1. 111 CONSTITUTIONAL LAW 40 FREEDOM OF EXPRESSION IV: PORNOGRPHY, CHILD- PORNOGRAPHY AND SEXUALLY EXLICIT MATERIALS Shigenori Matsui

2. 222 INTRODUCTION Pornography Child pornography Sexually explicit materials for minors

3. 33 I Pornography Criminal Code 163. (1) Every one commits an offence who (a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever… (2) Every one commits an offence who knowingly, without lawful justification or excuse, (a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever…

4. 4 (8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. 4

5. 5 R. v. Butler [1992] 5

6. 6 “This type of material would, apparently, fail the community standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women. While the accuracy of this perception is not susceptible of exact proof, there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole… It would be reasonable to conclude that there is an appreciable risk of harm to society in the portrayal of such material.” 6

7. 7 “Pornography can be usefully divided into three categories: (1) explicit sex with violence, (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing, and (3) explicit sex without violence that is neither degrading nor dehumanizing. Violence in this context includes both actual physical violence and threats of physical violence. Relating these three categories to the terms of s. 163(8) of the Code, the first, explicit sex coupled with violence, is expressly mentioned. Sex coupled with crime, horror or cruelty will sometimes involve violence. Cruelty, for instance, will usually do so. But, even in the absence of violence, sex coupled with crime, horror or cruelty may fall within the second category. As for category (3), subject to the exception referred to below, it is not covered.” 7

8. 8 “In making this determination with respect to the three categories of pornography referred to above, the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.”

9. 9 “The subject matter of the materials in this case is clearly "physical", but this does not mean that the materials do not convey or attempt to convey meaning such that they are without expressive content… The form of activity in this case is the medium through which the meaning sought to be conveyed is expressed, namely, the film, magazine, written matter, or sexual gadget. There is nothing inherently violent in the vehicle of expression, and it accordingly does not fall outside the protected sphere of activity. In this case, both the purpose and effect of s. 163 are specifically to restrict the communication of certain types of materials based on their content. In my view, there is no doubt that s. 163 seeks to prohibit certain types of expressive activity and thereby infringes s. 2(b) of the Charter.”

10. 10 “The obscenity legislation and jurisprudence prior to the enactment of s. 163 were evidently concerned with prohibiting the "immoral influences" of obscene publications and safeguarding the morals of individuals into whose hands such works could fall. … In this sense, its dominant, if not exclusive, purpose was to advance a particular conception of morality. Any deviation from such morality was considered to be inherently undesirable, independently of any harm to society. I agree with Twaddle J.A. of the Court of Appeal that this particular objective is no longer defensible in view of the Charter. To impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms, which form the basis of our social contract.”

11. 11 “In my view, however, the overriding objective of s. 163 is not moral disapprobation but the avoidance of harm to society. I do not agree that to identify the objective of the impugned legislation as the prevention of harm to society, one must resort to the "shifting purpose" doctrine. First, the notions of moral corruption and harm to society are not distinct, as the appellant suggests, but are inextricably linked. It is moral corruption of a certain kind which leads to the detrimental effect on society. Second, and more importantly, I am of the view that with the enactment of s. 163, Parliament explicitly sought to address the harms which are linked to certain types of obscene materials. ”

12. 12 “This Court has thus recognized that the harm caused by the proliferation of materials which seriously offend the values fundamental to our society is a substantial concern which justifies restricting the otherwise full exercise of the freedom of expression. In my view, the harm sought to be avoided in the case of the dissemination of obscene materials is … if true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material. Materials portraying women as a class as objects for sexual exploitation and abuse have a negative impact on "the individual's sense of self ‑ worth and acceptance".”

13. 13 “In my view, the kind of expression which is sought to be advanced does not stand on an equal footing with other kinds of expression which directly engage the "core" of the freedom of expression values. This conclusion is further buttressed by the fact that the targeted material is expression which is motivated, in the overwhelming majority of cases, by economic profit.”

14. 14 “While a direct link between obscenity and harm to society may be difficult, if not impossible, to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs…. I am in agreement with Twaddle J.A. who expressed the view that Parliament was entitled to have a "reasoned apprehension of harm" resulting from the desensitization of individuals exposed to materials which depict violence, cruelty, and dehumanization in sexual relations. Accordingly, I am of the view that there is a sufficiently rational link between the criminal sanction, which demonstrates our community's disapproval of the dissemination of materials which potentially victimize women and which restricts the negative influence which such materials have on changes in attitudes and behaviour, and the objective.”

15. 15 “There are several factors which contribute to the finding that the provision minimally impairs the freedom which is infringed. First, the impugned provision does not proscribe sexually explicit erotica without violence that is not degrading or dehumanizing... Second, materials which have scientific, artistic or literary merit are not captured by the provision.. Third, in considering whether the provision minimally impairs the freedom in question, it is legitimate for the court to take into account Parliament's past abortive attempts to replace the definition with one that is more explicit…. Fourth, while the discussion in this appeal has been limited to the definition portion of s. 163, I would note that the impugned section, with the possible exception of subs. 1, which is not in issue here, has been held by this Court not to extend its reach to the private use or viewing of obscene materials….”

16. 16 “The infringement on freedom of expression is confined to a measure designed to prohibit the distribution of sexually explicit materials accompanied by violence, and those without violence that are degrading or dehumanizing. … this kind of expression lies far from the core of the guarantee of freedom of expression. It appeals only to the most base aspect of individual fulfilment, and it is primarily economically motivated. The objective of the legislation, on the other hand, is of fundamental importance in a free and democratic society. …. I therefore conclude that the restriction on freedom of expression does not outweigh the importance of the legislative objective.”

17. 17 Is the ban on publication of obscenity for the protection of sexual morality unconstitutional?

18. Compare with R. v. Labaye [2005]

19. Two general requirements emerge from this description of the harm required for criminal indecency. First, the words "formally recognize" suggest that the harm must be grounded in norms which our society has recognized in its Constitution or similar fundamental laws. This means that the inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its laws and institutions, has recognized as essential to its proper functioning. Second, the harm must be serious in degree. It must not only detract from proper societal functioning, but must be incompatible with it.

20. Three types of harm have thus far emerged from the jurisprudence as being capable of supporting a finding of indecency: (1) harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti-social conduct; and (3) harm to individuals participating in the conduct. Each of these types of harm is grounded in values recognized by our Constitution and similar fundamental laws. The list is not closed; other types of harm may be shown in the future to meet the standards for criminality established by Butler. But thus far, these are the types of harm recognized by the cases.

21. The first is the harm of public confrontation with unacceptable and inappropriate conduct. One reason for criminalizing indecent acts and displays is to protect the public from being confronted with acts and material that reduce their quality of life. Indecent acts are banned because they subject the public to unwanted confrontation with inappropriate conduct.

22. The second source of harm is based on the danger that the conduct or material may predispose others to commit anti-social acts. This source of harm is not confined to explicit invitations or exhortations to commit anti-social acts. As discussed in Butler, the inquiry embraces attitudinal harm. Conduct or material that perpetuates negative and demeaning images of humanity is likely to undermine respect for members of the targeted groups and hence to predispose others to act in an anti-social manner towards them. Such conduct may violate formally recognized societal norms, like the equality and dignity of all human beings, which is protected by the Canadian Charter of Rights and Freedoms and similar fundamental laws such as the provincial human rights codes.

23. A third source of harm is the risk of physical or psychological harm to individuals involved in the conduct at issue. If the harm is based on the threat to autonomy and liberty arising from unwanted confrontation by a particular kind of sexual conduct, for example, the Crown must establish a real risk that the way people live will be significantly and adversely affected by the conduct.

24. If the harm is based on predisposing others to anti-social behaviour, a real risk that the conduct will have this effect must be proved. Vague generalizations that the sexual conduct at issue will lead to attitudinal changes and hence anti-social behaviour will not suffice. The causal link between images of sexuality and anti-social behaviour cannot be assumed. Attitudes in themselves are not crimes, however deviant they may be or disgusting they may appear. What is required is proof of links, first between the sexual conduct at issue and the formation of negative attitudes, and second between those attitudes and real risk of anti-social behaviour. Similarly, if the harm is based on physical or psychological injury to participants, it must again be shown that the harm has occurred or that there is a real risk that this will occur.

25. Is prevention of anti-social acts different from protection of morality?

26. S. 163 used to be justified as a means to protect sexual morality and is still included in the Criminal Code as offences tending to corrupt morals. Are you persuaded that the purpose of s. 163 is now the protection of women against violence and degrading treatment?

27. Why not prohibiting all discriminatory speech against women? What is the significance of combination of sex and violence and sex and dehumanizing or degrading treatment?

28. Is the value of pornography so low?

29. The ban on immoral or indecent performance 167. (1) Every one commits an offence who, being the lessee, manager, agent or person in charge of a theatre, presents or gives or allows to be presented or given therein an immoral, indecent or obscene performance, entertainment or representation. (2) Every one commits an offence who takes part or appears as an actor, a performer or an assistant in any capacity, in an immoral, indecent or obscene performance, entertainment or representation in a theatre.

30. The ban on indecent acts and nudity 173. (1) Every one who wilfully does an indecent act (a) in a public place in the presence of one or more persons… is guilty of an offence punishable on summary conviction. 174. (1) Every one who, without lawful excuse, (a) is nude in a public place, or (b) is nude and exposed to public view while on private property, whether or not the property is his own, is guilty of an offence punishable on summary conviction.

31. 31 The ban on importation of obscene materials. Little Sisters Book and Art Emporium v. Canada [2000]

32. 32 Mens rea requirement R. v. Jorgensen, [1995]

33. 33 II Child Pornography Criminal Code 163.1 (1) In this section, “child pornography” means (a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (i) that shows 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, or (ii) 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 eighteen years;

34. 34 (b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act; (c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or (d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

35. 35 “(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of ninety days.”

36. 36 (3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of ninety days.

37. 37 (4) Every person who possesses any child pornography is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.

38. 38 (4.1) Every person who accesses any child pornography is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.

39. 39 R. v. Sharpe [2001]

40. 40 “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.”

41. 41 “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.”

42. 42 “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.”

43. 43 “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..”

44. 44 “The Crown argues that prohibiting possession of child pornography is linked to reducing the sexual abuse of children in five ways: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders; (3) prohibiting its possession assists law enforcement efforts to reduce the production, distribution and use that result in direct harm to children; (4) it is used for grooming and seducing victims; and (5) some child pornography is produced using real children. I conclude that the social science evidence adduced in this case, buttressed by experience and common sense, amply meets the Oakes requirement of a rational connection between the purpose of the law and the means adopted to effect this purpose.”

45. 45 “Mr. Sharpe argues that s. 163.1(4) fails the minimal impairment test because the legal definition of child pornography includes material posing no reasoned risk of harm to children. However, as discussed earlier, properly interpreted, the law catches much less material unrelated to harm to children than Mr. Sharpe suggests. … If these were the only grounds for concern arising from s. 163.1(4), I would have little difficulty concluding the provision is carefully tailored to its objective. ”

46. 46 “The fact remains, however, that the law may also capture the possession of material that one would not normally think of as "child pornography" and that raises 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.”

47. 47 “In the vast majority of the law's applications, the costs it imposes on freedom of expression are outweighed by the risk of harm to children. The Crown has met the burden of demonstrating that the possession of child pornography poses a reasoned apprehension of harm to children and that the goal of preventing such harm is pressing and substantial…. The Crown has also met the burden of showing that the law will benefit society by reducing the possibility of cognitive distortions, the use of pornography in grooming victims, and the abuse of children in the manufacture and continuing existence of this material….Thus we may conclude that in its main impact, s. 163.1(4) is proportionate and constitutional.”

48. 48 “However, the prohibition also captures in its sweep materials that arguably pose little or no risk to children, and that deeply implicate the freedoms guaranteed under s. 2(b). The ban, for example, extends to a teenager's sexually explicit recordings of him- or herself alone, or engaged in lawful sexual activity, held solely for personal use. It also reaches private materials, created by an individual exclusively for him- or herself, such as personal journals, writings, and drawings. It is in relation to these categories of materials that the costs of the prohibition are most pronounced. ”

49. 49 “I conclude that in broad impact and general application, the limits s. 163.1(4) imposes on free expression are justified by the protection the law affords children from exploitation and abuse. I cannot, however, arrive at the same conclusion in regard to the two problematic categories of materials described above…The inclusion of these peripheral materials in the law's prohibition trenches heavily on freedom of expression while adding little to the protection the law provides 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.”

50. 50 Is the ban on making and distribution of child pornography constitutional? What are the purposes of prohibiting child-pornography? Promote cognitive distortion Fuels fantasies that incite offenders Prohibition will assist law-enforcement efforts Used for grooming and seducing victims May be produced using real children: sexual exploitation of children

51. Is it permissible to ban child pornography using an adult model or computer graphic?

52. 52 Is the ban on possession of child pornography constitutional? What about the ban on access?

53. 53 Do you agree with the Supreme Court of Canada that in two situations suggested by the Court the punishment is unconstitutional?

54. 54 III Sexually Explicit Materials Is it permissible for the government to restrict the distribution of sexually explicit materials in order to protect the minors from exposure to them?