Court/Judicial body: Supreme Court of Canada
Date: 26 January 2001 CRC
Provisions: Article 34: Sexual exploitationOptional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography
Domestic provisions: Criminal Code RSC 1985 c C-46, Section 163.1(4), (6) & (7) – Possession of Child Pornography & Defences Canadian Charter of Rights and Freedoms, Section 2(b) and 7 – Fundamental Freedoms; Life, Liberty and Security of Person
Background: The defendant was charged with the possession of child pornography and challenged the constitutionality of the offences with which he was charged, arguing that they violated his right to freedom of expression under Section 2(b) of the Canadian Charter of Rights and Freedoms and breached his right to liberty right under Section 7 of the Charter. Lower courts had ruled that the prohibition on the possession of child pornography was found to be unconstitutional as it unjustly limited enjoyment of the right to freedom of expression. The government appealed against the decisions, arguing the restriction on freedom of expression is justified as the prohibition seeks to protect children from harm. In this case the Court considers whether the prohibition on possession of child pornography unjustly interferes with the right to freedom of expression.
Issue and resolution: Child abuse images. Whether the criminal offences prohibiting the possession of child pornography unjustly limits the right to freedom of expression. The Court read an exception into the law, finding that the prohibition did not apply to private materials created and held only by the accused or to private visual images and recordings created by a person under the age of 18 of themselves alone or engaging in lawful sexual. With these exceptions in place the Court held the prohibition is constitutional as it seeks to prevent harm to children. The Court allowed the appeal and sent the case back to lower courts for retrial.
Court reasoning: The case concerned two interests, the right to freedom of expression which is fundamental in a democratic society and the child’s right to protection from harm. The Court found that the law prohibiting possession of child pornography interfered with the right to freedom of expression. A law which restricts the enjoyment of a right could be constitutional where the limitation in place is proportionate to the aim it seeks to achieve. For the prohibition to be found constitutional, the possession of child pornopraphy would have to show a reasoned risk of harm to children. The Court accepted the law had a pressing and substantial purpose, as child pornography encourages sexual abuse and exploitation of children. The court considered the prohibition to be in compliance with international law binding on Canada, including the UN Convention on the Rights of the Child (CRC), which requires States protect children from sexual exploitation including child pornography under Article 34, and the Optional Protocol to CRC on the sale of children, child prostitution and child pornography which requires States prohibit the possession of child pornopraphy under Article 3 (for purposes of “producing, distributing, disseminating, exporting, offering or selling”). The Court raised concerns that the law unjustly interfered with freedom of expression by prohibiting the possession of materials posing little or no risk of harm to children, including imaginary writings or visual materials created and privately held by the accused. The Court found that the prohibition of privately held works of the imagination was too close to criminalising a person for their thoughts. The Court was also concerned the law would criminalise persons under the age of 18 for possessing personal and privately held images of themselves alone or engaging in lawful sexual activity. The Court expressed the opinion that these materials may be significant for an adolescent’s sexual identity and could promote healthy sexual relationships and ruled that where such materials are prohibited by the law it places too heavy a limitation on freedom of expression while offering little protection to children against harm. To address this issue the Court read an exception into the law to allow for such materials to be exempt from the prohibition. With these exceptions in place the Court was satisfied the prohibition was constitutional as a balance had been achieved between freedom of expression and the protection of children from harm. The Court allowed the appeal and returned the case to lower courts for reconsideration.
Partial dissent: The minority of the Court agreed that the law was constitutional but expressed the opinion that exceptions read into the law should be rejected, as the limitations placed on freedom of expression were necessary to protect children from harm. The minority argued that the law goes beyond seeking to prevent the use of children in pornography and that though no children are used in imaginary materials, these materials encourage the sexual abuse of children. The minority also argued that minors producing materials of themselves alone or engaging in lawful sexual activity remain at risk of exploitation and may themselves exploit and cause harm to other children.
Excerpt citing CRC and other relevant human rights The need to protect children from harm has been an ongoing concern for Canada. In 1991, Canada ratified the United Nations’ Convention on the Rights of the Child, Can. T.S. 1992 No. 3, an international instrument that affirms the need to protect children from various forms of harm, including discrimination (art. 2), violence (art. 19), separation from parents except where necessary for the child’s best interest (art. 9), interference with privacy, family and home (art. 16), work that threatens health, education or development (art. 32), harmful drugs and involvement in their production or distribution (art. 33), abduction, trafficking or sale (art. 35), torture (art. 37), and sexual exploitation (art. 34). Canada’s support for the Convention demonstrates this country’s strong commitment to protecting children’s rights. In addition to ratifying the Convention, Canadian legislators have adopted other measures aimed at protecting children. Hence s. 163.1(4) is part of a broader scheme of Criminal Code offences which recognise the vulnerability of children and attempt to protect them from exploitation. For example, some Criminal Code provisions prevent an accused from relying on the consent of complainants under a certain age. For many offences the age of consent is 14, and for others it is 18. Both legislators abroad and the international community have acknowledged the vulnerability of children and the resulting need to protect them. It is therefore not surprising that the Convention on the Rights of the Child has been ratified or acceded to by 191 states as of January 19, 2001, making it the most universally accepted human rights instrument in history. The recent Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, A/RES/54/263 (2000), which prohibits, inter alia, child pornography, has already been signed by 69 states. As discussed above, this legislation is consistent with Canada’s international commitment to protect children. In particular, it addresses our responsibilities under art. 34 of the Convention on the Rights of the Child: State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, State Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials. Article 34 reflects the international community’s strongly held belief that the protection of children from the harms of child pornography is essential to their rights.
Notes: Laws prohibiting child pornography may be used to criminalise children engaging in consensual sexual activity where they take images or make recordings of themselves. This is an emerging status offence for children as it criminalises activity that would be lawful if conducted by an adult. Adults who create material of a sexual nature of themselves would not be charged with the same offence. These laws may prevent children reporting that they have been bullied, threatened or blackmailed over materials they have created undermining the intended protection of children. For more information about status offences including the criminalisation of lawful sexual activity read CRIN’s global report on status offences.
CRIN comment: CRIN believes this decision is in compliance with the CRC. Article 34 requires States to protect children from sexual exploitation including from the use of children in pornography. The Court’s interpretation of the law prevents the criminalisation of children for engaging in consensual sexual activity.
Citation:  1 SCR 45.
Link to Full Judgment:http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1837/index.do