Student Led Tutorial:
Are
By Eric Harding
Summary
-Canadian Charter of Rights and Freedoms allows for freedom of expression within reasonable limits
-Supreme Court decided unanimously that laws against possession of child porn are within limits
-Supreme Court had set down a test for determining the reasonableness of a limit on a right/freedom
1. The law being considered must be an urgent and important goal for society
- criminalized since possession poses substantial harm to children
2. (Proportionality test) The limit must justify the overall end or purpose and that they limit the freedom as little as possible (a balance between the two)
- limits harm to children 5 ways
1.- Child porn causes mental distortion
- changes attitudes of offenders to be more likely to commit sexual crimes (against children)
2.- Fuels the fantasies that incite offenders
- child porn can be linked between pedophiles and offences
3.- Prohibiting possession assists law enforcement
in reducing production/distribution that results in direct harm to children
- police (ie Detective Waters) have been able to uncover distributors due to possession charges
4.- Can be used to groom and seduce victims
- used by pedophiles in the seduction process, posing an uncontradictable danger to children
5.- Child porn is often produced with real
children
- children are clearly abused (possession fuels the creation and distribution which leads to harm)
- Laws that criminalize possession greatly contribute and fortify the laws against distribution and sale; benefits outweigh limits on freedom
- Only after extending the law to private possession can the harm to children be truly attacked
- Minimal impairment of the freedom is achieved since the law only allows the prosecution towards materials which children may have been harmed or may lead to the harm of children (covering almost any material considered possession of child porn)
John Robin Sharpe
Case
-1999,
-John Robin Sharpe sought to overturn his child porn charge by proving the law was unconstitutional but failed and faced charges
- Sharpe possessed computer discs containing text titled “Sam Paloc’s Boyabuse – Flogging, Fun and Fortitude: A Collection Kiddiekink Classics.”
-charged for illegal possession and for possession for the purpose of distribution
Why Guilty?
- While freedom of expression (whether good or bad) fundamentally defines our constitution and free (democratic) life, the freedom cannot be absolute
- Constitution recognizes the need to prevent hate that divides society and the prevention of harm to vulnerable members of society
- Child Porn does not contribute to the democratic way of life since it does not contribute to the betterment of society or of any individual
- Despite engaging the freedom of thought, child porn causes harm to children
- Possession of child porn drives the market of child porn which in turn causes more harm and exploitation of children
- Possession may also cause the possessor to commit potential offences
Conclusion
- While it is true that not allowing people to possess child porn does limit their freedom of expression, child porn itself violates the rights and freedoms of an entire defenseless group.
-Children are victimized and their human rights stripped when they are tricked or even forced into making porn. The basic human right to not be submitted to violence and sexual abuse, in this case physical, emotional and mental abuse, is clearly violated by the creation and possession of child porn.
- Possession helps stimulate further development of child pornography, inflicting more harm. Possession fuels the market for more distribution and therefore more harm to children. Children involved are clearly scarred for life, possibly becoming pedophiles or rapists.
Quotes
“The first alleged
harm concerns cognitive distortions. The crown argues that child pornography
may change possessors’ attitudes in ways that make them more likely to sexually
abuse children.”
–Chief Justice Beverley McLachlin
“The trial judge found
that studies showed a link between highly erotic child pornography and
offences… This reasoned apprehension of harm demonstrates a rational connection
between the law and the reduction of harm to children through child
pornography.”
–Chief Justice Beverley McLachlin
“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.”
–Chief Justice Beverley McLachlin
“The trial judge was
satisfied that the evidence relating to the fourth alleged harm, the use child
pornography to “groom” or seduce victims, showed a rational connection. The evidence is clear and uncontradicted.”
–Chief Justice Beverley McLachlin
“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… Criminalizing
possession may reduce the market for child pornography and the abuse of the
children it often involves.”
–Chief Justice Beverley McLachlin
Glossary
Child Pornography- pornography (depiction of sexual images) using a child or children as the subject.
Constitution- the system of fundamental principles according to which a nation, state, corporation, or the like, is governed.
Unconstitutional- not in accord with the principles set forth in the constitution of a nation or state.
Proportionality- Properly
related in size, degree, or other measurable characteristics; corresponding: Punishment ought to be proportional to the
crime.
Notwithstanding- in spite of; without being opposed or prevented by.
Freedom- the right to enjoy all the privileges or special rights of citizenship, membership, etc., in a community or the like.
Criminal Code- a systematic and integrated statement of the rules and principles pertaining to criminal offenses.
Illegal Possession- possession of controlled substances.
Absolute- free from restriction or limitation; not limited in any way.
Prohibit- to forbid (an action, activity, etc.) by authority or law.
Discussion
Questions
1. Are
2. Does the freedom of expression overrule the rights of children?
3. Should children be protected from child pornography in any way possible or should they remain susceptible to more pedophiles and sexual abuse?
4. Since criminalizing possession of child pornography reduces the demand of the distribution and sale of child porn, therefore the harm to children, do you think the criminalization of child porn is justified?
5. Where should the government draw the line and allow freedom of speech to take precedence over other rights?
6. Should the law enforcement be allowed to seize private material that doesn’t directly cause harm to children but could possibly cause harm to children in the future?
7. Do you think that prohibiting child porn will cause pedophiles to seek other outlets for their desires, possibly causing more harm?
8. Do you agree that prohibiting possession of child pornography helps to significantly fortify the law against the distribution and sale of child porn?
9. Do you believe that the possession of child porn can cause the possessor to commit dangerous sexual crimes?
10. You just found out your 8 year old son has been posing for you neighbor across the street for his own private “collection”. While your son has not been sexually harmed, should the neighbor be stopped before the situation possibly escalates or be allowed to exercise his freedom of expression?