“Are Canada’s Child Pornography Laws Unconstitutional?”

No Side

By: Steph Woods

• April 10, 1995- John Robin Sharpe charged with possession of child pornography[1] (computer discs), and possession with the intent to distribute.
• May 13, 1996- Mr.Sharp charged with possession of child pornography (books, manuscripts, stories and photographs) and possession with the intent to distribute.
• He went to the British Columbia Court and they ruled that child pornography laws, a provision of the Criminal Code that makes simple possession a criminal offense, are unconstitutional
• All legal parties including Justice Duncan Shaw who presided over the case, agreed the provision violated Canadian Charter of Rights and Freedoms protecting freedom of expression.
• They disagreed on if the prohibition could be considered a reasonable limit[2] in a free and democratic society.

• Justice Shaw decided it could not be considered a reasonable limit
• Canadian Government appealed this decision and lost on a split decision
• Canadian Government appealed again to Supreme Court and won in a unanimous vote
• Mr.Sharpe would face the charges he was faced with

Dr.P.I Collins, a specialist in Forensic Psychiatry, particularly with respect to sexual deviancy and pedophilia, conducted some tests on convicted child molesters and rapists. The purpose of the test was to examine the difference between the rapists and child molesters in respect to exposure and experience with pornography. Here are his findings:

· One third of child molesters and rapists claim to have at least occasionally been incited to commit an offense by exposure to some type of “hard-core” sexual explicit material.

·  Child molesters use pornography more in association with committing offenses

· Child molesters also use pornography more than rapists to relieve sexual tension and therefore alleviating impulses. 

Yes side

No side

The viewing of child pornography incites some rapists to commit crimes There is no proof of these accusations, only assumptions being made There is no evidence this provision will reduce the  production of child pornography Prohibition violates right to Freedom of Expression which protects not only “popular” but also “unpopular” and even offensive expression One cannot forbid a person from expression In a democratic society, we prize diversity, difference of ideas and opinions Freedom of Expression includes self fulfillment through open exchange of ideas which allows us to understand others or consolidate our own thoughts If other laws have been imposed that accomplish the same goals, no law that violates ones rights can be justified Prohibition can never be justified because it is a fundamental intrusion on basic liberties (i.e. privacy, Freedom of expression) One may posses such material for the intent of personal use only This law may have “unintended consequences” meaning they will not only find illegal material, but also material that poses no intent to harm children. What constitutes “Child pornography”? (i.e. Family photos of naked children, hugging and kissing, self created)

The use of child pornography helps some rapists relieve sexual tension, and impulses Child pornography is used in the seducing of children during the process by lowering their inhibitions and making the act seem “normal.” It confirms cognitive distortion[3] Advocacy of commission of sexual offenses There are limits that can be made on the forms of expression (i.e. prevention from hate and harm) These rights are protected within reasonable limit The expression cannot pose a risk to any citizen (i.e. children) Child pornography does not contribute to self fulfillment The provision should not be discontinued due to other measures being taken as it re-enforces the laws In the case of Mr.Sharpe vs. Crown, the Canadian Customs received a search warrant when they seized the illegal material from his home. Possession of this material contributes to the market for it which drives production The manufacturing and distribution harms children Children are in most cases defenseless against these criminal acts Children who have been victims to this crime have and will continue to be traumatized for the rest of their life (i.e. memories, existing material) Prohibiting assists law enforcement in reducing the distribution of this material. -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[4]

Answers

1. No, I don’t believe that any possession of child pornography should be legal because it violates the rights of children, no matter who committed the crime.  If one possesses this material, they are supporting the crimes committed against these children.

2. The punishment for possession of child pornography seems reasonable because these offenders did not physically take part in the producing of the material, but are simply using it for their own pleasure.  Although I think this is wrong, a two year punishment should deter them from re-committing.

3. I think the maximum 10 year punishment for producing and distribution should be increased because these crimes are very serious.  The act of producing is disgusting and violates several of the children’s rights.  I believe these people have a mental problem and should be kept away from society for a long time as they are a danger to society’s wellbeing.

4. Yes, I believe once these criminals have completed their punishment and return to society, they need to report to the local police station within 2 weeks of getting out.  This will help ensure they do not re-commit and their neighbours will be aware of their background.  This will add to their punishment as this will most likely be embarrassing for them and also because they will be under a watchful eye at all times by everyone around them.

5. I think art work and written work involving children in sexual experiences should be banned from public places. I do not believe it should be illegal to possess these things as they have not gone through any illegal processes.  This would also violate Freedom of Expression past a reasonable limit.

6. I think child pornography includes any revealing images of children.  Revealing refers to any private areas of the child being exposed. This includes poses and any sexual activity. 

7. I believe the age of the victim should increase the punishment, but never decrease. By this I mean that if the victim is under for example five years old, the punishment should be increased by several years.  This is because the younger the child, the more defenseless they are physically and emotionally.

8. I thin law enforcers can help regulate this by offering convicted felons a lesser sentence if they provide information about who created the material or even who purchased it.  The more information they give, the more people can be caught, and the lesser the punishment should be.

9. I believe that these producers of this material are not law abiding citizens and this law will not immediately reduce the production, but once a precedent is set that this crime is very serious and the punishment is as well maybe it will help deter people.  I believe that possessors of this material will be reduced because these people are more likely to be “regular” citizens who perhaps are just curious. By implementing harsher punishments, these people will most likely decide the risk is not worth the benefits and chose not to purchase the material.  This will eventually cause the market for child pornography to go down due to less demand.

10. I do not believe child pornography laws are unconstitutional because protecting children is more important than violating one’s freedom of expression and privacy.  Although these things are an issue, they do not out weigh the seriousness of the act. 

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[1]Child Pornography- Material which councils or advocates the commission of sexual offenses against children

[2] Reasonable limit- Law must have substantial goal. i.e. To protect children

To constitute a reasonable limit the proposed law must pass the proportionality test:

· The law under review must have a pressing and substantial goal

· It must limit the restrictions of freedom as much as possible

· The benefits must out weigh the costs

[3] Cognitive distortions- Erroneous beliefs by which pedophiles justify their aberrant behaviour.

[4] McLachlin, Beverley Chief Justic. “No- Opinion in R. v. Sharpe,” 194 D.L.R. (4^th)