IS POSSESSING CHILD PORNOGRAPHY ILLEGAL?

                                   

When the police in 1995 discovered that a Vancouver, British Columbia man (John Sharpe) was in possession of child pornography, they arrested him. Sharpe was charged with possession of child pornography contrary to section 163.1(4) of the Criminal Code of Canada amongst other charges also. 

The criminal law fundamentally deals with right and wrong and gives expression to our society's moral principles. Section 163.1(4)  (enacted in 1993) seeks to prevent the harm to individuals (especially children) and to the community which, according to many, is caused by the possession of child pornography.

 Sharpe argued that section 163.1(4) violated his rights under section 2(b) of the Canadian Charter of Rights and Freedoms.

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;

The  Crown conceded that this section of the law did violate Sharpe's right to freedom of expression as stated under section 2(b) but argued that this section of the Criminal Code was saved by section 1 of the Charter.

 Section 1 of the Charter is the 'Notwithstanding Clause' of the Charter of Rights in Canada.  It says;

  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 can be demonstrably justified in a free and democratic society.

               

 What this means is that if a law in Canada is draconian, almost dictatorial and it infringes on the rights of the citizens of Canada, the law can still remain on the books if it is in the best interests of the citizens of Canada.

 

An example of this can be found in the driving and drinking laws. Normally, it is an infringement of our rights to be stopped by the police on a highway and pulled over to determine as to whether or not our driving is impaired by our ingestion of alcohol.

The courts have ruled however that it is against the public good to not do something like that to stop the carnage on the highways brought about by drunk drivers so the police have the authority to pull us over, even randomly (which in effect infringes our rights to security of the person) if it will mean stopping the drunks from driving on our highways.

The matter went to trial and Sharpe was acquitted. The Attorney General of British Columbia ordered an appeal and the matter went to the British Columbia Court of Appeal which is the highest court in B.C. 

On June 30, 1999, that court concurred with the trial judge's ruling that it was not a crime to have in one's possession, child pornography.

This is not to say that either courts concluded that there was nothing wrong with child pornography. From the beginning, the courts did consider the moral issues.

In Sharpe's original trial, one of the witnesses for the Crown, Dr. Collins, offered several reasons why, in his view, child pornography is harmful to children.

The doctor said that some pedophiles select sexually explicit depictions of children having sex with children, or with adults, in order to lower their  inhibitions and to make the depicted conduct of the pedophile looking at those images appear to be normal.  The second harm is that pornography excites some child molesters to commit offences. The third harm is that child pornography augments reinforces the "cognitive distortions" of pedophiles. 

Dr. Collins explained that cognitive distortions are erroneous beliefs by which pedophiles justify their aberrant behavior.  Examples of cognitive distortions by the pedophiles 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 thatpornographic films or photographs are proof of their abuse.

Judge Shaw in the original Sharpe trial looked at other cases as a guide In dealing with section 1 of the Charter, another judge addressed the proportionality tests set out in R. v. Oakes (1986),  a Supreme Court of Canada appeal  and that court said in part;

 

“This objection ignores the reality that, on the basis of the opinion evidence which this court has  with respect t to accepted, private possession of child pornography poses a realistic risk of harm to children, by reinforcing cognitive distortions, fueling fantasies, and its potential use in "grooming" possible child victims.” unquote

                           

It is entirely reasonable and within the legitimate objectives of Parliament to legitimately criminalize private possession of child pornography.

 
The final proportionality test addressed by the judge in Oaks case was the weighing of the legislative objectives of section 163.1 against the effects of the prohibitions. He said;

 

“The final branch of the proportionality test includes a weighing of the legislative objectives against the effects of the legislation. Even if legislation otherwise meets section 1 (of the Charter) criteria, a provision will not constitute a reasonable limitation if its effects are so deleterious that they outweigh the importance of its objectives.”  unquote

 

 The child pornography provisions, designed to protect children, do indeed limit the fundamental freedom of expression. However, in the contextual approach that is required, one must keep in mind the type of expression that has been limited. As Justice Dickson of the Supreme Court of Canada observed in the Keegstra case  heard in 1988(in which a school teacher denied the existence of the Holocaust of the 2nd World War and as such, was promoting hatred towards Jews.) said.  “It is equally destructive of freedom of expression values, as well as the other values which underlie a free and democratic society to treat all expression as equally crucial to those principles.”

The trial judge in the Sharpe trial said that there was no evidence that a person who was prone to act on his fantasies would likely do so irrespective of the availability of pornography. As well, he added that there was no evidence that the production of child pornography would be significantly reduced if simple possession was a crime.  He went on to say that the prohibition extended to those who collected it with no harmful intent and pedophiles who used pornography for relief from their affliction by masturbation were the persons whose rights were directly affected by the enforcement of section 163.1(4) of the Criminal Code.

It is obvious from both rulings in the Sharpe trial and appeal that the courts were more concerned however with the constitutional issue of the freedom of speech—in other words, not to infringe upon the rights of every citizen to have in one's possession, any  written or pictorial material, no matter how offensive.                                                                                                                                                                                                                                              

At Sharpes’ trial, the judge ruled that Section 163.1(4) was void and no longer enforceable. By that, he was saying that that subsection of the law is no longer the law of the land. According to the judge, the detrimental intrusion into the rights of freedoms of expression and to privacy by making it an offence to simply possess child pornography, substantially outweighed its salutary effect of combating practices that put children at risk.

I should point out however that there is a limitation as to who can not be portrayed in a picture that is child pornographic. The Supreme Court of Canada in 2015 ruled that the private use exception can never be available as a defence to child pornography involving children under the age of 12.  For young persons aged 12 or 13, the circumstances where the exception night have be available were defined narrowly by the Criminal Code.  Otherwise, at the time of the alleged offences in such a  case, the private use exception was only available where the young person involved in the sexual activity was between 14 and 17 years of age, inclusively.  Today, this is restricted to those aged 16 or 17 years of age.

A ban on distribution was far less invasive of the rights to expression and privacy than a total ban on possession. In his opinion, the definition did not violate the section 2(a) Right to Freedom clause of conscience as this guarantee did not extend to manifestations of conscience that injured others as proposed by Mr. Sharpe.  Further, it did not violate the section 2(d) right to freedom of association as groups were not thereby given the right to do that which would be unlawful if done by an individual.  Finally, he said that the anti-discriminatory purposes of section 15 of the Charter did not extend to the Sharpe case.

In the Sharpe’s case, it was the judge's view however, that it was appropriate to consider the proportionality between the deleterious effects and the salutary effects of the prohibition of possession of child pornography.

 To do that, he first had to enter into the weighing process. First, the salutary effects. He said in part;

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; an the advocacy or counseling of the commission of sexual offences against children.

The judge said that there are factors which go to the weight to be attached to the effectiveness of the prohibitions in combating the foregoing practices and phenomena.

He then went on to say that there is no evidence which demonstrates any significant increase of danger to children related to the use of pornography by citizens for private use. He further said that there is also no evidence that "mildly erotic" images are used in the grooming of children into a life of pornography.

It appears thus far that 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. Obviously 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 because child pornography is distributed all over the world by mail, by personal delivery and through the Internet.

 Everyone in Canada has the following fundamental freedoms:

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

 Our 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 the initial Sharpe trial, the court included that 'individual self-fulfillment and personal autonomy' exists within the freedom of expression. The judge added;

“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.” unquote  

  

What weight will be given to these values will depend upon the particular circumstances.  As Dickson of the Supreme Court of Canada  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.” unquote  

One significant value underlying the Charter is the individual's reasonable expectation of privacy.  It is well described in R. v. Dyment in 1988) in the Supreme Court of Canada  by Justice La Forest who  said in part; ;

“The foregoing approach is altogether fitting for a constitutional document enshrined at the time when society has come to realize

that privacy is at the heart of liberty in a modern state: 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. An important aspect of privacy is an individual's right of privacy in his or her own home.  In the Sharpe case, the police entered Mr. Sharpe's home pursuant to a search warrant and seized his collection of materials alleged to be pornographic.” unquote  

The case law on 'freedom of expression' reflects the Charter's concern for the right of privacy. The Keegstra decision deals with the constitutionality of the Criminal Code ban on the willful promotion of hatred against identifiable groups. The prohibition expressly excluded "private conversations" and this exclusion was an  important factor in the court (by a 4-3 majority) upholding 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.

Mr.  Justice Dickson of the Supreme Court of Canada in writing for the majority in the Keegstra case, said;

“In assessing the constitutionality of the law especially as it 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, thereby indicating Parliament's concern not to intrude upon the privacy of the individual.” unquote

               

I think one could successfully argue that it is not an offence to promote the concept of hatred for peoples of another race while in a private discussion with another person; it is also not an offence to read about that same hatred in a book? And by analogy, if it isn't an offence to promote the concept of sex with children in a private conversation with another adult, it follows that it wouldn't be an offence to read or look at pictures depicting the same thing. I am speaking from the legal point of view, not the moral position of the large majority of the population of Canada including that of my own. 

 

 First and foremost, the invasion of freedom of expression and personal privacy when enforcing section 163.1(4) of the Criminal Code 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 admittedly also includes pedophiles who; instead of preying on children, use pornography for very private purposes, such as relief from their affliction through the use of masturbation.  As noted earlier, sexually explicit pornography is used to relieve pent-up sexual tension of otherwise potential aggressors.

The judge in the original trial of Sharpe said that whether this cathartic effect outweighs the harm caused by the possession of pornography is not known; it is nonetheless a significant factor to take into account.  The ban includes "mildly erotic" pornography,  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 them being in mere possession such as  a magazine or a newspaper which may contain some material said to be pornographic as an example.

Although the balance of the publication may be quite within the law, the offending material will make possession of the magazine or newspaper illegal as in the case of the R. v. Popert decision. Purchasers of such publications will have to become their own censors.

                

 In the Sharpe case. the judge then had to weigh the salutary effects against the detrimental effects.  It was his opinion that the detrimental effects substantially outweighed the salutary effects; that is that the intrusion into freedom of expression and the right of privacy being so profound that it is not outweighed by the limited beneficial effects of the prohibition.

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.  It certainly appears that the limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects.

Justice Mary Southin of the B.C. Court of Appeal said in her ruling;

“The invasion of freedom and expression and personal privacy is profound. Further, the prohibition (section 163.1(4)) extends to all persons including those who make no harmful use of pornography.”

Justice Anne Rowes in her ruling on the law on possession as it stands today, said that it was an extreme invasion of the values of liberty, autonomy and privacy. She may have reached this conclusion because the material may have been created without actually abusing children. With the ongoing increases in computer technology, it would be very easy nowadays to show children via computer graphics, in which they are indulging in sex between themselves or with adults. This being as it is, the actual use of children in the making of child pornography will certainly be in the future, a non issue. But the issue of our freedom is never a non issue.

 B.C.'s Chief Justice, Allen McEachern doesn't agree with that premise about freedom not being a non issue. He said in his ruling about the benefits of the law protecting children that it outweighs the importance of those extremely few who may wish to possess such material for a private and innocent reason."

 

The problem I have with that kind of rational is that the rights and freedoms enshrined in our Charter of Rights and Freedoms is set aside because of the nefarious behavour of the 'extremely few' persons that the Chief Justice spoke about. 

These two rulings which found in favour of John Sharpe are not, nor should they be construed as the courts giving judicial approval of sexual exploitation of children for the purpose of making and distributing child pornography. There can be very few crimes in this world that is worse than using real children in the filming of child pornography.

 

But when outraged citizens look at the broader picture, they may realize that these rulings are not for those very few who are inclined to look at and read child pornography but for the vast majority of the citizens as they deal with their right to freedom of thought.

On the one hand, we can morally condemn those who are sexually titillated by child pornography but on the other hand, should we really condemn them or anyone else for their thoughts? Our Charter clearly states that we cannot.

                   

The real danger facing us is that if the Supreme Court of Canada and/or Parliament decide that section 163.1(4) of the Criminal Code or a new variation of it is a valid law, where will the infringement of our rights and freedoms end?

The first to be imprisoned will be those in possession of child pornography. Following close behind will be those in possession of any form of pornography. And then the thought police will go after those that even talk about pornography in the privacy of their homes. And finally before the end of the next century, it will be against the law to even think that the sun is anywhere but in the centre of the universe.

 

It is my sincerest belief that it is far better to let those 'extremely few' sick people who get sexually aroused looking at their dirty pictures, do so without infringing upon their rights to do so, then to permit a law to continue to exist that will gnaw at the very foundation of our rights and freedoms and turn those foundations into sawdust. Our Charter which guarantees us our rights and freedoms can never be supported by sawdust.

                   

However  in my opinion, it should always be a criminal act for anyone to encourage or force a child to commit a sexual act with anyone for the purpose of creating child pornography. Our Charter doesn’t protect anyone of committing  such activities under any circumstances.

In our current era and even years before that, DVDs were created showing sex acts in all forms and it was never declared a criminal offence to produce such DVDs or sell them or even possess them. However, I don’t think that DVDs will be produced and sold that shows children engaged in sex acts with other children or adults. Our society has limitations place on such acts and that is one of them.

In the next article, I will tell you about another Supreme Court of Canada decision on child pornography that was decided on 2015. The facts were different so it had a different result than this one.