“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]
[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. (4th)