R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2

Her Majesty the Queen Appellant

v.

John Robin Sharpe Respondent

and

The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General of Nova Scotia, the Attorney General for New Brunswick, the Attorney General of Manitoba, the Attorney General for Alberta, the Canadian Police Association (CPA), the Canadian Association of Chiefs of Police (CACP), Canadians Against Violence (CAVEAT), the Criminal Lawyers’ Association, the Evangelical Fellowship of Canada, Focus on the Family (Canada) Association, the British Columbia Civil Liberties Association, the Canadian Civil Liberties Association, Beyond Borders, Canadians Addressing Sexual Exploitation (CASE), End Child Prostitution, Child Pornography and Trafficking in Children for Sexual Purposes (ECPAT) and the International Bureau for Children’s Rights Interveners

Indexed as: R. v. Sharpe

Neutral citation: 2001 SCC 2.

File No.: 27376.

2000: January 18, 19; 2001: January 26.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for british columbia

Constitutional law – Charter of Rights – Freedom of expression – Child pornography – Whether possession of expressive material protected by right to freedom of expression – Canadian Charter of Rights and Freedoms, s. 2(b).

Constitutional law – Charter of Rights – Right to liberty – Whether Criminal Code prohibition of possession of child pornography infringing right to liberty – Canadian Charter of Rights and Freedoms, s. 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4).

Constitutional law – Charter of Rights – Freedom of expression – Child pornography – Crown conceding that Criminal Code prohibition of possession of child pornography infringing freedom of expression – Whether infringement justifiable – Canadian Charter of Rights and Freedoms, s. 1 – Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4).

Criminal law – Child pornography – Criminal Code prohibiting possession of child pornography – Scope of definition of “child pornography” – Defences available – Criminal Code, R.S.C. 1985, c. C-46, s. 163.1.

The accused was charged with two counts of possession of child pornography under s. 163.1(4) of the Criminal Code and two counts of possession of child pornography for the purposes of distribution or sale under s. 163.1(3). “Child pornography”, as defined in s. 163.1(1) of the Code, includes visual representations that show a person who is or is depicted as under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity and visual representations the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years. “Child pornography” also includes visual representations and written material that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under the Code. Prior to his trial, the accused brought a preliminary motion challenging the constitutionality of s. 163.1(4) of the Code, alleging a violation of his constitutional guarantee of freedom of expression. The Crown conceded that s. 163.1(4) infringed s. 2(b) of the Canadian Charter of Rights and Freedoms but argued that the infringement was justifiable under s. 1 of the Charter. Both the trial judge and the majority of the British Columbia Court of Appeal ruled that the prohibition of the simple possession of child pornography as defined under s. 163.1 of the Code was not justifiable in a free and democratic society.

Held: The appeal should be allowed and the charges remitted for trial.

Per McLachlin C.J. and Iacobucci, Major, Binnie, Arbour and LeBel JJ.: In order to assess the constitutionality of s. 163.1(4), it is important to ascertain the nature and scope of any infringement. Until it is known what the law catches, it cannot be determined that the law catches too much. Consequently, the law must be construed, and interpretations that may minimize the alleged overbreadth must be explored. In light of Parliament’s purpose of criminalizing possession of material that poses a reasoned risk of harm to children, the word “person” in the definition of child pornography should be construed as including visual works of the imagination as well as depictions of actual people. The word “person” also includes the person possessing the expressive material. The term “depicted” refers to material that a reasonable observer would perceive as representing a person under the age of 18 years and engaged in explicit sexual activity. The expression “explicit sexual activity” refers to acts at the extreme end of the spectrum of sexual activity – acts involving nudity or intimate sexual activity represented in a graphic and unambiguous fashion. Thus, representations of casual intimacy, such as depictions of kissing or hugging, are not covered by the offence. An objective approach must be applied to the terms “dominant characteristic” and “for a sexual purpose”. The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region in a manner that is reasonably perceived as intended to cause sexual stimulation to some viewers. Innocent photographs of a baby in the bath and other representations of non-sexual nudity are not covered by the offence. As for written material or visual representations that advocate or counsel sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code, the requirement that the material “advocates” or “counsels” signifies that, when viewed objectively, the material must be seen as actively inducing or encouraging the described offences with children.

Parliament has created a number of defences in ss. 163.1(6) and (7) of the Code which should be liberally construed as they further the values protected by the guarantee of free expression. These defences may be raised by the accused by pointing to facts capable of supporting the defence, at which point the Crown must disprove the defence beyond a reasonable doubt. The defence of “artistic merit” provided for in s. 163.1(6) must be established objectively and should be interpreted as including any expression that may reasonably be viewed as art. Section 163.1(6) creates a further defence for material that serves an “educational, scientific or medical purpose”. This refers to the purpose the material, viewed objectively, may serve, not the purpose for which the possessor actually holds it. Finally, Parliament has made available a “public good” defence. As with the medical, educational or scientific purpose defences, the defence of public good should be liberally construed.

The possession of child pornography is a form of expression protected by s. 2(b) of the Charter. 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 s. 2(b). The accused accepts that harm to children justifies criminalizing possession of some forms of child pornography. The fundamental question therefore is whether s. 163.1(4) of the Code goes too far and criminalizes possession of an unjustifiable range of material.

The accused also alleges that s. 163.1(4) violates his right to liberty under s. 7 of the Charter, arguing that exposure to potential imprisonment as a result of an excessively sweeping law is contrary to the principles of fundamental justice. It is not necessary to consider this argument separately as it wholly replicates the overbreadth concerns that are the central obstacle to the justification of the s. 2(b) breach. The s. 1 analysis generally, and the minimal impairment consideration in particular, is the appropriate forum for addressing over broad restrictions on free expression.

In adopting s. 163.1(4), Parliament was pursuing the pressing and substantial objective of criminalizing the possession of child pornography that poses a reasoned risk of harm to children. The means chosen by Parliament are rationally connected to this objective. Parliament is not required to adduce scientific proof based on concrete evidence that the possession of child pornography causes harm to children. Rather, a reasoned apprehension of harm will suffice. Applying this test, the evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. With respect to minimal impairment, when properly interpreted, the law catches much less material unrelated to harm to children than has been suggested. However, the law does capture the possession of two categories of material that one would not normally think of as “child pornography” and that raise 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. The bulk of the material falling within these two classes engages important values underlying the s. 2(b) guarantee while posing no reasoned risk of harm to children. In its main impact, s. 163.1(4) is proportionate and constitutional. Nonetheless, the law’s application to materials in the two problematic classes, while peripheral to its objective, poses significant problems at the final stage of the proportionality analysis. In these applications the restriction imposed by s. 163.1(4) regulates expression where it borders on thought. The cost of prohibiting such materials to the right of free expression outweighs any tenuous benefit it might confer in preventing harm to children. To this extent, the law cannot be considered proportionate in its effects, and the infringement of s. 2(b) contemplated by the legislation is not demonstrably justifiable under s. 1.

The appropriate remedy in this case is to read into the law an exclusion of the two problematic applications of s. 163.1. The applications of the law that pose constitutional problems are exactly those whose relation to the objective of the legislation is most remote. Carving out those applications by incorporating the proposed exceptions will not undermine the force of the law; rather, it will preserve the force of the statute while also recognizing the purposes of the Charter. The defects of the section are not so great that their exclusion amounts to impermissible redrafting and carving them out will not create an exception-riddled provision bearing little resemblance to the provision envisioned by Parliament. While excluding the offending applications will not subvert Parliament’s object, striking down the statute altogether would most assuredly do so. Accordingly, s. 163.1(4) should be upheld on the basis that the definition of “child pornography” in s. 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 s. 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.

Per L’Heureux-Dubé, Gonthier and Bastarache JJ.: Under our society’s democratic principles, individual freedoms such as expression are not absolute, but may be limited in consideration of a broader spectrum of rights, including equality and security of the person. The Crown conceded that the right to free expression was infringed in all respects, unfortunately depriving the Court of the opportunity to fully explore the content and scope of s. 2(b) of the Charter as it applies to this case. At the same time, it is recognized that, at this stage, our jurisprudence leads to the conclusion that, although harmful, the content of child pornography cannot be the basis for excluding it from the scope of the s. 2(b) guarantee. No separate analysis under s. 7 of the Charter is required. The s. 7 liberty interest is encompassed in the right of free expression and proportionality falls to be considered under s. 1 of the Charter. The only issue is whether the infringement of freedom of expression is justifiable under s. 1. Section 1 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 s. 1 ensures that 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. At each stage of the s. 1 analysis close attention must be paid to the factual and social context in which an impugned provision exists.

An appraisal of the contextual factors in this case leads to the conclusion that Parliament’s decision to prohibit child pornography is entitled to an increased level of deference. Child pornography, as 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 from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. Although not empirically measurable, nor susceptible to proof in the traditional manner, the attitudinal harm inherent in child pornography can be inferred from degrading or dehumanizing representations or treatment. Expression that degrades or dehumanizes is harmful in and of itself as all members of society suffer when harmful attitudes are reinforced. The possibility that pornographic representations may be disseminated creates a heightened risk of attitudinal harm. The violation of the privacy rights of the persons depicted constitutes an additional risk of harm that flows from the possibility of dissemination. Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination. Section 163.1 was enacted to protect children, one of the most vulnerable groups in society. It is based on the clear evidence of direct harm caused by child pornography, as well as Parliament’s reasoned apprehension that child pornography also causes attitudinal harm. The lack of scientific precision in the social science evidence relating to attitudinal harm is not a valid reason for attenuating the Court’s deference to Parliament’s decision.

The importance of the protection of children is recognized in both Canadian criminal and civil law. The protection of children from harm is a universally accepted goal. International law is rife with instruments that emphasize the protection of children and a number of international bodies have recognized that possession of child pornography must be targeted to effectively address the harms caused by this type of material. Moreover, domestic legislation in a number of democratic countries criminalizes the simple possession of child pornography.

As a form of expression, child pornography warrants less protection since it is low value expression that is far removed from the core values underlying the protection of freedom of expression. Child pornography has a limited link to the value of self-fulfilment, but only in its most base aspect. Furthermore, in prohibiting the possession of child pornography, Parliament promulgated a law which seeks to foster and protect the equality rights of children, along with their security of the person and their privacy interests. The importance of these Charter rights cannot be ignored in the analysis of whether the law is demonstrably justified in a free and democratic society and warrants a more deferential application of the criteria set out in the Oakes test. Finally, Parliament has the right to make moral judgments in criminalizing certain forms of conduct. The Court should be particularly sensitive to the legitimate role of government in legislating with respect to our social values.

Section 163.1(4) of the Code constitutes a reasonable and justified limit upon freedom of expression. In proscribing the possession of child pornography, Parliament’s overarching objective was to protect children. Any provision which protects both children and society by attempting to eradicate the sexual exploitation of children clearly has a pressing and substantial purpose. Section 163.1(4) is also proportionate to the objective. First, prohibiting the possession of child pornography is rationally connected to the aim of preventing harm to children and society. The possession of child pornography contributes to the cognitive distortions of paedophiles, reinforcing their erroneous belief that sexual activity with children is acceptable. Child pornography fuels paedophiles’ fantasies, which constitute the motivating force behind their sexually deviant behaviour. Section 163.1(4) plays an important role in an integrated law enforcement scheme which protects children against the harms associated with child pornography. Paedophiles use child pornography for seducing children and for grooming them to commit sexual acts. Lastly, children are abused in the production of child pornography. The prohibition of the possession of child pornography is intended to reduce the market for this material. If consumption of child pornography is reduced, presumably production and the abuse of children will also be reduced.

Second, the prohibition of the possession of child pornography minimally impairs the right to free expression. Although s. 163.1(4) is directed only to the private possession of child pornography, children are particularly vulnerable in the private sphere, since a large portion of child pornography is produced privately and used privately by those who possess it. The harmful effect on the attitudes of those who possess child pornography similarly occurs in private. Consequently, prohibiting the simple possession of child pornography has an additional reductive effect on the harm it causes. The prohibition of the possession of child pornography also captures visual and written works of the imagination which do not involve the participation of any actual children or youth in their production; in enacting s. 163.1(4), Parliament sought to prevent not only the harm that flows from the use of children in pornography, but also the harm that flows from the very existence of images and words which degrade and dehumanize children and to send the message that children are not appropriate sexual partners. The focus of the inquiry must be on the harm of the message of the representations and not on their manner of creation, or on the intent or identity of their creator. Given the low value of the speech at issue in this case and the fact that it undermines the Charter rights of children, Parliament was justified in concluding that visual works of the imagination would harm children.

The inclusion of written material in the offence of possession of child pornography does not amount to thought control. The legislation seeks to prohibit material that Parliament believed was harmful. The inclusion of written material which advocates and counsels the commission of offences against children is consistent with this aim, since, by its very nature, it is harmful, regardless of its authorship. Evidence suggests that the cognitive distortions of paedophiles are reinforced by such material and that written pornography fuels the sexual fantasies of paedophiles and could incite them to offend. Although the prohibition in s. 163.1(4) extends to teenagers between the ages of 14 and 17 who keep pornographic videotapes or pictures of themselves, this effect of the provision is a reasonable limit on teenagers’ freedom of expression. A review of adolescent child pornography cases reveals that there is a great risk that they will be exploited in its creation. Hence, while adolescents between the ages of 14 and 17 may legally engage in sexual activity, Parliament had a strong basis for concluding that the age limit in the definition of child pornography should be set at 18. It is not necessary that the provision contain a defence to protect teenagers who are in possession of erotic videos or pictures of themselves. Such a defence would undermine Parliament’s objective of protecting all children, since some adolescents under the age of 18 groom other children into engaging in sexual conduct. There is also no guarantee, even when a teenager is in possession of a pornographic picture or videotape depicting himself or herself, that it was created in a consensual environment. The creation of permanent records of teenagers’ sexual activities has consequences which children of that age may not have sufficient maturity to understand. The Court should defer to Parliament’s decision to restrict teenagers’ freedom in this area. 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. 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, and the legislation incorporates defences of artistic merit, educational, scientific or medical purpose, and a defence of the public good.

Third, when the effects of the provision are examined in their overall context, the benefits of the legislation far outweigh any deleterious effects on the right to freedom of expression and the interests of privacy. Section 163.1(4) helps to prevent the harm to children which results from the production of child pornography; deters the use of child pornography in the grooming of children; curbs the collection of child pornography by paedophiles; and helps to ensure that an effective law enforcement scheme can be implemented. In sum, the legislation benefits society as a whole as it sends a clear message that deters the development of antisocial attitudes. The law does not trench significantly on speech possessing social value since there is a very tenuous connection between the possession of child pornography and the right to free expression. At most, the law has a detrimental cost to those who find base fulfilment in the possession of child pornography. The privacy of those who possess child pornography is protected by the right against unreasonable search and seizure as guaranteed by s. 8 of the Charter. The law intrudes into the private sphere because doing so is necessary to achieve its salutary objectives. The privacy interest restricted by the law is closely related to the specific harmful effects of child pornography. Moreover, the provision’s beneficial effects in protecting the privacy interests of children are proportional to the detrimental effects on the privacy of those who possess child pornography.

Cases Cited

By McLachlin C.J.

Referred to: R. v. Butler, [1992] 1 S.C.R. 452; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Keegstra, [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Zundel, [1992] 2 S.C.R. 731; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Palko v. Connecticut, 302 U.S. 319 (1937); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Edwards, [1996] 1 S.C.R. 128; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Lucas, [1998] 1 S.C.R. 439; R. v. Hurtubise, [1997] B.C.J. No. 40 (QL); R. v. Dionne (1987), 38 C.C.C. (3d) 171; Ontario (Attorney General) v. Langer (1995), 123 D.L.R. (4th) 289; R. v. American News Co. (1957), 118 C.C.C. 152; R. v. Delorme (1973), 15 C.C.C. (2d) 350; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Chaulk, [1990] 3 S.C.R. 1303; M. v. H., [1999] 2 S.C.R. 3; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; Schachter v. Canada, [1992] 2 S.C.R. 679; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Heywood, [1994] 3 S.C.R. 761; Vriend v. Alberta, [1998] 1 S.C.R. 493.

By L’Heureux-Dubé, Gonthier and Bastarache JJ.

Referred to: R. v. L. (D.O.), [1993] 4 S.C.R. 419; R. v. Seaboyer, [1991] 2 S.C.R. 577; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Oakes, [1986] 1 S.C.R. 103; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Mills, [1999] 3 S.C.R. 668; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Keegstra, [1990] 3 S.C.R. 697; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Lucas, [1998] 1 S.C.R. 439; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; R. v. Zundel, [1992] 2 S.C.R. 731; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; R. v. Mara, [1997] 2 S.C.R. 630; R. v. Hess, [1990] 2 S.C.R. 906; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Young v. Young, [1993] 4 S.C.R. 3; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; United States v. Hilton, 167 F.3d 61 (1999); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); R. v. K.L.V., [1999] A.J. No. 350 (QL); R. v. Jewell (1995), 100 C.C.C. (3d) 270; Osborne v. Ohio, 495 U.S. 103 (1990); R. v. E. (B.) (1999), 139 C.C.C. (3d) 100; United States v. Knox, 32 F.3d 733 (1994); R. v. Pointon, Man. Prov. Ct., October 23, 1997; R. v. Geisel, Man. Prov. Ct., February 2, 2000; R. v. Davis, [1999] 3 S.C.R. 759; M. v. H., [1999] 2 S.C.R. 3.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7, 8, 15.

Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 40(2), (3), (5), (7) to (10), 41 to 44.

Child and Family Services Act, S.M.1985-86, c. 8, ss. 21 to 26, 38(7), 53.

Child and Family Services Act, S.N.W.T. 1997, c. 13, ss. 10, 11(1), 33.

Child and Family Services Act, S.S. 1989-90, c. C-7.2, ss. 2(1)(p), 7, 8, 13, 17, 18(1).

Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, ss. 16 to 19, 25 to 33.

Child Trafficking and Pornography Act, 1998 (No. 22) (Ir.), ss. 2, 6.

Child Welfare Act, R.S.N. 1990, c. C-12, ss. 13, 14, 15.

Child Welfare Act, S.A. 1984, c. C-8.1, ss. 17, 18.

Children and Family Services Act, S.N.S. 1990, c. 5, ss. 26(2), (3), 27, 28, 29, 33(1), (3), 34.

Children’s Act, R.S.Y. 1986, c. 22, s. 119.

Classification (Publications, Films and Computer Games) Act 1995 (Austl.) (No. 7 of 1995).

Constitution Act, 1982, s. 52(1).

Convention on the Rights of the Child, Can. T.S. 1992, No. 3, arts. 1, 2, 9, 16, 19, 32, 33, 34, 35, 37.

Criminal Code (Belgium), art. 383bis.

Criminal Code, R.S.C. 1985, c. C-46, ss. 22, 150.1, 151, 152, 153, 159, 160(3), 163 [am. 1993, c. 46, s. 1], 163.1 [ad. idem, s. 2], 170, 171, 172, 212(4), 215, 271, 272, 273.

Criminal Justice Act 1988 (U.K.), 1988, c. 33, s. 160.

Criminal Justice and Public Order Act 1994 (U.K.), 1994, c. 33, ss. 84 to 86.

Declaration of the Rights of the Child, G.A. Res. 1386 (XIV) (1959), preamble.

Draft Joint Action to combat child pornography on the Internet, [1999] O.J.C. 219/68, art. 1.

Family and Child Services Act, R.S.P.E.I. 1988, c. F-2, ss. 1(1)(c), 15(1), (1.1), 16(1), 17(1)(b), 19(b).

Family Services Act, S.N.B. 1980, c. F-2.2, ss. 1, 31(5), 32, 33, 51(1), 62(3).

Films, Videos, and Publications Classification Act 1993 (N.Z.) No. 94, ss. 2, 3, 131.

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 24.

International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, art. 10(3).

International traffic in child pornography, ICPO-Interpol AGN/65/RES/9 (1996).

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography, A/RES/54/263 (2000), Annex II.

Protection of Children Act 1978 (U.K.), 1978, c. 37, ss. 1, 7.

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc A/810, at p. 71 (1948), art. 25(2).

Young Offenders Act, R.S.C. 1985, c. Y-1, s. 20.

Youth Protection Act, R.S.Q., c. P-34.1, ss. 2, 3, 46.

18 U.S.C. §§ 2252(a)(4)(B), 2256 (1994 & Supp. IV 1998).

Authors Cited

Bala, Nicholas, and Martha Bailey. “Canada: Recognizing the Interests of Children” (1992-93), 31 U. Louisville J. Fam. L. 283.

Bessner, Ronda. “Khan: Important Strides Made by the Supreme Court Respecting Children’s Evidence” (1990), 79 C.R. (3d) 15.

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Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Report on Pornography. Issue No. 18, March 22, 1978, p. 18:4.

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Canada. House of Commons Debates, 3rd Sess., 34th Parl., vol. XVI, June 3, 1993, p. 20328.

Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Issue No. 50, June 21, 1993, p. 50:41.

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

Canada. Special Committee on Pornography and Prostitution. Report of the Special Committee on Pornography and Prostitution (Fraser Report). Ottawa: The Committee,1985.

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Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.

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Levesque, Roger J. R. Sexual Abuse of Children: A Human Rights Perspective. Bloomington: Indiana University Press, 1999.

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Roberts, Julian V. "Sexual Assault in Canada: Recent Statistical Trends" (1996), 21 Queen's L.J. 395.

Ross, June. “R. v. Sharpe and Private Possession of Child Pornography” (2000), 11 Constitutional Forum 50.

Stephen, James Fitzjames, Sir. A Digest of the Criminal Law (indictable offences), 9th ed. By Sir Lewis Frederick Sturge. London: Sweet & Maxwell, 1950.

Sugunasiri, Shalin M. “Contextualism: The Supreme Court’s New Standard of Judicial Analysis and Accountability” (1999), 22 Dalhousie L.J. 126.

Sullivan, Ruth. Statutory Interpretation. Concord, Ont.: Irwin Law, 1997.

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Watson, Jack. “Case Comment: R. v. Sharpe” (1999), 10 N.J.C.L. 251.

APPEAL from a judgment of the British Columbia Court of Appeal (1999), 136 C.C.C. (3d) 97, 127 B.C.A.C. 76, 207 W.A.C. 76, 175 D.L.R. (4th) 1, 25 C.R. (5th) 215, 69 B.C.L.R. (3d) 234, [2000] 1 W.W.R. 241, [1999] B.C.J. No. 1555 (QL), 1999 BCCA 416, dismissing a Crown appeal from a decision of the British Columbia Supreme Court (1999), 1999 6380 (BC SC), 22 C.R. (5th) 129, 169 D.L.R. (4th) 536, [1999] B.C.J. No. 54 (QL), declaring void s. 163.1(4) of the Criminal Code. Appeal allowed.

John M. Gordon and Kate Ker, for the appellant.

Gil D. McKinnon, Q.C., Richard C. C. Peck, Q.C., and Nikos Harris for the respondent.

Cheryl J. Tobias and Kenneth J. Yule, for the intervener the Attorney General of Canada.

James M. Flaherty, Christine Bartlett-Hughes and Laurie Lacelle, for the intervener the Attorney General for Ontario.

Joanne Marceau and Jacques Gauvin, for the intervener the Attorney General of Quebec.

Daniel A. MacRury, for the intervener the Attorney General of Nova Scotia.

Mary Elizabeth Beaton, for the intervener the Attorney General for New Brunswick.

Shawn Greenberg and Holly Penner, for the intervener the Attorney General of Manitoba.

Joshua B. Hawkes, for the intervener the Attorney General for Alberta.

Timothy S. B. Danson, for the interveners the Canadian Police Association (CPA), the Canadian Association of Chiefs of Police (CACP) and Canadians Against Violence (CAVEAT).

Frank Addario and Michael Lacy, for the intervener the Criminal Lawyers’ Association.

Robert W. Staley, Meredith Hayward and Janet Epp Buckingham, for the interveners the Evangelical Fellowship of Canada and the Focus on the Family (Canada) Association.

John D. McAlpine, Q.C., Bruce Ryder and Andrew D. Gay, for the intervener the British Columbia Civil Liberties Association.

Patricia D. S. Jackson and Tycho M. J. Manson, for the intervener the Canadian Civil Liberties Association.

David Matas, Mark Eric Hecht and Jean-François Noël, for the interveners Beyond Borders, Canadians Addressing Sexual Exploitation (CASE), End Child Prostitution, Child Pornography and Trafficking in Children for Sexual Purposes (ECPAT) and the International Bureau for Children’s Rights.

The judgment of McLachlin C.J. and Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by

The Chief Justice –

I. Introduction

[1] Is Canada’s law banning the possession of child pornography constitutional or, conversely, does it unjustifiably intrude on the constitutional right of Canadians to free expression? That is the central question posed by this appeal.

[2] I conclude that the law is constitutional, except for two peripheral applications relating to expressive material privately created and kept by the accused, for which two exceptions can be read into the legislation. The law otherwise strikes a constitutional balance between freedom of expression and prevention of harm to children. As a consequence, I would uphold the law and remit Mr. Sharpe for trial on all charges.

[3] The respondent, Mr. Sharpe, was charged on a four-count indictment after two seizures of material. The first seizure was made by Canada Customs. It consisted of computer discs containing a text entitled “Sam Paloc’s Boyabuse -- Flogging, Fun and Fortitude: A Collection of Kiddiekink Classics”. Two charges were laid with respect to this material -- one for illegal possession under s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46, and one for possession for the purposes of distribution or sale under s. 163.1(3) of the Code. The second seizure was at Mr. Sharpe’s home pursuant to a search warrant the validity of which will be contested at trial. Police officers seized a collection of books, manuscripts, stories and photographs the Crown says constitute child pornography. Again, two charges were laid – one of simple possession and one of possession for the purposes of distribution or sale.

[4] Mr. Sharpe brought a preliminary motion challenging the constitutionality of s. 163.1(4) of the Criminal Code. He does not challenge the constitutionality of the offence of possession for the purposes of distribution and sale, which will go to trial regardless of how this appeal is resolved. Mr. Sharpe contends that the prohibition of possession, without more, violates the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms. The trial judge ruled that the prohibition was unconstitutional, as did the majority of the British Columbia Court of Appeal. The Crown appeals that order to this Court.

[5] The Crown concedes that s. 163.1(4)’s prohibition on the possession of child pornography infringes the guarantee of freedom of expression in s. 2(b) of the Charter. The issue is whether this limitation of freedom of expression is justifiable under s. 1 of the Charter, given the harm possession of child pornography can cause to children. Mr. Sharpe accepts that harm to children justifies criminalizing possession of some forms of child pornography. The fundamental question therefore is whether s. 163.1(4) of the Criminal Code goes too far and criminalizes possession of an unjustifiable range of material.

II. Provisions of the Legislation and the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[6] In 1993, Parliament enacted s. 163.1 of the Criminal Code, creating a number of offences relating to child pornography. The provision supplemented laws making it an offence to make, print, publish, distribute, or circulate obscene material (s. 163), and to corrupt children (s. 172). With the enactment of s. 163.1, the Criminal Code contains a comprehensive scheme to attack child pornography at every stage – production, publication, importation, distribution, sale and possession. Subsections (2) and (3) of s. 163.1 criminalize possession of child pornography for the purpose of publication and possession for the purpose of distribution or sale. Section 163.1(4) extends the prohibition to possession simpliciter:

163.1 . . .

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

[7] The scope of this offence depends on the definition of “child pornography”

in subs. (1):

(1) In this section, “child pornography” means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

[8] The offence is subject to a number of defences, set out in subs. (6) and (7):

(6) Where the accused is charged with an offence under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3) or (4).

[9] Subsection (7) imports the “public good” defence from the obscenity provisions of the Criminal Code:

163. . . .

(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

(5) For the purposes of this section, the motives of an accused are irrelevant.

[10] Section 2(b) of the Charter guarantees freedom of expression as follows:

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;

[11] Section 7 of the Charter guarantees a right to liberty as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[12] Section 1 of the Charter affirms the entitlement of everyone to the fundamental rights guaranteed by the Charter, subject to justifiable limits:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

III. Judicial Decisions

A. British Columbia Supreme Court (1999), 1999 6380 (BC SC), 22 C.R. (5th) 129

[13] In the British Columbia Supreme Court, Shaw J. courageously ruled that s. 163.1(4) is unconstitutional. He held that the objective of the law is to combat material that puts children at risk of harm. He reviewed evidence that child pornography arguably creates this risk through its use for grooming or seduction; by the use of children in its manufacture; by confirming or augmenting cognitive distortions of paedophiles; and by inciting paedophiles to commit offences against children. However, although this Court in R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452, did not require conclusive proof that obscene materials cause harm, Shaw J. apparently required such proof and found little scientific evidence linking the possession of child pornography to these risks. As a result, he considered the salutary effects of the law to be limited. As for the law’s deleterious effects, he found that “the invasion of freedom of expression and personal privacy is profound” (para. 49) and held that they were “not outweighed by the limited beneficial effects of the prohibition” (para. 50). Shaw J. concluded that the law was inconsistent with the Charter and could not be justified under s. 1, rendering it invalid under s. 52(1) of the Constitution Act, 1982.

B. British Columbia Court of Appeal (1999), 1999 BCCA 416, 136 C.C.C. (3d) 97

[14] The Court of Appeal, by a margin of 2 to 1, upheld the trial judge’s conclusion. Southin J.A. found the law invalid for two reasons. First, she held that “legislation which makes simple possession of expressive materials a crime can never be a reasonable limit in a free and democratic society. Such legislation bears the hallmark of tyranny” (para. 95). On this approach, any prohibition of private possession of child pornography, as opposed to manufacture, distribution or possession for these purposes, would always, of necessity, unjustifiably restrict freedom of expression. In the alternative, Southin J.A. found that the law failed the proportionality test of s. 1. Like the trial judge, Southin J.A. held that the most compelling evidence of necessity is required to justify a prohibition on mere possession, and that the legislation catches too much lawful conduct unrelated to harm to children, notably in relation to teenage sexuality.

[15] Rowles J.A. held the law invalid on the ground that it is unjustifiably overbroad. Sympathetic to Parliament’s goal, she argued eloquently for the need to protect children from sexual abuse. She noted that child pornography does not lie close to the core of protected expression, and found that Parliament had a reasonable basis for concluding that criminalizing possession of child pornography would reduce the risk of harm to children. Rowles J.A. held, however, that the law failed because it caught much more material than necessary to achieve the objective, mainly relating to teenage sexuality, an intrusion on free expression aggravated by its impact on privacy. “By providing a sentence of incarceration for the possession of recorded thoughts and expression, including one’s own thoughts and expression, the legislation trenches deeply upon the core values enshrined in the Charter and essential to a free and democratic society” (para. 213). In the result the law raises “the spectre that legitimate and non-harmful expression will be chilled as individuals are forced, in the words of the trial judge, to become their own censors” (para. 213). On the other side of the balance, the only “value added” by criminalizing possession of child pornography, in addition to the other offences, was a modest contribution to law enforcement (para. 214).

[16] McEachern C.J.B.C. would have upheld the law. Since Mr. Sharpe conceded that possession of some pornographic material should be prohibited, the only issue was where to draw the line between permissible and impermissible material. McEachern C.J.B.C. considered Shaw J. to have erred in not considering the suppression of the market for child pornography, and hence the prevention of the abuse of children in the course of producing child pornography, to be a salutary effect of the prohibition. He found the definition of child pornography in the section carefully drafted and rationally connected to the objectives of the legislation. In his view, limitations in the law offered considerable protection against problematic prosecution. Acknowledging that the law catches some teenage sexual material unrelated to the harm, he doubted Parliament could have drafted it in a way that avoided such difficulties. The hypothetical examples of unrelated material were remote and likely to arise infrequently. McEachern C.J.B.C. concluded that “any balancing of the risk of harm to children against the risk of harm to ‘innocent’ possessors of child pornography as defined must be resolved in favour of children” (para. 292).

[17] The decisions in the British Columbia courts reveal four distinctive arguments. At the far end of the spectrum is Southin J.A.’s argument that prohibition of private possession of child pornography can never constitute a justifiable infringement on free expression. Next is the position of the trial judge, adopted by Southin J.A. in the alternative, that the benefits of the law are limited and do not outweigh its negative effects on freedom of expression and privacy. The third argument, put forward by Rowles J.A., is that the law is unjustifiably overbroad. The fourth argument, adopted by McEachern C.J.B.C., is that the only issue is overbreadth and that on balance the law’s infringement on freedom of expression is justified.

IV. Issues

[18] Two issues arise: whether the prohibition of possession of child pornography in s. 163.1(4) limits a Charter right and, if so, whether the infringement is justified. On the first issue the Crown concedes that the law intrudes upon the guarantee of free expression in s. 2(b) of the Charter. The respondent also alleges a violation of his right to liberty under s. 7 of the Charter, arguing that exposure to potential imprisonment as a result of an excessively sweeping law is contrary to the principles of fundamental justice. Since this argument wholly replicates the overbreadth concerns that are the central obstacle to the justification of the s. 2(b) breach, it is not necessary to consider it separately. The weight of authority commends the s. 1 analysis generally, and the minimal impairment consideration in particular, as the appropriate forum for addressing allegations of overly broad restrictions on free expression: Butler, supra; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, 1990 26 (SCC), [1990] 3 S.C.R. 892; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731.

[19] The basic issue thus reduces to whether the limit imposed by the law on free expression can be justified under s. 1 of the Charter. If aspects of the law cannot be justified, the further question arises of whether a remedy short of striking down the entire law as unconstitutional is appropriate.

[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. But, absent some constitutionally adequate justification, we cannot forbid a person from expressing it.

[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. Because of the importance of the guarantee of free expression, however, any attempt to restrict the right must be subjected to the most careful scrutiny.

[23] The values underlying the right to free expression include individual self-fulfilment, finding the truth through the open exchange of ideas, and the political discourse fundamental to democracy: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, at p. 976; Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712, at p. 765. While some types of expression, like political expression, lie closer to the core of the guarantee than others, all are vital to a free and democratic society. As stated in Irwin Toy, supra, at p. 968, the guarantee “ensure[s] that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection”, the Court continued, “is . . . ‘fundamental’ because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual”. As stated by Cardozo J. in Palko v. Connecticut, 302 U.S. 319 (1937), free expression is “the matrix, the indispensable condition, of nearly every other form of freedom” (p. 327).

[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.

[25] As to the contention that prohibiting possession of expressive material does not raise free expression concerns, I cannot agree. The right conferred by s. 2(b) of the Charter embraces a continuum of intellectual and expressive freedom -- “freedom of thought, belief, opinion and expression”. The right to possess expressive material is integrally related to the development of thought, belief, opinion and expression. The possession of such material allows us to understand the thought of others or consolidate our own thought. Without the right to possess expressive material, freedom of thought, belief, opinion and expression would be compromised. Thus the possession of expressive materials falls within the continuum of rights protected by s. 2(b) of the Charter.

[26] The private nature of the proscribed material may heighten the seriousness of a limit on free expression. Privacy, while not expressly protected by the Charter, is an important value underlying the s. 8 guarantees against unreasonable search and seizure and the s. 7 liberty guarantee: see Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668. Indeed, as freedom from state intrusion and conformist social pressures is integral to individual flourishing and diversity, this Court has observed that “privacy is at the heart of liberty in a modern state”: R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, at p. 427; see also R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 50. Privacy may also enhance freedom of expression claims under s. 2(b) of the Charter, for example in the case of hate literature: Keegstra, supra, at pp. 772-73; Taylor, supra, at pp. 936-37. The enhancement in the case of hate literature occurs in part because private material may do less harm than public, and in part because the freedoms of conscience, thought and belief are particularly engaged in the private setting: Taylor, supra. 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.

[27] In summary, prohibiting the possession of child pornography restricts the rights protected by s. 2(b) and the s. 7 liberty guarantee. While the prurient nature of most of the materials defined as “child pornography” may attenuate its constitutional worth, it does not negate it, since the guarantee of free expression extends even to offensive speech.

[28] This brings us to the countervailing interest at stake in this appeal: society’s interest in protecting children from the evils associated with the possession of child pornography. Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation of children. The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. 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. Some of these links are disputed and must be considered in greater detail in the course of the s. 1 justification analysis. The point at this stage is simply to describe the concerns that, according to the government, justify limiting free expression by banning the possession of child pornography.

[29] These then are the values at stake in this appeal. On the one hand stands the right of free expression – a right fundamental to the liberty of each Canadian and our democratic society. On the other stands the conviction that the possession of child pornography must be forbidden to prevent harm to children.

[30] Mr. Sharpe does not suggest that the prevention of harm to children can never justify limiting free expression. Where the two values stand in stark opposition, prevention of harm to children must prevail. He 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.

[31] In order to deal with these concerns, we must determine what material the law, properly construed, catches, and on that basis answer the question of whether those restrictions on free speech are in fact justified by the goal of preventing harm to children.

B. The Nature and Scope of the Infringement of the Charter

[32] While the Crown concedes that s. 163.1(4) limits freedom of expression, this does not eliminate the need to consider the nature and scope of the infringement in determining whether or not it is justified. Until we know what the law catches, we cannot say whether it catches too much. This Court has consistently approached claims of overbreadth on this basis. It is not enough to accept the allegations of the parties as to what the law prohibits. The law must be construed, and interpretations that may minimize the alleged overbreadth must be explored: see Keegstra, supra, Butler, supra, and Mills, supra. So we must begin by asking what s. 163.1(4) truly catches as distinguished from some of the broader interpretations alleged by the respondent and some of the interveners in support. The interpretation of the section is a necessary pre-condition to the determination of constitutionality, although it is understood, of course, that courts in future cases may refine the analysis in light of the facts and considerations that emerge with experience.

[33] Much has been written about the interpretation of legislation (see, e.g., R. Sullivan, Statutory Interpretation (1997); R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994); P.‑A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000)). However, E. A. Driedger in Construction of Statutes (2nd ed. 1983) best captures the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87, Driedger states: “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Recent cases which have cited the above passage with approval include: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; R. v. Hydro‑Québec, 1997 318 (SCC), [1997] 3 S.C.R. 213, at para. 144; Royal Bank of Canada v. Sparrow Electric Corp., 1997 377 (SCC), [1997] 1 S.C.R. 411, at para. 30; Verdun v. Toronto‑Dominion Bank, 1996 186 (SCC), [1996] 3 S.C.R. 550, at para. 22; Friesen v. Canada, 1995 62 (SCC), [1995] 3 S.C.R. 103, at para. 10. Supplementing this approach is the presumption that Parliament intended to enact legislation in conformity with the Charter: see Sullivan, Driedger on the Construction of Statutes, supra, at pp. 322-27. 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: see Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, at p. 1010; R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606, at p. 660; R. v. Lucas, 1998 815 (SCC), [1998] 1 S.C.R. 439, at para. 66.

[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. However, Parliament did not cast its net over all material that might conceivably pose any risk to children or produce any negative attitudinal changes. Mindful of the importance of freedom of expression in our society and the dangers of vague, overbroad legislation in the criminal sphere, Parliament set its targets principally on clear forms of “child pornography”: depictions of explicit sex with children, depictions of sexual organs and anal areas of children and material advocating sexual crimes with children. Through qualifications and defences Parliament indicated that it did not seek to catch all material that might harm children, but only material that poses a reasoned risk of harm to children and, even then, only where the countervailing right of free expression or the public good does not outweigh that risk of harm. With this aim in mind, I turn to s. 163.1.

[35] Section 163.1(1) defines child pornography in terms of two categories: (1) visual representations (s. 163.1(1)(a)); and (2) written and visual advocacy and counselling material (s. 163.1(1)(b)). Visual representations include “a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means”. This is broad enough to include drawings, paintings, prints, computer graphics, and sculpture: in short, any non-textual representation that can be perceived visually.

[36] A visual representation can constitute child pornography in three ways:

1. By showing a person who is, or is depicted as, being under the age of 18 years and is engaged in, or is depicted as engaged in, explicit sexual activity (s. 163.1(1)(a)(i));

2. By having, as its dominant characteristic, the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years (s. 163.1(1)(a)(ii)); or

3. By advocating or counselling sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code (s. 163.1(1)(b)).

Written material can constitute child pornography in only the last of these ways (s. 163.1(1)(b)). The ambit of these provisions depends on the meaning of the terms used.

1. “Person”

[37] In order to constitute child pornography, a visual representation must show, depict, advocate or counsel sexual activity with a “person”. Two issues arise here: (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.

[39] This definition of child pornography catches depictions of imaginary human beings privately created and kept by the creator. Thus, the prohibition extends to visual expressions of thought and imagination, even in the exceedingly private realm of solitary creation and enjoyment. As will be seen, the private and creative nature of this expression, combined with the unlikelihood of its causing harm to children, creates problems for the law’s constitutionality.

[40] The second issue is whether “person”, as the term is used in s. 163.1(1)(a), includes the person who possesses the material. That is, does the definition of “child pornography” catch “auto-depictions” – for example, sexually explicit photographs a person has taken of him- or herself alone? Given that Parliament has not qualified or limited the definition of “person” in s. 163.1(1)(a), I conclude that Parliament intended to catch such auto-depictions, even where the person making the depiction, although under 18, does not appear to be a child, and intends to keep the depiction entirely in his or her own possession. This too creates constitutional problems, as we will see.

[41] The legislation defines children to include all those under the age of 18. This doubtless reflects Parliament’s concern that older teenagers may look or be made to look like children. 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.

2. “Depicted”

[42] Section 163.1(1)(a)(i) brings within the definition of child pornography a visual representation of a person “who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity” (emphasis added). Does “depicted” mean: (a) intended by the maker to depict; (b) perceived by the possessor as depicting; or (c) seen as being depicted by a reasonable observer?

[43] The first and second interpretations are inconsistent with Parliament’s objective of preventing harm to children through sexual abuse. The danger associated with the representation does not depend on what was in the mind of the maker or the possessor, but in the capacity of the representation to be used for purposes like seduction. It is the meaning which is conveyed by the material which is critical, not necessarily the meaning that the author intended to convey. Moreover, it would be virtually impossible to prove what was in the mind of the producer or possessor. On the second alternative, the same material could be child pornography in the possession of one person and innocent material in the hands of another. Yet the statute makes it an offence for anyone to possess such material, not just those who see it as depicting children. The only workable approach is to read “depicted” in the sense of what would be conveyed to a reasonable observer. The test must be objective, based on the depiction rather than what was in the mind of the author or possessor. The question is this: would a reasonable observer perceive the person in the representation as being under 18 and engaged in explicit sexual activity?

3. “Explicit Sexual Activity”

[44] Section 163.1(1)(a)(i) catches visual representations of “explicit sexual activity”. Sexual activity spans a large spectrum, ranging from the flirtatious glance at one end, through touching of body parts incidentally related to sex, like hair, lips and breasts, to sexual intercourse and touching of the genitals and the anal region. The question is where on this spectrum Parliament intended to place the boundary between material that may be lawfully possessed and material that may not be lawfully possessed. A number of indications suggest that Parliament intended to draw the line at the extreme end of the spectrum concerned with depictions of intimate sexual activity represented in a graphic and unambiguous manner.

[45] The first indication is Parliament’s use of the word “explicit” to describe the activity depicted. Parliament could have simply referred to “sexual activity”. Instead, it chose “explicit sexual activity”. “Explicit” must be given meaning. According to the Canadian Oxford Dictionary (1998), “explicit” in the context of sexual acts means “describing or representing nudity or intimate sexual activity”. Similarly, “explicit” according to the New Oxford Dictionary of English (1998) means “describing or representing sexual activity in a graphic fashion”. This suggests that the law catches only depictions of sexual intercourse and other non-trivial sexual acts.

[46] This restricted meaning is supported by the fact that in creating other offences, like sexual assault, Parliament uses the word “sexual” without any modifiers. To constitute sexual assault, the sexual aspect of the contact must be clear. The addition of the modifier “explicit” in s. 163.1 suggests that this at least is required.

[47] A restrained interpretation of “explicit sexual activity” is also supported by reading s. 163.1(1)(a)(i) and s. 163.1(1)(a)(ii) together. They are designed to cover two types of depiction: (i) the depiction of explicit sexual activity; and (ii) the static depiction of the sexual organs or anal regions of children. Subparagraph (ii) clearly indicates that Parliament’s concern was with visual representations near the extreme end of the spectrum. While it is possible in the abstract to argue that Parliament intended a much broader sweep for subpara. (i) than for (ii), it seems more likely that Parliament was seeking to catch in subpara. (i) the activity-related counterpart to subpara. (ii).

[48] Finally, Parliament’s goal of preventing harm to children related to child pornography supports a restrained interpretation of “explicit sexual activity”. The evidence suggests that harm to children produced by child pornography arises from depictions of explicit sexual acts with children at the extreme end of the spectrum. The literature on harm focuses mainly on depictions of sexual activity involving nudity and portrayal of the sexual organs and anal region. It is reasonable to conclude that this sort of material was uppermost in Parliament’s mind when it adopted this law.

[49] I conclude that “explicit sexual activity” refers to acts which viewed objectively fall at the extreme end of the spectrum of sexual activity – acts involving nudity or intimate sexual activity, represented in a graphic and unambiguous fashion, with persons under or depicted as under 18 years of age. The law does not catch possession of visual material depicting only casual sexual contact, like touching, kissing, or hugging, since these are not depictions of nudity or intimate sexual activity. Certainly, a photo of teenagers kissing at summer camp will not be caught. At its furthest reach, the section might catch a video of a caress of an adolescent girl’s naked breast, but only if the activity is graphically depicted and unmistakably sexual. (For a discussion of such concerns see B. Blugerman and L. May, “The New Child Pornography Law: Difficulties of Bill C-128" (1995), 4 M.C.L.R. 17.)

4. “Dominant Characteristic” and “Sexual Purpose”

[50] The objective approach should also be applied to the term “dominant characteristic” in s. 163.1(1)(a)(ii), which targets possession of visual material whose “dominant characteristic” is “the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years”. The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region. The same applies to the phrase “for a sexual purpose”, which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers.

[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”. Placing a photo in an album of sexual photos and adding a sexual caption could change its meaning such that its dominant characteristic or purpose becomes unmistakably sexual in the view of a reasonable objective observer: see R. v. Hurtubise, [1997] B.C.J. No. 40 (QL) (S.C.), at paras. 16-17. Absent evidence indicating a dominant prurient purpose, a photo of a child in the bath will not be caught. To secure a conviction the Crown must prove beyond a reasonable doubt that the “dominant characteristic” of the picture is a depiction of the sexual organ or anal region “for a sexual purpose”. If there is a reasonable doubt, the accused must be acquitted.

5. “Sexual Organ”

[52] Section 163.1(1)(a)(ii) catches static depictions for a sexual purpose of the “sexual organ” or “anal region” of a person under 18 years, provided this is the dominant characteristic of the representation. This raises the question of the meaning of “sexual organ”.

[53] Prudence suggests leaving the precise content of “sexual organ” to future case-law. However, no one suggests that s. 163.1(1)(a)(ii) was designed to catch depictions of eyes or lips. Parliament’s purpose of targeting possession of material associated with a reasoned risk of harm to children suggests a restrained interpretation of “sexual organ” in subpara. (ii), similar to that discussed above with respect to subpara. (i).

6. Written Material: “Advocates or counsels”

[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 “representation[s]” 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] At stake is not whether the maker or possessor of the material intended to advocate or counsel the crime, but whether the material, viewed objectively, advocates or counsels the crime. “Advocate” is not defined in the Criminal Code. “Counsel” is dealt with only in connection with the counseling of an offence: s. 22 of the Criminal Code, where it is stated to include “procure, solicit or incite”. “Counsel” can mean simply to advise; however in criminal law it has been given the stronger meaning of actively inducing: see R. v. Dionne (1987), 1987 6865 (NB CA), 38 C.C.C. (3d) 171 (N.B.C.A.), at p. 180, per Ayles J.A. While s. 22 refers to a person’s actions and s. 163.1(1)(b) refers to material, it seems reasonable to conclude that in order to meet the requirement of “advocates” or “counsels”, the material, viewed objectively, must be seen as “actively inducing” or encouraging the described offences with children. Again, Parliament’s purpose of capturing material causing a reasoned risk of harm to children may offer guidance. 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.

[58] It must also be remembered that it is only the advocating or counselling of sexual activity with a person under the age of 18 that would be an offence under the Criminal Code that is captured by this part of the definition of child pornography. Many of the sexual offences in the Code apply only to sexual activity involving an individual under the age of 14. For instance, the offences of sexual interference (s. 151) and invitation to sexual touching (s. 152) apply only when individuals 13 or under are involved, unless the person doing the touching or inviting is in a position of trust or authority (s. 153). Advocating the consensual sexual touching of a 16-year-old is not an offence under s. 151 and therefore would not be caught by this part of the child pornography definition. However, advocating such touching by, for example, a teacher or hockey coach, is an offence and would be caught. Similarly, inviting a 14-year-old to consensually sexually touch another person is not an offence under s. 152 and would also not be caught (subject to the same position of trust or authority exception). Finally, advocating consensual vaginal intercourse with a 15-year-old is not an offence, as the age of consent is 14. Written materials or visual representations that advocate or counsel such acts of intercourse are therefore also not caught by s. 163.1(1)(b).

[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.

7. The Defences

[60] In addition to limiting the ambit of the definition of child pornography, Parliament created a number of defences. In so doing, Parliament recognized that the law could unduly impinge on some of the values protected by the guarantee of free expression, like artistic creativity, education, medical research, or other public purposes, and sought to provide protection for activities furthering these values. The defences should be liberally construed with this purpose in mind.

(a) The Defence of Artistic Merit

[61] Section 163.1(6) provides a defence for a representation or written material that constitutes child pornography if it has “artistic merit”. Three issues arise regarding the ambit of this defence: (1) the meaning of “artistic merit”; (2) whether artistic works must conform to “community standards” in order to gain the protection of the defence; and (3) the procedure for considering the defence. When construing the defence of artistic merit, we must keep in mind the admonition of Sopinka J. in Butler, supra, at p. 486: “Artistic expression rests at the heart of freedom of expression values and any doubt in this regard must be resolved in favour of freedom of expression.” Simply put, the defence must be construed broadly.

[62] The first question is what the defence covers. It seems clear the defence must be established objectively, since Parliament cannot have intended a bare assertion of artistic merit to provide a defence. This leaves two possibilities. First, “artistic merit” may refer to the quality of the work in the opinion of objective observers. It is not uncommon in everyday discourse to say of a work of art that, although it is genuinely art, it possesses little or no “artistic merit”. If “artistic merit” is used in this sense, then the task of the court would be to determine how good the work of art was. Art students learning their craft, inept artists and artists breaking conventions to establish new idioms might well find their work classified as lacking “artistic merit” and hence lose the benefit of the defence. On the assumption that this was the meaning of “artistic merit”, it was argued that the defence is too limited and arbitrary to protect artistic expression adequately.

[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).

[64] What may reasonably be viewed as art is admittedly a difficult question – one that philosophers have pondered through the ages. Although it is generally accepted that “art” includes the production, according to aesthetic principles, of works of the imagination, imitation or design (New Shorter Oxford English Dictionary on Historical Principles (1993), vol. 1, p. 120), the question of whether a particular drawing, film or text is art must be left to the trial judge to determine on the basis of a variety of factors. The subjective intention of the creator will be relevant, although it is unlikely to be conclusive. The form and content of the work may provide evidence as to whether it is art. Its connections with artistic conventions, traditions or styles may also be a factor. The opinion of experts on the subject may be helpful. Other factors, like the mode of production, display and distribution, may shed light on whether the depiction or writing possesses artistic value. It may be, as the case law develops, that the factors to be considered will be refined.

[65] This brings me to the issue of whether the defence incorporates a community tolerance standard. In Ontario (Attorney General) v. Langer (1995), 1995 7422 (ON SC), 123 D.L.R. (4th) 289 (Ont. Ct. (Gen. Div.)), McCombs J. interpreted s. 163.1(6) as importing a requirement that material, to have artistic merit, must comport with community standards in the sense of not posing a risk of harm to children. I am not persuaded that we should read a community standards qualification into the defence. To do so would involve reading in a qualification that Parliament has not stated. Further, reading in the qualification of conformity with community standards would run counter to the logic of the defence, namely that artistic merit outweighs any harm that might result from the sexual representations of children in the work. Most material caught by the definition of child pornography could pose a potential risk of harm to children. To restrict the artistic merit defence to material posing no risk of harm to children would defeat the purpose of the defence. Parliament clearly intended that some pornographic and possibly harmful works would escape prosecution on the basis of this defence; otherwise there is no need for it.

[66] The third issue is how the artistic merit defence functions procedurally. The test, as mentioned, is objective. The wording of the section suggests that it functions in the same manner as other defences such as self defence, provocation or necessity. The accused raises the defence by pointing to facts capable of supporting it (generally something more than a bare assertion that the creator subjectively intended to create art), at which point the Crown must disprove the defence beyond a reasonable doubt: see Langer, supra.

[67] I add this footnote. The statutory defence of artistic merit to a charge of possession of child pornography is conceptually different from the defence of artistic merit to a charge of obscenity under s. 163 of the Criminal Code. With respect to s. 163, the meaning of obscenity and the defence of artistic merit are largely judicial creations. It turns on whether the sexual portrayal is the dominant purpose of the work, on the one hand, or essential to a wider artistic purpose, on the other (the internal necessities test). It also asks whether the sexual aspect of the work, viewed in context, would meet community standards of tolerance. The definition of child pornography, by contrast, stands independent of the defence of artistic merit, making the language of “internal necessity” and the logic of “either obscenity or art” inapposite. For this reason, and with the greatest respect for the contrary view expressed by McCombs J. in Langer, supra, I do not find it incongruous to interpret the defence of artistic merit to the child pornography offences differently from that developed under the obscenity provisions.

(b) The Defence of “Educational, Scientific or Medical Purpose”

[68] Section 163.1(6) creates a defence for material that serves a medical, educational or scientific purpose. This refers to the purpose the material, viewed objectively, may serve, not the purpose for which the possessor actually holds it. How the material was produced or is possessed is obviously relevant to this determination. While arguably few medical, educational and scientific works would fall within s. 163.1(1), Parliament has made it clear that if they do, possession of them is legal. The procedural aspects of the defence of artistic merit would apply to this defence.

[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. On such an approach, possession of materials for therapeutic purposes might meet the requirements of the defence. This defence will apply in appropriate circumstances to sketches and stories penned in the process of self-analysis or a couple’s record of their sexual conduct held for the purpose of furthering that relationship: J. Ross, “R. v. Sharpe and Private Possession of Child Pornography” (2000), 11 Constitutional Forum 50, at p. 57.

(c) The Defence of “Public Good”

[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”: J. F. Stephen, A Digest of the Criminal Law (9th ed. 1950), at p. 173, adopted in R. v. American News Co. (1957), 1957 119 (ON CA), 118 C.C.C. 152 (Ont. C.A.), at pp. 161-62, and R. v. Delorme (1973), 1973 1467 (QC CA), 15 C.C.C. (2d) 350 (Que. C.A.), at pp. 358-59. The public good defence has received little interpretation in the obscenity context, and a precise definition of its ambit is beyond the scope of this appeal. Once again, a purposive interpretation would appear to be appropriate. 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.

[71] It might be argued that the public good is served by possession of materials that promote expressive or psychological well-being or enhance one’s sexual identity in ways that do not involve harm to others. In some cases this might eliminate some of the more problematic applications of s. 163.1(4). For example, it might in certain cases foreclose the law’s application to visual works created and privately held by one person alone, or to private recordings by adolescents of their lawful sexual activity. Nevertheless, the public good defence might not answer all concerns as to the law’s breadth. Absent evidence of public good in the particular case, a person might still be convicted for possession of material that directly engages the value of self-fulfilment and presents little or no risk of harm to children. Thus, while the public good defence might prevent troubling applications of the law in certain cases, it would not do so in all.

8. Summary of Material Caught by Section 163.1(4)

[72] Section 163.1(4) of the Criminal Code evinces a clear and unequivocal intention to protect children from the abuse and exploitation associated with child pornography. It criminalizes the possession of a substantial range of materials posing a risk of harm to children. Written material and visual representations advocating the commission of criminal offences against children is caught. Visual material depicting children engaged in explicit sexual activity is caught, as is material featuring, as a dominant characteristic, the sexual organ or anal region of a child for a sexual purpose. The reach of the proscription is further broadened by extending it to the depiction of both real and imaginary persons. As a result, the law appears to catch a substantial amount of material that endangers the welfare of children.

[73] At the same time, the legislation recognizes the importance of free expression and the danger of a sweeping criminal prohibition. It catches visual representations only where the sexual activity depicted is explicit, thus excluding kissing, hugging and other forms of casual intimacy. It targets visual materials only where they feature a sexual organ or anal region as a “dominant characteristic” for a “sexual purpose”, precluding the application of the law to innocent baby-in-the-bath photos and other scenarios of non-sexual nudity. Writings are caught only where they actively advocate or counsel illegal sexual activity with persons under the age of 18. Complementing these limits inherent in the s. 163.1(1) definition are an array of defences aimed at enhancing the protection of free expression by excluding materials with redeeming social benefits. Works of art, even of dubious artistic value, are not caught at all. Materials created for an “educational, scientific or medical purpose”, liberally construed, are also exempted. Finally, a public good defence, the precise scope of which remains to be determined, further protects the possession of materials serving a necessary or advantageous social function.

[74] These exclusions support the earlier suggestion that Parliament’s goal was to prohibit possession of child pornography that poses a reasoned risk of harm to children. The primary definition of “child pornography” does not embrace every kind of material that might conceivably pose a risk of harm to children, but appears rather to target blatantly pornographic material. Additionally, the defences exempt classes of material raising special free expression concerns. In this way, Parliament has attempted to meet the dual concerns of protecting children and protecting free expression.

[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.

[77] These examples suggest that s. 163.1(4), at the margins of its application, prohibits deeply private forms of expression, in pursuit of materials that may pose no more than a nominal risk of harm to children. It is these potential applications that present the most significant concerns at the stage of justification.

C. Is the Limitation on Free Expression Imposed by Section 163.1(4) Justified Under Section 1 of the Charter?

[78] Crown counsel has conceded that criminalizing possession of child pornography limits the right of free expression. The question we must answer is whether that limitation is reasonable and demonstrably justified in a free and democratic society. To justify the intrusion on free expression, the government must demonstrate, through evidence supplemented by common sense and inferential reasoning, that the law meets the test set out in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, and refined in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, and Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 S.C.R. 877. The goal must be pressing and substantial, and the law enacted to achieve that goal must be proportionate in the sense of furthering the goal, being carefully tailored to avoid excessive impairment of the right, and productive of benefits that outweigh the detriment to freedom of expression.

[79] Before we turn to these issues, we must consider the argument that prohibitions on private possession of child pornography can never be justified. Such laws, Southin J.A. asserted, constitute “the hallmark of tyranny” (para. 95). They represent such a fundamental intrusion on basic liberties that they can never be justified in a free and democratic society.

[80] Section 1 of the Charter belies the suggestion that any Charter right is so absolute that limits on it can never be justified. The argument posits that some rights are so basic that they can never be limited as a matter of principle, precluding any evaluation under s. 1. This is both undesirable and unnecessary. It is undesirable because it raises the risk that laws that can be justified may be struck down on the basis of how they are characterized. It is unnecessary because s. 1 provides a basis for fair evaluation that upholds only those laws that do not unjustifiably erode basic liberties.

[81] I conclude that the argument that limitations on possession of child pornography can never be justified as a matter of principle must be dismissed. We must conduct a detailed analysis of whether the law’s intrusion on freedom of speech can be justified under s. 1 of the Charter.

1. Is the Legislative 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?

[83] Parliament can prohibit possession of child pornography. The issue in this case is whether it has done so in a reasonable and proportionate manner having regard to the right of free expression.

(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 (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.

[87] The first alleged harm concerns cognitive distortions. The Crown argues that child pornography may change possessors’ attitudes in ways that makes them more likely to sexually abuse children. People may come to see sexual relations with children as normal and even beneficial. Moral inhibitions may be weakened. People who would not otherwise abuse children may consequently do so. Banning the possession of child pornography, asserts the Crown, will reduce these cognitive distortions.

[88] The trial judge discounted this harm due to the limited scientific evidence linking cognitive distortions to increased rates of offending. Applying the reasoned apprehension of harm test yields a different conclusion. While the scientific evidence is not strong, I am satisfied that the evidence in this case supports the existence of a connection here: exposure to child pornography may reduce paedophiles’ defences and inhibitions against sexual abuse of children. Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable.

[89] The second alleged harm is that possession of child pornography fuels fantasies, making paedophiles more likely to offend. The trial judge found that studies showed a link between highly erotic child pornography and offences. However, other studies suggested that both erotic and milder pornography might provide substitute satisfaction and reduce offences. Putting the studies together, the trial judge concluded that he could not say that the net effect was to increase harm to children (para. 23). Absent evidence as to whether the benefit from sublimation equals the harm of incitement or otherwise, this conclusion seems tenuous. More fundamentally, the trial judge proceeded on the basis that scientific proof was required. 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.

[90] The third alleged harm -- that criminalizing the possession of child pornography aids in prosecuting the distribution and use of child pornography -- was not expressly considered by the trial judge. Detective Waters testified that as a result of possession charges, the police have been able to uncover persons involved in producing and distributing child pornography. The Criminal Lawyers’ Association argues that it is dangerous to justify violations of rights on the sole basis that they will assist in the detection and prosecution of other criminal offences. Such reasoning, it argues, could be used to justify many other violations of fundamental rights. Given the evidence linking possession with harm to children on other grounds, it is not necessary to resolve the question of whether an offence abridging a Charter right can ever be justified solely on the basis that it assists in prosecuting other offences. It is sufficient to note that the fact the offence of possession aids prosecution of those who produce and distribute child pornography is a positive side-effect of the law.

[91] The trial judge was satisfied that the evidence relating to the fourth alleged harm, the use of child pornography to “groom” or seduce victims, showed a rational connection. The evidence is clear and uncontradicted. “Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process” (para. 23). The ability to possess child pornography makes it available for the grooming and seduction of children by the possessor and others. Mr. Sharpe does not deny that some child pornography can play an important role in the seduction of children. Criminalizing the possession of child pornography is likely to help reduce the grooming and seduction of children.

[92] The fifth and final harm -- the abuse of children in the production of pornography -- is equally conclusive. Children are used and abused in the making of much of the child pornography caught by the law. Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.

[93] It is argued that even if possession of child pornography is linked to harm to children, that harm is fully addressed by laws against the production and distribution of child pornography. Criminalizing mere possession, according to this argument, adds greatly to the limitation on free expression but adds little benefit in terms of harm prevention. The key consideration is what the impugned section seeks to achieve beyond what is already accomplished by other legislation: R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633. If other laws already achieve the goals, new laws limiting constitutional rights are unjustifiable. However, an effective measure should not be discounted simply because Parliament already has other measures in place. It may provide additional protection or reinforce existing protections. Parliament may combat an evil by enacting a number of different and complementary measures directed to different aspects of the targeted problem: see, e.g., R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3. Here the evidence amply establishes that criminalizing the possession of child pornography not only provides additional protection against child exploitation -- exploitation associated with the production of child pornography for the market generated by possession and the availability of material for arousal, attitudinal change and grooming -- but also reinforces the laws criminalizing the production and distribution of child pornography.

[94] I conclude that the social science evidence adduced in this case, buttressed by experience and common sense, amply meets the Oakes requirement of a rational connection between the purpose of the law and the means adopted to effect this purpose. Possession of child pornography increases the risk of child abuse. It introduces risk, moreover, that cannot be entirely targeted by laws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of child pornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals that increase the risk of offence. Nor do such laws catch the use of pornography to groom and seduce children. 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. Section 163.1(4), as a criminal offence, carries the heavy consequences of prosecution, conviction and loss of liberty, and must therefore be carefully tailored as a “measured and appropriate response” to the harms it addresses: Keegstra, supra, at p. 771. At the same time, legislative drafting is a difficult art and Parliament cannot be held to a standard of perfection: R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713; Irwin Toy, supra; R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303. It may be difficult to draft a law capable of catching the bulk of pornographic material that puts children at risk, without also catching some types of material that are unrelated to harm to children. This is what McEachern C.J.B.C. had in mind when he suggested that it is difficult to see how Parliament could have drafted the law in a way that eliminated the possibility of “unintended consequences” (para. 292).

[96] This Court has held that to establish justification it is not necessary to show that Parliament has adopted the least restrictive means of achieving its end. It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted. The law must be reasonably tailored to its objectives; it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account: see Edwards Books and Art Ltd., supra; Chaulk, supra; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Butler, supra; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199; M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3.

[97] This approach to minimal impairment is confirmed by the existence of the third branch of the proportionality test, requiring that the impairment of the right be proportionate to the benefit in terms of achieving Parliament’s goal. If the only question were whether the impugned law limits the right as little as possible, there would be little need for the third stage of weighing the costs resulting from the infringement of the right against the benefits gained in terms of achieving Parliament’s goal. It was argued after Oakes, supra, that anything short of absolutely minimal impairment was fatal. This Court has rejected that notion. The language of the third branch of the Oakes test is consistent with a more nuanced approach to the minimal impairment inquiry -- one that takes into account the difficulty of drafting laws that accomplish Parliament’s goals, achieve certainty and only minimally intrude on rights. At its heart, s. 1 is a matter of balancing: see Dagenais, supra; RJR-MacDonald, supra; Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825; Thomson Newspapers, supra.

[98] Against this background, I turn to the legislation here at issue. Mr. Sharpe argues that s. 163.1(4) fails the minimal impairment test because the legal definition of child pornography includes material posing no reasoned risk of harm to children. However, as discussed earlier, properly interpreted, the law catches much less material unrelated to harm to children than Mr. Sharpe suggests. Depictions of kissing, hugging and other activity short of “explicit” sexual activity, works of art even of limited technical value, and family photos of naked children absent proof of a dominant sexual purpose, all fall outside the scope of the law. Many of the other hypothetical examples relied on in the courts below as suggesting overbreadth either disappear entirely on a proper construction of the statutory definition of child pornography, or are narrowed to the extent that material is caught only where it is related to harm to children. If these were the only grounds for concern arising from s. 163.1(4), I would have little difficulty concluding the provision is carefully tailored to its objective. It should also be remembered that to effect a conviction under s. 163.1(4), as under any other criminal provision, the Crown must establish that the accused possessed the requisite mens rea; this requirement, too, limits the reach of the statute.

[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.

[101] The government’s argument on this point is, in effect, that it is necessary to prohibit possession of a large amount of harmless expressive material in order to combat the small risk that some material in this class may cause harm to children. This suggests that the law may be overbroad. However, final determination of this issue requires us to proceed to the third prong of the proportionality test – the weighing of the costs of the law to freedom of expression against the benefits it confers.

(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. Explicit sexual photographs and videotapes of children may promote cognitive distortions, fuel fantasies that incite offenders, enable grooming of victims, and may be produced using real children. Written material that advocates or counsels sexual offences with children can pose many of the same risks. Although we recently held in Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 2 S.C.R. 1120, 2000 SCC 69, that it may be difficult to make the case of obscenity against written texts, materials that advocate or counsel sexual offences with children may qualify. The Crown has also met the burden of showing that the law will benefit society by reducing the possibility of cognitive distortions, the use of pornography in grooming victims, and the abuse of children in the manufacture and continuing existence of this material. 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.

[104] I say this having given full consideration to the law’s chilling effect. It is argued that fear of prosecution under s. 163.1(4), and the attendant social stigma, will deter people from keeping legal material and thus chill legitimate expression. However, the interpretation of the law offered in this decision may go some distance to reducing the uncertainty that feeds the chilling effect. Families need not fear prosecution for taking pictures of bare-bottomed toddlers at the beach or children playing in the backyard, given the requirement that the dominant purpose be sexual. As case law develops, greater certainty may be expected, further reducing the law’s chilling effect. On the record before us, the chilling effect, while not insignificant, does not appear to represent a major cost as it relates to the vast majority of material captured under s. 163.1(4).

[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.

[106] As noted in discussing the values at stake in this appeal, privacy interests going to the liberty of the subject are also engaged by the legislation in question. However, these interests largely overlap with the s. 2(b) values and are properly considered in the final balancing stage under s. 1.

[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. The intensely private, expressive nature of these materials deeply implicates s. 2(b) freedoms, engaging the values of self-fulfilment and self-actualization and engaging the inherent dignity of the individual: Ford, supra, at p. 765; see also my comments in Keegstra, supra, at p. 804. 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”.

[108] The restriction imposed by s. 163.1(4) regulates expression where it borders on thought. Indeed, it is a fine line that separates a state attempt to control the private possession of self-created expressive materials from a state attempt to control thought or opinion. The distinction between thought and expression can be unclear. We talk of “thinking aloud” because that is often what we do: in many cases, our thoughts become choate only through their expression. To ban the possession of our own private musings thus falls perilously close to criminalizing the mere articulation of thought.

[109] The same concerns arise in relation to auto-depictions; that is, visual recordings made by a person of him- or herself alone, held privately and intended only for personal use. Again, such materials may be of significance to adolescent self-fulfilment, self-actualization and sexual exploration and identity. Similar considerations apply where the creator of the recordings is not the sole subject; that is, where lawful sexual acts are documented in a visual recording, such as photographs or a videotape, and held privately by the participants exclusively for their own private use. Such materials could conceivably reinforce healthy sexual relationships and self-actualization. For example, two adolescents might arguably deepen a loving and respectful relationship through erotic pictures of themselves engaged in sexual activity. The cost of including such materials to the right of free expression outweighs any tenuous benefit it might confer in preventing harm to children.

[110] I conclude that in broad impact and general application, the limits s. 163.1(4) imposes on free expression are justified by the protection the law affords children from exploitation and abuse. I cannot, however, arrive at the same conclusion in regard to the two problematic categories of materials described above. The legislation prohibits a person from articulating thoughts in writing or visual images, even if the result is intended only for his or her own eyes. It further prohibits a teenager from possessing, again exclusively for personal use, sexually explicit photographs or videotapes of him- or herself alone or engaged with a partner in lawful sexual activity. The inclusion of these peripheral materials in the law’s prohibition trenches heavily on freedom of expression while adding little to the protection the law provides children. To this extent, the law cannot be considered proportionate in its effects, and the infringement of s. 2(b) contemplated by the legislation is not demonstrably justifiable under s. 1.

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. This was the choice of the trial judge and the majority of the British Columbia Court of Appeal. The difficulty with this remedy is that it nullifies a law that is valid in most of its applications. Until Parliament can pass another law, the evil targeted goes unremedied. Why, one might well ask, should a law that is substantially constitutional be struck down simply because the accused can point to a hypothetical application that is far removed from his own case which might not be constitutional?

[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. While the Canadian jurisprudence on the question is young, thus far it suggests that laws may be struck out on the basis of hypothetical situations, provided they are “reasonable”.

[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. Ross, who concludes that s. 163.1(4) is constitutional in most but not all of its applications, recommends this remedy: Ross, supra, at p. 58.

[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 74 (SCC), [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 (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.

The first category would protect written or visual expressions of thought, created through the efforts of a single individual, and held by that person for his or her eyes alone. The teenager’s confidential diary would fall within this category, as would any other written work or visual representation confined to a single person in its creation, possession and intended audience.

[116] The second category would protect auto-depictions, such as photographs taken by a child or adolescent of him- or herself alone, kept in strict privacy and intended for personal use only. It would also extend to protect the recording of lawful sexual activity, provided certain conditions were met. The person possessing the recording must have personally recorded or participated in the sexual activity in question. That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children. All parties must also have consented to the creation of the record. The recording must be kept in strict privacy by the person in possession, and intended exclusively for private use by the creator and the persons depicted therein. Thus, for example, a teenage couple would not fall within the law’s purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another. The burden of proof in relation to these excepted categories would function in the same manner as that of the defences of “artistic merit”, “educational, scientific or medical purpose”, and “public good”. The accused would raise the exception by pointing to facts capable of bringing him or her within its protection, at which point the Crown would bear the burden of disproving its applicability beyond a reasonable doubt.

[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.

[118] I reiterate that the protection afforded by this exception would extend no further than to materials intended solely for private use. If materials where shown to be held with any intention other than for personal use, their possession would then fall outside the exception’s aegis and be subject to the full force of s. 163.1(4). Indeed, such possession might also run afoul of the manufacturing and distributing offences set out in ss. 163.1(2) and 163.1(3).

[119] It is apparent that the availability of the second exception turns on whether Parliament had criminalized the depicted sexual activity. Parliament may affect the scope of the exception by narrowing or broadening the range of sexual activity that is criminalized. (More broadly, of course, Parliament, in its wisdom, may choose to redraft the statute to reflect the concerns that compel the Court to hold that the statute cannot constitutionally apply to the two stipulated exceptions.)

[120] Thus described, the proposed exception relates only to materials that pose a negligible risk of harm to children, while deeply implicating s. 2(b) values and the s. 7 liberty interest by virtue of their intensely private nature and potential connection to self-fulfilment and self-actualization. With the contours of this exception in mind, I proceed to the question of whether reading in this exception is the appropriate remedy for the overbreadth of s. 163.1(4).

[121] Schachter, supra, holds that reading in will be appropriate only where (1) the legislative objective is obvious and reading in would further that objective or constitute a lesser interference with that objective than would striking down the legislation; (2) the choice of means used by the legislature to further the legislation’s objective is not so unequivocal that reading in would constitute an unacceptable intrusion into the legislative domain; and (3) reading in would not require an intrusion into legislative budgetary decisions so substantial as to change the nature of the particular legislative enterprise. The third requirement is not of concern here. The first two inquiries -- conformity with legislative objective and avoidance of unacceptable law-making -- require more discussion.

[122] The first question is whether the legislative objective of s. 163.1(4) is evident. In my view it is. The purpose of the legislation is to protect children from exploitation and abuse by prohibiting possession of material that presents a reasoned risk of harm to children. This question leads to a second: whether reading in will further that objective. In other words, will precluding the offending applications of the law better conform to Parliament’s objective than striking down the whole law? Again the answer is clearly yes. The applications of the law that pose constitutional problems are exactly those whose relation to the objective of the legislation is most remote. Carving out those applications by incorporating the proposed exception will not undermine the force of the law; rather, it will preserve the force of the statute while also recognizing the purposes of the Charter. The defects of the section are not so great that their exclusion amounts to impermissible redrafting, as was the case in Osborne v. Canada (Treasury Board), 1991 60 (SCC), [1991] 2 S.C.R. 69, and R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761. The new exceptions resemble those that Parliament has already created and are consistent with its overall approach of catching mainstream child pornography reasonably linked to harm while excluding peripheral material that engages free speech values. Moreover, since the problematic applications lie on the periphery of the material targeted by Parliament, carving them out will not create an exception-riddled provision bearing little resemblance to the provision envisioned by Parliament. This suggests that excluding the offending applications of the law will not subvert Parliament’s object. On the other hand, striking down the statute altogether would assuredly undermine Parliament’s object, making it impossible to combat the lawfully targeted harms until it can pass new legislation.

[123] I recognize that questions may arise in the application of the excepted categories. However, the same may be said for s. 163.1 as drafted. It will be for the courts to consider precise questions of interpretation if and when they arise, bearing in mind Parliament’s fundamental object: to ban possession of child pornography which raises a reasoned apprehension of harm to children.

[124] The second prong of Schachter, supra, is directed to the possibility that reading in, though recognizing the objective of the legislation, may nonetheless undermine legislative intent by substituting one means of effecting that intent with another. As we noted in Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, the relevant question is “what the legislature would . . . have done if it had known that its chosen measures would be found unconstitutional” (para. 167). If it is not clear that the legislature would have enacted the legislation without the problematic provisions or aspects, then reading in a term may not provide the appropriate remedy. This concern has more relevance where the legislature has made a “deliberate choice of means” by which to reach its objective. Even in such a case, however, “a deliberate choice of means will not act as a bar to reading in save for those circumstances in which the means chosen can be shown to be of such centrality to the aims of the legislature and so integral to the scheme of the legislation, that the legislature would not have enacted the statute without them”: Vriend, supra, at para. 167.

[125] In the present case it cannot be said that the legislature has made a deliberate choice of means in the sense that phrase was used in Vriend, supra. Clearly, s. 163.1(4) is a deliberate choice of means in the general sense that the provision was adopted to address the problem of child abuse and exploitation. I see no evidence, however, that Parliament saw the statute’s application to the two problematic categories of materials (i.e., self-created expressive materials and private recordings that do not depict unlawful sexual activity) as an integral part of the legislative scheme. On the contrary, given that the risk to children posed by materials falling within these two categories is relatively remote, it seems reasonable to conclude that such materials are caught incidentally, not deliberately, and that Parliament would have excluded these two categories from the purview of the law had it been seized of the difficulty raised by their inclusion.

[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.

E. Summary

[128] I would summarize my conclusions with respect to s. 163.1(4) in general terms as follows:

1. The offence prohibits the possession of photographs, film, videos and other visual representations that show or depict a person under the age of 18 engaged in explicit sexual activity. Visual representations of any activity that falls short of this threshold are not caught. Thus, representations of casual intimacy, such as depictions of kissing or hugging, are not covered by the offence.

2. The offence prohibits the possession of visual representations that feature, as a dominant characteristic, the depiction of a sexual organ or the anal region of a person under the age of 18 for a sexual purpose. Innocent photographs of a baby in the bath and other representations of non-sexual nudity are not covered by the offence.

3. The offence prohibits the possession of written or visual material that actively induces or encourages unlawful sexual activity with persons under the age of 18. Written description that falls short of this threshold is not covered by the offence.

4. Courts should take an objective approach to determining whether material falls within the definition of child pornography. The question is whether a reasonable person would conclude, for example, that the impugned material portrays “explicit” sexual activity, or that the material “advocates or counsels” sexual offences with persons under 18. Courts should also take an objective approach in determining the availability of any statutory defence.

5. The various statutory defences (i.e., artistic merit; educational, scientific or medical purpose; and public good) must be interpreted liberally to protect freedom of expression, as well as possession for socially redeeming purposes.

6. The guarantees provided in ss. 2(b) and 7 of the Charter require the recognition of two exceptions to s. 163.1(4), where the prohibition’s intrusion into free expression and privacy is most pronounced and its benefits most attenuated:

(a) The first exception protects the possession of expressive material created through the efforts of a single person and held by that person alone, exclusively for his or her own personal use. This exception protects deeply private expression, such as personal journals and drawings, intended solely for the eyes of their creator.

(b) The second exception protects a person’s possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are