In Canada, one of the major issues surrounding the concept of freedom of expression is whether pornographic material should be censored to prevent its use and distribution, or whether pornographic material that is both potentially harmful and exploitative should be regulated in a post-hoc fashion through the laying of charges of obscenity.  Perhaps the most poignant debate surrounds pornographic materials that involve children.

During the 1980s and early 1990s, six Ministers of Justice were involved in drafting amendments to the Criminal Code aimed at preventing the distribution of pornographic material, but none succeeded in producing legislation that seemed to strike an acceptable balance between freedom of expression and the prevention of harm.  With new methods of distributing pornographic materials through the internet becoming available, the pressure was mounting for the federal government to take action.  Finally in 1993, as part of its law-and-order pre-election positioning, the Conservative government pushed through Parliament amendments to the Criminal Code that made it a criminal offence to distribute or even to possess pornographic materials involving children.

The purpose of this legislation was to prevent the exploitation of children.  Some critics thought that the legislation was over-broad, unnecessarily interfering with freedom of expression and privacy.  For example, some thought that the legislation might criminalize the possession of family photographs showing children in the bathtub.

In the late 1990s, John Robin Sharpe of Vancouver was charged twice with possession of pornographic materials, and with possession of these materials for the purposes of distribution.  Rather than plead guilty, Sharpe decided to make the argument in court that the legislation intended to protect children was over-broad, unnecessarily interfering with his privacy and his freedom of expression.  Both the trial court judge and the majority of the panel in the B.C. Court of Appeal agreed with Sharpe, and the case was heard at the Supreme Court of Canada in January of 2000.  The Court released its decision a little over a year later.

The seven-judge panel upheld the 1993 amendments to the Criminal Code, and sent Sharpe back for trial.  Four of the seven judges read in two restrictions to the 1993 amendments.  They declared that the legislation would not be construed so as to apply to "(1) self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone,
exclusively for his or her own personal use; and (2)  private recordings of lawful sexual activity: i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use."  (para. 115)

The reaction of the media to this decision has been mixed.  The Globe and Mail seemed to support the view that the Sharpe decision is another indication of the judicial restraint being exercised by the McLaughlin court.  The National Post, however, ran commentary critical of the majority decision as being too activist because of the restrictions that the Court read into the legislation, and preferring the more deferential stance of the three-judge minority led by L'Heureux-Dubé.  In general, commentators in the justice system seemed pleased with the decision. Very few thought that the restrictions read in by the majority would hamper any of the current prosecutions or investigations related to child pornography.

Here are some excerpts from the majority decision, which was penned by Chief Justice Beverly McLaughlin.  (The numbered paragraphs used by the court are shown at the beginning of each paragraph, beginning with paragraph 20.)

 * * * * * * * * * * *

20   Reflecting these issues, the constitutional questions have been stated as follows:

1   Does s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46, violate s. 2(b)
of the Canadian Charter of Rights and Freedoms?

2   If s. 163.1(4) of the Criminal Code infringes s. 2(b) of the Canadian
Charter of Rights and Freedoms, is s. 163.1(4) a reasonable limit prescribed by
law as can be demonstrably justified in a free and democratic society for the
purposes of s. 1 of the Charter?

3   Does s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46, violate s. 7 of
the Canadian Charter of Rights and Freedoms?

4   If s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46, infringes s. 7 of
the Canadian Charter of Rights and Freedoms, is s. 163.1(4) a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society for the purposes of s. 1 of the Charter?

   V.  Analysis

   A.  The Values at Stake

21   Among the most fundamental rights possessed by Canadians is freedom of
expression.  It makes possible our liberty, our creativity and our democracy.
It does this by protecting not only "good" and  popular expression, but also
unpopular or even offensive expression.   The right to freedom of expression
rests on the conviction that the best route to truth, individual flourishing and
peaceful coexistence in a heterogeneous society in which people hold divergent
and conflicting beliefs lies in the free flow of ideas and images.  If we do not
like an idea or an image, we are free to argue against it or simply turn away.

 22   Nevertheless, freedom of expression is not absolute.  Our constitution
recognizes that Parliament or a provincial legislature can sometimes limit some
forms of expression.  Overarching considerations, like the prevention of hate
that divides society as in Keegstra, supra, or the prevention of harm that
threatens vulnerable members of our society as in Butler, supra, may justify
prohibitions on some kinds of expression in some circumstances.

24   The law challenged in this appeal engages mainly the justification of
self-fulfilment.  Child pornography does not generally  contribute to the search
for truth or to Canadian social and political discourse.  Some question whether
it engages even the value of self-fulfilment, beyond the base aspect of sexual
exploitation.  The concern in this appeal, however, is that the law may
incidentally catch forms of expression that more seriously implicate
self-fulfilment and that do not pose a risk of harm to children.

26  However, the private nature of much child
pornography cuts two ways.  It engages the fundamental right to freedom of
thought. But at the same time, the clandestine nature of incitement, attitudinal
change, grooming and seduction associated with child pornography contributes to
the harm it may cause children, rather than reduces it.

28  However, possession
of child pornography contributes to the market for child pornography, a market
which in turn drives production involving the exploitation of children.
Possession of child pornography may facilitate the seduction and grooming of
victims and may break down inhibitions or incite potential offences.

30 [Sharpe] suggests rather
that the limitation s. 163.1(4) imposes on free expression must fail because the
law catches material that poses no risk of harm to children and because the
links between possession of child pornography and harm to children are weak.

33  If a legislative provision can be read both in a way that is constitutional and in a
way that is not, the former reading should be adopted...

34   Parliament's main purpose in passing the child pornography law was to
prevent harm to children by banning the production, distribution and possession
of child pornography, and by sending a message to Canadians "that children need
to be protected from the harmful effects of child sexual abuse and exploitation
and are not appropriate sexual partners": House of Commons Debates, 3rd Sess.,
34th Parl., vol. XVI, June 3, 1993, at p. 20328.

37   (1) does "person" apply only to actual, as opposed to imaginary
persons; and (2) does it include the person who possesses the material?

38   The first issue is important because it governs whether the prohibition on
possession is confined to representations of actual persons, or whether it
extends to drawings from the imagination, cartoons, or computer generated
composites.  The available evidence suggests that explicit sexual materials can
be harmful whether or not they depict actual children.  Moreover, with the
quality of contemporary technology, it can be very difficult to distinguish a
"real" person from a computer creation or composite.  Interpreting "person" in
accordance with Parliament's purpose of criminalizing possession of material
that poses a reasoned risk of harm to children, it seems that it should include
visual works of the imagination as well as depictions of actual people.
Notwithstanding the fact that "person" in the charging section and in s.
163.1(1)(b) refers to a flesh-and-blood person, I conclude that "person" in s.
163.1(1)(a) includes both actual and imaginary human beings.

41   However, this age limit extends the reach of the
law to material beyond the ordinary conception of child pornography.  For
example, it raises the possibility that teenagers, perhaps even married
teenagers, could be charged and imprisoned for taking and keeping photos or
videos of themselves engaged in lawful sexual acts, even if those materials were
intended exclusively for their own personal use.   This prohibition engages the
value of self-fulfilment and may be difficult to link to a reasoned risk of harm
to children, again raising particularly troubling constitutional concerns.

45  This suggests that the law catches only depictions of sexual
intercourse and other non-trivial sexual acts.

51   Family photos of naked children, viewed objectively, generally do not have
as their "dominant characteristic" the depiction of a sexual organ or anal
region "for a sexual purpose". ....  Absent evidence indicating a dominant prurient
purpose, a photo of a child in the bath will not be caught.

54   The second category of child pornography caught by s. 163.1(1) is "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".

55   This section is more limited than the definition of visual pornography in
s. 163.1(1)(a), which captures sexual "representations" of children.  Section
163.1(1)(b) is confined to material relating to activity that would be a crime
under the Criminal Code.  Moreover, it is confined to material that "counsels"
or "advocates" such crimes.   On its face, it appears to be aimed at combating
written and visual material that actively promotes the commission of sexual
offences with children.

56  The mere description of the criminal act is not
caught.  Rather, the prohibition is against material that, viewed objectively,
sends the message that sex with children can and should be pursued.

57   Without suggesting that the distinction is easy to apply in practice, a
purposive approach appears to exclude many of the alleged examples of the law's
overbreadth.  For instance, works aimed at description and exploration of
various aspects of life that incidentally touch on illegal acts with children
are unlikely to be caught. While Nabokov's Lolita, Boccaccio's Decameron, and
Plato's Symposium portray or discuss sexual activities with children, on an
objective view they cannot be said to advocate or counsel such conduct in the
sense of actively inducing or encouraging  it.  Nor would the section catch
political advocacy for lowering the age of consent because such advocacy would
not promote the commission of an offence but the amendment of the law.
Likewise, an anthropological work discussing the sexual practices of adolescents
in other cultures and describing such adolescents as well-adjusted and healthy
would not be caught because it would be merely descriptive as opposed to
advocating or counselling illegal acts.  I note that in any event these examples
would likely fall within the artistic merit, medical, educational, scientific,
or public good defences, discussed below.

59   However, it must be observed that the provision is broad enough to capture
written works created by the author alone, solely for his or her own eyes.  For
example, the law could arguably extend to a teenager's favourable diary account
of a sexual encounter.  The interpretations of "advocates or counsels" and the
fact that the description must be of an unlawful act reduce the likelihood of
this happening.  Nevertheless, the possibility remains that a teenager's private
account of a sexual encounter could be caught.  This example, like that of a
drawing made and kept exclusively by the accused, engages the value of private
self-fulfilment and appears to pose little real risk of harm to children,
rendering it constitutionally problematic.

63   The second meaning that can be ascribed to "artistic merit" is "possessing
the quality of art", or "artistic character".  On this meaning, a person who
produces art of any kind is protected, however crude or immature the result of
the effort in the eyes of the objective beholder.  This interpretation seems
more consistent with what  Parliament intended.  It is hard to conceive of
Parliament wishing to make criminality depend on the worth of the accused's art.
 It would be discriminatory and irrational to permit a good artist to escape
criminality, while criminalizing less fashionable, less able or less
conventional artists.  Such an interpretation would run counter to the need to
give the defence a broad and generous meaning.  I conclude that "artistic merit"
should be interpreted as including any expression that may reasonably be viewed
as art.  Any objectively established artistic value, however small, suffices to
support the defence.  Simply put, artists, so long as they are producing art,
should not fear prosecution under s. 163.1(4).

69   The defence of possession for medical, education and scientific purposes,
like the other defences, should be interpreted liberally in accordance with
Parliament's intent.

70   "Public good" has been interpreted as "necessary or advantageous to
religion or morality, to the administration of justice, the pursuit of science,
literature, or art, or other objects of general interest"....  Examples of possession
of child pornography which could serve the public good include possession of
child pornography by people in the justice system  for purposes associated with
prosecution, by researchers studying the effects of exposure to child
pornography, and by those in possession of works addressing the political or
philosophical aspects of child pornography.  Again, the same procedure would
apply as for the defence of artistic merit.

75   Yet problems remain.  The interpretation of the legislation suggested above
reveals that the law may catch some material that particularly engages the value
of self-fulfilment and poses little or no risk of harm to children.  This
material may be grouped in two classes.   The first class consists of
self-created, privately held expressive materials. Private journals, diaries,
writings, drawings and other works of the imagination, created by oneself
exclusively for oneself, may all trigger the s. 163.1(4) offence.  The law, in
its prohibition on the possession of such materials, reaches into a realm of
exceedingly private expression, where s. 2(b) values may be particularly
implicated and state intervention may be markedly more intrusive. Further, the
risk of harm arising from the private creation and possession of such materials,
while not eliminated altogether, is low.

76   The second class of material concerns privately created visual recordings
of lawful sexual activity made by or depicting the person in possession and
intended only for private use.  Sexually explicit photographs taken by a
teenager of him- or herself, and kept entirely in private, would fall within
this class of materials.  Another example would be a teenaged couple's private
photographs of themselves engaged in lawful sexual activity.  Possession of such
materials may implicate the values of self-fulfilment and self-actualization,
and therefore, like the material in the first category, reside near the heart of
the s. 2(b) guarantee.  And like the material in the first category, this
material poses little risk of harm to children.  It is privately created and
intended only for personal use.  It depicts only lawful sexual activity.
Indeed, because the law reaches depictions of persons who are or appear to be
under 18, the person or persons depicted may not even appear to be children.

Section 1 analysis:

Is the objective pressing and substantial?

82   I earlier concluded that Parliament's objective in passing s. 163.1(4) was
to criminalize possession of child pornography that poses a reasoned risk of
harm to children.  This objective is pressing and substantial.  Over and above
the specific objectives of the law in reducing the direct exploitation of
children, the law in a larger attitudinal sense asserts the value of children as
a defence against the erosion of societal attitudes toward them.  While the
government in this case did not present attitudinal harm to society at large as
a justification for the law's intrusion on the right of free expression, this
may be seen as a good incidental to the law's main purpose --  the prevention of
harm to children.

2   Is There Proportionality Between the Limitation on the Right and the
Benefits of the law?

   (a)Rational Connection

84   As the first step in showing proportionality, the Crown must demonstrate
that the law is likely to confer a benefit or is "rationally connected" to
Parliament's goal.  This means that it must show that possession of child
pornography, as opposed to its manufacture, distribution or use, causes harm to
children.

85   This raises a question pivotal to this appeal: what standard of proof must
the Crown achieve in demonstrating harm -- scientific proof based on concrete
evidence or a reasoned apprehension of harm?  The trial judge insisted on
scientific proof based on concrete evidence.  With respect, this sets the bar
too high.  In Butler, supra, considering the obscenity prohibition of the
Criminal Code, this Court rejected the need for concrete evidence and held that
a "reasoned apprehension of harm" sufficed (at p. 504).  A similar standard must
be employed in this case.

86   The Crown argues that prohibiting possession of child pornography is linked
to reducing the sexual abuse of children in five ways: (1) child pornography
promotes cognitive distortions; (2) it fuels fantasies that incite offenders;
(3) prohibiting its possession assists law enforcement efforts to reduce the
production, distribution and use that result in direct harm to children; (4) it
is used for grooming and seducing victims; and (5) some child pornography is
produced using real children.

McLaughlin accepted all five arguments.

89 ....   The lack of unanimity in scientific
opinion is not fatal.  Complex human behaviour may not lend itself to precise
scientific demonstration, and the courts cannot hold Parliament to a higher
standard of proof than the subject matter admits of.  Some studies suggest that
child pornography, like other forms of pornography, will fuel fantasies and may
incite offences in the case of certain individuals.  This reasoned apprehension
of harm demonstrates a rational connection between the law and the reduction of
harm to children through child pornography.

94 ....  Only by extending the law to private possession can these harms be squarely attacked.

   (b)Minimal Impairment

95   This brings us to a critical question in this case: does the law impair the
right of free expression only minimally?  If the law is drafted in a way that
unnecessarily catches material that has little or nothing to do with the
prevention of harm to children, then the justification for overriding freedom of
expression is absent.

99   The fact remains, however, that the law may also capture the possession of
material that one would not normally think of as "child pornography" and that
raises little or no risk of harm to children: (1) written materials or visual
representations created and held by the accused alone, exclusively for personal
use; and (2) visual recordings, created by or depicting the accused, that do not
depict unlawful sexual activity and are held by the accused exclusively for
private use.

100   Possession of material in these categories is less closely tied to harm to
children than the vast majority of material caught by the law. Children are not
exploited in its production.  The self-created nature of the material comprising
the first category undermines the possibility that it could produce negative
attitudinal changes.  In the second category, those depicted may well not even
look like children.  This said, some material in these categories could
conceivably cause harm to children.  Self-created private expressive materials
could conceivably abet negative attitudinal changes in the creator, although
since the creation came from him or her in the first place one would not expect
the effect to be significant.  A self-created private depiction or writing in
the possession of the maker could  fall into the hands of someone who might use
it in a way that harms children.  Again, a person's video or photo of him- or
herself engaged in a lawful sexual act could present an image that looks like a
child, which could possibly come into the hands of someone who would  use it to
harm children.  So it cannot be denied that permitting the author of such
materials to keep them in his or her custody poses some risk.  However, the risk
is small, incidental and more tenuous than that associated with the vast
majority of material targeted by s. 163.1(4).  Indeed, the above-cited examples
lie at the edge of the problematic classes of material.  The bulk of the
material in these two problematic classes, while engaging important values
underlying the s. 2(b) guarantee, poses no reasoned risk of harm to children.

   (c)Proportionality: the Final Balance

102   This brings us to the third and final branch of the proportionality
inquiry: whether the benefits the law may achieve in preventing harm to children
outweigh the detrimental effects of the law on the right of free expression. The
final proportionality assessment takes all the elements identified and measured
under the heads of Parliament's objective, rational connection and minimal
impairment, and balances them to determine whether the state has proven on a
balance of probabilities that its restriction on a fundamental Charter right is
demonstrably justifiable in a free and democratic society.

103   In the vast majority of the law's applications, the costs it imposes on
freedom of expression are outweighed by the risk of harm to children.  The Crown
has met the burden of demonstrating that the possession of child pornography
poses a reasoned apprehension of harm to children and that the goal of
preventing such harm is pressing and substantial.

103  Explicit sexual photographs of children, videotapes
of pre-pubescent children, and written works advocating sexual offences with
children -- all these and more pose a reasoned risk of harm to children.  Thus
we may conclude that in its main impact, s. 163.1(4) is proportionate and
constitutional.

105   However, the prohibition also captures in its sweep materials that
arguably pose little or no risk to children, and that deeply implicate the
freedoms guaranteed under s. 2(b).  The ban, for example, extends to a
teenager's sexually explicit recordings of him or herself alone, or engaged in
lawful sexual activity, held solely for personal use.  It also reaches private
materials, created by an individual exclusively for him or herself,  such as
personal journals, writings, and drawings.   It is in relation to these
categories of materials that the costs of the prohibition are most pronounced.
At the same time, it is here that the link between the proscribed materials and
any risk of harm to children is most tenuous, for the reasons discussed earlier:
children are not exploited or abused in their production; they are unlikely to
induce attitudinal effects in their possessor; adolescents recording themselves
alone or engaged in lawful sexual activity will generally not look like
children; and the fact that this material is held privately renders the
potential for its harmful use by others minimal. Consequently, the law's
application to these materials, while peripheral to its objective, poses the
most significant problems at this final stage of the proportionality analysis.

107   I turn first to consider the law's application to self-created works of
the imagination, written or visual, intended solely for private use by the
creator. ....  Personal
journals and writings, drawings and other forms of visual expression may well be
of importance to self-fulfilment.  Indeed, for young people grappling with
issues of sexual identity and self-awareness, private expression of a sexual
nature may be crucial to personal growth and sexual maturation.  The fact that
many might not favour such forms of expression does not lessen the need to
insist on strict justification for their prohibition.  As stated in Irwin Toy,
supra, at p. 976, "the diversity in forms of individual self-fulfilment and
human flourishing ought to be cultivated in an essentially tolerant, indeed
welcoming, environment".

   D.Remedy

111   Confronted with a law that is substantially constitutional and
peripherally problematic, the Court may consider a number of alternatives.  One
is to strike out the entire law. ....

112   Another alternative might be to hold that the law as it applies to the
case at bar is valid,  declining to find it unconstitutional on the basis of a
hypothetical scenario that has not yet arisen.  In the United States, courts
have frequently declined to strike out laws on the basis of hypothetical
situations not before the court, although less so in First Amendment (free
expression) cases.

113   Yet another alternative might be to uphold the law on the basis that it is
constitutionally valid in the vast majority of its applications and stipulate
that if and when unconstitutional applications arise, the accused may seek a
constitutional exemption.

114   I find it unnecessary to canvas any of these suggestions further because
in my view the appropriate remedy in this case is to read into the law an
exclusion of the problematic applications of s. 163.1,  following Schachter v.
Canada, [1992] 2 S.C.R. 679.  Schachter suggests that the problem of peripheral
unconstitutional provisions or applications of a law may be addressed by
striking down the legislation, severing of the offending sections (with or
without a temporary suspension of invalidity), reading down, or reading in.  The
Court decides on the appropriate remedy on the basis of  "twin guiding
principles": respect for the role of Parliament,  and respect for the purposes
of the Charter (at p. 715).  Applying these principles, I conclude that in the
circumstances of the case reading in an exclusion is the appropriate remedy.

115   To assess the appropriateness of reading in as a remedy, we must identify
a distinct provision that can be read into the existing legislation to preserve
its constitutional balance.  In this case, s. 163.1 might be read as
incorporating an exception for the possession of:

1   Self-created expressive material: i.e., any written material or visual
representation created by the accused alone, and held by the accused alone,
exclusively for his or her own personal use; and

2   Private recordings of lawful sexual activity: i.e., any visual recording,
created by or depicting the accused, provided it does not depict unlawful sexual
activity and is held by the accused exclusively for private use.

117   These two exceptions would necessarily apply as well to the offence of
"making child pornography" under s. 163.1(2) (but not to printing, publishing or
possessing for the purpose of publishing); otherwise an individual, although
immune from prosecution for the possession of such materials, would remain
vulnerable to prosecution for their creation.

126   The legislative history of Bill C-128, which introduced s. 163.1(4),
reinforces my view that reading in an exclusion of the problematic material
would not unduly intrude on the legislative domain.  As was noted during the
Senate Committee's proceedings, there had over the years been a great deal of
debate, both within Parliament and in the country more generally, about the
problem of child pornography and the appropriate way to address it (Proceedings
of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No.
50, June 21, 1993, at p. 50:41 (statement of Richard Mosley, Chief Policy
Counsel, Criminal and Social Policy, Department of Justice)).

127   After expressing concern over the potential for constitutional problems
arising from Bill C-128, the Honorable Gérald-A. Beaudoin, Chairman of the
Senate Committee, concluded:

   There is, obviously, also the problem the courts will face.  The Supreme
Court of Canada has to interpret the Constitution and the Criminal Code.  If the
legislation is very vague, greater power is given to the judges.  This is a
difficulty which, in cases involving obscenity and pornography, perhaps, cannot
be avoided.  In other words, to a certain extent it has to be left to the
courts.

   (Proceedings of the Standing Senate Committee on Legal and Constitutional
Affairs, Issue No. 51, June 22, 1993, at p. 51:54.)

   As Senator Beaudoin predicted, it has fallen to the Courts to interpret s.
163.1(4) and judge its ultimate validity in accordance with that interpretation.
 The British Columbia Courts found the  law constitutionally wanting and struck
it down in its entirety.  I too, find it to be constitutionally imperfect.
However, the defects lie at the periphery of the law's application.  In my view,
the appropriate remedy is to uphold the law in its broad application, while
holding that it must not be applied to two categories of material, as described
above: self-created, privately held expressive materials and private recordings
that do not depict unlawful sexual activity.

 * * * * * * * * * * *

Here are some excerpts from the minority decision, which was written by Claire L'Heureux-Dubé.

   L'HEUREUX-DUBÉ, GONTHIER AND BASTARACHE JJ. -

131   In this appeal, we are asked to assess the constitutionality of s.
163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46.  The Court must determine
whether Parliament may legitimately criminalize the possession of the material
it has defined as child pornography.  Specifically, we must decide whether s.
163.1(4) is an unjustified infringement of the right to free expression found in
s. 2(b) of the Canadian Charter of Rights and Freedoms.  The Court is also asked
to determine whether s. 163.1(4) infringes s. 7 of the Charter.  In our view,
the s. 7 liberty interest is encompassed in the right of free expression and
proportionality falls to be considered under s. 1.  Accordingly, no separate s.
7 analysis is required.

153   While the guidelines set out in Oakes provide a useful analytical
framework for the practical application of s. 1, it is important not to lose
sight of the underlying purpose of that section, namely to balance individual
rights and our communal values.  Where courts are asked to consider whether a
violation is justified under s. 1, they must be sensitive to the competing
rights and values that exist in our democracy.  As Dickson C.J. advised in
Oakes, supra, 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.

155   More recently, this Court has emphasized that close attention must be paid
to the factual and social context in which an impugned provision exists at each
stage of the s. 1 analysis.  In Thomson Newspapers, supra, Bastarache J., for
the majority of this Court, stated as follows, at para. 87:

   The analysis under s. 1 of the Charter must be undertaken with a close
attention to context.  This is inevitable as the test devised in R v. Oakes,
[1986] 1 S.C.R. 103, requires a court to establish the objective of the impugned
provision, which can only be accomplished by canvassing the nature of the social
problem which it addresses.  Similarly, the proportionality of the means used to
fulfil the pressing and substantial objective can only be evaluated through a
close attention to detail and factual setting.  In essence, context is the
indispensable handmaiden to the proper characterization of the objective of the
impugned provision, to determining whether that objective is justified, and to
weighing whether the means used are sufficiently closely related to the valid
objective so as to justify an infringement of a Charter right.

158   The very existence of child pornography, as it is defined by s. 163.1(1)
of the Criminal Code, is inherently  harmful to children and to society.  This
harm exists independently of dissemination or any risk of dissemination and
flows directly from the existence of the pornographic representations, which on
their own violate the dignity and equality rights of children.  The harm of
child pornography is inherent because degrading, dehumanizing, and objectifying
depictions of children, by their very existence, undermine the Charter rights of
children and other members of society.  Child pornography eroticises the
inferior social, economic, and sexual status of children.  It preys on
preexisting inequalities.

159   The Report on Pornography by the Standing Committee on Justice and Legal
Affairs (1978) (MacGuigan Report), spoke of the effects of pornography as
follows (at p. 18:4):

   The clear and unquestionable danger of this type of material is that it
reinforces some unhealthy tendencies in Canadian society.  The effect of this
type of material is to reinforce male-female stereotypes to the detriment of
both sexes.  It attempts to make degradation, humiliation, victimization, and
violence in human relationships appear normal and acceptable.  A society which
holds that egalitarianism, non-violence, consensualism, and mutuality are basic
to any human interaction, whether sexual or other, is clearly justified in
controlling and prohibiting any medium of depiction, description or advocacy
which violates these principles.

160   In a similar manner, child pornography creates a type of attitudinal harm
which is manifested in the reinforcement of deleterious tendencies within
society.  The attitudinal harm inherent in child pornography is not empirically
measurable, nor susceptible to proof in the traditional manner but can be
inferred from degrading or dehumanizing representations or treatment; see
Thomson Newspapers, supra, at para. 92, and R. v. Mara, [1997] 2 S.C.R. 630.  In
the past this Court has not held Parliament to a strict standard of proof in
showing a link between the expressive activity in question and the harm which it
seeks to prevent, but has afforded Parliament a margin of appreciation to pursue
legislative objectives based on less than conclusive social science evidence;
see Irwin Toy, supra, at p. 990; Keegstra, supra, at p. 776; Butler, supra, at
p. 504.

161   In Butler, supra, this Court recognized that some forms of pornography
create attitudinal harm.  Butler concerned an accused who was charged with
various counts related to selling, possessing for the purposes of distribution
and exposing obscene materials that did not involve children.  While considering
the meaning of obscenity within the context of s. 163(8) of the Criminal Code,
Sopinka J., writing for the majority, stated, at p. 479, that degrading and
dehumanizing material would, apparently, fail the community standards test
not because it offends against morals but because it is perceived by public opinion
to be harmful to society, particularly to women.  While the accuracy of this
perception is not susceptible of exact proof, there is a substantial body of opinion
that holds that the portrayal of persons being subjected to degrading or dehumanizing
sexual treatment results in harm, particularly to women and therefore to society
as a whole.

167   In short, the lack of scientific precision in the social science evidence
relating to attitudinal harm available to Parliament is not a valid reason for
calling into question Parliament's decision to act.  It has been estimated that
over 60,000 Canadians have been depicted at a young age in sexually explicit
material; see Badgley Report, supra, vol. 2, at p. 1198.  It goes without saying
that child pornography which sexually exploits children in its production is
harmful.  Moreover, we have seen that the harms of child pornography extend far
beyond direct, physical exploitation.  It is harmful whether it involves real
children in its production or whether it is a product of the imagination.  In
either case, child pornography fosters and communicates the same harmful,
dehumanizing and degrading message.

170   Canadian society has always recognized that children are deserving of a
heightened form of protection.  This protection rests on the best interests of
the child.  The vulnerability of children is a product of the innate power
imbalance that exists between adults and children.  As a result of this
vulnerability, children are often targets of violence and exploitation.  It has
been estimated that in almost 80 percent of sex crimes committed, the victims
are girls, boys and young men and women under the age of 20; see N. Bala and M.
Bailey, "Canada:  Recognizing the Interests of Children" (1992-93), 31 U.
Louisville J. Fam. L. 283, at p. 292.  Fully two-thirds of sexual assault
victims in 1993 were children, and one-third of all victims were under the age
of 10; see J.V. Roberts, "Sexual Assault in Canada:  Recent Statistical Trends"
(1996), 21 Queen's L.J. 395, at p. 420.  Indeed, it is thought that one in four
girls and one in 10 boys will be victims of sexual assault before they reach the
age of 18; see R. Bessner, "Khan:  Important Strides Made by the Supreme Court
Respecting Children's Evidence" (1990), 79 C.R. (3d) 15, at p. 16.

181   The nature of the expressive activity at issue is another important
contextual factor that has emerged from the Court's s. 2(b) jurisprudence.  The
Court has emphasized that under s. 1, the level of protection to which
expression is entitled will vary with the nature of the expression.  The more
distant the expression from the core values underlying the right, the more
likely action restricting it can be justified; see Keegstra, supra, at p. 765;
Lucas, supra, at para. 34.  Defamatory libel, hate speech and pornography are
far removed from the core values of freedom of expression and have been
characterized as low value expression, which merits an attenuated level of
constitutional protection; see Lucas, supra, at para. 93; Butler, supra, at p.
500; Keegstra, supra, at p. 765.

183   It is clear that the possession of child pornography contributes nothing
to the search for truth.  The impugned provision prohibits the possession of
material which visually depicts children engaged in sexual activity or which has
as its dominant characteristic the depiction, for a sexual purpose, of the
sexual organ or the anal region of a child.  The written material prohibited is
that which advocates or counsels the commission of sexual offences against
children.  The message conveyed by child pornography perpetuates lies about
children's humanity.  It promotes the false view that children are appropriate
sexual partners and that they are sexual objects to be used for the sexual
gratification of adults.  It encourages and condones their sexual abuse.  These
messages contribute nothing to the search for truth and are in fact detrimental
to that search.

185   The expression at issue in this case is linked to the value of
self-fulfilment, but only in a limited sense since s. 163.1(4) of the Criminal
Code in no way impedes positive self-fulfilment.  In Butler, supra, the Attorney
General for Ontario argued that the only value underlying pornography as a form
of expression was self-fulfilment in its most base aspect, that of pure physical
arousal (at pp. 499-500).  We find this argument particularly apposite in
relation to child pornography.  Child pornography is used to fuel the fantasies
of paedophiles and is also used to facilitate their exploitation of children.
It hinders children's own self-fulfilment and autonomous development by
eroticising their inferior social, economic and sexual status.  It reinforces
the message that their victimization is acceptable.  In our view, that message
denies children their autonomy and dignity.  In relation to adult pornography,
Sopinka J. found in Butler that such expression does not stand on an equal
footing with other kinds of expression which directly engage the "core" of the
freedom of expression values (at p. 500).  We agree with this statement and find
it equally applicable in the context of child pornography.

186   The possession of child pornography has no social value; it has only a
tenuous connection to the value of self-fulfilment underlying the right to free
expression.  As such, it warrants only attenuated protection.  Hence, increased
deference should be accorded to Parliament's decision to prohibit it.

189   Child pornography also undermines children's right to life, liberty and
security of the person as guaranteed by s. 7.  Their psychological and physical
security is placed at risk by their use in pornographic representations.  Those
children who are used in the production of child pornography are physically
abused in its production.  Moreover, child pornography threatens the physical
and psychological security of all children, since it can be encountered by any
child.  Regardless of its authorship, be it of the child or others, it plays on
children's weaknesses and may lead to attitudinal harm; ....
We recognize that privacy is an important value
underlying the right to be free from unreasonable search and seizure and the
right to liberty.  However, the privacy of those who possess child pornography
is not the only interest at stake in this appeal.  The privacy interests of
those children who pose for child pornography are engaged by the fact that a
permanent record of their sexual exploitation is produced.  This privacy
interest is also triggered when material which is created by teenagers in a
"consensual environment" is disseminated.

   B.  Application of the Oakes Test

   1.  Is the Objective Pressing and Substantial?
 

yes

   2.  Proportionality

   (a)  Rational Connection
yes

   (b)  Minimal Impairment

211   In conducting an analysis of whether s. 163.1(4), in combination with the
definition of "child pornography" set out in s. 163.1(1), minimally impairs the
right to free expression, the Court must be particularly sensitive to the
contextual factors which we have previously discussed.

212   As Cory J. recognized in Lucas, supra, at para. 57, the negligible value
of the expression restricted is an important factor in the minimal impairment
analysis, ....

215   In concluding that the objective outweighs the harm done to the right
protected by s. 2(b), I have considered that s. 172 reaches inside the home.
That reach is a significant aggravating feature when considering the harm done
by the section to the right of freedom of expression.  That same feature,
however, is essential if the section is to serve its purpose.  Unfortunately, it
is in the home where children are most susceptible to the kinds of conduct at
which s. 172 is aimed.

225   We turn now to the second ground upon which Rowles J.A. found that s.
163.1(4) did not minimally impair the s. 2(b) guarantee, namely that the
provision applies to teenagers between the ages of 14 and 17 who keep videotapes
or pictures of themselves engaged in explicit sexual activity or who keep
pictures of themselves, the dominant purpose of which is the depiction of their
sexual organs or anal regions for a sexual purpose.  In our view, when viewed in
its context, this effect of the provision is a reasonable limit on teenagers'
freedom of expression.

227   In R. v. Geisel, Man. Prov. Ct., February 2, 2000, the accused was found
in possession of 22 photographs of teenaged girls in various states of undress.
In some of the photographs one of the teenaged girls was engaged in sexual
activity with a teenaged boy.  The accused had befriended the girls and had
allowed one of them to stay at his house when she ran away from home.  The girls
would visit the accused and he would take photographs.  Before taking the
photographs the accused would provide the girls with alcohol which he described
to them as "liquid cocaine" because it was so strong.  In Jewell, supra, the
accused Gramlick produced his own pornographic videotapes involving 12 children
whose ages ranged from 11 to 17.  Five of the boys were under the age of 14 and
were filmed engaging in sexual acts with each other and with adult men,
including a prostitute.  The boys used in the pornography "were generally
described as being from impoverished and broken homes" (p. 274).  They were
enticed into performing by rewards of money, cigarettes and gifts.  The other
accused, Jewell, videotaped his sexual activities with 12 boys, the youngest of
whom was 10 years old.  Some of them had no knowledge that they were being
filmed.  Again, money, cigarettes and alcohol were used as bribes.  "In some
instances, [Jewell] posed as a friendly father figure, who disguised his house
as a place of refuge when the young boys left their homes.  He took some of the
boys on trips unavailable to them in their own homes, to places like Disneyworld
in Florida and Canada's Wonderland.  There was evidence that he shared these
boys with Gramlick and other associates" (p. 276).

228   A recent case before this Court further reveals the exploitation that can
occur once pornographic representations of adolescents exist.  In R. v. Davis,
[1999] 3 S.C.R. 759, the accused was charged with sexually assaulting several
complainants.  One of the complainants was 15-16 years old at the time.  The
accused had posed as a photographer who could launch the complainant's modelling
career.  He took nude photographs of the complainant and afterwards refused to
show them to her.  Eventually she asked for the negatives of the pictures.  The
accused told her that if she wanted the negatives she would have to perform
sexual acts with him, and that if she refused, he would send the photographs to
her mother.

229   These cases illustrate the very real harm which can be visited upon
adolescents between the ages of 14 and 17.  In each one, however, the
exploitation involved in the production of the pornographic videotapes and
pictures would not be evident from viewing them.  It is impossible, from looking
at a picture, to determine that the adolescent depicted therein has not been
exploited.  Hence, Parliament had a strong basis for concluding that the age
limit in the definition of child pornography should be set at 18 in order to
protect all children from the harm of being used in the production of child
pornography.  The provision recognizes, as do ss. 153 and 212(4) of the Criminal
Code, that while adolescents may be capable of consenting to sexual activity,
their consent is vitiated in circumstances where there is a possibility that
they may be exploited.

231   Thus, we cannot agree with the approach to this issue taken by McLachlin
C.J.  The inclusion of teenage pornography in s. 163.1(4) is consistent with the
legislative purpose of providing for the effective protection of children by
reducing the potential for harm caused by pornographic material.  McLachlin C.J.
is not persuaded that auto-depictions of teenage sexual activity are harmful.
With respect, Parliament was justified in restricting teenagers from creating a
permanent record of their sexual activity.  While adolescents between the ages
of 14 and 17 may legally engage in sexual activity, the creation of a permanent
record of such activity has consequences which children of that age may not have
sufficient maturity to understand, as illustrated in Davis, supra.  Furthermore,
the Fraser Committee recognized that children, because of their vulnerability,
are not always accorded the same autonomy as adults.  It states (vol. 2, at p.
561):

232   In considering whether s. 163.1(4), in conjunction with the definition of
child pornography, minimally impairs the guarantee of freedom of expression, it
is important to bear in mind that the provision does not amount to a total ban
on the possession of child pornography.  The provision reflects an attempt by
Parliament to weigh the competing rights and values at stake and achieve a
proper balance.  First, the definitional limits act as safeguards to ensure that
only material that is antithetical to Parliament's objectives in proscribing
child pornography will be targeted.  Second, the legislation incorporates
defences of artistic merit, educational, scientific or medical purpose, and a
defence of the public good.  With regard to the defence of artistic merit,
McLachlin C.J. writes that "[a]ny objectively established artistic value,
however small" (para. 63), provides a complete defence.  In our view, the
boundaries of the artistic merit defence do not need to be decided in this
appeal, especially since the defence also applies to the prohibition against the
publication, distribution and sale of child pornography that are also found in
s. 163.1.  However, we would consider anomalous interpreting artistic merit to
provide a complete defence in a case in which the same material would fail the
artistic merit test under the obscenity provisions of the Criminal Code.  We
must give effect to Parliament's deliberate decision to avoid the term artistic
"purpose", which it adopted for the educational, scientific and medical
defences.  Artistic merit must be determined with regard to composition and
emphasis according to the criteria described in para. 64 of McLachlin C.J.'s
reasons and through careful attention to artistic conventions, expert opinions
and modes of production, display and distribution.  Simply calling oneself an
artist is not an absolute shield to conviction.

233   In light of the analysis above, we conclude that Parliament has enacted a
law which is appropriately tailored to the harm it seeks to prevent.  Therefore,
we conclude that the impugned provision minimally impairs the rights guaranteed
by s. 2(b).

   (c)  Proportionality of Effects

 The benefits of the prohibition of the possession of child
pornography far outweigh any deleterious effect on the right to free expression.