" point.
[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:
[34] ... The prohibition combats practices and phenomena which, at least arguably, put children at risk. These include: the use by some pedophiles of sexually explicit images in the grooming process leading to sexual relations with children; the abuse of children in the making of pornography and the preservation of that abuse in photographs or films; the confirmation or augmentation of cognitive distortions of some pedophiles; the incitement of some pedophiles to commit offences against children; and the advocacy or counselling of the commission of sexual offences against children.
[35] There are factors which go to the weight to be attached to the effectiveness of the prohibitions in combatting the foregoing practices and phenomena. There is no evidence which demonstrates any significant increase of danger to children related to the confirmation or augmentation of cognitive distortions caused by pornography. There is no evidence that "mildly erotic" images are used in the "grooming process". Only assumption supports the proposition that materials that advocate or counsel sexual crimes with children have the effect of increasing the occurrence of such crimes. Sexually explicit pornography is used by some pedophiles to relieve pent-up sexual tension. A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography. There is no evidence that the production of child pornography will be significantly reduced if simple possession is made a crime.
[30] On the question of detrimental effects, he said:
[36] I turn now to consider the detrimental effects. I start by repeating s. 2(b) of the Charter:
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
[37] Freedom of expression plays an important role in this case. The personal belongings of an individual are an expression of that person's essential self. His or her books, diaries, pictures, clothes and other personal things are intertwined with that person's beliefs, opinions, thoughts and conscience. In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, dealing with the right of people to use the language of their choice, it was held that "freedom of expression" should be broadly interpreted. The court said, at p.749:
It is also the means by which the individual expresses his or her personal identity and sense of individuality. That the concept of "expression" in s.2(b) of the Canadian Charter and s.3 of the Quebec Charter goes beyond mere content is indicated by the specific protection accorded to "freedom of thought, belief [and] opinion" in s.2 and to "freedom of conscience" and "freedom of opinion" in s.3. That suggests that "freedom of expression" is intended to extend to more than the content of expression in its narrow sense.
[38] The court included "individual self-fulfilment and personal autonomy" within freedom of expression: (supra, at p.767). The same notion was articulated in R. v. Keegstra (1990), 61 C.C.C. (3d) 1 (S.C.C.) by Dickson C.J.C. at p.49:
Another component central to the rationale underlying s.2(b) concerns the vital role of free expression as a means of ensuring individuals the ability to gain self-fulfillment by developing and articulating thoughts and ideas as they see fit.
[39] The proportionality tests under s.1 of the Charter include a consideration of the fundamental values that underlie the Charter. In Keegstra, supra, Dickson C.J.C. said, at p.29:
... the balancing exercise in s.1 is not restricted to values expressly set out in the Charter.
[40] Dickson C.J.C. at p.29 cited the following passage from R. v. Oakes, supra, at p.346:
The court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.
[41] What weight will be given to these values will depend upon the particular circumstances. As Dickson C.J.C. said in Keegstra at p.29:
Undoubtedly these values and principles are numerous, covering the guarantees enumerated in the Charter and more. Equally, they may well deserve different emphases, and certainly will assume varying degrees of importance depending upon the circumstances of a particular case.
[42] One significant value underlying the Charter is the individual's reasonable expectation of privacy. It is well described in R. v. Dyment (1988), 45 C.C.C. (3d) 244 (S.C.C.) per La Forest J., at p.254:
The foregoing approach is altogether fitting for a constitutional document enshrined at the time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state: see Alan F. Westin, Privacy and Freedom (1970), pp.349-50. Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.
[43] An important aspect of privacy is an individual's right of privacy in his or her own home. In the present case, the police entered Mr. Sharpe's home pursuant to a search warrant and seized his collection of materials alleged to be pornographic.
[44] The case law on freedom of expression reflects the Charter's concern for the right of privacy. R. v. Keegstra, supra, deals with the constitutionality of the Criminal Code ban on the wilful promotion of hatred against identifiable groups (s.319(2)). The prohibition expressly excluded "private conversations" and this exclusion was an important factor in the court (by a 4-3 majority) upholding the legislation. Dickson C.J.C. for the majority said, at p.56:
In assessing the constitutionality of s.319(2), especially as concerns arguments of overbreadth and vagueness, an immediate observation is that statements made "in private conversation" are not included in the criminalized expression. The provision thus does not prohibit views expressed with an intention to promote hatred if made privately, indicating Parliament's concern not to intrude upon the privacy of the individual.
[45] Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, deals with a provision of the Canadian Human Rights Act which prohibits repeated communication by telephone of any matters likely to expose others to hatred or contempt. The constitutionality of the legislation was upheld by a 4-3 decision. Dickson C.J.C. for the majority dealt with the privacy point, at pp.936-37:
I do not disagree with the view that telephone conversations are usually intended to be private; it is surely reasonable for people to expect that these communications will not be intercepted by third persons. Moreover, in determining in Keegstra that the criminal prohibition of hate propaganda in s.319(2) of the Criminal Code is not constitutionally overbroad, I relied to an extent upon the fact that private communications were not affected. The connection between s.2(b) and privacy is thus not to be rashly dismissed, and I am open to the view that justifications for abrogating the freedom of expression are less easily envisioned where expressive activity is not intended to be public, in large part because the harms which might arise from the dissemination of meaning are usually minimized when communication takes place in private, but perhaps also because the freedoms of conscience, thought and belief are particularly engaged in a private setting. (underlining added [by Shaw J.])
[46] McLachlin J. for the minority also addressed the question of privacy. She said, at p.967:
The benefit obtained from prohibiting private conversations between consenting individuals is arguably small, since only those who are already receptive to such messages are likely to be interested in receiving them. On the other hand, the invasion of privacy may be significant. Without suggesting that prohibition of offensive telephone calls could never be justified, the fact that private communications are banned cannot but enhance the significance of the infringement of the rights of the individual effected by s.13(1) of the Act.
[47] R. v. Butler (1992), 70 C.C.C. (3d) 129 (S.C.C.), addresses the constitutionality of the obscenity provisions of the Criminal Code. The court by a 7-2 majority upheld the obscenity provisions. Writing for the majority, Sopinka J. took account of the fact that the prohibitions did not touch the private use or viewing of obscene materials. He said, at p.166:
Fourthly, while the discussion in this appeal has been limited to the definition portion of s.163, I would note that the impugned section, with the possible exception of s-s.(1) which is not in issue here, has been held by this court not to extend its reach to the private use or viewing of obscene materials.
[48] I will now specify what I consider to be detrimental effects arising from the prohibition of simple possession of child pornography.
[49] First and foremost, the invasion of freedom of expression and personal privacy is profound. Further, the prohibition extends to all persons including those who make no harmful use of pornography. They may be collectors of pornography, whether out of prurient interest or simply out of curiosity, but with no harmful intent. The prohibition also includes pedophiles who, instead of preying on children, use pornography for very private purposes, such as relief from their affliction by masturbation. As noted earlier, sexually explicit pornography is used to relieve pent-up sexual tension of otherwise potential aggressors. Whether or not this cathartic effect outweighs the harm caused by the possession of pornography is not known, but it is nonetheless a significant factor to take into account. The ban includes "mildly erotic" pornography, such as is included in s-s.(1)(a)(ii), although the evidence indicates that "mildly erotic" pornography has the effect of reducing sexual aggression against children. As for materials that counsel or advocate sexual offences against children, there are no doubt collectors who are not affected by such literature, but who are nonetheless subject to criminal sanctions arising from mere possession. A magazine or a newspaper may contain some material said to be pornographic. Although the balance of the publication may be quite within the law, the offending material will make possession of the magazine or newspaper illegal: R. v. Popert (1981), 58 C.C.C. (2d) 505 (Ont.C.A.). Purchasers of such publications will have to become their own censors.
[50] I turn then to weigh the salutary effects against the detrimental effects. In my opinion, the detrimental effects substantially outweigh the salutary effects; the intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition.
[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.
The Evidence Below
[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:
Q What forms do child pornography take?
A It really is to the extent of what the person who has a sexual interest in children, whatever they want to create.
Q I'm just going to ask you to slow down, please.
A Sorry. Anything that a person who has a sexual interest in children, whatever they want to create. And what I've seen in my investigations and through search warrants that have been executed and material that has been seized by myself and other investigators, I have seen pictures of children engaged in sexual acts with either other adults or other children and they can consist of Polaroid shots --
Q Sorry. Pictures of children -- ?
A Engaged in sexual acts with either other children or with other -- with adults, both males and females. The pictures can be either Polaroid shots or [other] still pictures that have been taken with a camera and the developing has been done by the person who has taken the pictures. We have had other complaints from photo studios that have developed pictures and then turned them over to us which show children engaged in sexual activities.
I've also seen material that are contact sheets which would be by someone who is developing their own pictures and the contact sheets would have up to, say, 15, 20 pictures on the one sheet and then from there, they can develop them into larger pictures. They'll be quite small on the contact sheets. Where the children again --
Q Sorry. What are contact sheets again?
A A contact sheet is just one sheet with a series of photographs that have been taken by a person on a film and then from there they choose which pictures they're going to -- it would be like a photo studio would show you a sheet of many pictures and then they'd develop them further.
I've seen pictures that are taken with a video camera where there's videos of child pornography. I've seen videos which at the onset contain -- in one, there was WWF Wrestling at the beginning of the video and then in the middle was child pornography and towards the end, it was --
Q Sorry. If I can just stop you there, please.
A Yes.
Q So you're talking now about video cassettes?
A Video cassettes, yes, that's correct.
Q All right. And then you're talking about some -- and so those are, in other words, live action; is that correct?
A Live action where they involve children engaged in either sex acts with other children, engaged in sex acts with animals, where there is pictures of children that are nude and then in sadomasochistic poses where they're either tied up or bound or blindfolded and where the focus are the genitals. The children are spread-eagle so that shows the children exposed and would be child pornography under the definition. I have seen material where it is taken from magazines such as --
Q All right. If I can just stop you there.
A Yes.
Q You'd also mentioned an incident in which the material that was not the first thing that was on the video. Can you just describe what you mean by that and explain that?
A Yes, it was actually a detention where the material showed WWF Wrestling at the beginning and then as you got further into the video, there were images of the children engaged in sexual acts. And then towards the end, the same, children engaged in sexual acts and children -- very young children, pre-pubertal children.
I have also seen videos where they have re-copied eight millimetre film -- the -- 'cause most people don't have eight millimetre cameras or -- or projectors to play material back and it's now being put onto videos so they can be played in a video recorder or a VCR.
They -- the material is again -- other materials that I've seen with that is where they have taken the videotape, removed the tape, reversed it and then resealed the package so that it would appear that it was a new tape and -- with no material on it. And then when it was reviewed, it would appear to be blank because it was put on backwards. And when it's reversed again, the material as contained is child pornography.
I've also seen most -- more recently, written -- well, since I came there, written material where the -- there are very graphic stories of children engaged in sexual activities.
Some of the first written material on computer that I saw was a very violent story involving a young, teenage girl who is taken in by a male who then really keeps her hostage, engages in very brutal and cruel sexual acts with the child, having her bound and tied and -- it's quite graphic and quite horrific. And then at the very end of the story, which is a 50-page story that was sent over the Internet, the child is left to die. Also --
Q So if I could just stop you there.
A Yes.
Q There's a kind of -- you're on to written material now?
A Yes.
Q And the first, I take it, that you've described are what you describe as graphic stories involving sexual acts by adults upon children?
A Yes, and it's written -- this particular story is, of course, written in such a way that the child is starting to enjoy and wants to engage in this activity even though it -- it is as horrific as it is outlined.
Q Is that characteristic of these stories in general?
A Yes, not all of them are violent, but they are characteristic of the fact that the child will then appear that they want this or they instigated the relationship and that -- that the person was just doing the child a favour by advancing their sexuality by engaging in sex acts with the child.
I have seen material such as publications such as the North American Man Boy Love Association whereby they will have material which is written word but also erotic pictures of children nude and either posed in erotic poses. They will have erotic stories of children engaged in sexual activity with either other children or other adults.
The stories will also be in these publications, testimonials by persons who have been either convicted of offences or they state they have, of offences in relation to children and they're testimonials of the children they've engaged in sex acts with, and children -- pre-pubertal children as well. Also, in that publication and many others, have a similar vein, such as Paidika, which is a journal of --
Q Sorry. Just to stop you there.
A Yes.
Q If you could -- other than that, is there anything else in NAMBLA in terms of the -- the North American Man Boy Love Association publication that you wish to describe?
A Yes, they also -- they have, specifically in the October 1991 volume, they had a specific -- several articles, one titled "Staying Safe and Happy in a Man Boy" --
Q I'm going to ask you to slow down again, Detective Waters.
A Sure, sorry.
Q If you could perhaps follow His Lordship's pen and that of Mr. Sharpe and --
A It's October 1991 bulletin. It was titled "Staying Safe and Happy in a Man Boy Relationship". The article outlined to the -- the male adult or whoever was involved with the child, how to instigate the relationship with the -- with the child, where to store or not store material that would be considered child pornography, that the -- how the child, if they were -- that they could -- how they could instigate the relationship with the adult.
It really went into speaking to the child, how they could engage in sex with the adult. It also counselled the child not to speak to any authorities should they be questioned about their relationship with the adult. And then counsel the adult on how to -- I won't say get rid of, but to break off the relationship with the child when they no longer found them sexually exciting or stimulating.
In the same bulletin, there was an article on having consent formed by a child eight to 12 would go with their parents and the person who -- adult who wanted to engage in sex with the child would go before a judge and then the judge would determine whether or not this would be a beneficial relationship for the child. There's other publications. One --
Q Sorry. If I could just stop you there again.
A Sure.
Q In terms of the NAMBLA publication, if you could indicate overall their editorial point of view, what would that be?
A They say that they are both political and educational and work to support men and boys who have or desire sexual, what they term consensual sexual inter-generational relationship. And it goes on from there. It's in the front of most of the NAMBLA Bulletins.
[33] The Internet is now the chief means of distribution:
Q I wanted to ask you now about the means of distribution that you have encountered in your investigation of child pornography. In what ways is this information or this material distributed?
A Through investigations that I've been involved in and search warrants that have been executed. I have observed that the material has been distributed -- right now the -- the biggest or the largest volume of material is being distributed through the use of the Internet, through computers -- computer distribution. This can involve material that has been scanned from publications or pictures of children engaged in sexual activity.
We've seen the older child pornography publications that were produced in Europe and Asia that are now showing up on computer and being distributed on the computers through the Internet. The pictures are scanned, which means that they are changed into an electronic format and placed on disk -- computer disk.
THE COURT: Just slow down a little bit, please.
A Yes.
THE COURT: Yes?
A It's been an electronic format on disk and then can be distributed through the computer, either through -- which I stated earlier, through e-mail or chat rooms or ICQ.
THE COURT: Just hold on. E-mail --?
A Chat rooms or ICQ. I'm sure there's other methods, Your Honour, but I'm not a computer technical person so I can't tell you all of the methods that are used. Also, the material can be placed onto CD-ROMs which are another method of storing the material on a type of disk, computer disk. Also, material is stored on JAZ-drive and --
THE COURT: JAZ-DRIVE?
A J-A-Z.
THE COURT: Yes?
A It's a -- almost can store as much material as a computer hard drive. They -- they store volumes of material and can be hooked up to the computer separately and stored -- the material stored.
[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:
And as a result of cases involving mere possession of child pornography, we have uncovered persons who have been sexually molesting children, who have been making child pornography, distributing child pornography, and selling child pornography.
We have been able in -- as a result, to get the children away from that abuse and to deal with the offenders to either attempt to change the behaviour or deal with them through the courts.
There has been a recent investigation in which a person was in possession of child pornography and came to light as the result of a Customs detention which is how a number of our investigations originate is through Customs detention of the material.
This person is -- has foster children in which they have been mentally retarded foster children who have been utilized in the production of this material. That investigation originated as a possession of child pornography offence.
* * *
Q Your last or one of your last examples, you mentioned NAMBLA and that leads me to ask you, has the inclusion of written material in the definition of child pornography assisted you and other investigators in dealing with the problem of child pornography?
A Yes, My Lord. We've had a number of cases in B.C. where we have obtained search warrants for child pornography, being the written word, being the NAMBLA publications, persons who have -- have the material detained by Customs. And we've obtained search warrants. And there have been convictions. Either guilty pleas or found guilty of possession of NAMBLA Bulletins and the --
THE COURT: Possession of --?
A NAMBLA, North American Man Boy Love Association Bulletin and other materials. And that has been deemed to be child pornography. The written material has also, in a number of recent investigations we've had, where there's been a male who came through the border, been convicted and sentenced about six months ago in which he had thousands of images -- pictures of children engaged in sexual activity as well as thousands of stories --
THE COURT: Thousands of stories?
A Of children engaged in sexual activities. Most of this stored on computer.
[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:
A Pedophilia is a form of paraphilia. Paraphilia very simply is the clinical term denoting sexual deviance. And there are -- are many --
Q I'd just ask you to keep an eye on His Lordship's hand.
A Okay. I will, sir. Paraphilia, there are probably over 30 distinct types of paraphilic behaviours described in the literature.
One of the eight more common types that's described in the Diagnostic and Statistical Manual of Mental Disorders which is a standard nomenclature or descriptor of all forms of emotional illness, which is published by the American Psychiatric Association, pedophilia is listed as -- as a more common form.
By definition, it's the erotic attraction or the sexual attraction to pre-pubescent children. Now, having said that, children reach puberty at various ages. So to say it's 12 or 13 or 14, it's debated as to what the cutoff is. It really is situation specific. There are two sub-types of pedophilia described. The first one is known as hebephilia.
THE COURT: Just a moment. How do you spell that?
A H-e-b-e philia. Some people call it hebepedophilia. Hebe being the root word in Ancient Greek meaning juvenile. And these are men who have the erotic attraction to children who have reached puberty or who are in early adolescence. The other sub-type is referred to as an infantiphilia and these are men who are erotically aroused to children who are under age five.
[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:
1. it reinforces cognitive distortions;
2. it fuels the sexual fantasies of those who possess it;
3. it is used by paedophiles in what has been called "grooming children".
[41] I shall explain each of these in detail.
1. Reinforcing Cognitive Distortions
[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:
A Yes. Pornography is important in one aspect of the way that pedophiles think. Pedophiles have what we term cognitive distortions; cognitive distortions regarding their sexual contact with children. What are cognitive distortions? They're the rationalizations and the justifications that these people have for their deviant behaviour. Another way of putting it is that they are offence-facilitating beliefs.
The term cognitive distortion is a term that we use in clinical forensic psychiatry that covers a variety of ways that a pedophile thinks, including the denial and minimization of the harm that they cause to children. Cognitive distortions also are a way of shifting the responsibility towards the child and they have various attitudes and beliefs which are pro-offending in nature.
Q What do you mean by that?
A Well, they will believe that children actually want sex with adults and that if a child asks questions about sex or sexual issues, it's an invitation for the pedophile to have sexual contact with them. They will harbour the belief that sexual contact with children enhances the relationship between the adult and the child. They'll also, as part of these cognitive distortions, tell you that well, doc, it was done in ancient Greece, so it's society's problem, modern day society's problem that sexual contact is not allowed. Or, it was done among other societies.
What it is is a way of validating in their own mind the fact that what they do with children is okay. Not all pedophiles have cognitive distortions, they may just minimize the harm. But again, it's a basic tenet in treating pedophiles because the more ingrained, the stronger these cognitive distortions are, the more treatment-resistant they are. It's intriguing, because they almost reach a level where -- well, it's not delusional, but their thinking is so bizarre when it comes to their contact, their sexual contact with children that, despite any evidence to the contrary, they won't believe it. To them, sexual contact with children is the most important thing for them and they've managed to shape their thinking processes to convince themselves that absolutely no harm is done.
Now, cognitive distortions can be held individually by a pedophile but over the past number of decades, organizations have sprung up, organizations of pedophiles that advocate sex with children and what happens is, is when they see other people who belong to these organizations or subscribe to the magazines that some of these organizations put out, it's another way of, for them, gaining acceptance and status and trust and more importantly, psychological support.
An example of such an organization is the North American Man Boy Love Association. They support and actively seek out changes to the legislation pertaining to sexual contact with children and they will publish -- they publish a bulletin and this bulletin follows the models of similar organizations like the Journal of Pedophile Information Exchange that came out of England in the 1970s. Typically there will be photographs of boys which are erotic but not pornographic.
and later, in cross-examination:
Q What I mean is could something be a cognitive distortion in one society yet not be a cognitive distortion in another society?
A I don't know. I'm not -- I couldn't answer that. Certainly one of the defences that pedophiles will tell me is that in certain societies in, let's say the Philippines or Sri Lanka, that it's generally accepted that sex with children is okay and is more tolerated, but then again, because it's not as enforced, it really just fits in with the cognitive distortions that these North American or European men have.
Q Well, I was thinking, say, in terms of the Filipinos or Sri Lankans.
A I just answered that, sir.
Q So it might not be a cognitive distortion?
A Oh, I believe they are cognitive distortions. I believe that the people, the citizens of the Philippines don't want their children to be sexually abused in the same way that the people of North America or Europe don't want their children to be sexually abused.
Q So to the extent that you can determine, cognitive distortions are not relative; they are the same throughout all societies?
A I think to -- well, cognitive distortions are the thinking that the men have. It's to describe the thinking processes of the pedophiles, not the thinking processes of the societies.
[43] In cross-examination, he said then:
Q You don't know if it's a cognitive distortion?
A I think that it depends who believes it. If it's -- depends on age-appropriate sex or if it's sex with adults. I mean, if it's told to me by a pedophile as an explanation why he should be allowed to have sex with a pubescent male, then that's a cognitive distortion. If it's told to me by an adolescent male who is dating and he's beginning to have exploratory sex with an age-appropriate individual, then it wouldn't be a cognitive distortion.
* * *
Q Now, in this situation, can you really say that the pedophile is targeting the boys or that they both seek out each other?
A No, it's the pedophile's wish to encourage the behaviour, but indeed as the adult who is responsible, they're the one who's seeking out the contact.
Q So the boys in this case are not responsible.
A I believe that the responsibility is more so on the shoulders of the pedophile.
Q Do you accept that it could be a shared responsibility?
A No, because I don't believe that, in the same way with girls, we don't want our -- because the argument has been made that boys should be allowed to express themselves sexually. We don't seem to encourage our 14, 15 and 16-year-old daughters to sleep with 65-year-old men. Why should we do so with our 14, 15, 16-year-old sons?
Q Do you believe that there is basically no difference between boys and girls in terms of relationships with adults?
A I don't believe that adults should have sexual relationships with either boys or girls.
[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.
2. Grooming
[45] What Dr. Collins said was this:
Q Now, directing your attention specifically to child pornography, is child pornography used by pedophiles in a way that puts children at risk?
A Most definitely.
THE COURT: Just a moment. Yes? Yes, go ahead.
A Well, there's a grooming process involved with pedophiles. Most pedophiles, and I hate the term, but it's there, most pedophiles are seductive in their approach to children. And in actuality, they perceive their selfish desire for sexual gratification as being healthy for the child.
THE COURT: Yes?
A There are various stages to this grooming process. The first stage has been described as the targeting stage. Pedophiles seem to have a knack for determining what children may be more likely to be victimized. Very often, they'll target street children or children from dysfunctional families of origin.
The next phase is what they -- what we -- is termed in the literature the non-sexual touching stage. In this stage, the pedophile will touch the child and it may be sexual for them but it really is a non-sexual contact which, if they're caught at this stage, they can easily explain as being a mistake.
What they're doing is testing the child to see as to whether they can go further in terms of the touching. So it may be an accidental touching of the buttocks or rubbing their genitals up against the -- the thigh.
Or wrestling and it seems like pedophiles like to wrestle in their underwear with kids. I've been involved in all too many cases of that. So if they're interrupted or if they're discovered or if there is disclosure, the pedophile will explain that it was just an innocent thing.
But also, at this non-sexual touching stage, pedophiles will introduce the subject of sex, try and "normalize" it - I use that in quotation marks - for the child, try and demystify it using their own pedophilic prejudices. And in part of that non-sexual touching stage when they introduce the subject of sex, they will use pornography.
And we're not talking all pedophiles, but certainly, I've seen in common that many do use this. Now, it will either be adult age-appropriate pornography or child pornography. Really, what they're trying to do is lower the inhibitions of the child, try and convince them that sexual contact is healthy, other children do it.
[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.
3. Fuelling Sexual Fantasies
[48] Dr. Collins said, in part:
But essentially it's another way of describing what we've pretty well known for many years in clinical medicine, that many sexually deviant men are collectors. Now, there are different forms of collateral material. And the most common form and the one which seems to apply in this case is erotic collateral material.
Q And what is that?
A Well, erotica is defined as anything which serves a sexual purpose for a given individual. And what may be erotic for one person may be viewed as totally benign, and you know, not erotic for another person.
THE COURT: Hold on for a moment. Yes, thank you.
A Erotica doesn't necessarily mean pornography. Photography or photographs, I should say, of fully clothed children, if they fall within the target age group to which the pedophile is attracted to, can be erotic and arousing to a pedophile. And I have brought some examples of that which I can show the court later.
So on a continuum, it can -- erotica can be pictures of fully-clothed children to partially-clothed children, to at the far end, what would be considered pornographic. Obviously, the most highly valued material in the collection of a pedophile are the ones that are considered to be pornographic.
Pedophiles will collect pictorial images of children. They'll collect writings which have pedophilic themes. Now, these writings and pictures can either be commercially-produced or they can be homemade. But the purpose is the same; it's to fuel their erotic fantasies.
[49] Here, Dr. Collins was addressing what he refers to as "collateral material".
[50] Later, he said:
Q In addition to the use of child pornography in grooming of victims, is there any other way in which child pornography is harmful?
A It is and there has been some literature, very good literature written about how child pornography will incite pedophiles to reoffend.
[51] He then referred to an article by Dr. William Marshall, who did give evidence before the Standing Committee, which contained this passage:
Slightly more than one third of the child molesters and rapists claim to have at least occasionally been incited to commit an offense by exposure to one or the other type of the sexual materials specified in this study. For some of them, the role of sexual depictions as an instigator to offend was accidental, or at least the stimuli were not deliberately sought out to [incite] them to offend. However, amongst those child molesters who were incited, 53% of them deliberately used the stimuli in their typical planned preparation for offending, as did 33% of the rapists who were incited to offend by these materials. The demonstration of relationships between the use of sexual stimuli as instigators to offend, the strength of deviant sexual interest ... and the rates of masturbatory activities, strengthens the conviction that child molesters (in particular) are preoccupied with deviant thoughts that unfortunately appear to mediate a high rate of sexual offending.
* * *
Clearly a proportion of rapists and child molesters use sexually explicit stimuli to incite both deviant sexual fantasies and deviant sexual acts.
[Emphasis mine.]
[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.
Other Evidence
[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:
Report to the Minister of Justice of the Special Committee
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)
United States Senate Report 104-358 in Respect of the Child
Pornography Prevention Act 1996 (The Senate Report)
(U.S. Senate, August 1996)
United States Legislation on Child Pornography -- 18 U.S.C.
Chapter 110 -- Sexual Exploitation and Other Abuse of
Children, sections 2251-2252A and section 2256
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
United Nations Declarations and Conventions:
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)
Australian Legislation -- Child Pornography:
Excerpts from State and Territorial Legislation
Classification (Publications, Films and Computer Games)
Enforcement Act 1995 No. 63 -- New South Wales, Australia
Classification (Publications, Films and Computer Games)
Enforcement Act 1995 No. 90 -- Victorian Parliament,
Australia
New Zealand Legislation -- Child Pornography:
Films, Videos and Publications Classification Act 1993, No. 94
-- Statutes of New Zealand 1993
English Legislation Addressing Child Pornography:
Protection of Children Act 1978
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.
The Position of the Parties in this Court
[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:
26. The appellant submits that the trial judge's ruling on the voir dire resulting in the dismissal of the two possession counts is erroneous in a number of respects. First, he failed to give adequate weight to the surpassing importance of Parliament's objective to protect all children from the evils of child pornography. Second, he failed to take into account the fact that the nature of the expression is not only offensive, disturbing and harmful, it is also only tenuously connected, if at all, to the promotion of freedom of expression principles. Further, the tenuous connection it does have to any sense of individual self-fulfilment is at a most base and prurient level. The jurisprudence recognizes that this consideration permits restrictions on freedom of expression to be more readily justified. Third, in placing as much emphasis as he does on an individual's right to expression of their individuality and to a right to privacy, the trial judge neglected to consider how disconsonant the exercise of those individual rights, in this context, is with other equally important values and principles in a free and democratic society. More specifically, he neglected to consider how inimical the possession of all child pornography, not just the sexually explicit kind which the trial judge found to be beneficial to some users, is to the dignity, autonomy and privacy of the children directly abused and exploited in its creation and of all children put at risk through its use. Fourth, the trial judge erred by effectively requiring empirical proof in areas which are simply not susceptible to proof by traditional or scientific means.
27. The trial judge found as a fact that children are placed at risk by the use of child pornography by paedophiles in the grooming process. He found as a fact that children are abused in the creation of child pornography. He found as a fact that some kinds of child pornography incite some paedophiles to commit offences against children. On the basis of these findings alone, given the important societal objective of protecting children, the trial judge should have found that s. 163.1(4) is a reasonable limitation prescribed by law. In finding otherwise, the trial judge set the balance between the rights of the individual and the rights of children and of society incorrectly.
[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:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
[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:
4. ... the Crown seeks to justify the proscription of all sexual images of persons under age 18, including those that did not involve the commission of harm, criminal conduct, or even the use of a real child. The Crown asserts that the possession of images of any sexual activity of persons under 18, including legal consensual sexual activity of persons aged 14 to 17, may induce criminally exploitative behaviour in pedophiles. Against this line of argument, we respectfully submit that a free society cannot measure the allowable range of expressive freedom by reference to the appetites of the most deviant persons in our community. This has long been an accepted truth in connection with offences of production, distribution, publication and sale of expressive materials, and it should have even greater force in the context of an offence of mere possession.
5. The prevention of sexual violation or exploitation of children and youth is a state objective of pressing and substantial importance. For these reasons, provisions that make it an offence to create, distribute or simply to possess pictures that constitute a record of the actual sexual exploitation of a child or youth are a reasonable limit on freedom of expression that can be demonstrably justified in a free and democratic society.
* * *
10. The central issue in this appeal is the constitutionality of the offence of simple possession created by s. 163.1(4). The BCCLA 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. ...
11. The effect of criminalizing the simple possession of expressive materials is profound: it results in the violation of all section 2(b) freedoms at once: thought, belief, opinion, and expression. Further, it necessarily entails a profound invasion of personal privacy.
12. State efforts to coerce individuals into holding or abandoning thoughts, beliefs, or opinions -- no matter how evil or repugnant they may be if acted upon -- are the hallmarks of a totalitarian society and antithetical to a free and democratic society. For this reason, simple possession offences of expressive material should only be upheld in exceptional circumstances where the law in question is carefully tailored to capture only expressive material that is necessary to the attainment of an overriding state purpose.
13. ... the constitutional infirmities of section 163.1 lie in the breadth of the definition of "child pornography" when coupled with the extraordinary nature of a simple possession offence.
14. ... the definition of "child pornography" in subs. 163.1(1) constitutes an overly broad limitation on constitutionally protected rights and freedoms in the context of subs. 163.1(4) in at least five respects.
[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.
The Learned Judge's Findings of Fact
[64] In their factum, counsel for the respondent says of the learned judge's findings
22. The factual foundation of the learned trial judge's decision is found in nine findings of fact [para. 6, supra [para. 24 of these reasons]], which he made after considering the testimony of two witnesses and empirical studies. These findings of fact are entitled to some deference by this Court. The Respondent respectfully submits that the Appellant has not demonstrated, in its Factum, any basis for interfering with them.
23. Generally an appellate court will not interfere with a trial judge's findings of fact unless they are unsupported by the evidence or based on clear error. However, in RJR MacDonald Inc. v. Canada Attorney General), [1995] 3 S.C.R. 199 at pp. 286, 289; 100 C.C.C. (3d) 449 at pp. 506, 508, La Forest J. (speaking for five of nine judges) distinguished between "adjudicative" and "legislative" facts:
... the privileged position of the trial judge does not extend to the assessment of "social" or "legislative" facts that arise in the law-making process and require the legislature or a court to assess complex social science evidence and to draw general conclusions concerning the effect of legal rules on human behaviour. ... I conclude that an appellate court may interfere with a finding of a trial judge respecting a legislative or social fact in issue in a determination of constitutionality whenever it finds that the trial judge erred in the consideration or appreciation of the matter. As applied to these cases, I find that, apart from his specific findings with respect to the credibility of witnesses and the probative value of reports, Chabot J.'s factual findings concerning the connection between tobacco advertising and consumption are entitled to minimal deference by this court. (emphasis [of counsel])
24. McLachlin J. (speaking for three judges) was more qualified, ruling that a "lesser degree of deference" may be required where the trial judge has considered social science and other policy oriented evidence. Her Ladyship added that appellate courts "should remain sensitive to the fact that the trial judge has had the advantage of hearing competing expert testimony first hand" (S.C.R., p. 334; C.C.C., p. 541).
[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.
The Legislative History of Section 163.1
[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:
2. The said Act is further amended by adding thereto, immediately after section 163 thereof, the following section:
163.1 (1) In this section, "child pornography" means a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity.
(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
(3) Every person who distributes or sells any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
(4) Every person who possesses any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
(5) It is not a defence to a charge under subsection (2) that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.
(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.
(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3) or (4).
[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:
1. Subsection (1), the definition section, was amended in two ways:
(a) the words beginning "that shows" down to "explicit sexual activity" became subsection (i) and these words were added as subsection (ii): "[or] the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;"
(b) subsection (b), which relates to "any written material or visual representation that advocates or counsels sexual activity...." was added.
2. Subsection (3), which began "Every person who distributes or sells any child pornography ...", became "Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography ...".
The Meaning of ss. 1 and 2 of the Charter
[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:
Useful as decided cases are, it is always advisable to get back to the words of the Act itself and to remember the object with which it was passed.
[Re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54 at 70, [1932] 1 D.L.R. 58.]
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.
(a) Preamble
[74] This is the preamble:
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
[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:
20. The principles that recognize the "rule of law" are more readily understood and applied than the principles that recognize the "supremacy of God". However, the complexity of understanding and applying the principles that follow from the recognition of the supremacy of God should not cause it to be discarded as vague or unhelpful. Both concepts point toward our philosophical and legal tradition, which upholds objective truth and moral standards.
* * *
22. EFC and Focus believe that religious principles and beliefs have found expression in social beliefs about the sanctity and protection of human life, including the protection of children and the special duties that we, as adults, owe to children as a vulnerable group. Put differently, the social goal of protecting children in Canadian society has developed from the principles and beliefs of the religions that have shaped Canadian society. These principles also have become an integral part of our civil and criminal law. As the Law Reform Commission of Canada stated:
"... law faithfully reflects one of society's traditional attitudes. Our society recognizes that morally, religiously, philosophically, human life merits special protection. This recognition of life's fundamental importance has often been expressed by the concept of the sanctity of human life".
Law Reform Commission of Canada, Working Paper No. 28, "Euthanasia, Aiding Suicide and Cessation of Treatment", (1982) at p. 3.
23. Most major religions regard children as treasures, or as sacred trusts, which warrant vigorous protection from all harm, including the physical, emotional and sexual abuse which, on the evidence before Shaw J., results from the production, dissemination and possession of child pornography.
[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.
(b) Section 1
[81] This is section 1:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[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.
(c) Whether limit on possession can be justified
[88] In paragraph 10 of his factum, Mr. McAlpine remarked:
The BCCLA 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.
[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):
1. Whenever in this Order the expression "objectionable matter" is used, it shall be construed to mean and include:-
(a) Any adverse or unfavourable statement, report or opinion concerning the causes of the present war or the motives or purposes for which Canada or the United Kingdom of Great Britain and Ireland or any of the allied nations entered upon or prosecutes the same, which may tend to arouse hostile feeling, create unrest or unsettle or inflame public opinion;
(b) Any adverse or unfavourable statement, report or opinion concerning the action of Canada, the United Kingdom of Great Britain and Ireland or any allied nation in prosecuting the war;
(c) Any false statement or report respecting the work or activities of any department, branch or offices of the public service or the service or activities of Canada's military or naval forces, which may tend to inflame public opinion and thereby hamper the Government of Canada or prejudicially affect its military or naval forces in the prosecution of the war;
(d) Any statement, report or opinion which may tend to weaken or in any way detract from the united effort of the people of Canada in the prosecution of the war;
* * *
2. (1) No person shall, unless with lawful excuse or authority, the proof of which shall lie on him, speak, utter, write, print, publish, post, deliver, receive or have in his possession or on premises in his occupation or under his control, any statement, opinion and report or any letter or other writing or any newspaper, tract, periodical, book, circular or other printed publication or any photograph, sketch, plan, model, record or other representation, containing or consisting of objectionable matter.
[Emphasis mine.]
[90] In the Second World War, the Regulation was different (Canada Gazette, 1940, p. 2226):
39. No person shall
(a) spread reports or make statements intended or likely to cause disaffection to His Majesty or to interfere with the success of His Majesty's forces or of the forces of any allied or associated powers or to prejudice His Majesty's relations with foreign powers;
(b) spread reports or make statements intended or likely to prejudice the recruiting, training, discipline, or administration of any of His Majesty's forces; or
(c) spread reports or make statements intended or likely to be prejudicial to the safety of the State or the efficient prosecution of the war.
39A. No person shall print, make, publish, issue, circulate or distribute any book, newspaper, periodical, pamphlet, picture, paper, circular, card, letter, writing, print, publication or document of any kind containing any material, report or statement,
(a) intended or likely to cause disaffection to His Majesty or to interfere with the success of His Majesty's forces or of the forces of any allied or associated powers, or to prejudice His Majesty's relations with foreign powers;
(b) intended or likely to prejudice the recruiting, training, discipline or administration of any of His Majesty's forces; or
(c) intended or likely to be prejudicial to the safety of the State or the efficient prosecution of the war.
[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.
The Tests to be Applied
[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:
319....
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
(3) No person shall be convicted of an offence under subsection (2)
(a) if, he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
[99] Of s. 1, Dickson C.J.C. said, at 736:
Obviously, a practical application of s. 1 requires more than an incantation of the words "free and democratic society". These words require some definition, an elucidation as to the values that they invoke. To a large extent, a free and democratic society embraces the very values and principles which Canadians have sought to protect and further by entrenching specific rights and freedoms in the Constitution, although the balancing exercise in s. 1 is not restricted to values expressly set out in the Charter (Slaight, supra, at p. 1056). With this guideline in mind, in Oakes I commented upon some of the ideals that inform our understanding of a free and democratic society, saying (at p. 136):
The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.
Undoubtedly these values and principles are numerous, covering the guarantees enumerated in the Charter and more. Equally, they may well deserve different emphases, and certainly will assume varying degrees of importance depending upon the circumstances of a particular case.
It is important not to lose sight of factual circumstances in undertaking a s. 1 analysis, for these shape a court's view of both the right or freedom at stake and the limit proposed by the state; neither can be surveyed in the abstract.
[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:
The case requires the Court to address one of the most difficult and controversial of contemporary issues, that of determining whether, and to what extent, Parliament may legitimately criminalize obscenity.
[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):
(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
[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:
This review of jurisprudence shows that it fails to specify the relationship of the tests one to another. Failure to do so with respect to the community standards test and the degrading or dehumanizing test, for example, raises a serious question as to the basis on which the community acts in determining whether the impugned material will be tolerated. With both these tests being applied to the same material and apparently independently, we do not know whether the community found the material to be intolerable because it was degrading or dehumanizing, because it offended against morals or on some other basis. In some circumstances a finding that the material is tolerable can be overruled by the conclusion by the court that it causes harm and is therefore undue. Moreover, is the internal necessities test dominant so that it will redeem material that would otherwise be undue or is it just one factor? Is this test applied by the community or is it determined by the court without regard for the community? This hiatus in the jurisprudence has left the legislation open to attack on the ground of vagueness and uncertainty. That attack is made in this case. This lacuna in the interpretation of the legislation must, if possible, be filled before subjecting the legislation to Charter scrutiny.
[110] He then divided, for the purposes of his analysis, pornography into three categories, at 484-85 (S.C.R.):
Pornography can be usefully divided into three categories: (1) explicit sex with violence, (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing, and (3) explicit sex without violence that is neither degrading nor dehumanizing. Violence in this context includes both actual physical violence and threats of physical violence. Relating these three categories to the terms of s. 163(8) of the Code, the first, explicit sex coupled with violence, is expressly mentioned. Sex coupled with crime, horror or cruelty will sometimes involve violence. Cruelty, for instance, will usually do so. But, even in the absence of violence, sex coupled with crime, horror or cruelty may fall within the second category. As for category (3), subject to the exception referred to below, it is not covered.
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In making this determination with respect to the three categories of pornography referred to above, the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.
[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:
In my view, however, the overriding objective of s. 163 is not moral disapprobation but the avoidance of harm to society. In Town Cinema, Dickson C.J. stated, at p. 507:
It is harm to society from undue exploitation that is aimed at by the section, not simply lapses in propriety or good taste.
[113] On the minimal impairment requirement of the proportionality test he wrote, at 506:
Fourth, while the discussion in this appeal has been limited to the definition portion of s. 163, I would note that the impugned section, with the possible exception of subs. (1), which is not in issue here, has been held by this Court not to extend its reach to the p