ARE CANADA’S CHILD PORNOGRAPHY LAWS UNCONSTITUTIONAL?

YES

By Hammad Khan

 

Summary

 

-Mr. John Robin Sharpe of British Columbia had four charges against him, all relating to section 163 of the Criminal Code.

- Police gained a warrant, and seized materials from Mr. Sharpe which contained child pornography.        

-Mr. Sharpe claims the seizure infringes on his fundamental rights, specifically those described in section 2 of the Canadian Charter of Rights and Freedoms. (See next sheet).

-The British Columbia Supreme court ruled laws against child pornography were unconstitutional by denying freedom of expression.

-The government of Canada appealed, and lost at British Columbia’s appeal court.

-They appealed once again, and went to the Supreme Court of Canada.

-The government provided evidence that child pornography was a serious matter which affected the population. By proving it affected the population, the government could propose using section 1 to justify denying rights.

-The government used extreme scenarios to prove their point.

          -Much of this evidence was considered to be irrelevant by observers.

- E.g. Studies discussing rapists and molesters, “hard core” photography, did not differentiate between sex and nudes.

-The Supreme Court decided denying rights discussed in Section 2 was acceptable as it fell within reasonable limit according to the Oakes Test.

-Public opinion was against child pornography, and many felt the Supreme Court reached a sentence based on politics not law.

 

Summary Specifics

-It has been shown that “soft core” pornography has no negative effects, and that it can eliminate sexual urges pedophiles might possess.

-No proof production of pornography will cease if possession is made a crime.

-In a case R. v. Keegstra  (Quebec – French signs), the court made a precedent in regard to section 2(b). The court stated “freedom of expression should be broadly interpreted”.

-In a case R. v. Butler, the majority (7-2) decided prohibitions did not touch private use or viewing of obscene materials.

 

Guiding Questions

 

1.     In your opinion, is pornography acceptable in both “hard core” and “soft core” forms?

2.     What does society think of pornography?
 pornography is shunned by our society, but does that constitute denying people the right to possess pornography?

3.     Considering biased evidence was provided at the supreme court of Canada, does the ruling have any merit?

4.     Canada’s child pornography laws prohibit any form of pornography. Many forms of pornography have been proven to relieve stress in people that are generally aggressive. By prohibiting all forms of pornography, is the government truly considering the safety of children?

5.     The YES side states the consequences and benefits were not fully discussed when implementing section 1 of the charter (to limit any other rights). Do you think the benefits outweighed the consequences? Or vice versa?

6.     According to the criminal code, a stick drawing “of a person under the age of eighteen years” is considered to be criminal. Is this too harsh? Or is it acceptable to save our society from larger threats?

 

7.     Did politics play a role in the Supreme Court’s decision?

 

8.     Is the Oakes test easy to manipulate considering the test is easy to pass because courts are reluctant to decide if an issue is important or not?

 

9.     Does the government have the authority to interfere in our private matters?

 

 

Glossary Terms

 

Canadian Charter of Rights and Freedoms :

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.

Child :

          1. Someone under the age of 18.

Criminal Code :

1. An act discussing criminal activities, and their consequences.

Deleterious effects : (Cons)

1. Having a harmful effect.

2. Negative effect.

Hard core :

1.Extremely graphic or explicit.

Molester :

          1. To subject to unwanted or improper sexual activity.

Pedophile :
          1. An adult who is sexually attracted to a child or children.

Prohibition :

1.The act of prohibiting or the condition of being prohibited.

          2.A law, order, or decree that forbids something.
Rapist :

          1. Someone who forces another to have sexual intercourse.
Reasonable limit :

1. Governed by or being in accordance with reason or sound thinking.

(Where pros outweigh cons)

Salutary effects : (Pros)

          1. To have benefits.
          2. Effecting or designed to effect an improvement.

Soft core :

1. Being less explicit than hard-core material in depicting or describing sexual activity: soft-core pornography.

COMPONENTS OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS DISCUSSED IN READING

 

 

The crown (government) acknowledged rights outlined in Section 2 of the Charter were being denied, but the crown feels these rights should be limited in the case of child pornography by using Section 1.

 

 

Section 2

Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

c) freedom of peaceful assembly; and

             d) freedom of association

Referring to the case:

Pornography is seen by many as a possession which affects the beliefs, thought and association of persons in possession of it. People against the law argued to deny child pornography denies them section 2 of the Canadian Charter of Rights and Freedoms.



The crown proposed denying the above rights to pedophiles. To do so they had to prove there was minimal impairment by doing so.

 

 

Section 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.

Referring to the case:

To use section 1 against any rights it must be proven the benefits of implementing section 1 outweigh the rights being deprived. To do so is quite easy in court as it is based on interpretation rather than facts. In this particular case, the British Columbia justice system saw that the benefits did not out weigh the negatives. An appeal was filed, and the Supreme Court of Canada ruled that the benefits did outweigh the rights being deprived.

A precedent was set to ease decision making in regard to using section 1. This method is called the Oakes test, named after the trial first used in. The Oakes test states :


For a limit to be reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.  First, the objective must be of pressing and substantial.  Second, the means chosen must meet a form of proportionality test, namely there must be: (a) a rational connection between the measures adopted and the objective of those measures; (b) a minimal impairment of the right or freedom in question; and (c) a proportionality between the effects of the measures and the objective which has been identified. 

 

 

 

(http://laws.justice.gc.ca/en/charter/index.html)

 

 

 

 

Definition of "child pornography"

163.1 (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.

Making child pornography

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

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

(b) an offence punishable on summary conviction.

Distribution, etc. of child pornography

(3) Every person who transmits, makes available, distributes, sells, imports, exports or possesses for the purpose of transmission, making available, distribution, sale or exportation any child pornography is guilty of

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

(b) an offence punishable on summary conviction.

Possession of child pornography

(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.

Accessing child pornography

(4.1) Every person who accesses 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.

Interpretation

(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.

Defence

(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.

Defences

(6) Where the accused is charged with an offence under subsection (2), (3), (4) or (4.1), 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.

Other provisions to apply

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3), (4) or (4.1).

1993, c. 46, s. 2; 2002, c. 13, s. 5.

SECTION 163 OF THE CRIMINAL CODE REFERRING TO CHILD PORNOGRAPHY

 

Publication : Communication of information to the public.

(http://laws.justice.gc.ca/en/c-46/40863.html)

 

Guiding Questions/Answers

 

10.                        In your opinion, is pornography acceptable in both “hard core” and “soft core” forms?

A.  I personally carry a bias against the subject of pornography. It is against my religion to view or participate in acts involving pornography, and these beliefs will alter my response. I personally object to all forms of pornography whether they involve the young, or the old. In our current society, nudity is becoming acceptable and it has been acceptable in Europe for years now. Almost every movie is bound to have nudity, otherwise males wouldn’t pay $10 to sit in a theatre. This is where I get confused. Pornography and nudity are two different subjects. One supposedly glorifies, the other sickens. As of now I object to pornography, but only time will tell if I object to nudity as well.

 

11.                        What does society think of pornography?

A.  Our society at least still shuns away pornography as it is seen as something dirty. That is not the case in other societies where pornography has become acceptable or is in the process of becoming acceptable.

12.                        Yes pornography is shunned by our society, but does that constitute denying people the right to possess pornography?

A.  There are a variety of “bad” things we as society allow people to do. For instance, we allow gun ownership. To say that possession of pornography should not be allowed would be unconstitutional and ignorant of us. We might not agree with something, but that does not mean we have to deny rights to people who agree.

13.                        Considering biased evidence was provided at the supreme court of Canada, does the ruling have any merit?

A.  Biased evidence is common in trials, and parties must prepare for them. It is the duty of lawyers to prepare for biased evidence, and provide biased evidence themselves. In this particular case it seems that Mr. Sharpe’s lawyers failed to fight the evidence as the Supreme Court ruled against him. The ruling still holds merit, as the legal system played it’s role and cannot be held accountable for the mistakes of the parties involved.

14.                        Canada’s child pornography laws prohibit any form of pornography. Many forms of pornography have been proven to relieve stress in people that are generally aggressive. By prohibiting all forms of pornography, is the government truly considering the safety of children?

A.  Considering some forms of pornography prevent aggressive behavior in pedophiles, I am naturally inclined to say the government is not considering the safety of children. But after critically analyzing the situation, I realize the government can both prohibit pornography and prevent aggressive behavior through programs. This method directly helps pedophiles instead of ignoring their true problems.

15.                        The YES side states the consequences and benefits were not fully discussed when implementing section 1 of the charter (to limit any other rights). Do you think the benefits outweighed the consequences? Or vice versa?

A. The long term benefits surely outweighed the long term consequences as child pornography is being targeted. Society prides itself on providing a bright future for the young, and by making child pornography illegal society has taken a step in the right direction. The only factor that remains is to see whether child pornography declines.

16.                        According to the criminal code, a stick drawing “of a person under the age of eighteen years” is considered to be criminal. Is this too harsh? Or is it acceptable to save our society from larger threats?

A.  To consider a  stick drawing a violation of the criminal code is humorous but is necessary to provide fair treatment for all offenders. I assume a case involving stick drawings would not receive much attention and would probably be ignored by the legal system.

 

 

17.                        Did politics play a role in the supreme court’s decision?

A.  No answer.

 

18.                        Is the Oakes test easy to manipulate considering the test is easy to pass because courts are reluctant to decide if an issue is important or not?

A. The Oakes test is fairly easy to pass as courts focus solely on providing a fair and just conclusion. It is the party’s duty to fight any attempts to abuse the system. It is assumed by the courts that both parties will debate the merit of each other and as a result filter “garbage” or lies.

 

19.                        Does the government have the authority to interfere in our private matters?

A.  The government should have limited authority in our private affairs. As of now, the government knows quite a bit about our lives and one can only fear what more knowledge would do. In matters regarding the general population the government should reserve the right to interfere, but these matters should be debated thoroughly before the government begins interfering.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

REFLECTION ON  “ARE CANADA’S CHILD PORNOGRAPHY LAWS UNCONSTITUTIONAL”
YES
By Hammad Khan

 

I chose the topic “Are Canada’s Child Pornography Laws Unconstitutional” for the sole reason I’m interested in law. I skimmed through the reading when it came to topic selection time, but I failed to read for whom the laws were unconstitutional. I thought I was debating for the children, but I learnt of my mistake weeks after when it came time for reading. I was upset at my decision to debate for the YES side, but soon reconsidered. I established a learning mode, and began reading Justice Duncan Shaw’s perspective on the case.

 

Unlike previous reading, this particular reading focused on laws and the charter. Opinion was present, but it took a back seat to the debate. I personally object to any form of pornography, whether it features children (persons under the age of 18) or adults. I brought my morals and ignorance, while Shaw brought facts. In the reading Shaw doesn’t oppose child pornography, nor does he promote it. He simply critiques the legal system.

 

          I brought the knowledge I attained to my group, with the anticipation for a heated and interesting debate. It was clear each group member had his or her view, but the majority “agreed” child pornography is unacceptable. The actual debate began with the criminal code itself. In section 163 of the criminal code any form of child pornography is considered criminal “whether or not it was made by electronic or mechanical means”. To demonstrate this I quickly drew a stick character. Neither male nor female, just a generic little stick character. Then, I labeled on it “Naked”, and  “Under 18”. The groups laughed, but I was serious. Under section 163 of the criminal code my little drawing would technically get me in trouble. A maximum of 10 years for mechanically producing this drawing. Of course I wouldn’t have the RCMP knocking on my door for a drawing that took 5 seconds – or at least I hope.  I then placed the drawing in the middle of the table and asked every group member to take a closer look. Each one of them voluntarily picked up the sheet and looked at it. They thought nothing of it, as it was simply a drawing Hammad made. When I told them they could get a maximum of 5 years for  accessing my production they began thinking. This was no longer simply a stupid drawing Hammad made, but instead the spark for mixed emotions. Yes it was a silly little example, but silly antics are often required to maintain focus.

         

          Much of the discussion was useless. Group members asking each other if they enjoy pornography, but we soon got to the meat and true beliefs poured out often leaving me out of the discussion. Members of my group had taken law last year, and related to the two precedents I discussed. The first involved private matters, and the second involved the definition of expression. The group unanimously agreed the government has no duty to interfere in our private matters especially when they harm no other parties. John Sharpe (man involved in case) for instance, harmed no one other than himself by accessing child pornography. The second precedent involved the precedent to give freedom of expression a broader definition. As a group we reached a conclusion that Sharpe lost at the Supreme Court in part due to the definition of expression.

 

          The last point I discussed was regarding the two varieties of pornography. Soft, and hard core. Studies have shown that soft core pornography actually calms aggressive pedophiles (Shaw). Obviously the group thought of this as a good thing. One group member even questioned why we restrict soft core porn if it prevents aggression. Being against pornography myself, I fought the urge to discuss the NO other side. I eventually gave in. Why worsen the problem by providing people with triggers? We don’t need calm pedophiles, instead we don’t need pedophiles. We need to help these people not provide them with triggers. When dealing with a person allergic to dust we give them a remedy, not a bucket of dust. When dealing with a pedophile we should give them help, not access to pornography. There are several government and private programs available which focus on pedophiles. Why make a problem worse when we can fix it.

 

          I apologize I switched sides, but I am confident I conveyed the YES perspective clearly to my group (as evident in class debate). The true test of whether my tutorial was affective came at the class debate. It began with child pornography, changed to pornography in general, then how pornography and homosexuality relate. We had a decent 10 minute discussion about the reading before diverging to similar topics. To my delight my group members expressed their views and referred to my stick character sketch. The tutorial went extremely well and I applaud my group for making it a delight to lead.


References :

Justice Duncan Shaw,  “Opinion in R. v. Sharpe,”, 169 D.L.R. (4th)

           

Department of justice Canada. Canadian charter of rights and freedoms. http://laws.justice.gc.ca/en/charter/index.html

(Oct, 12, 2003)

 

Department of justice Canada. Canadian criminal code. http://laws.justice.gc.ca/en/c-46/40863.html (Oct, 12, 2003)