R. v. Sharpe
British Columbia Court of Appeal Citation: R. v. Sharpe
BCCA 1999 416
Date of Decision: June 30, 1999
In this issue:
- Key Terms
- Summary of Facts
- Significant Issues
- Decision
- The Court's Reasons
- Justice Southin
- Justice Rowles (concurring)
- Chief Justice McEachern (dissenting)
- Lex View Commentary
Key Terms:
Criminal law; child pornography; freedom of expression and
privacy; morality and criminal prohibitions; harm and the common
good; role of the court in relation to Parliament
Summary of Facts:
The accused, Robin Sharpe, was charged with possession of child
pornography contrary section to163.1(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.
On January 13, 1999, the trial judge acquitted Sharpe on the
two counts of simple possession, having concluded that section
163.1(4) of the Criminal Code, criminalizing simple possession of
pornography, contravenes the freedom of expression guaranteed
under section 2(b) of the Charter of Rights and Freedoms and is
therefore of no force and effect. The Crown appealed to the
British Columbia Court of Appeal. Sharpe has not yet been tried on
two other charges of possession with intent to distribute.
Significant Issues:
Does section 163.1(4) of the Criminal Code, which criminalizes
simple possession of pornography, infringe the right to freedom of
expression? If so, is that infringement nevertheless justified?
Does Parliament have the jurisdiction to criminalize simple
possession of child pornography? What sorts of harms does
Parliament have a duty to prohibit? When ought courts to defer to
Parliament or provide the opportunity for Parliament to address
issues of constitutional invalidity?
Decision:
The Court of Appeal (Southin J. with Rowles J. concurring,
Chief Justice McEachern dissenting) dismissed the Crown's appeal,
and upheld the trial judge's acquittal of Sharpe on the charges of
simple possession of child pornography.
The Court's Reasons:
Chief Justice McEarchen noted that the question put to the
Court of Appeal by Sharpe was different than the one answered by
the trial judge. On appeal, as at trial, the Crown conceded that
section 163.1(4) was an infringement of freedom of expression, but
asserted that it was nevertheless justified as a reasonable limit.
At trial, Sharpe asked the trial judge to hold that section
163.1(4) was unconstitutional on the basis that it banned the
possession of any kind of child pornography. On appeal, and having
retained counsel, Sharpe conceded that possession of some kinds of
child pornography should be unlawful and do not constitute
constitutionally protected expression. Abandoning the attempt to
justify the possession of all types of child pornography, he
instead focused his attack on the scope of section 163.1(4). He
argued that the definition of child pornography contained in
section 163.1(4) is too broad, in that it criminalizes possession
of all types of child pornography, including those types of child
pornography which, he argued, do not cause harm to children.
This new argument is called an 'overbreadth' argument; that
although section 163.1(4) has the sound objective of protecting
children, it goes further than necessary to accomplish that goal
and unnecessarily prohibits individuals from engaging in
activities which do not harm children. Overbroad legislation which
infringed the exercise of freedom of expression, it was argued,
could not be a reasonable limit on freedom of expression.
Justice Southin:
Before coming to the question of whether the provision is
overbroad, Justice Southin considered the evidence given by the
Crown's expert witness, Dr. Peter Collins, an expert in forensic
psychiatry, and in particular, sexual deviance and pedophilia. Dr.
Collins told of three dangers posed by pornography involving young
persons. The first is that it reinforces "cognitive
distortions" of pedophiles; that is, it lends psychological
support to a pedophile's belief that sexual encounters with
children are normal and healthy. Second, it fuels the sexual
fantasies of those who possess it, and third, it is used by
pedophiles as a tool to "groom children" to participate
in sexual activity.
Justice Southin found the belief that children cannot be harmed
by premature sexual conduct, and can even enjoy it, to be "an
absurdity." She was therefore willing to accept Dr. Collins'
evidence that such belief is a "cognitive distortion."
She rejected, however, his evidence that it could be a cognitive
distortion for adolescents to believe that sexual conduct between
adolescents and adults (at least young adults) could be "a
good thing," on the basis that many adolescents choose to
engage in sex.
On the use of child pornography to "groom" children
to engage in sexual activity, Southin J. was reluctant to accept
Dr. Collins' testimony that child pornography could be used by
pedophiles to desensitize children to sex, on the basis that
"modern adolescents" are not generally ignorant about
sex. She was also concerned that this justification for the
legislation would apply not only to pedophiles seducing
10-year-olds, but also to young men using salacious magazines to
seduce 17-year-olds.
On the third danger of child pornography described by Dr.
Collins, that child pornography fuels sexual fantasies and deviant
behaviour, Southin J. noted that other forms of pornography which
do not involve children (and are not illegal), are similarly
believed to incite rapists to offend. Because Parliament had not
chosen to criminalize a wider class of pornography, she held that
this danger could not be a justification for the criminalization
of child pornography.
Having rejected all of the harms offered to justify the
legislation except "cognitive distortions" (and she only
accepted that so far as it applied to adults believing that young
children were not harmed by sexual activity with adults), Justice
Southin then considered whether this limit on the accused's
freedom of expression was justifiable. Because the criminalization
of the simple possession of written material (without distributing
it) is virtually unprecedented in Canadian history, she
categorically concluded "that legislation which makes simple
possession of expressive materials a crime can never be a
reasonable limit in a free and democratic society." She
further stated that "(s)uch legislation bears the hallmark of
tyranny," invoking memories of the Gestapo and KGB.
Although she concluded that it could never be "legally
possible in a free and democratic society to make simple
possession of expressive materials a crime," she addressed
the question of whether the specific circumstances could justify
the criminalization of the possession of child pornography, in
case she is later found to have been incorrect.
In considering whether section 163.1(4) was a proportionate
response to child pornography, Justice Southin focussed on the
definition of child pornography in section 163.1(1) which includes
" any written material -- that advocates or counsels sexual
activity with a person under the age of eighteen years that would
be an offence under this Act." Since the act of advocating or
counseling prohibited sexual activity is not an offence, she
concluded that it would be unreasonable that possessing written
material which counsels or advocates prohibited sexual activity
could be an offence.
She also held that section 163.1(4) could not be a
proportionate limit on freedom of expression, because it is
overbroad in two respects. First of all, its prohibition includes
images such as drawings and computer generated graphics which,
unlike photographs, do not necessarily involve children in their
creation. Secondly, the section also includes all pictures which
record explicit sexual acts which involve young adults up to the
age of 17, and Justice Southin concluded that because some sexual
activities involving youths aged 14-17 are legal, that therefore
pictures recording those legal activities should themselves be
legal.
Justice Rowles (concurring):
Justice Rowles, in her concurring judgment, also focussed on
the overbreadth of the legislation. She catalogued a range of
hypothetical material criminalized by the Act, which she
classified as not falling within the range of harms Parliament
aimed to prevent. Like Southin J., she thought that child
pornography which did not involve children in its production (such
as drawings or computer generated images) ought to be
distinguished from photographs and videos that did involve the
abuse of children in their creation. She did not believe that the
government could demonstrate any harm flowing from the simple
possession of self-authored writing. In her analysis, to
criminalize the possession (as distinct from distribution) of such
writing would be dangerously close to criminalizing an
individual's thoughts. It also concerned Rowles J. that the
sanctions of section 163.1(4) also applied to individuals under 18
years of age who were involved in the production of child
pornography themselves, perhaps by taking erotic photos of
themselves, or making diary entries. She concluded that "
section 163.1(4) overreaches most profoundly by reaching too far
and too haphazardly into an individual's private life, thought,
and expression."
Chief Justice McEachern (dissenting):
In his dissent, Chief Justice McEachern did not follow the
majority by considering the impact of the legislation on
hypothetical, benign scenarios. He engaged the trial judge's
reasons for concluding that the detrimental effects of section
163.1(4) outweighed its benefits, and found that the trial judge
paid insufficient attention to: (1) the harm done to children in
the production of pornography, and (2) the indirect harm posed by
simple possession of child pornography, specifically the risk of
future exploitation of children as a consequence of fueling the
market for child pornography.
Significantly, McEachern C.J. also noted that the harm caused
to children through pornography included the "indirect
harm" of "desensitization of attitudes generally
regarding sexualization of children by written or visual
material."
The Chief Justice had no doubt that the purpose of the
legislation, the protection of children, was sufficiently
important to override Sharpe's right to freedom of expression.
Unlike the majority, McEachern C.J. was of the view that the
objective of the comprehensive legislative scheme was so important
that he would not second-guess Parliament on the scope of the
legislation.
Similarly, he did not agree with the majority that there was
any absurdity that youths aged 14 - 17 years of age could legally
engage in sexual intercourse, while only those older that 17 years
of age could lawfully be the depicted in pornography. The reasons
which Parliament had to set the age of consent at 14 were
unlikely, he said, to have been the same reasons which led it to
criminalize the pornographic depiction of children under the age
of 18 years. The age below which children are to be protected from
exploitation through child pornography is a wholly different issue
from the age of consent.
As well, McEachern C.J. found that it is reasonable to
criminalize the simple possession of those forms of child
pornography which neither involved children in the production nor
were intended to ever be seen by anyone other than the creator,
because there is no guarantee that the material will not find its
way into the hands of others and contribute to inciting someone to
harm a child.
Ultimately, he concluded that the possession of child
pornography is so far removed from the core "values"
underlying the Charter, that the interference with possession of
child pornography (even innocent possession) hardly affects the
general right to privacy.
Lex View Commentary:
Having commented on the trial judge's reasons for judgment in Lex
View 26.0 (also available in QuickLaw's LEXV database), and
specifically on the issue of whether freedom of expression should
protect child pornography, we will focus here on other
considerations specifically arising out of the appeal. The issue
on appeal is narrower than that raised at trial. After retaining
counsel for the appeal, Sharpe changed his course to admit that
some forms of child pornography ought to be criminalized, the
legislation ought to be struck down because it is too broad and
criminalizes some forms of child pornography which actually cause
no one harm. An essential question then, is whether the simple
possession of child pornography, which may have been created
without abusing children and which may never be distributed, poses
a sufficient risk of harm to children that it ought to be an
offence for anyone to possess it, for any purpose.
Lying at the heart of this case is the issue of the proper
jurisdiction of the criminal law. It was common ground among all
three judges that the state is authorized to prohibit acts of
interpersonal injustice (i.e. acts of violence, theft, and fraud
perpetrated by one person on another). But the majority and the
dissent largely disagreed over what other kinds of harms and risks
of harms can justify criminalizing an act.
Justice Southin's judgment, (if we may say so, a somewhat tired
and even bitter judgment far removed from this gifted jurist's
best analysis), rests on an inadequate conception of harm. She was
certainly sympathetic to direct harm to young children caused by
pornography, i.e. harm caused to children under the age of 14 who
are exploited in the production of pornography. However, she did
not take seriously the proposition that child pornography creates
a risk of harm to children through desensitizing them to sexual
activity and thus making them more amenable to seduction by
pedophiles (i.e. the "grooming process"), because, she
says, modern children are not ignorant about sex. This may well
be, but while contemporary sex education and media portrayals may
fall short of the educational ideal of placing sex in an
appropriate moral context, they surely cannot have descended to
the level of telling children that sex between adults and children
is a normal, healthy thing. This is the message that child
pornography is used to convey to children in the "grooming
process" which Dr. Collins stressed and Justice Southin
panned.
Similarly, Justice Southin was unimpressed with Dr. Collins'
concern that child pornography has the effect of fueling sexual
fantasies of some pedophiles, and is believed to be a factor in
inciting them to sexually assault children. Justice Southin's
reply, that similar links are made between conventional, legal
pornography and sexual assaults on adult women, missed the point.
Children are uniquely vulnerable individuals. If Parliament
determines that children face a greater risk of harm and thus
warrants an extra measure of protection from the criminal law,
this is a sufficient justification for the criminal law to draw a
distinction between child pornography and other forms of
pornography.
Justice Southin was uncomfortable that the law does not
distinguish between the actions of the stereotypical "dirty
old man" and consenting mature minors who might photograph
their liaisons. This discomfort reflects an unnecessary insecurity
about the legitimacy of Parliament making moral judgments in the
sexual arena. Surely Parliament is as entitled to criminalize the
one as the other. Not all sexual relations are equally reasonable
(or if you prefer, moral), and consent is only one criterion of
this reasonableness. Where children are in issue, regardless of
their level of maturity, Parliament has the responsibility of
legislating what it perceives to be in their best interests. That
children over the age of 14 are not legally prohibited from
engaging in sex (within certain limitations) does not logically
entail that they should not be legally prohibited from taking
pornographic photographs of each other.
What Justice Southin failed to pick up on altogether, was the
concept of indirect harm caused by child pornography, such as
desensitizing society to the sexualization of children, and
legitimating sexual desire for children as an acceptable sexual
preference. Justice Rowles, to her credit, at least articulates
that "the valid objectives of the legislation extend beyond
prevention of direct harm to children which results from their
involvement in the production of child pornography" and
towards the prevention of a culture which nurtures harmful
attitudes towards children.
Unfortunately, after acknowledging that the Crown demonstrated
a "reasoned apprehension of harm" not only from the use
of child pornography by pedophiles, but also "from the
desensitization of society to the use of children as sexual
objects," she fails to give this "desensitization of
society" any weight in her balancing of the salutary and
detrimental effects of section 163.1(4). She ultimately concluded
that there were no salutary effects from prohibiting simple
possession of child pornography that were not already achieved
through prohibiting its production and distribution. But the
possession (i.e. personal use) of child pornography must
contribute at least as much to the sexualization of children
within society as does its production and distribution.
When this indirect harm of the desensitization of society is
given due consideration, as was the case in the dissenting
judgment of Chief Justice McEachern, it provides a satisfactory
answer to Southin and Rowles JJ.'s objections that legislation
should not prohibit imaginative works because they do not harm
children in their production. Parliament is surely entitled to
legislate with the objective of frustrating the establishment of a
culture which sexualizes its children. It is peculiar that the
majority was so reluctant to acknowledge the danger to the social
milieu caused by child pornography, when Sharpe himself has been
very open about his desire that this case will provoke society to
accept 'intergenerational sex'.
Ultimately, this decision, even if upheld by the Supreme Court
of Canada, should not be much of a setback in Parliament's efforts
to combat child pornography. It should be able to draft a new law
which answers the overbreadth complaint. In the meantime, Crown
counsel in British Columbia have stated that they will seek to
delay trials on existing charges, pending final determination by
the Supreme Court of Canada. It is unfortunate that the Court of
Appeal did not simply read down the legislation to bring the
definition of child pornography within a band that it judged to be
not overbroad. Regardless of how narrowly the Court defined that
band, the charges against Sharpe would no doubt still have been
able to proceed, and Parliament could have later enacted a
different legislative scheme if the Court's solution was not to
its liking. The majority's hostility to any possession offense,
fueled by an overblown valuation of pornography as
constitutionally protected personal expression, unfortunately
ruled out this more sensible approach. This is just the sort of
case in which a declaration of invalidity ought to have been
suspended giving Parliament the chance to address the legal
options in light of the Court's analysis.
Lex View is 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 © 2000 Iain Benson and Brad Miller
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