In this issue:
criminal law; child pornography; freedom of expression and privacy; morality and criminal prohibitions; harm and the common-good; the principle of "malum in se."
The accused, Robin Sharpe, was charged with possession of child pornography contrary to section 1(4) of the Criminal Code, and possession of child pornography with the intent to distribute, contrary to section 163.1(3). The charges followed a seizure by Canada Customs in April of 1995, of computer discs containing a text entitled "Sam Paloc's Flogging, Fun and Fortitude, A Collection of Kiddie Kink Classics", and a further seizure from the accused's home by police one year later, of pornographic books, manuscripts, stories and photographs, many of which photographs were of "nude boys displaying their genitals or anal regions." The accused challenged the constitutionality of section 163.1(4) on the grounds that it infringed his Charter rights to freedom of expression, conscience, association, and his right to equal treatment.
Does the freedom of expression protected under the Charter include a right to possess child pornography? What view of human nature is presupposed in the tests for weighing rights and harms in Charter jurisprudence?
Justice Shaw held that section 163.1(4) of the Criminal Code, prohibiting simple possession of child pornography, is a violation of freedom of expression protected under section 2(b) of the Charter and is therefore invalid. Accordingly, the two charges of simple possession were dismissed, while the two charges of possession with intent to distribute remain to be considered at a later date.
Justice Shaw considered the evidence produced by the Crown's expert witnesses as to the effects of child pornography, and drew a number of conclusions. Firstly, he accepted that "sexually explicit" pornography involving children poses a danger to children because it is known to be used by pedophiles in the process of seducing children; exposing a child to such material can lower the child's inhibitions and lead the child to accept that the depicted conduct is "normal." He also accepted the evidence that children are abused in the making of filmed or videotaped pornography.
With respect to "highly erotic" pornography, Shaw J. concluded that it incited some pedophiles to molest children, and that it helped some pedophiles to "relieve pent-up sexual tension" without molesting children. He then made the epistemological conclusion that it is not possible to determine which of these effects is greater. He was also persuaded that "mildly erotic" pornography might have the effect of limiting aggression. Justice Shaw also accepted that child pornography can have an effect in bolstering a pedophile's "cognitive distortions." That is, it plays a role in helping the pedophile to believe that his "aberrant behaviour" is normal; i.e. that child-adult sex is healthy and does no harm to children. However, he also accepted that there was no evidence that bolstering a pedophile's belief in the normalcy of child-adult sex ultimately increased harm to children. Finally, he acknowledged that written pornography which advocates sexual offences against children poses some risk of harm to children.
The Crown conceded that section 163.1(4), which criminalizes simple possession of child pornography, violates the Charter right of freedom of expression, but argued that this violation was nevertheless justified as a reasonable limit under section 1 of the Charter. The judge accepted this concession, and the analysis then proceeded to the issue of whether section 163.1(4) constituted a reasonable limit on freedom of expression. The test which the judge used to decide the issue was whether "deleterious effects" of the limit on expression, and the "salutary effects" of the prohibition of simple possession of child pornography were proportionate. Of the "salutary effects" of prohibiting simple possession of child pornography, Justice Shaw included the prevention of: the abuse of children in making pornography and the continuing abuse constituted by the photographic record; the use by some pedophiles of pornography as a tool to seduce children; the affirmation of the normalcy of child-adult sex that some pedophiles received from pornography; the incitement of some pedophiles to commit offences against children; and the promotion of sexual crimes against children. However, Justice Shaw dismissed all of these alleged benefits with his finding that "[t]here is no evidence that the production of child pornography will be significantly reduced if simple possession is a [sic] made a crime."
He went on to find that the legislation has significant "deleterious effects," impairing the scope of individual expression and individual privacy. "The personal belongings of an individual are an expression of that person's essential self," and Shaw J. held that in this case the interference with Mr. Sharpe's privacy and expression was "profound". He concluded that the legislative scheme was overbroad, as it criminalized possession of child pornography for any purpose, such as the case of individuals who collect child pornography out of a mere "prurient interest" but "with no harmful intent." As well, the legislation acted a ban on "mildly erotic" pornography, which Shaw J. believed to be beneficial in reducing aggression against children. In his own words:
"I turn then to weigh the salutary effects against the detrimental effects. In my opinion, the detrimental effects substantially outweigh the salutary effects; the intrusion into freedom of expression and the right of privacy is so profound that it is not outweighed by the limited beneficial effects of the prohibition.
" As pointed out earlier, an individual's personal belongings are an expression of that person's essential self. Books, diaries, pictures, clothes and other belongings are personal and private expressions of their owner's beliefs, opinions, thoughts and conscience. The simple possession prohibition deals with a very intimate and private aspect of a person's life and, in my view, that fact should be given considerable weight. I find that the limited effectiveness of the prohibition is insufficient to warrant its highly invasive effects."
While the judge accepts that there is a "problem of harm to children arising from pornography," he believes that it is adequately managed under the criminal law provision prohibiting the production and dissemination of child pornography, and that a ban on possession is unnecessary and harmful. Justice Shaw then proceeded to deal with the accused's contention that the definition of child pornography under the Criminal Code, as including written materials that counsel or advocate sexual abuse of children, violated freedom of expression. Again, the Crown conceded that there was a violation of freedom of expression, and the analysis proceeded on the basis of the weighing of harm and benefit under section 1 of the Charter. The judge concluded that while simple possession of written material advocating the sexual abuse of children was constitutionally protected, dissemination of that material was not; "(t)he dissemination of materials that counsel or advocate sexual abuse of children must pose some risk to children. Possession for the purpose of sale or distribution of such material can hardly be justified on any level of reasoning." Accordingly, the judge found the infringement of freedom of expression to be justified. With respect to the accused's assertions of violations of his rights to conscience, association, and equality, Shaw J. concluded that there were no such Charter violations.
This is a deeply confused judgment, founded on a weak understanding of the valid function of the criminal law and the state itself, and employing a suspect method of legal reasoning. Throughout, Justice Shaw seems to accept that child pornography really is harmful—both in its creation and its use—but denies that this harm is sufficient reason to interfere with what he perceives to be the constitutional right of privacy and expression. This leads to an apparent absurdity. While he admits that the simple possession of pornography can result in harm to children, possession itself should not be criminalized because of the negative effects on the self-constituting choices of the person indulging in the child pornography. However, if the person possesses the child pornography not exclusively for purposes of his own sexual gratification, but also to distribute to other like-minded individuals, Justice Shaw concludes that this possession is rightly prohibited by criminal law. The difference is not in the degree of harm liable to be caused by the material—it is after all the same pictures, books, what have you—but that in the case of dissemination, the same considerations of privacy and expression do not apply.
Why is it that privacy and expression are so important in the case of simple possession that they trump legislation intended to prevent harm to children and society in general? Justice Shaw believes that a person's privacy to explore material depicting children as vehicles of sexual gratification is essential to that person's right to shape his own character. Like many a dangerous idea, this one rests on an element of truth. It is of course, as Justice Shaw notes, a cherished aspect of liberal democracy that individuals be allowed the privacy to creatively pursue the course of life—with its many possibilities for choosing significant or insignificant projects, relationships, etc. But what the judge failed to note was that instrumental freedoms like privacy, like expression, are not good in themselves. They are good insofar as they serve good ends, or perhaps, insofar as they do not serve manifestly bad ends. Our laws protecting privacy and the free development and exchange of ideas are intended, ideally, to provide for the conditions necessary for each individual to develop his own character and life. The reality of what is achieved is often somewhat less noble, but that does not mean that laws designed to favour a moral vision of what it means to be human must necessarily be press-ganged into the service of the morally reprehensible.
"Inter-generational sex," which is the accused's preferred sanitized label for sex between adults and children, is a straightforward breach of justice. It is intrinsically harmful and corrupting of the child and the adult, regardless of whether there is the appearance of consent. The accused is quite candid about the role of child-pornography in the campaign for the acceptance of pedophilia—to present pedophilia as normal, healthy, morally acceptable. However, it is part of parliament's function to make judgments about society's morality. It is important to note, as well, that failure or refusal to act on such matters creates a moral or immoral state of affairs just as surely as does action. There is no refuge of neutrality when challenges of this sort appear.
Justice Ian Donald of the BC Court of Appeal and Justice Bertha Wilson, formerly of the Supreme Court of Canada, both say as much in judgments cited, but not applied with sufficient care, by Justice Shaw. It is the mandate of the state to invoke the coercive power of the criminal law where matters of interpersonal justice are at stake. Certainly such is the case when there is a risk to children created by child pornography. And Justice Shaw acknowledged this risk. How a debased and deviant version of freedom of expression can be used to override parliament's legislative scheme to combat the risk to the states' families' children is a mystery.
Part of the muddle of this decision is the result of its structure of thinking about Charter rights and "values." The Crown conceded that there was a breach of freedom of expression, and then sought to uphold it by showing that the harm caused by the breach was outweighed by the harm which the breach sought to prevent. This was unnecessary. The Court ought to have held that there was in fact no breach of freedom of expression, simply limiting that Charter right to protecting instances of the morally worthwhile. Of course the courts are increasingly insecure about making judgments about the morality or immorality of sexual choices. Having conceded the breach, the Court was left with the task of evaluating which was greater; the prospective harm to children or the harm to the accused. This sort of utilitarian calculus is not helpful.
What this decision shows beyond a doubt is that contemporary approaches to "rights" unhinged from any concommitant moral vision of the person or community are capable of furthering extraordinary fragmentation on the personal and social level. It is time such truncated approaches are seen themselves as limited and harmful. The legal tradition has long understood that certain things are malum in se—or "wrong in themselves." Recognition of and appropriate use of this concept is necessary for a flourishing society and, properly understood, may be incorporated within both "principled pluralism" and "meaningful tolerance."
This issue of LexView was researched and written by:
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude) of the British Columbia Bar.
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Copyright © 2010 Iain Benson and Brad Miller
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