Child pornography: Is it legal if only used for private use?                             

Section 163.1 of the Canadian Criminal Code states that it an offence to possess child pornography. However in the R. v Sharp case heard in the Supreme Court of Canada, the court ruled that the possession of child pornography is a form of expression protected by section 2(b) of the Charter of Rights and Freedoms.  The right to possess expressive material is integrally related to the development of thought, opinion, belief and expression as it allows us to understand the thought of others or consolidate our own thought.  The possession of expressive material falls within the continuum of intellectual and expressive freedom protected by section 2(b) of the Charter. Possessing child pornography for the purpose of publication is against the law as is making child pornography for that purpose. The exception against that law will not be available to anyone who has any intention to publishing or making child pornography. Those in possession of child pornography are protected by the edict of the Charter for merely possessing child pornography for his or her own private use.  

Under our society’s democratic principles, individual freedoms such as right to expression are not absolute, but may be limited in consideration of a broader spectrum of rights, including equality and security of the person.  However, the Charter recognizes that in a democracy competing rights and values exist.  The underlying values of a free and democratic society guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights.  A principled and contextual approach to the Charter is that the courts are sensitive to the other values which may compete with a particular right and allows them to achieve a proper balance among these values.     

                                                     

Admittedly, child pornography is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows from the existence of the pornographic representations, which on their own, violates the dignity and equality rights of children. The attitudinal harm inherent in child pornography can be inferred from the existence of degrading or dehumanizing acts involving the making and publications of child pornography. Any expression that degrades or dehumanizes anyone, especially a child is harmful in and of itself as all members of society suffer when the making of child pornography and the dissemination of child pornography is brought about.

The court ruled as follows:

“Accordingly, section 163.1(4) of the Criminal Code should be upheld on the basis that the definition of “child pornography” in section 163.1 should be read as though it contained an exception for: (1) 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) 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.  These two exceptions apply as well to the offence of “making” child pornography under  section 163.1(2)— but not to printing, publishing or possessing child pornography for the purpose of publication.  The exceptions will not be available where a person harbours any intention other than mere private possession.”  unquote

I should point out that making child pornography would include a form of unlawful sexual activity so unless the making of child pornography is done only by drawing the sexual activity, it would be illegal.  Further, publishing a drawing of child pornography would also be illegal.

What follows is a case in which two men were charged with making child pornography, contrary to section 163.1(2) of the Criminal Code and one of the men was also charged with one count of possessing child pornography.

 Two girls, age 14, were runaways from a treatment centre. They stayed with the accused, Shane Gordon Rollison age 60, (hereinafter referred to as R) whereas the other accused, Donald Jerry Barabash, age 41, (hereinafter referred to as B) was a regular visitor. The girls were involved in sexual activity, which was depicted on video and in photographs, with each other and with R. At the time the videos and photographs were made, 14‑year‑olds could legally consent to sexual acts with adults. Since then, the age has been raised to 16) Both B and R were charged with making child pornography, contrary to section 163.1(2) of the Criminal Code. B was also charged with one count of possessing child pornography, contrary to section 163.1(4). B and R were tried together. The trial judge found that all of the elements of the offences were established; however, the accused raised in defence the private use exception outlined in R. v. Sharpe, (a Supreme Court of Canada case)  The judge concluded that the Crown had failed to disprove the exception beyond a reasonable doubt. The Court of Appeal allowed the appeals, substituted guilty verdicts and remitted the cases for sentencing.

You may recall form my earlier comments in this article that he private use exception outlined in Sharpe serves as a defence to the offence of making or possessing child pornography, contrary to section 163.1 of the Criminal Code. This private use exception requires a determination that the sexual activity depicted in recordings is lawful, that the sexual activity is also consensual and that the recordings of it are held exclusively for private use. 

The private use exception outlined in Sharpe serves as a defence to the offence of making or possessing child pornography, contrary to section 163.1 of the Criminal Code. This private use exception requires a determination that the sexual activity depicted in recordings is lawful, that the sexual activity is also consensual and that the recordings of it are held exclusively for private use. In Sharpe, the Court did not mandate a separate and additional exploitation inquiry.

Adding such a step would be unnecessary, as exploitation is already captured under the lawfulness inquiry.  Section  153  of the Criminal  Code makes sexual exploitation of a young person a crime.  Thus, where the Crown seeks to rely on section 153 to negate the legality of the sexual activity depicted, the judge must consider whether it occurred in the context of an exploitative relationship. If so, the sexual activity is unlawful, and the private use exception does not apply.

Where section 153 is engaged, the consent of the young person to the sexual activity cannot render it lawful. Thus, where an accused raises the private use exception and the Crown seeks to challenge the lawfulness of the sexual activity on the basis of exploitation, a trial judge must look beyond whether or not consent was given and examine the nature and circumstances of the relationship between the young person and the accused. Section 153(1.2) provides a non‑exhaustive list of indicia from which a trial judge may infer that the relationship between the accused and a young person is exploitative such as (a) the age of the young person; (b) the age difference between the person and the young person; (c) the evolution of the relationship; and (d) the degree of control or influence by the person over the young person. It is not necessary that the person accused of making or possessing child pornography be charged separately under section 153(1) in order for a judge to undertake this inquiry. The lawfulness of the sexual activity is independently assessed by the court with reference to the defence.

In other words, the trial judge’s analysis focused primarily on the voluntariness of the sexual activities, instead of on the nature of the relationship between the parties. While the voluntariness of sexual activities is an important aspect of lawfulness, it does not end the inquiry. The trial judge was also required to properly assess the nature and circumstances of the relationship to determine whether the sexual activity was rendered unlawful under section 153. By failing to consider whether the underlying relationship between the girls and the accused was exploitative, the trial judge erred in law. This error had a material bearing on the accused’s acquittals and subsequently, it required a new trial. 

The trial judge reviewed the private use exception and concluded that, according to Sharpe, three requirements must be met for the exception to be made out: (1) the sexual activity must be legal; (2) the recording must be made with the consent of the persons depicted; and (3) the recording must be held for private use.  He rejected the Crown’s submission that, in addition to these three requirements, private use material must possess aspects of “self-fulfilment and self-actualization” and must not result in the “exploitation or abuse of children”. The trial judge found that all three requirements set out in Sharpe were met on the facts of this case and entered acquittals.

The Crown appealed the acquittals on the ground that the trial judge erred in his interpretation of the private use exception.  The majority of the Ontario Court of Appeal agreed and allowed the appeals, relying on that court’s decision in R. v. Cockell,  Supreme Court of Canada in R. v.  Cockell  held that the private use exception also contained a standalone requirement that there be no exploitation or abuse involved in the creation of the recording, and a requirement that the parties intended the pornographic material to be for the private use of all those involved in its creation.

The issue in the appeals of Rollinson and Barabash was whether or not there was exploitation or abuse involved in the creation of the recordings.

The majority in Sharpe reasoned that private recordings may be of significance to adolescent self-fulfilment, self-actualization and sexual exploration and identity. The conditions for making such a recording were (1) the recording must depict lawful sexual activity; (2) the persons depicted must consent to the recording; and (3) the recording must be held for private use. The court noted that “two adolescents might arguably deepen a loving and respectful relationship through erotic pictures of themselves engaged in sexual activity”, thus concluding that the cost of criminalizing such materials on the right of free expression outweighs any tenuous benefit it might confer in preventing harm to children.

However in this particular case, the 14-year-old teenage girls were also having sex with R even at that time when it was legal. But even though it was legal then, it wasn’t done between R and two loving 14-year-old teenagers to deepen a loving and respectful relationship with them and R.

In order for this defence to have a successful result, the accused must raise an air of reality with respect to all three elements of the defence. Once this evidential burden is met, the Crown then bears the persuasive burden to disprove the defence beyond a reasonable doubt.  Since all three elements are necessary for the defence to succeed, the Crown need only disprove one element beyond a reasonable doubt.

Here is another factor to consider. The two runaways were living with R who was an adult.

Section 153. (1) of the Criminal Code states: “Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.”

It is my opinion that if R permitted B to have sex with the girls. then that could be construed that the girls felt obligated to have sex with R and that being so, there was an exploitation involved since the girls might have felt that they would be ejected from R’s house if they didn’t do as B wanted.

A judge may infer that a person is in a relationship with a young person that is exploitative of the young persons from the nature and circumstances of the relationship, including (a) the age of the young persons (b) the age difference between the person and the young persons (c) the evolution of the relationship; and (d) the degree of control or influence by the person over the young persons.

In this section, “young person” then meant a person who was fourteen years of age or more but under the age of sixteen years. Currently, the ages are 16 and 18 but if the men are charged under this section, the ages considered would be 14 and 16 as it was when the acts were committed.

The Supreme Court ordered that the matter be retried again. I will try and find that decision of the lower court after it is given and put it at the bottom of this article as an UPDATE.