Student Led Tutorial: Are Canada’s Child Pornography Laws Unconstitutional? (NO)

By Shayan Wicks

 

Summary of Article

 

Are Canada’s Child Pornography Laws Unconstitutional?

  • Mr. Sharpe was charged with a  4 count indictment after two separate materials were found in his possession

1.      Two charges were for illegal possession under the Criminal Code(R.S.C. 1985, c. C-46)

2.      The other two charges were for possession for the purposes of distribution or sale under the Criminal Code (s. 163.1[3])

  • The motion brought by Mr. Sharpe challenged the constitutionality of s. 163.1(4) of the Criminal Code
  • His argument was that the prohibition of possession violated the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms
  • The trial judge as well as the British Columbia Court of Appeal ruled that the prohibition of possession of child pornography was unconstitutional
  • The issue then becomes whether the limitation of freedom of expression is contradictory to section 1 of the Charter stating “given the harm possession of child pornography can cause to children”
  • Our freedom of expression makes possible our creativity, liberty and democracy
  • The right to express one’s self freely protects not only “good” and popular expression but also unpopular or offensive expression
  • If one disagrees with the way another person chooses to express themselves, then all they have to do is turn away
  • Freedom of expression does have its limits too; Parliament or provincial legislature can limit the forms of expression when it harms society such as expressing hate that threatens vulnerable members of society
  • Sharpe’s main argument in this appeal is the justification of self-fulfillment is what is being contested and that there are no implications of a risk of harm to children
  • The right to possess expressive material is protected by s. 2 of the Charter therefore allowing us to understand others or consolidate our own thought
  • “Without the right to possess expressive material, freedom of thought, belief and opinion expression would be compromised”
  • Privacy is another key issue protected by s.8 of the Charter stating guarantees against unreasonable search and seizure and s.7 of Charter guaranteeing liberty
  • In the case of hate literature it is said that private material may do less harm than public material mainly due to the freedoms of conscience, thought and belief
  • Freedom of expression extends even to offensive speech thereby negating the constitutional worth of materials defined as “child pornography”
  • The invasion of freedom of expression and privacy is evident; prohibition includes all persons including those who make no harmful use of pornography
  • As disgusting as it sounds banning child pornography might be contributing factor to the sexual abuse by pedophiles and other criminals based on the fact that “mildly erotic” pornography viewed by these persons has the effect of reducing sexual aggression against children
  • The benefit of one law (banning the possession of child pornography) contradicts another important law (freedom of expression)
  • The trial judge requested scientific evidence for the Crown’s statement that prohibiting possession of child pornography reduces the sexual abuse of children
  • The judge dismissed the 5 reasons given by the crown for the reason that there was no evidence showing decreased rates of offending
  • Criminalizing child pornography limits our right to freedom of expression and does little to prevent the harm towards children involved in the pornography
  • Laws exist today that achieve the goals of the Crown so creating new laws would unnecessarily create contradictions to our current rights and freedoms

 

 

 

 

 

 

 

Glossary

 

 

Attenuate - To reduce in force, value, amount, or degree

 

Child Pornography - The illegal use of children in pornographic pictures or films

 

Clandestine - Kept or done in secret, often in order to conceal an illicit or improper purpose

 

Criminalizing - To impose a criminal penalty on or for; outlaw

 

Distribution - The act of distributing or the condition of being distributed; apportionment

 

Expression - The act of expressing, conveying, or representing in words, art, music, or movement; a manifestation

 

Freedom - The capacity to exercise choice; free will


Indictment -  A written statement charging a party with the commission of a crime or other offense, drawn up by a prosecuting attorney and found and presented by a grand jury

 

Justification - The showing in court of a sufficient lawful reason why a party charged or accused did that for which he is called to answer

 

Legislation - A proposed or enacted law or group of laws

 

Possession - Actual holding or occupancy with or without rightful ownership

 

Prohibition - A law, order, or decree that forbids something

 

Publication - An issue of printed material offered for sale or distribution

 

Unconstitutional - Not in accord with the principles set forth in the constitution of a nation or state

 

Values - A principle, standard, or quality considered worthwhile or desirable

 

 

 

 

 

 

 

 

 

 

Discussion Questions

 

1.      Is Canada’s law banning the possession of child pornography an infringement on the constitutional right of freedom of expression? Why or why not?

 

2.      Would you give up some of your rights on the basis that banning possession of child pornography might (without scientific evidence) lower sexual abuse against children?

 

3.      Do you think that precedent from previous trials should be a basis for the trial judge’ decision making?

 

4.      If you were in the position of the judge and had the decision of sentencing a criminal would you relate back to your upbringing, morals, values and ethics or would you base your decision purely on the evidence presented?

 

5.      Explain if you think convicted pedophiles and child abusers should be allowed to re-enter society after they have served their sentence taking into consideration that many of them often become repeat offenders.

 

6.      Regardless of freedom of expression, do you feel that pornography as a whole should exist in our society?

 

7.      In many Middle Eastern countries as well as other nations across the globe, any type of pornography is banned. Therefore what is your opinion on their set of values in comparison to the Western World and how it has lowered its decency attributed to our virtually unlimited freedoms.

 

8.      The porn industry grosses billions of dollars a year. With that in mind, what do you have to say about the values of western culture?

 

9.      If a scientific study came about stating that child pornography had no effects on society or child abusers would it still be okay for it to exist? Why or why not?

 

10.  What would be your solution to the fight against child pornography without altering or contradicting any of our current laws?