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Regina v. Sharpe 169 D.L.R. (4th) 536 British Columbia Supreme Court Shaw J. Heard: November 9, 1998, November 10, 1998, November 12, 1998, November 20, 1998, November 24, 1998, November 25, 1998 and November 26, 1998 Judgment rendered: January 13, 1999 Court File No. XO50427 New Westminster Registry Criminal law — Obscenity — Child pornography — Prohibition of simple possession of child pornography violating s. 2(b) of Charter — Deleterious effects of prohibition on freedom of expression and right to privacy outweighing salutary effects — Prohibition not justified under s. 1 — Prohibition on possession of child pornography for the purpose of distribution violating s. 2(b) of Charter but justified under s. 1 — Prohibition not violating ss. 2(a), (d), or 15 of Charter — Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(1)(b), (3) — Canadian Charter of Rights and Freedoms, ss. 1, 2(a), (b), (d), 15. Constitutional law — Charter of Rights — Limitation of rights and freedoms — Prohibition of simple possession of child pornography violating s. 2(b) of Charter — Deleterious effects of prohibition on freedom of expression and right to privacy outweighing salutary effects — Prohibition not justified under s. 1 — Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4) — Canadian Charter of Rights and Freedoms, ss.1, 2(b). Constitutional law — Charter of Rights — Freedom of expression — Prohibition of simple possession of child pornography violating s. 2(b) of Charter __ Deleterious effects on prohibition on freedom of expression and right to privacy outweighing salutary effects — Prohibition not justified under s. 1 — Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4) — Canadian Charter of Rights and Freedoms, ss. 1, 2(b). The accused was charged with two counts of simple possession of child pornography and with two counts of possession of child pornography for the purpose of distribution. He challenged the constitutional validity of two sections of the Criminal Code, R.S.C. 1985, c. C-46: s. 163.1(1)(b), which includes in the definition of child pornography "any written or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence" under the Criminal Code, as it applied to the prohibition on distribution in s. 163.1(3) of the Code; and s. 163.1(4), which makes simple possession of child pornography an offence. A police officer testified that as a result of simple possession charges laid under s. 163.1(4), the police had been able to find child molesters. A clinical psychiatrist testified that child pornography is harmful because its effects on pedophiles could cause them to commit offences through "cognitive distortions" reinforcing their erroneous beliefs that child-adult sex is normal and harmless, and because children are abused in the making of child pornography. The psychiatrist relied in part on studies which found that child molesters used child pornography both before committing offences and to relieve an impulse to commit offences. One study stated that a child molester who "is prone to act out his fantasies . . . is likely to do so irrespective of the availability of or exposure to pornography" and distinguished between mildly erotic and hard-core child pornography. The Crown conceded that ss. 163.1(4) and 163.1(1)(b) violated s. 2(b) of the Canadian Charter of Rights and Freedoms but sought to justify them under s. 1. Held, s. 163.1(1)(b) was constitutionally valid in the context of s. 163.1(3); s. 163.1(4) was constitutionally invalid and of no force or effect. [page538] Sexually explicit child pornography is dangerous to children because pedophiles use it to seduce children and because children are abused in the making of child pornography. Highly erotic pornography incites some pedophiles to commit offences but helps others relieve sexual tension, and it is not possible to say which effect is the greater. Mildly erotic pornography appears to inhibit aggression. Child pornography can be a factor reinforcing a pedophile's "cognitive distortions", but there is no evidence demonstrating an increase in harm to children as a result of this effect. It is reasonable to assume that the dissemination of material counselling or advocating sexual offences against children posed some risk of harm to children. Section 163.1(4) has the salutary effect of combatting practices which put children at risk, such as the use of images in the "grooming" of children for seduction. But there is no evidence that mildly erotic images were used in seduction, that materials advocating or counselling sexual crimes with children increased the occurrence of such crimes, or that the production of child pornography would be significantly reduced if simple possession was an offence. The deleterious effects of s. 163.1(4) include its profound invasion of freedom of expression and the individual's right to privacy in his or her own home. The prohibition applies to those who possess child pornography with no harmful intent and to pedophiles who use pornography for private purposes such as relief from their affliction, and included mildly erotic pornography which has the effect of reducing sexual aggression against children. The detrimental effects substantially outweigh the salutary effects. The limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects. Other sections of the Criminal Code, such as ss. 163.1(2) and (3), contain powerful measures to prevent the harm to children arising from the making and dissemination of child pornography. The definition of "child pornography" in s. 163.1(1)(b) is justified under s. 1 of the Charter. The distribution of materials that counsel or advocate sexual abuse of children must pose some risk to children, and prohibition of possession for the purpose of distribution is far less invasive of an individual's freedom of expression and right to privacy than a total ban on possession. The prohibition does not outlaw attempts to persuade Parliament to change the age of consent or other matters of concern to pedophiles. Section 163.1(1)(b) does not violate ss. 2(a), (d) or 15 of the Charter. For the good and order of the community, obedience to the law prohibiting the counselling of sexual offences against children cannot be a matter of choice governed only by private conscience. The association of an adult with a child for a sexual purpose is not protected by the right to freedom of association. Section 163.1(1)(b) is not discriminatory but draws a relevant, rational distinction concerning sexual choice. Cases referred to Canada (Canadian Human Rights Commission) v. Taylor (1990), 75 D.L.R. (4th) 577, [1990] 3 S.C.R. 892, 13 C.H.R.R. D/435, 3 C.R.R. (2d) 116, 117 N.R. 191, 24 A.C.W.S. (3d) 311 -- refd to [page539]
Dagenais v. Canadian Broadcasting Corp. (1994), 120 D.L.R. (4th) Statutes referred to
Canadian Charter of Rights and Freedoms Authorities referred to Carter, D.L., R.A. Prentky, R.A. Knight, P.L. Vanderveer and R.J. Boucher, "Use of Pornography in the Criminal and Developmental Histories of Sexual Offenders", in Journal of Interpersonal Violence, vol. 2, No. 2 (June, 1997) Marshall, W.L., "The Use of Sexually Explicit Stimuli by Rapists, Child Molesters and Non-Offenders", in Journal of Sex Research, vol. 25, No. 2 (May, 1988) APPLICATION for a declaration that ss. 163.1(3) and 163.1(4) of the Criminal Code are constitutionally invalid. John Robin Sharpe, applicant, appearing on his own behalf. T.A. Schultes, for respondent. ¶ 1 SHAW J.:— The accused John Robin Sharpe challenges the constitutionality of child pornography provisions set out in Section 163.1 of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Sharpe contends that the impugned provisions violate the Canadian Charter of Rights and Freedoms, and in particular Sections 2(a), 2(b), 2(d) and 15. ¶ 2 A voir dire has been held to hear the constitutional challenge. This is my ruling. ¶ 3 There are four charges against Mr. Sharpe.
¶ 4 The evidence indicates that there were two seizures of materials from Mr. Sharpe. The first was by Canada Customs. That seizure was of computer discs containing a text entitled "Sam Paloc's Flogging, Fun and Fortitude, A Collection of Kiddie Kink Classics". As a result of that seizure Mr. Sharpe was charged with Counts 1 and 2. The second seizure was at Mr. Sharpe's home pursuant to a search warrant (the validity of which will be contested at a later point in this trial). That seizure was of a collection of books, manuscripts, stories and photographs said by the Crown to constitute child pornography. Many of the seized photographs are of nude boys displaying their genitals or anal regions. ¶ 5 The challenges by Mr. Sharpe are on s-s. (4) and s-s. (1)(b) of s. 163.1 of the Criminal Code. Subsection (4) prohibits simple possession of child pornography. Subsection (1)(b) sets out part of the definition of child pornography, that part including material which counsels or advocates the commission of sexual offences against children. ¶ 6 Section 163.1 of the Criminal Code reads:
¶ 7 Mr. Sharpe invokes the following provisions of the Canadian Charter of Rights and Freedoms: 2. Everyone has the following fundamental freedoms:
¶ 8 The Crown relies upon s. 1 of the Charter:
Simple Possession: Subsection (4) ¶ 9 I will deal first with Mr. Sharpe's contention that s-s. (4) of s. 163.1 is unconstitutional. ¶ 10 It will be observed on reading s-s. (4) that the word "possesses" is not limited; any purpose will suffice to make possession of child pornography a crime. Subsection (4) is to be [page543] contrasted with s-s. (2) and s-s. (3) which prohibit possession for purposes of publication, sale or distribution. Evidence ¶ 11 The Crown led evidence from two expert witnesses. The first was Detective Noreen Waters of the Vancouver Police Department. She is an expert in the investigation of child pornography. She testified that with the advent of the Internet there has been a veritable explosion of the availability of child pornography. She observed that as a result of simple possession charges laid under s-s. (4), the police have been able to obtain search warrants and carry out searches which have assisted them in finding child molesters. Detective Waters also pointed out that children are abused when they are exploited in the production of filmed or videotaped pornography. ¶ 12 The second expert witness was Dr. P.I. Collins, a specialist in Forensic Psychiatry, particularly with respect to sexual deviancy and pedophilia. Dr. Collins is a clinician (as distinct from a researcher) who specializes in treating persons with sexual deviancy problems. His patients include homosexual pedophiles, men whose sexual preference is boys. ¶ 13 Dr. Collins offered several reasons why, in his view, child pornography is harmful to children. The first is that some pedophiles show children sexually explicit depictions of children with adults, or adults with other adults, in order to lower inhibitions and to make the depicted conduct appear to be normal. The second is that pornography excites some child molesters to commit offences. The third is that child pornography augments or reinforces the "cognitive distortions" of pedophiles. Dr. Collins explained that cognitive distortions are erroneous beliefs by which pedophiles justify their aberrant behaviour. Examples of cognitive distortions are that child-adult sex is natural and that it does no harm to children. The fourth reason offered by Dr. Collins is that children are abused in the making of pornography and that pornographic films or photographs are a record of their abuse. ¶ 14 To support his views Dr. Collins relied upon certain studies, two of which were put in evidence. The first was by W.L. Marshall, Ph.D., entitled "The Use of Sexually Explicit Stimuli by Rapists, Child Molesters, and Non-offenders", published in the May 1988 [page544] Journal of Sex Research, Vol. 25, No. 2. This article addresses the "inciting" element of pornography. Dr. Marshall states, at p.284:
¶ 15 It should be noted that the materials used in the study were sexually explicit "hard core" pornography. Dr. Marshall points this out, at pp. 283-84:
¶ 16 The second article referred to by Dr. Collins is entitled "Use of Pornography in the Criminal and Developmental Histories of Sexual Offenders" by D.L. Carter, R.A. Prentky, R.A. Knight, P.L. Vanderveer and R.J. Boucher of the Massachusetts Treatment Centre. The study was published in the Journal of Interpersonal Violence, Vol. 2, No. 2, June 1987, p.196. The purpose of the study was to examine possible differences between rapists and child molesters in exposure to and experience with pornography. The subjects of the study were convicted rapists and child molesters. ¶ 17 The study found that child molesters have a greater exposure to pornography than rapists and use it more often than rapists in association with criminal offences. The study also showed that child molesters use pornography more often than rapists to relieve impulses to commit offences. Under the "Discussion" part of the study, the authors state, at p. 205:
¶ 18 The phenomenon of pornography relieving impulses to commit offences was further addressed, at p. 207:
¶ 19 The study used a broad selection of sex materials, from depictions of nude individuals on the one hand, to depictions of persons engaged in explicit sexual acts on the other. The materials included photographs, films, cartoons, magazines and books. Despite the wide range of materials used, the study did not address the differences in effect of the kinds of pornography (explicit sex or simply nudes) on the persons being studied. However, the article reported on earlier studies which found that "mildly erotic stimuli" inhibited aggression while "highly erotic stimuli" increased aggression. The authors state, at p. 197:
¶ 20 Dr. Collins testified that pedophiles often used pornography as an aid to masturbation. He was asked about the relieving effect versus the inciting effect of pornography. He was unable to say whether the relieving effect or the inciting effect was greater, but noted that a study on the subject is underway at the present time by a Dr. Ronald Langevin. ¶ 21 There was no evidence led of any study demonstrating that "cognitive distortions" cause any significant increase in the danger that pedophiles pose to children. However, as was pointed out in the Carter et al. study, a person who is prone to act out his fantasies will likely do so irrespective of the availability of or exposure to pornography. In my view, without reasonable supporting evidence, I should give only minimal weight to the "cognitive distortions" point. ¶ 22 As for written material which counsels or advocates illegal sexual relations with children, there was no evidence to show its harmful effect. However, in my view, it is reasonable to assume that [page546] the dissemination of such material does pose some risk of harm to children. ¶ 23 I make the following findings of fact based upon the evidence:
Legal Analysis ¶ 24 Crown counsel concedes that s-s. (4) violates the guarantee of freedom of expression set out in s. 2(b) of the Charter. I agree with this concession. Crown counsel contends however that s-s. (4) is saved by s. 1 of the Charter as being a reasonable limit prescribed by law which is demonstrably justified in a free and democratic society. ¶ 25 Crown counsel does not concede that there has been any violation of s. 2(a), s. 2(d) or s. 15 of the Charter. ¶ 26 Because of the Crown's concession that s-s. (4) violates s. 2(b) of the Charter, the dispute becomes whether s-s. (4) may be justified under s. 1 of the Charter. [page547] ¶ 27 Insofar as counsel and I are aware, the constitutionality of s. 163.1 has thus far been addressed in only one other court decision, Ontario (Attorney General) v. Langer (1995), 97 C.C.C. (3d) 290, 123 D.L.R. (4th) 289 (Ont. Ct. (Gen. Div.)); leave to appeal to S.C.C. refused (1995), 42 C.R. (4th) 410n, 126 D.L.R. (4th) vii. In Langer, the court dealt with an application by the Crown to forfeit paintings and sketches seized from an art gallery. The paintings and sketches depicted explicit sexual relations between adults and children. The court held that the depictions had artistic merit and did not pose a realistic risk of harm to children, and ordered that the paintings and sketches be returned to the person from whom they had been seized. ¶ 28 The learned trial judge, McCombs J., dealt with the constitutionality of s. 163.1. In a researched and detailed decision, he held that s. 163.1 violated s. 2(b) of the Charter but was justified under s. 1. ¶ 29 In dealing with s. 1, McCombs J. addressed the proportionality tests set out in R. v. Oakes (1986), 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200 (S.C.C.). In respect of the "minimal impairment" test, he said, at pp. 325-26:
¶ 30 The final proportionality test addressed by McCombs J. was the weighing of the legislative objectives of s. 163.1 against the effects of the prohibitions. He said, at pp. 327-28:
¶ 31 On my reading of Langer, it is evident that the court did not deal with the "weighing of effects" test formulated in Dagenais v. Canadian Broadcasting Corp. (1994), 94 C.C.C. (3d) 289, 120 D.L.R. (4th) 12 (S.C.C.). As noted above, the s. 1 analysis in Langer ended with the weighing of the legislative objectives against the effects of the legislation. Dagenais was not cited, likely because it had only recently been decided and may not have been drawn to the court's attention. ¶ 32 The "weighing of effects" test in Dagenais was articulated by Lamer C.J.C., who said, at pp. 324-25:
and further, at p. 325:
¶ 33 In my view, it is appropriate in the present case to consider the proportionality between the deleterious effects and the salutary effects of the prohibition of simple possession of child pornography. ¶ 34 I will now enter upon the weighing process. First, the salutary effects. The prohibition combats practices and phenomena which, at least arguably, put children at risk. These include: the use by some pedophiles of sexually explicit images in the grooming process leading to sexual relations with children; the abuse of children in the making of pornography and the preservation of that abuse in photographs or films; the confirmation or augmentation of cognitive distortions of some pedophiles; the incitement of some pedophiles to commit offences against children; and the advocacy or counselling of the commission of sexual offences against children. ¶ 35 There are factors which go to the weight to be attached to the effectiveness of the prohibitions in combatting the foregoing practices and phenomena. There is no evidence which demonstrates any significant increase of danger to children related to the confirmation or augmentation of cognitive distortions caused by pornography. There is no evidence that "mildly erotic" images are used in the "grooming process". Only assumption supports the proposition that materials that advocate or counsel sexual crimes with children have the effect of increasing the occurrence of such crimes. Sexually explicit pornography is used by some pedophiles to relieve pent-up sexual tension. A person who is prone to act on his fantasies will likely do so irrespective of the availability of pornography. There is no evidence that the production of child pornography will be significantly reduced if simple possession is a made a crime. ¶ 36 I turn now to consider the detrimental effects. I start by repeating s. 2(b) of the Charter: 2. Everyone has the following fundamental freedoms:
¶ 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, [page550] opinions, thoughts and conscience. In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577, 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:
¶ 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:
¶ 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:
¶ 40 Dickson C.J.C. at p. 29 cited the following passage from R. v. Oakes, supra, at p. 346:
¶ 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:
¶ 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, 55 D.L.R. (4th) 503 (S.C.C.), per La Forest J., at p. 254:
¶ 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:
¶ 45 Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, 75 D.L.R. (4th) 577, 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:
¶ 46 McLachlin J. for the minority also addressed the question of privacy. She said, at p. 967:
¶ 47 R. v. Butler (1992), 70 C.C.C. (3d) 129, 89 D.L.R. (4th) 449 (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:
¶ 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 [page553] tension of otherwise potential aggressors. Whether or not this cathartic effect outweighs the harm caused by the possession of pornography is not known, but it is nonetheless a significant factor to take into account. The ban includes "mildly erotic" pornography, such as is included in s-s. (1)(a)(ii), although the evidence indicates that "mildly erotic" pornography has the effect of reducing sexual aggression against children. As for materials that counsel or advocate sexual offences against children, there are no doubt collectors who are not affected by such literature, but who are nonetheless subject to criminal sanctions arising from mere possession. A magazine or a newspaper may contain some material said to be pornographic. Although the balance of the publication may be quite within the law, the offending material will make possession of the magazine or newspaper illegal: R. v. Popert (1981), 58 C.C.C. (2d) 505 (Ont. C.A.). Purchasers of such publications will have to become their own censors. ¶ 50 I turn then to weigh the salutary effects against the detrimental effects. In my opinion, the detrimental effects substantially outweigh the salutary effects; the intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition. ¶ 51 As pointed out earlier, an individual's personal belongings are an expression of that person's essential self. Books, diaries, pictures, clothes and other belongings are personal and private expressions of their owner's beliefs, opinions, thoughts and conscience. The simple possession prohibition deals with a very intimate and private aspect of a person's life and, in my view, that fact should be given considerable weight. I find that the limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects. ¶ 52 In arriving at this conclusion, I have taken into account that the Criminal Code contains what I consider to be powerful measures to tackle the problem of harm to children arising from pornography. Under s-s. (2) and (3) of s. 163.1, the making, printing, publishing, importing, distribution, selling or possessing of child pornography for the purpose of publication, distribution or sale, are made criminal. These measures aim not only at the sources but also at the means of dissemination of child pornography. In addition, the obscenity provisions under s.163 provide an element of protection of children. See R. v. Butler, supra, p. 151. [page554] ¶ 53 In conclusion, I find that s-s. (4) fails the "weighing of effects" proportionality test formulated in Dagenais and is therefore not saved under s. 1 of the Charter. As s-s. (4) is in violation of s. 2(b) of the Charter and is not justified under s. 1, s-s. (4) must be and is declared void. ¶ 54 Mr. Sharpe also raised s. 2(a), s. 2(d) and s. 15 of the Charter. In light of the conclusion I have reached in respect of s. 2(b) and s. 1, I need not address s. 2(a), s. 2(d) and s. 15. ¶ 55 It follows from the declaration that s-s. (4) is void that Counts 2 and 4, being based upon s-s. (4), must be and are dismissed. Definition of Child Pornography: Subsection (1)(b) ¶ 56 All of the charges against Mr. Sharpe involve written materials or discs of texts of written materials. The Crown alleges that these materials come within the definition of child pornography set out in s. 163.1(1)(b). I repeat the whole of s-s. (1) and emphasize the portion of the definition that Mr. Sharpe attacks.
¶ 57 Mr. Sharpe contends that s-s. (1)(b) is void as being in violation of s. 2(a), s. 2(b), s. 2(d) and s. 15 of the Charter. The Crown again concedes that freedom of expression is violated under s. 2(b) of the Charter but contends that the definition in s-s. (1)(b) is saved by s. 1 of the Charter. ¶ 58 I need not deal with s-s. (1)(b) in respect of its relationship to the simple possession prohibition under s-s. (4) as I have already ruled that s-s. (4) is void and have dismissed Counts 2 and 4. ¶ 59 Counts 1 and 3, however, charge Mr. Sharpe with possession "for the purpose of distribution or sale" and those charges are based upon s-s. (3) which forbids possession of child pornography for the [page555] purpose of distribution or sale. It is therefore in the context of s-s. (3) that I must determine the constitutionality of the definition in s-s. (1)(b). ¶ 60 Because of the Crown's concession that s-s. (1)(b) violates the freedom of expression provision of the Charter, the issue again becomes whether the impugned provision is justified under s. 1. ¶ 61 I agree with the Crown's contention that s-s. (1)(b), at least in the context of s-s. (3), is justified under s. 1 of the Charter. I have reviewed all the tests in Oakes, supra, and the further test in Dagenais, supra, and am of the view that the Crown must succeed on all of them. I do not believe I need go into the same detail as I did earlier in respect of s-s. (4). However, some considerations that I find significant are set out below. ¶ 62 The dissemination of materials that counsel or advocate sexual abuse of children must pose some risk to children. Possession for the purpose of sale or distribution of such material can hardly be justified on any level of reasoning. ¶ 63 Possession for the purpose of sale or distribution is far less invasive of an individual's freedom of expression and right of privacy than a total ban on possession. ¶ 64 The type of material covered by s-s. (1)(b) is strictly limited to that which advocates or counsels sexual crimes against children. Mr. Sharpe is concerned that the ban might interfere with advocacy by pedophiles to persuade Parliament to change the age of consent laws and other matters of concern to pedophiles. I do not read s-s. (1)(b) as outlawing that kind of advocacy. ¶ 65 There are numerous protections available to ensure minimum infringement of freedom of expression. In Langer, supra, McCombs J. said, at p. 323:
¶ 66 Additional protection arises from the principle of reasonable doubt which is applicable to all elements of a criminal offence [page556] including, in the present case, the issue of whether any given materials fall within the s-s. (1)(b) definition. ¶ 67 Mr. Sharpe relies on Iorfida v. MacIntyre (1994), 93 C.C.C. (3d) 395 (Ont. Ct. (Gen.Div.)), which deals with a provision of the Criminal Code prohibiting the distribution of "instruments or literature for illicit drug use". The prohibited literature was defined in part as that which promotes, encourages or advocates the production, preparation or consumption of illicit drugs. The court held that the words "or literature" must be severed from the offence provision as being in violation of s. 2(b) of the Charter and not justified under s. 1. ¶ 68 In my opinion Iorfida is distinguishable from the present case. In Iorfida the court said, at p. 411:
¶ 69 As noted earlier, I do not consider that the prohibition in the present case prevents "the free flow of information touching upon the wisdom of Parliament's own laws". ¶ 70 For the foregoing reasons, I find that despite violating the freedom of expression under s. 2(b) of the Charter, the definition in s-s. (1)(b) in the context of s-s. (3) is justified under s. 1 of the Charter. ¶ 71 I will now consider Mr. Sharpe's contentions of violations of s. 2(a), s. 2(d) and s. 15 of the Charter. In this regard, the Crown contends that these provisions have not been violated. I agree. ¶ 72 With respect to s. 2(a), the guarantee of freedom of conscience does not extend to the point where manifestations of conscience injure others: R. v. Big M. Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385 at 425, 18 D.L.R. (4th) 321 (S.C.C.). ¶ 73 In R. v. S. (M.) (1996), 111 C.C.C. (3d) 467 (B.C.C.A.); leave to appeal to S.C.C. dismissed, 112 C.C.C. (3d) vii, it was argued that the incest provisions of the Criminal Code violate s. 2(a) of the Charter. The court rejected this argument, holding that s.2 (a) of the [page557] Charter had no application. Donald J.A. for the court said, at pp. 483-84:
¶ 74 There is no doubt that s-s. (1)(b), in conjunction with s-s. (3), seeks to prevent harm to children. It aims at persons who contribute to that harm by distributing materials which advocate or counsel sexual offences against children. To paraphrase Donald J.A. in R. v. S. (M.), for the good and order of our community, obedience to such a law cannot be a matter of choice governed only by private conscience. ¶ 75 It follows that Mr. Sharpe's submission based upon s. 2(a) of the Charter must be rejected. ¶ 76 Freedom of association under s. 2(d) of the Charter is the right to join with others in lawful common pursuits and to establish and maintain organizations and associations. This freedom does not confer on a group the right to do that which would be unlawful if done by an individual. In Reference re: Public Service Employee Relations Act (1987), 38 D.L.R. (4th) 161 (S.C.C.), McIntyre J. said, at p. 229:
¶ 77 In R. v. S.(M.), supra, Donald J.A. considered an argument that s. 2(d) protects the right of an adult to associate with a young person for the purposes of sexual activity. He said, at p. 474: [page558]
¶ 78 Donald J.A. relied on R. v. Skinner (1990), 56 C.C.C. (3d) 1 (S.C.C.), which holds that communication between a prostitute and a customer for the purpose of obtaining sexual services is not protected by s. 2(d). ¶ 79 I find that s. 2(d) of the Charter has no application to the present case. ¶ 80 The final provision of the Charter which Mr. Sharpe claims is applicable is s. 15, the guarantee of equality without discrimination. In R. v. S. (M.), supra, the court dealt with a submission that the incest provisions of the Criminal Code discriminated against fathers who wished to have sex with their daughters. The point was rejected. Donald J.A. said, at pp. 482-83:
¶ 81 I adopt the foregoing reasoning in R. v. S. (M.) and find that s. 15 has no application to the present case. ¶ 82 In summary, I reject Mr. Sharpe's attack on the constitutionality of the definition of "child pornography" set out in s-s. (1)(b) in the context of s-s. (3) of s. 163.1. [page560] Conclusions ¶ 83
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