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R. v. Sharpe
Neutral citation: 2001 SCC 2. File No.:  27376.
2000:  January 18, 19; 2001: January 26.

Her Majesty The Queen      Appellant

v.

John Robin Sharpe      Respondent

and

The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Nova Scotia,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Attorney General for Alberta, the
Canadian Police Association (CPA),
the Canadian Association of Chiefs of
Police (CACP), Canadians Against
Violence (CAVEAT), the Criminal
Lawyers' Association, the Evangelical
Fellowship of Canada, Focus on the
Family (Canada) Association, the British
Columbia Civil Liberties Association, the
Canadian Civil Liberties Association,
Beyond Borders, Canadians Addressing
Sexual Exploitation (CASE), End Child
Prostitution, Child Pornography and
Trafficking in Children for Sexual Purposes (ECPAT)
and the International Bureau for Children's Rights      Interveners

Indexed as:  R. v. Sharpe

2000:  January 18, 19; 2001: January 26.

Present:  McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

     Constitutional law -- Charter of Rights -- Freedom of expression -- Child pornography -- Whether possession of expressive material protected by right to freedom of expression -- Canadian Charter of Rights and Freedoms, s. 2(b).

     Constitutional law -- Charter of Rights -- Right to liberty -- Whether Criminal Code prohibition of possession of child pornography infringing right to liberty -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4).

     Constitutional law -- Charter of Rights -- Freedom of expression -- Child pornography -- Crown conceding that Criminal Code prohibition of possession of child pornography infringing freedom of expression -- Whether infringement justifiable -- Canadian Charter of Rights and Freedoms, s. 1 -- Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(4).

     Criminal law -- Child pornography -- Criminal Code prohibiting possession of child pornography -- Scope of definition of "child pornography" -- Defences available -- Criminal Code, R.S.C. 1985, c. C-46, s. 163.1.

     The accused was charged with two counts of possession of child pornography under s. 163.1(4) of the Criminal Code and two counts of possession of child pornography for the purposes of distribution or sale under s. 163.1(3). "Child pornography", as defined in s. 163.1(1) of the Code, includes visual representations that show a person who is or is depicted as under the age of 18 years and is engaged in or is depicted as engaged in explicit sexual activity and visual representations the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years. "Child pornography" also includes visual representations and written material that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under the Code. Prior to his trial, the accused brought a preliminary motion challenging the constitutionality of s. 163.1(4) of the Code, alleging a violation of his constitutional guarantee of freedom of expression. The Crown conceded that s. 163.1(4) infringed s. 2(b) of the Canadian Charter of Rights and Freedoms but argued that the infringement was justifiable under s. 1 of the Charter. Both the trial judge and the majority of the British Columbia Court of Appeal ruled that the prohibition of the simple possession of child pornography as defined under s. 163.1 of the Code was not justifiable in a free and democratic society.

     Held: The appeal should be allowed and the charges remitted for trial.

     Per McLachlin C.J. and Iacobucci, Major, Binnie, Arbour and LeBel JJ.: In order to assess the constitutionality of s. 163.1(4), it is important to ascertain the nature and scope of any infringement. Until it is known what the law catches, it cannot be determined that the law catches too much. Consequently, the law must be construed, and interpretations that may minimize the alleged overbreadth must be explored. In light of Parliament's purpose of criminalizing possession of material that poses a reasoned risk of harm to children, the word "person" in the definition of child pornography should be construed as including visual works of the imagination as well as depictions of actual people. The word "person" also includes the person possessing the expressive material. The term "depicted" refers to material that a reasonable observer would perceive as representing a person under the age of 18 years and engaged in explicit sexual activity. The expression "explicit sexual activity" refers to acts at the extreme end of the spectrum of sexual activity -- acts involving nudity or intimate sexual activity represented in a graphic and unambiguous fashion. Thus, representations of casual intimacy, such as depictions of kissing or hugging, are not covered by the offence. An objective approach must be applied to the terms "dominant characteristic" and "for a sexual purpose". The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its "dominant characteristic" as the depiction of the child's sexual organ or anal region in a manner that is reasonably perceived as intended to cause sexual stimulation to some viewers. Innocent photographs of a baby in the bath and other representations of non-sexual nudity are not covered by the offence. As for written material or visual representations that advocate or counsel sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code, the requirement that the material "advocates" or "counsels" signifies that, when viewed objectively, the material must be seen as actively inducing or encouraging the described offences with children.

     Parliament has created a number of defences in ss. 163.1(6) and (7) of the Code which should be liberally construed as they further the values protected by the guarantee of free expression. These defences may be raised by the accused by pointing to facts capable of supporting the defence, at which point the Crown must disprove the defence beyond a reasonable doubt. The defence of "artistic merit" provided for in s. 163.1(6) must be established objectively and should be interpreted as including any expression that may reasonably be viewed as art. Section 163.1(6) creates a further defence for material that serves an "educational, scientific or medical purpose". This refers to the purpose the material, viewed objectively, may serve, not the purpose for which the possessor actually holds it. Finally, Parliament has made available a "public good" defence. As with the medical, educational or scientific purpose defences, the defence of public good should be liberally construed.

     The possession of child pornography is a form of expression protected by s. 2(b) of the Charter. The right to possess expressive material is integrally related to the development of thought, opinion, belief and expression as it allows us to understand the thought of others or consolidate our own thought. The possession of expressive material falls within the continuum of intellectual and expressive freedom protected by s. 2(b). The accused accepts that harm to children justifies criminalizing possession of some forms of child pornography. The fundamental question therefore is whether s. 163.1(4) of the Code goes too far and criminalizes possession of an unjustifiable range of material.

     The accused also alleges that s. 163.1(4) violates his right to liberty under s. 7 of the Charter, arguing that exposure to potential imprisonment as a result of an excessively sweeping law is contrary to the principles of fundamental justice. It is not necessary to consider this argument separately as it wholly replicates the overbreadth concerns that are the central obstacle to the justification of the s. 2(b) breach. The s. 1 analysis generally, and the minimal impairment consideration in particular, is the appropriate forum for addressing over broad restrictions on free expression.

     In adopting s. 163.1(4), Parliament was pursuing the pressing and substantial objective of criminalizing the possession of child pornography that poses a reasoned risk of harm to children. The means chosen by Parliament are rationally connected to this objective. Parliament is not required to adduce scientific proof based on concrete evidence that the possession of child pornography causes harm to children. Rather, a reasoned apprehension of harm will suffice. Applying this test, the evidence establishes several connections between the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production of child pornography involving real children. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. With respect to minimal impairment, when properly interpreted, the law catches much less material unrelated to harm to children than has been suggested. However, the law does capture the possession of two categories of material that one would not normally think of as "child pornography" and that raise little or no risk of harm to children: (1) written materials or visual representations created and held by the accused alone, exclusively for personal use; and (2) visual recordings created by or depicting the accused that do not depict unlawful sexual activity and are held by the accused exclusively for private use. The bulk of the material falling within these two classes engages important values underlying the s. 2(b) guarantee while posing no reasoned risk of harm to children. In its main impact, s. 163.1(4) is proportionate and constitutional. Nonetheless, the law's application to materials in the two problematic classes, while peripheral to its objective, poses significant problems at the final stage of the proportionality analysis. In these applications the restriction imposed by s. 163.1(4) regulates expression where it borders on thought. The cost of prohibiting such materials to the right of free expression outweighs any tenuous benefit it might confer in preventing harm to children. To this extent, the law cannot be considered proportionate in its effects, and the infringement of s. 2(b) contemplated by the legislation is not demonstrably justifiable under s. 1.

     The appropriate remedy in this case is to read into the law an exclusion of the two problematic applications of s. 163.1. The applications of the law that pose constitutional problems are exactly those whose relation to the objective of the legislation is most remote. Carving out those applications by incorporating the proposed exceptions will not undermine the force of the law; rather, it will preserve the force of the statute while also recognizing the purposes of the Charter. The defects of the section are not so great that their exclusion amounts to impermissible redrafting and carving them out will not create an exception-riddled provision bearing little resemblance to the provision envisioned by Parliament. While excluding the offending applications will not subvert Parliament's object, striking down the statute altogether would most assuredly do so. Accordingly, s. 163.1(4) should be upheld on the basis that the definition of "child pornography" in s. 163.1 should be read as though it contained an exception for: (1) any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use. These two exceptions apply as well to the offence of "making" child pornography under s. 163.1(2) (but not to printing, publishing or possessing child pornography for the purpose of publication). The exceptions will not be available where a person harbours any intention other than mere private possession.

     Per L'Heureux-Dubé, Gonthier and Bastarache JJ.: Under our society's democratic principles, individual freedoms such as expression are not absolute, but may be limited in consideration of a broader spectrum of rights, including equality and security of the person. The Crown conceded that the right to free expression was infringed in all respects, unfortunately depriving the Court of the opportunity to fully explore the content and scope of s. 2(b) of the Charter as it applies to this case. At the same time, it is recognized that, at this stage, our jurisprudence leads to the conclusion that, although harmful, the content of child pornography cannot be the basis for excluding it from the scope of the s. 2(b) guarantee. No separate analysis under s. 7 of the Charter is required. The s. 7 liberty interest is encompassed in the right of free expression and proportionality falls to be considered under s.1 of the Charter. The only issue is whether the infringement of freedom of expression is justifiable under s. 1. Section 1 recognizes that in a democracy competing rights and values exist. The underlying values of a free and democratic society guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights. A principled and contextual approach to s. 1 ensures that courts are sensitive to the other values which may compete with a particular right and allows them to achieve a proper balance among these values. At each stage of the s. 1 analysis close attention must be paid to the factual and social context in which an impugned provision exists.

     An appraisal of the contextual factors in this case leads to the conclusion that Parliament's decision to prohibit child pornography is entitled to an increased level of deference. Child pornography, as defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. Although not empirically measurable, nor susceptible to proof in the traditional manner, the attitudinal harm inherent in child pornography can be inferred from degrading or dehumanizing representations or treatment. Expression that degrades or dehumanizes is harmful in and of itself as all members of society suffer when harmful attitudes are reinforced. The possibility that pornographic representations may be disseminated creates a heightened risk of attitudinal harm. The violation of the privacy rights of the persons depicted constitutes an additional risk of harm that flows from the possibility of dissemination. Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination. Section 163.1 was enacted to protect children, one of the most vulnerable groups in society. It is based on the clear evidence of direct harm caused by child pornography, as well as Parliament's reasoned apprehension that child pornography also causes attitudinal harm. The lack of scientific precision in the social science evidence relating to attitudinal harm is not a valid reason for attenuating the Court's deference to Parliament's decision.

     The importance of the protection of children is recognized in both Canadian criminal and civil law. The protection of children from harm is a universally accepted goal. International law is rife with instruments that emphasize the protection of children and a number of international bodies have recognized that possession of child pornography must be targeted to effectively address the harms caused by this type of material. Moreover, domestic legislation in a number of democratic countries criminalizes the simple possession of child pornography.

     As a form of expression, child pornography warrants less protection since it is low value expression that is far removed from the core values underlying the protection of freedom of expression. Child pornography has a limited link to the value of self-fulfilment, but only in its most base aspect. Furthermore, in prohibiting the possession of child pornography, Parliament promulgated a law which seeks to foster and protect the equality rights of children, along with their security of the person and their privacy interests. The importance of these Charter rights cannot be ignored in the analysis of whether the law is demonstrably justified in a free and democratic society and warrants a more deferential application of the criteria set out in the Oakes test. Finally, Parliament has the right to make moral judgments in criminalizing certain forms of conduct. The Court should be particularly sensitive to the legitimate role of government in legislating with respect to our social values.

     Section 163.1(4) of the Code constitutes a reasonable and justified limit upon freedom of expression. In proscribing the possession of child pornography, Parliament's overarching objective was to protect children. Any provision which protects both children and society by attempting to eradicate the sexual exploitation of children clearly has a pressing and substantial purpose. Section 163.1(4) is also proportionate to the objective. First, prohibiting the possession of child pornography is rationally connected to the aim of preventing harm to children and society. The possession of child pornography contributes to the cognitive distortions of paedophiles, reinforcing their erroneous belief that sexual activity with children is acceptable. Child pornography fuels paedophiles' fantasies, which constitute the motivating force behind their sexually deviant behaviour. Section 163.1(4) plays an important role in an integrated law enforcement scheme which protects children against the harms associated with child pornography. Paedophiles use child pornography for seducing children and for grooming them to commit sexual acts. Lastly, children are abused in the production of child pornography. The prohibition of the possession of child pornography is intended to reduce the market for this material. If consumption of child pornography is reduced, presumably production and the abuse of children will also be reduced.

     Second, the prohibition of the possession of child pornography minimally impairs the right to free expression. Although s. 163.1(4) is directed only to the private possession of child pornography, children are particularly vulnerable in the private sphere, since a large portion of child pornography is produced privately and used privately by those who possess it. The harmful effect on the attitudes of those who possess child pornography similarly occurs in private. Consequently, prohibiting the simple possession of child pornography has an additional reductive effect on the harm it causes. The prohibition of the possession of child pornography also captures visual and written works of the imagination which do not involve the participation of any actual children or youth in their production; in enacting s. 163.1(4), Parliament sought to prevent not only the harm that flows from the use of children in pornography, but also the harm that flows from the very existence of images and words which degrade and dehumanize children and to send the message that children are not appropriate sexual partners. The focus of the inquiry must be on the harm of the message of the representations and not on their manner of creation, or on the intent or identity of their creator. Given the low value of the speech at issue in this case and the fact that it undermines the Charter rights of children, Parliament was justified in concluding that visual works of the imagination would harm children.
The inclusion of written material in the offence of possession of child pornography does not amount to thought control. The legislation seeks to prohibit material that Parliament believed was harmful. The inclusion of written material which advocates and counsels the commission of offences against children is consistent with this aim, since, by its very nature, it is harmful, regardless of its authorship. Evidence suggests that the cognitive distortions of paedophiles are reinforced by such material and that written pornography fuels the sexual fantasies of paedophiles and could incite them to offend. Although the prohibition in s. 163.1(4) extends to teenagers between the ages of 14 and 17 who keep pornographic videotapes or pictures of themselves, this effect of the provision is a reasonable limit on teenagers' freedom of expression. A review of adolescent child pornography cases reveals that there is a great risk that they will be exploited in its creation. Hence, while adolescents between the ages of 14 and 17 may legally engage in sexual activity, Parliament had a strong basis for concluding that the age limit in the definition of child pornography should be set at 18. It is not necessary that the provision contain a defence to protect teenagers who are in possession of erotic videos or pictures of themselves. Such a defence would undermine Parliament's objective of protecting all children, since some adolescents under the age of 18 groom other children into engaging in sexual conduct. There is also no guarantee, even when a teenager is in possession of a pornographic picture or videotape depicting himself or herself, that it was created in a consensual environment. The creation of permanent records of teenagers' sexual activities has consequences which children of that age may not have sufficient maturity to understand. The Court should defer to Parliament's decision to restrict teenagers' freedom in this area. The provision does not amount to a total ban on the possession of child pornography. The provision reflects an attempt by Parliament to weigh the competing rights and values at stake and achieve a proper balance. The definitional limits act as safeguards to ensure that only material that is antithetical to Parliament's objectives in proscribing child pornography will be targeted, and the legislation incorporates defences of artistic merit, educational, scientific or medical purpose, and a defence of the public good.
Third, when the effects of the provision are examined in their overall context, the benefits of the legislation far outweigh any deleterious effects on the right to freedom of expression and the interests of privacy. Section 163.1(4) helps to prevent the harm to children which results from the production of child pornography; deters the use of child pornography in the grooming of children; curbs the collection of child pornography by paedophiles; and helps to ensure that an effective law enforcement scheme can be implemented. In sum, the legislation benefits society as a whole as it sends a clear message that deters the development of antisocial attitudes. The law does not trench significantly on speech possessing social value since there is a very tenuous connection between the possession of child pornography and the right to free expression. At most, the law has a detrimental cost to those who find base fulfilment in the possession of child pornography. The privacy of those who possess child pornography is protected by the right against unreasonable search and seizure as guaranteed by s. 8 of the Charter. The law intrudes into the private sphere because doing so is necessary to achieve its salutary objectives. The privacy interest restricted by the law is closely related to the specific harmful effects of child pornography. Moreover, the provision's beneficial effects in protecting the privacy interests of children are proportional to the detrimental effects on the privacy of those who possess child pornography.

     CITATION
Before publication in the S.C.R., this judgment should be cited using the neutral citation: R. v. Sharpe, 2001 SCC 2. Once the judgment is published in the S.C.R., the neutral citation should be used as a parallel citation: R. v. Sharpe, [2001] 1 S.C.R. xxx, 2001 SCC 2.

     MCLACHLIN C.J. --

     I. Introduction

1     Is Canada's law banning the possession of child pornography constitutional or, conversely, does it unjustifiably intrude on the constitutional right of Canadians to free expression? That is the central question posed by this appeal.

2     I conclude that the law is constitutional, except for two peripheral applications relating to expressive material privately created and kept by the accused, for which two exceptions can be read into the legislation. The law otherwise strikes a constitutional balance between freedom of expression and prevention of harm to children. As a consequence, I would uphold the law and remit Mr. Sharpe for trial on all charges.

3     The respondent, Mr. Sharpe, was charged on a four-count indictment after two seizures of material. The first seizure was made by Canada Customs. It consisted of computer discs containing a text entitled "Sam Paloc's Boyabuse -- Flogging, Fun and Fortitude : A Collection of Kiddiekink Classics". Two charges were laid with respect to this material -- one for illegal possession under s. 163.1(4) of the Criminal Code, R.S.C.1985, c. C-46, and one for possession for the purposes of distribution or sale under s. 163.1(3) of the Code. The second seizure was at Mr. Sharpe's home pursuant to a search warrant the validity of which will be contested at trial. Police officers seized a collection of books, manuscripts, stories and photographs the Crown says constitute child pornography. Again, two charges were laid -- one of simple possession and one of possession for the purposes of distribution or sale.

4     Mr. Sharpe brought a preliminary motion challenging the constitutionality of s. 163.1(4) of the Criminal Code. He does not challenge the constitutionality of the offence of possession for the purposes of distribution and sale, which will go to trial regardless of how this appeal is resolved. Mr. Sharpe contends that the prohibition of possession, without more, violates the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms. The trial judge ruled that the prohibition was unconstitutional, as did the majority of the British Columbia Court of Appeal. The Crown appeals that order to this Court.

5     The Crown concedes that s. 163.1(4)'s prohibition on the possession of child pornography infringes the guarantee of freedom of expression in s. 2(b) of the Charter. The issue is whether this limitation of freedom of expression is justifiable under s. 1 of the Charter, given the harm possession of child pornography can cause to children. Mr. Sharpe accepts that harm to children justifies criminalizing possession of some forms of child pornography. The fundamental question therefore is whether s. 163.1(4) of the Criminal Code goes too far and criminalizes possession of an unjustifiable range of material.

6     In 1993, Parliament enacted s. 163.1 of the Criminal Code, creating a number of offences relating to child pornography. The provision supplemented laws making it an offence to make, print, publish, distribute, or circulate obscene material (s. 163), and to corrupt children (s. 172). With the enactment of s. 163.1, the Criminal Code contains a comprehensive scheme to attack child pornography at every stage -- production, publication, importation, distribution, sale and possession. Subsections (2) and (3) of s. 163.1 criminalize possession of child pornography for the purpose of publication and possession for the purpose of distribution or sale. Section 163.1(4) extends the prohibition to possession simpliciter:

7     The scope of this offence depends on the definition of "child pornography"

8     The offence is subject to a number of defences, set out in subs. (6)

9     Subsection (7) imports the "public good" defence from the obscenity
provisions of the Criminal Code:

10     Section 2(b) of the Charter guarantees freedom of expression as follows:

11     Section 7 of the Charter guarantees a right to liberty as follows:

12     Section 1 of the Charter affirms the entitlement of everyone to the fundamental rights guaranteed by the Charter, subject to justifiable limits:

13     In the British Columbia Supreme Court, Shaw J. courageously ruled that s. 163.1(4) is unconstitutional. He held that the objective of the law is to combat material that puts children at risk of harm. He reviewed evidence that child pornography arguably creates this risk through its use for grooming or seduction; by the use of children in its manufacture; by confirming or augmenting cognitive distortions of paedophiles; and by inciting paedophiles to commit offences against children. However, although this Court in R. v. Butler, [1992] 1 S.C.R. 452, did not require conclusive proof that obscene materials cause harm, Shaw J. apparently required such proof and found little scientific evidence linking the possession of child pornography to these risks. As a result, he considered the salutary effects of the law to be limited. As for the law's deleterious effects, he found that "the invasion of freedom of expression and personal privacy is profound" (para. 49) and held that they were "not outweighed by the limited beneficial effects of the prohibition" (para. 50). Shaw J. concluded that the law was inconsistent with the Charter and could not be justified under s. 1, rendering it invalid under s. 52(1) of the Constitution Act, 1982.

     2.British Columbia Court of Appeal (1999), 136 C.C.C. (3d) 97

14     The Court of Appeal, by a margin of 2 to 1, upheld the trial judge's conclusion. Southin J.A. found the law invalid for two reasons. First, she held that "legislation which makes simple possession of expressive materials a crime can never be a reasonable limit in a free and democratic society. Such legislation bears the hallmark of tyranny" (para. 95). On this approach, any prohibition of private possession of child pornography, as opposed to manufacture, distribution or possession for these purposes, would always, of necessity, unjustifiably restrict freedom of expression. In the alternative, Southin J.A. found that the law failed the proportionality test of s. 1. Like the trial judge, Southin J.A. held that the most compelling evidence of necessity is required to justify a prohibition on mere possession, and that the legislation catches too much lawful conduct unrelated to harm to children, notably in relation to teenage sexuality.

15     Rowles J.A. held the law invalid on the ground that it is unjustifiably overbroad. Sympathetic to Parliament's goal, she argued eloquently for the need to protect children from sexual abuse. She noted that child pornography does not lie close to the core of protected expression, and found that Parliament had a reasonable basis for concluding that criminalizing possession of child pornography would reduce the risk of harm to children. Rowles J.A. held, however, that the law failed because it caught much more material than necessary to achieve the objective, mainly relating to teenage sexuality, an intrusion on free expression aggravated by its impact on privacy. "By providing a sentence of incarceration for the possession of recorded thoughts and expression, including one's own thoughts and expression, the legislation trenches deeply upon the core values enshrined in the Charter and essential to a free and democratic society" (para. 213). In the result the law raises "the spectre that legitimate and non-harmful expression will be chilled as individuals are forced, in the words of the trial judge, to become their own censors" (para. 213). On the other side of the balance, the only "value added" by criminalizing possession of child pornography, in addition to the other offences, was a modest contribution to law enforcement (at para. 214).

16     McEachern C.J.B.C. would have upheld the law. Since Mr. Sharpe conceded that possession of some pornographic material should be prohibited, the only issue was where to draw the line between permissible and impermissible material. McEachern C.J.B.C. considered Shaw J. to have erred in not considering the suppression of the market for child pornography, and hence the prevention of the abuse of children in the course of producing child pornography, to be a salutary effect of the prohibition. He found the definition of child pornography in the section carefully drafted and rationally connected to the objectives of the legislation. In his view, limitations in the law offered considerable protection against problematic prosecution. Acknowledging that the law catches some teenage sexual material unrelated to the harm, he doubted Parliament could have drafted it in a way that avoided such difficulties. The hypothetical examples of unrelated material were remote and likely to arise infrequently. McEachern C.J.B.C. concluded that "any balancing of the risk of harm to children against the risk of harm to `innocent' possessors of child pornography as defined must be resolved in favour of children" (para. 292).

17     The decisions in the British Columbia courts reveal four distinctive arguments. At the far end of the spectrum is Southin J.A.'s argument that prohibition of private possession of child pornography can never constitute a justifiable infringement on free expression. Next is the position of the trial judge, adopted by Southin J.A. in the alternative, that the benefits of the law are limited and do not outweigh its negative effects on freedom of expression and privacy. The third argument, put forward by Rowles J.A., is that the law is unjustifiably overbroad. The fourth argument, adopted by McEachern C.J.B.C., is that the only issue is overbreadth and that on balance the law's infringement on freedom of expression is justified.

18     Two issues arise: whether the prohibition of possession of child pornography in s. 163.1(4) limits a Charter right and, if so, whether the infringement is justified. On the first issue the Crown concedes that the law intrudes upon the guarantee of free expression in s. 2(b) of the Charter. The respondent also alleges a violation of his right to liberty under s. 7 of the Charter, arguing that exposure to potential imprisonment as a result of an excessively sweeping law is contrary to the principles of fundamental justice. Since this argument wholly replicates the overbreadth concerns that are the central obstacle to the justification of the s. 2(b) breach, it is not necessary to consider it separately. The weight of authority commends the s. 1 analysis generally, and the minimal impairment consideration in particular, as the appropriate forum for addressing allegations of overly broad restrictions on free expression: Butler, supra; Ref. re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; R. v. Keegstra, [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Zundel, [1992] 2 S.C.R. 731.

19     The basic issue thus reduces to whether the limit imposed by the law on free expression can be justified under s. 1 of the Charter. If aspects of the law cannot be justified, the further question arises of whether a remedy short of striking down the entire law as unconstitutional is appropriate.

20     Reflecting these issues, the constitutional questions have been stated as follows:

1     Does s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46, violate s. 2(b) of the Canadian Charter of Rights and Freedoms?

2     If s. 163.1(4) of the Criminal Code infringes s. 2(b) of the Canadian Charter of Rights and Freedoms, is s. 163.1(4) a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society for the purposes of s. 1 of the Charter?

3     Does s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46, violate s. 7 of the Canadian Charter of Rights and Freedoms?

4     If s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46, infringes s. 7 of the Canadian Charter of Rights and Freedoms, is s. 163.1(4) a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society for the purposes of s. 1 of the Charter?

21     Among the most fundamental rights possessed by Canadians is freedom of expression. It makes possible our liberty, our creativity and our democracy. It does this by protecting not only "good" and popular expression, but also unpopular or even offensive expression. The right to freedom of expression rests on the conviction that the best route to truth, individual flourishing and peaceful coexistence in a heterogeneous society in which people hold divergent and conflicting beliefs lies in the free flow of ideas and images. If we do not like an idea or an image, we are free to argue against it or simply turn away. But, absent some constitutionally adequate justification, we cannot forbid a person from expressing it.

22     Nevertheless, freedom of expression is not absolute. Our constitution recognizes that Parliament or a provincial legislature can sometimes limit some forms of expression. Overarching considerations, like the prevention of hate that divides society as in Keegstra, supra, or the prevention of harm that threatens vulnerable members of our society as in Butler, supra, may justify prohibitions on some kinds of expression in some circumstances. Because of the importance of the guarantee of free expression, however, any attempt to restrict the right must be subjected to the most careful scrutiny.

23     The values underlying the right to free expression include individual self-fulfilment, finding the truth through the open exchange of ideas, and the political discourse fundamental to democracy: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 976; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at p. 765. While some types of expression, like political expression, lie closer to the core of the guarantee than others, all are vital to a free and democratic society. As stated in Irwin Toy, supra, at p. 968, the guarantee "ensure[s] that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection", the Court continued, "is ... `fundamental' because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual". As stated by Cardozo J. in Palko v. Connecticut, 302 U.S. 319 (1937), free expression is "the matrix, the indispensable condition of nearly every other form of freedom"(p. 327).

24     The law challenged in this appeal engages mainly the justification of self-fulfilment. Child pornography does not generally contribute to the search for truth or to Canadian social and political discourse. Some question whether it engages even the value of self-fulfilment, beyond the base aspect of sexual exploitation. The concern in this appeal, however, is that the law may incidentally catch forms of expression that more seriously implicate self-fulfilment and that do not pose a risk of harm to children.

25     As to the contention that prohibiting possession of expressive material does not raise free expression concerns, I cannot agree. The right conferred by s. 2(b) of the Charter embraces a continuum of intellectual and expressive freedom -- "freedom of thought, belief, opinion, and expression". The right to possess expressive material is integrally related to the development of thought, belief, opinion and expression. The possession of such material allows us to understand the thought of others or consolidate our own thought. Without the right to possess expressive material, freedom of thought, belief, opinion and expression would be compromised. Thus the possession of expressive materials falls within the continuum of rights protected by s. 2(b) of the Charter.

26     The private nature of the proscribed material may heighten the seriousness of a limit on free expression. Privacy, while not expressly protected by the Charter, is an important value underlying the s. 8 guarantees against unreasonable search and seizure and the s. 7 liberty guarantee: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Mills, [1999] 3 S.C.R. 668. Indeed, as freedom from state intrusion and conformist social pressures is integral to individual flourishing and diversity, this Court has observed that "privacy is at the heart of liberty in a modern state": R. v. Dyment, [1988] 2 S.C.R. 417, at p. 427; see also R. v. Edwards, [1996] 1 S.C.R. 128, at para. 50. Privacy may also enhance freedom of expression claims under s. 2(b) of the Charter, for example in the case of hate literature: Keegstra, supra, at pp. 772-73; Taylor, supra, at pp. 936-37. The enhancement in the case of hate literature occurs in part because private material may do less harm than public, and in part because the freedoms of conscience, thought and belief are particularly engaged in the private setting: Taylor, supra. However, the private nature of much child pornography cuts two ways. It engages the fundamental right to freedom of thought. But at the same time, the clandestine nature of incitement, attitudinal change, grooming and seduction associated with child pornography contributes to the harm it may cause children, rather than reduces it.

27     In summary, prohibiting the possession of child pornography restricts the rights protected by s. 2(b) and the s. 7 liberty guarantee. While the prurient nature of most of the materials defined as "child pornography" may attenuate its constitutional worth, it does not negate it, since the guarantee of free expression extends even to offensive speech.

28     This brings us to the countervailing interest at stake in this appeal: society's interest in protecting children from the evils associated with the possession of child pornography. Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation of children. The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences. Some of these links are disputed and must be considered in greater detail in the course of the s. 1 justification analysis. The point at this stage is simply to describe the concerns that, according to the government, justify limiting free expression by banning the possession of child pornography.

29     These then are the values at stake in this appeal. On the one hand stands the right of free expression -- a right fundamental to the liberty of each Canadian and our democratic society. On the other stands the conviction that the possession of child pornography must be forbidden to prevent harm to children.

30     Mr. Sharpe does not suggest that the prevention of harm to children can never justify limiting free expression. Where the two values stand in stark opposition, prevention of harm to children must prevail. He suggests rather that the limitation s. 163.1(4) imposes on free expression must fail because the law catches material that poses no risk of harm to children and because the links between possession of child pornography and harm to children are weak.

31     In order to deal with these concerns, we must determine what material the law, properly construed, catches, and on that basis answer the question of whether those restrictions on free speech are in fact justified by the goal of preventing harm to children.

32     While the Crown concedes that s. 163.1(4) limits freedom of expression, this does not eliminate the need to consider the nature and scope of the infringement in determining whether or not it is justified. Until we know what the law catches, we cannot say whether it catches too much. This Court has consistently approached claims of overbreadth on this basis. It is not enough to accept the allegations of the parties as to what the law prohibits. The law must be construed, and interpretations that may minimize the alleged overbreadth must be explored: see Keegstra, supra, Butler, supra, and Mills, supra. So we must begin by asking what s. 163.1(4) truly catches as distinguished from some of the broader interpretations alleged by the respondent and some of the interveners in support. The interpretation of the section is a necessary pre-condition to the determination of constitutionality, although it is understood, of course, that courts in future cases may refine the analysis in light of the facts and considerations that emerge with experience.

33     Much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994); Pierre-André Côté, The Interpretation of Legislation in Canada (3rd ed. 2000)). However, Elmer Driedger in Construction of Statutes (2nd ed. 1983) best captures the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87, Driedger states: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." Recent cases which have cited the above passage with approval include: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; R. v. Hydro-Québec, [1997] 3 S.C.R. 213, at para. 144; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411, at para. 30; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550, at para. 22; Friesen v. Canada, [1995] 3 S.C.R. 103, at para. 10. Supplementing this approach is the presumption that Parliament intended to enact legislation in conformity with the Charter: see Sullivan, Driedger on the Construction of Statutes, supra, at pp. 322-27. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078; R. v. Swain, [1991] 1 S.C.R. 933, at p. 1010; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 660; R. v. Lucas, [1998] 1 S.C.R. 439, at para. 66.

34     Parliament's main purpose in passing the child pornography law was to prevent harm to children by banning the production, distribution and possession of child pornography, and by sending a message to Canadians "that children need to be protected from the harmful effects of child sexual abuse and exploitation and are not appropriate sexual partners": House of Commons Debates, 3rd Sess., 34th Parl., vol. XVI, June 3, 1993, at p. 20328. However, Parliament did not cast its net over all material that might conceivably pose any risk to children or produce any negative attitudinal changes. Mindful of the importance of freedom of expression in our society and the dangers of vague, overbroad legislation in the criminal sphere, Parliament set its targets principally on clear forms of "child pornography": depictions of explicit sex with children, depictions of sexual organs and anal areas of children and material advocating sexual crimes with children. Through qualifications and defences Parliament indicated that it did not seek to catch all material that might harm children, but only material that poses a reasoned risk of harm to children and, even then, only where the countervailing right of free expression or the public good does not outweigh that risk of harm. With this aim in mind, I turn to s. 163.1.

35     Section 163.1(1) defines child pornography in terms of two categories: (1) visual representations (s. 163.1(1)(a)); and (2) written and visual advocacy and counselling material (s. 163.1(1)(b)). Visual representations include "a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means". This is broad enough to include drawings, paintings, prints, computer graphics, and sculpture: in short, any non-textual representation that can be perceived visually.

36     A visual representation can constitute child pornography in three ways:

1     By showing a person who is, or is depicted as, being under the age of 18 years and is engaged in, or is depicted as engaged in, explicit sexual activity (s. 163.1(1)(a)(i));

2     By having, as its dominant characteristic, the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years (s. 163.1(1)(a)(ii)); or

3     By advocating or counselling sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code (s. 163.1(1)(b)).

37     In order to constitute child pornography, a visual representation must show, depict, advocate or counsel sexual activity with a "person". Two issues arise here: (1) does "person" apply only to actual, as opposed to imaginary persons; and (2) does it include the person who possesses the material?

38     The first issue is important because it governs whether the prohibition on possession is confined to representations of actual persons, or whether it extends to drawings from the imagination, cartoons, or computer generated composites. The available evidence suggests that explicit sexual materials can be harmful whether or not they depict actual children. Moreover, with the quality of contemporary technology, it can be very difficult to distinguish a "real" person from a computer creation or composite. Interpreting "person" in accordance with Parliament's purpose of criminalizing possession of material that poses a reasoned risk of harm to children, it seems that it should include visual works of the imagination as well as depictions of actual people. Notwithstanding the fact that "person" in the charging section and in s. 163.1(1)(b) refers to a flesh-and-blood person, I conclude that "person" in s. 163.1(1)(a) includes both actual and imaginary human beings.

39     This definition of child pornography catches depictions of imaginary human beings privately created and kept by the creator. Thus, the prohibition extends to visual expressions of thought and imagination, even in the exceedingly private realm of solitary creation and enjoyment. As will be seen, the private and creative nature of this expression, combined with the unlikelihood of its causing harm to children, creates problems for the law's constitutionality.

40     The second issue is whether "person", as the term is used in s. 163.1(1)(a), includes the person who possesses the material. That is, does the definition of "child pornography" catch "auto-depictions" -- for example, sexually explicit photographs a person has taken of him or herself alone? Given that Parliament has not qualified or limited the definition of "person" in s. 163.1(1)(a), I conclude that Parliament intended to catch such auto-depictions, even where the person making the depiction, although under 18, does not appear to be a child, and intends to keep the depiction entirely in his or her own possession. This too creates constitutional problems, as we will see.

41     The legislation defines children to include all those under the age of 18. This doubtless reflects Parliament's concern that older teenagers may look or be made to look like children. However, this age limit extends the reach of the law to material beyond the ordinary conception of child pornography. For example, it raises the possibility that teenagers, perhaps even married teenagers, could be charged and imprisoned for taking and keeping photos or videos of themselves engaged in lawful sexual acts, even if those materials were intended exclusively for their own personal use. This prohibition engages the value of self-fulfilment and may be difficult to link to a reasoned risk of harm to children, again raising particularly troubling constitutional concerns.

42     Section 163.1(1)(a)(i) brings within the definition of child pornography a visual representation of a person "who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity" (emphasis added). Does "depicted" mean: (a) intended by the maker to depict; (b) perceived by the possessor as depicting; or (c) seen as being depicted by a reasonable observer?

43     The first and second interpretations are inconsistent with Parliament's objective of preventing harm to children through sexual abuse. The danger associated with the representation does not depend on what was in the mind of the maker or the possessor, but in the capacity of the representation to be used for purposes like seduction. It is the meaning which is conveyed by the material which is critical, not necessarily the meaning that the author intended to convey. Moreover, it would be virtually impossible to prove what was in the mind of the producer or possessor. On the second alternative, the same material could be child pornography in the possession of one person and innocent material in the hands of another. Yet the statute makes it an offence for anyone to possess such material, not just those who see it as depicting children. The only workable approach is to read "depicted" in the sense of what would be conveyed to a reasonable observer. The test must be objective, based on the depiction rather than what was in the mind of the author or possessor. The question is this: would a reasonable observer perceive the person in the representation as being under 18 and engaged in explicit sexual activity?

44     Section 163.1(1)(a)(i) catches visual representations of "explicit sexual activity". Sexual activity spans a large spectrum, ranging from the flirtatious glance at one end, through touching of body parts incidentally related to sex, like hair, lips and breasts, to sexual intercourse and touching of the genitals and the anal region. The question is where on this spectrum Parliament intended to place the boundary between material that may be lawfully possessed and material that may not be lawfully possessed. A number of indications suggest that Parliament intended to draw the line at the extreme end of the spectrum concerned with depictions of intimate sexual activity represented in a graphic and unambiguous manner.

45     The first indication is Parliament's use of the word "explicit" to describe the activity depicted. Parliament could have simply referred to "sexual activity". Instead, it chose "explicit sexual activity". "Explicit" must be given meaning. According to the Canadian Oxford Dictionary (1998), "explicit" in the context of sexual acts means "describing or representing nudity or intimate sexual activity". Similarly, "explicit" according to the New Oxford Dictionary of English (1998) means "describing or representing sexual activity in a graphic fashion". This suggests that the law catches only depictions of sexual intercourse and other non-trivial sexual acts.

46     This restricted meaning is supported by the fact that in creating other offences, like sexual assault, Parliament uses the word "sexual" without any modifiers. To constitute sexual assault, the sexual aspect of the contact must be clear. The addition of the modifier "explicit" in s. 163.1 suggests that this at least is required.

47     A restrained interpretation of "explicit sexual activity" is also supported by reading s. 163.1(1)(a)(i) and s. 163.1(1)(a)(ii) together. They are designed to cover two types of depiction: (i) the depiction of explicit sexual activity; and (ii) the static depiction of the sexual organs or anal regions of children. Subparagraph (ii) clearly indicates that Parliament's concern was with visual representations near the extreme end of the spectrum. While it is possible in the abstract to argue that Parliament intended a much broader sweep for subpara. (i) than for (ii), it seems more likely that Parliament was seeking to catch in subpara. (i) the activity-related counterpart to subpara. (ii).

48     Finally, Parliament's goal of preventing harm to children related to child pornography supports a restrained interpretation of "explicit sexual activity". The evidence suggests that harm to children produced by child pornography arises from depictions of explicit sexual acts with children at the extreme end of the spectrum. The literature on harm focuses mainly on depictions of sexual activity involving nudity and portrayal of the sexual organs and anal region. It is reasonable to conclude that this sort of material was uppermost in Parliament's mind when it adopted this law.

49     I conclude that "explicit sexual activity" refers to acts which viewed objectively fall at the extreme end of the spectrum of sexual activity -- acts involving nudity or intimate sexual activity, represented in a graphic and unambiguous fashion, with persons under or depicted as under 18 years of age. The law does not catch possession of visual material depicting only casual sexual contact, like touching, kissing, or hugging, since these are not depictions of nudity or intimate sexual activity. Certainly, a photo of teenagers kissing at summer camp will not be caught. At its furthest reach, the section might catch a video of a caress of an adolescent girl's naked breast, but only if the activity is graphically depicted and unmistakably sexual. (For a discussion of such concerns see B. Blugerman and L. May, "The New Child Pornography Law: Difficulties of Bill C-128" (1995), 4 M.C.L.R. 17.)

50     The objective approach should also be applied to the term "dominant characteristic" in s. 163.1(1)(a)(ii), which targets possession of visual material whose "dominant characteristic" is "the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years". The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its "dominant characteristic" as the depiction of the child's sexual organ or anal region. The same applies to the phrase "for a sexual purpose," which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers.

51     Family photos of naked children, viewed objectively, generally do not have as their "dominant characteristic" the depiction of a sexual organ or anal region "for a sexual purpose". Placing a photo in an album of sexual photos and adding a sexual caption could change its meaning such that its dominant characteristic or purpose becomes unmistakably sexual in the view of a reasonable objective observer: see R. v. Hurtubise, [1997] B.C.J. No. 40 (QL) (S.C.), at paras. 16-17. Absent evidence indicating a dominant prurient purpose, a photo of a child in the bath will not be caught. To secure a conviction the Crown must prove beyond a reasonable doubt that the "dominant characteristic" of the picture is a depiction of the sexual organ or anal region "for a sexual purpose". If there is a reasonable doubt, the accused must be acquitted.
5. "Sexual Organ"

52     Section 163.1(1)(a)(ii) catches static depictions for a sexual purpose of the "sexual organ" or "anal region" of a person under 18 years, provided this is the dominant characteristic of the representation. This raises the question of the meaning of "sexual organ".

53     Prudence suggests leaving the precise content of "sexual organ" to future case-law. However, no one suggests that s. 163.1(1)(a)(ii) was designed to catch depictions of eyes or lips. Parliament's purpose of targeting possession of material associated with a reasoned risk of harm to children suggests a restrained interpretation of "sexual organ" in subpara. (ii), similar to that discussed above with respect to subpara. (i).

54     The second category of child pornography caught by s. 163.1(1) is "any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act".

55     This section is more limited than the definition of visual pornography in s. 163.1(1)(a), which captures sexual "representations" of children. Section 163.1(1)(b) is confined to material relating to activity that would be a crime under the Criminal Code. Moreover, it is confined to material that "counsels" or "advocates" such crimes. On its face, it appears to be aimed at combating written and visual material that actively promotes the commission of sexual offences with children.

56     At stake is not whether the maker or possessor of the material intended to advocate or counsel the crime, but whether the material, viewed objectively, advocates or counsels the crime. "Advocate" is not defined in the Criminal Code. "Counsel" is dealt with only in connection with the counseling of an offence: s. 22 of the Criminal Code, where it is stated to include "procure, solicit and incite". "Counsel" can mean simply to advise; however in criminal law it has been given the stronger meaning of actively inducing: see R. v. Dionne (1987), 38 C.C.C. (3d) 171 (N.B.C.A.), at p. 180 per Ayles J.A. While s. 22 refers to a person's actions and s. 163.1(1)(b) refers to material, it seems reasonable to conclude that in order to meet the requirement of "advocates" or "counsels", the material, viewed objectively, must be seen as "actively inducing" or encouraging the described offences with children. Again, Parliament's purpose of capturing material causing a reasoned risk of harm to children may offer guidance. The mere description of the criminal act is not caught. Rather, the prohibition is against material that, viewed objectively, sends the message that sex with children can and should be pursued.

57     Without suggesting that the distinction is easy to apply in practice, a purposive approach appears to exclude many of the alleged examples of the law's overbreadth. For instance, works aimed at description and exploration of various aspects of life that incidentally touch on illegal acts with children are unlikely to be caught. While Nabokov's Lolita, Boccaccio's Decameron, and Plato's Symposium portray or discuss sexual activities with children, on an objective view they cannot be said to advocate or counsel such conduct in the sense of actively inducing or encouraging it. Nor would the section catch political advocacy for lowering the age of consent because such advocacy would not promote the commission of an offence but the amendment of the law. Likewise, an anthropological work discussing the sexual practices of adolescents in other cultures and describing such adolescents as well-adjusted and healthy would not be caught because it would be merely descriptive as opposed to advocating or counselling illegal acts. I note that in any event these examples would likely fall within the artistic merit, medical, educational, scientific, or public good defences, discussed below.

58     It must also be remembered that it is only the advocating or counselling of sexual activity with a person under the age of 18 that would be an offence under the Criminal Code that is captured by this part of the definition of child pornography. Many of the sexual offences in the Code apply only to sexual activity involving an individual under the age of 14. For instance, the offences of sexual interference (s. 151) and invitation to sexual touching (s. 152) apply only when individuals 13 or under are involved, unless the person doing the touching or inviting is in a position of trust or authority (s. 153). Advocating the consensual sexual touching of a 16-year-old is not an offence under s. 151 and therefore would not be caught by this part of the child pornography definition. However, advocating such touching by, for example, a teacher or hockey coach, is an offence and would be caught. Similarly, inviting a 14-year-old to consensually sexually touch another person is not an offence under s. 152 and would also not be caught (subject to the same position of trust or authority exception). Finally, advocating consensual vaginal intercourse with a 15-year-old is not an offence, as the age of consent is 14. Written materials or visual representations that advocate or counsel such acts of intercourse are therefore also not caught by s. 163.1(1)(b).

59     However, it must be observed that the provision is broad enough to capture written works created by the author alone, solely for his or her own eyes. For example, the law could arguably extend to a teenager's favourable diary account of a sexual encounter. The interpretations of "advocates or counsels" and the fact that the description must be of an unlawful act reduce the likelihood of this happening. Nevertheless, the possibility remains that a teenager's private account of a sexual encounter could be caught. This example, like that of a drawing made and kept exclusively by the accused, engages the value of private self-fulfilment and appears to pose little real risk of harm to children, rendering it constitutionally problematic.

60     In addition to limiting the ambit of the definition of child pornography, Parliament created a number of defences. In so doing, Parliament recognized that the law could unduly impinge on some of the values protected by the guarantee of free expression, like artistic creativity, education, medical research, or other public purposes, and sought to provide protection for activities furthering these values. The defences should be liberally construed with this purpose in mind.

61     Section 163.1(6) provides a defence for a representation or written material that constitutes child pornography if it has "artistic merit". Three issues arise regarding the ambit of this defence: (1) the meaning of "artistic merit"; (2) whether artistic works must conform to "community standards" in order to gain the protection of the defence; and (3) the procedure for considering the defence. When construing the defence of artistic merit, we must keep in mind the admonition of Sopinka J. in Butler, supra, at p. 486: "Artistic expression rests at the heart of freedom of expression values and any doubt in this regard must be resolved in favour of freedom of expression." Simply put, the defence must be construed broadly.

62     The first question is what the defence covers. It seems clear the defence must be established objectively, since Parliament cannot have intended a bare assertion of artistic merit to provide a defence. This leaves two possibilities. First, "artistic merit" may refer to the quality of the work in the opinion of objective observers. It is not uncommon in everyday discourse to say of a work of art that, although it is genuinely art, it possesses little or no "artistic merit". If "artistic merit" is used in this sense, then the task of the court would be to determine how good the work of art was. Art students learning their craft, inept artists and artists breaking conventions to establish new idioms might well find their work classified as lacking "artistic merit" and hence lose the benefit of the defence. On the assumption that this was the meaning of "artistic merit", it was argued that the defence is too limited and arbitrary to protect artistic expression adequately.

63     The second meaning that can be ascribed to "artistic merit" is "possessing the quality of art", or "artistic character". On this meaning, a person who produces art of any kind is protected, however crude or immature the result of the effort in the eyes of the objective beholder. This interpretation seems more consistent with what Parliament intended. It is hard to conceive of Parliament wishing to make criminality depend on the worth of the accused's art. It would be discriminatory and irrational to permit a good artist to escape criminality, while criminalizing less fashionable, less able or less conventional artists. Such an interpretation would run counter to the need to give the defence a broad and generous meaning. I conclude that "artistic merit" should be interpreted as including any expression that may reasonably be viewed as art. Any objectively established artistic value, however small, suffices to support the defence. Simply put, artists, so long as they are producing art, should not fear prosecution under s. 163.1(4).

64     What may reasonably be viewed as art is admittedly a difficult question -- one that philosophers have pondered through the ages. Although it is generally accepted that "art" includes the production, according to aesthetic principles, of works of the imagination, imitation or design (New Shorter Oxford Dictionary, Vol. 1, p. 120), the question of whether a particular drawing, film or text is art must be left to the trial judge to determine on the basis of a variety of factors. The subjective intention of the creator will be relevant, although it is unlikely to be conclusive. The form and content of the work may provide evidence as to whether it is art. Its connections with artistic conventions, traditions or styles may also be a factor. The opinion of experts on the subject may be helpful. Other factors, like the mode of production, display and distribution, may shed light on whether the depiction or writing possesses artistic value. It may be, as the case law develops, that the factors to be considered will be refined.

65     This brings me to the issue of whether the defence incorporates a community tolerance standard. In Ontario (Attorney General) v. Langer (1995), 123 D.L.R. (4th) 289 (Ont. Ct. (Gen. Div.)), McCombs J. interpreted s. 163.1(6) as importing a requirement that material, to have artistic merit, must comport with community standards in the sense of not posing a risk of harm to children. I am not persuaded that we should read a community standards qualification into the defence. To do so would involve reading in a qualification that Parliament has not stated. Further, reading in the qualification of conformity with community standards would run counter to the logic of the defence, namely that artistic merit outweighs any harm that might result from the sexual representations of children in the work. Most material caught by the definition of child pornography could pose a potential risk of harm to children. To restrict the artistic merit defence to material posing no risk of harm to children would defeat the purpose of the defence. Parliament clearly intended that some pornographic and possibly harmful works would escape prosecution on the basis of this defence; otherwise there is no need for it.

66     The third issue is how the artistic merit defence functions procedurally. The test, as mentioned, is objective. The wording of the section suggests that it functions in the same manner as other defences such as self defence, provocation or necessity. The accused raises the defence by pointing to facts capable of supporting it (generally something more than a bare assertion that the creator subjectively intended to create art), at which point the Crown must disprove the defence beyond a reasonable doubt: see Langer, supra.

67     I add this footnote. The statutory defence of artistic merit to a charge of possession of child pornography is conceptually different from the defence of artistic merit to a charge of obscenity under s. 163 of the Criminal Code. With respect to s. 163, the meaning of obscenity and the defence of artistic merit are largely judicial creations. It turns on whether the sexual portrayal is the dominant purpose of the work, on the one hand, or essential to a wider artistic purpose, on the other (the internal necessities test). It also asks whether the sexual aspect of the work, viewed in context, would meet community standards of tolerance. The definition of child pornography, by contrast, stands independent of the defence of artistic merit, making the language of "internal necessity" and the logic of "either obscenity or art" inapposite. For this reason, and with the greatest respect for the contrary view expressed by McCombs J. in Langer, supra, I do not find it incongruous to interpret the defence of artistic merit to the child pornography offences differently from that developed under the obscenity provisions.

68     Section 163.1(6) creates a defence for material that serves a medical, educational or scientific purpose. This refers to the purpose the material, viewed objectively, may serve, not the purpose for which the possessor actually holds it. How the material was produced or is possessed is obviously relevant to this determination. While arguably few medical, educational and scientific works would fall within s. 163.1(1), Parliament has made it clear that if they do, possession of them is legal. The procedural aspects of the defence of artistic merit would apply to this defence.

69     The defence of possession for medical, education and scientific purposes, like the other defences, should be interpreted liberally in accordance with Parliament's intent. On such an approach, possession of materials for therapeutic purposes might meet the requirements of the defence. This defence will apply in appropriate circumstances to sketches and stories penned in the process of self-analysis or a couple's record of their sexual conduct held for the purpose of furthering that relationship: J. Ross, "R. v. Sharpe and Private Possession of Child Pornography" (2000), 11 Constitutional Forum 50, at p. 57.

70     "Public good" has been interpreted as "necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest": J.F. Stephen, A Digest of the Criminal Law (9th ed. 1950), at p. 173, adopted in R. v. American News Co. (1957), 118 C.C.C. 152 (Ont. C.A.), at pp. 161-62, and R. v. Delorme (1973), 15 C.C.C. (2d) 350 (Que. C.A.), at pp. 358-59. The public good defence has received little interpretation in the obscenity context, and a precise definition of its ambit is beyond the scope of this appeal. Once again, a purposive interpretation would appear to be appropriate. Examples of possession of child pornography which could serve the public good include possession of child pornography by people in the justice system for purposes associated with prosecution, by researchers studying the effects of exposure to child pornography, and by those in possession of works addressing the political or philosophical aspects of child pornography. Again, the same procedure would apply as for the defence of artistic merit.

71     It might be argued that the public good is served by possession of materials that promote expressive or psychological well-being or enhance one's sexual identity in ways that do not involve harm to others. In some cases this might eliminate some of the more problematic applications of s. 163.1(4). For example, it might in certain cases foreclose the law's application to visual works created and privately held by one person alone, or to private recordings by adolescents of their lawful sexual activity. Nevertheless, the public good defence might not answer all concerns as to the law's breadth. Absent evidence of public good in the particular case, a person might still be convicted for possession of material that directly engages the value of self-fulfilment and presents little or no risk of harm to children. Thus, while the public good defence might prevent troubling applications of the law in certain cases, it would not do so in all.

72     Section 163.1(4) of the Criminal Code evinces a clear and unequivocal intention to protect children from the abuse and exploitation associated with child pornography. It criminalizes the possession of a substantial range of materials posing a risk of harm to children. Written material and visual representations advocating the commission of criminal offences against children is caught. Visual material depicting children engaged in explicit sexual activity is caught, as is material featuring, as a dominant characteristic, the sexual organ or anal region of a child for a sexual purpose. The reach of the proscription is further broadened by extending it to the depiction of both real and imaginary persons. As a result, the law appears to catch a substantial amount of material that endangers the welfare of children.

73     At the same time, the legislation recognises the importance of free expression and the danger of a sweeping criminal prohibition. It catches visual representations only where the sexual activity depicted is explicit, thus excluding kissing, hugging and other forms of casual intimacy. It targets visual materials only where they feature a sexual organ or anal region as a "dominant characteristic" for a "sexual purpose", precluding the application of the law to innocent baby-in-the-bath photos and other scenarios of non-sexual nudity. Writings are caught only where they actively advocate or counsel illegal sexual activity with persons under the age of 18. Complementing these limits inherent in the s. 163.1(1) definition are an array of defences aimed at enhancing the protection of free expression by excluding materials with redeeming social benefits. Works of art, even of dubious artistic value, are not caught at all. Materials created for an "educational, scientific or medical purpose", liberally construed, are also exempted. Finally, a public good defence, the precise scope of which remains to be determined, further protects the possession of materials serving a necessary or advantageous social function.

74     These exclusions support the earlier suggestion that Parliament's goal was to prohibit possession of child pornography that poses a reasoned risk of harm to children. The primary definition of "child pornography" does not embrace every kind of material that might conceivably pose a risk of harm to children, but appears rather to target blatantly pornographic material. Additionally, the defences exempt classes of material raising special free expression concerns. In this way, Parliament has attempted to meet the dual concerns of protecting children and protecting free expression.

75     Yet problems remain. The interpretation of the legislation suggested above reveals that the law may catch some material that particularly engages the value of self-fulfilment and poses little or no risk of harm to children. This material may be grouped in two classes. The first class consists of self-created, privately held expressive materials. Private journals, diaries, writings, drawings and other works of the imagination, created by oneself exclusively for oneself, may all trigger the s. 163.1(4) offence. The law, in its prohibition on the possession of such materials, reaches into a realm of exceedingly private expression, where s. 2(b) values may be particularly implicated and state intervention may be markedly more intrusive. Further, the risk of harm arising from the private creation and possession of such materials, while not eliminated altogether, is low.

76     The second class of material concerns privately created visual recordings of lawful sexual activity made by or depicting the person in possession and intended only for private use. Sexually explicit photographs taken by a teenager of him- or herself, and kept entirely in private, would fall within this class of materials. Another example would be a teenaged couple's private photographs of themselves engaged in lawful sexual activity. Possession of such materials may implicate the values of self-fulfilment and self-actualization, and therefore, like the material in the first category, reside near the heart of the s. 2(b) guarantee. And like the material in the first category, this material poses little risk of harm to children. It is privately created and intended only for personal use. It depicts only lawful sexual activity. Indeed, because the law reaches depictions of persons who are or appear to be under 18, the person or persons depicted may not even appear to be children.

77     These examples suggest that s. 163.1(4), at the margins of its application, prohibits deeply private forms of expression, in pursuit of materials that may pose no more than a nominal risk of harm to children. It is these potential applications that present the most significant concerns at the stage of justification.

78     Crown counsel has conceded that criminalizing possession of child pornography limits the right of free expression. The question we must answer is whether that limitation is reasonable and demonstrably justified in a free and democratic society. To justify the intrusion on free expression, the government must demonstrate, through evidence supplemented by common sense and inferential reasoning, that the law meets the test set out in R. v. Oakes, [1986] 1 S.C.R. 103, and refined in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877. The goal must be pressing and substantial, and the law enacted to achieve that goal must be proportionate in the sense of furthering the goal, being carefully tailored to avoid excessive impairment of the right, and productive of benefits that outweigh the detriment to freedom of expression.

79     Before we turn to these issues, we must consider the argument that prohibitions on private possession of child pornography can never be justified. Such laws, Southin J.A. asserted, constitute "the hallmark of tyranny" (para. 95). They represent such a fundamental intrusion on basic liberties that they can never be justified in a free and democratic society.

80     Section 1 of the Charter belies the suggestion that any Charter right is so absolute that limits on it can never be justified. The argument posits that some rights are so basic that they can never be limited as a matter of principle, precluding any evaluation under s. 1. This is both undesirable and unnecessary. It is undesirable because it raises the risk that laws that can be justified may be struck down on the basis of how they are characterized. It is unnecessary because s. 1 provides a basis for fair evaluation that upholds only those laws that do not unjustifiably erode basic liberties.

81     I conclude that the argument that limitations on possession of child pornography can never be justified as a matter of principle must be dismissed. We must conduct a detailed analysis of whether the law's intrusion on freedom of speech can be justified under s. 1 of the Charter.

82     I earlier concluded that Parliament's objective in passing s. 163.1(4) was to criminalize possession of child pornography that poses a reasoned risk of harm to children. This objective is pressing and substantial. Over and above the specific objectives of the law in reducing the direct exploitation of children, the law in a larger attitudinal sense asserts the value of children as a defence against the erosion of societal attitudes toward them. While the government in this case did not present attitudinal harm to society at large as a justification for the law's intrusion on the right of free expression, this may be seen as a good incidental to the law's main purpose -- the prevention of harm to children.

2     Is There Proportionality Between the Limitation on the Right and the Benefits of the law?

83     Parliament can prohibit possession of child pornography. The issue in this case is whether it has done so in a reasonable and proportionate manner having regard to the right of free expression.

84     As the first step in showing proportionality, the Crown must demonstrate that the law is likely to confer a benefit or is "rationally connected" to Parliament's g