Analysis:
A. Does s.163 CC violate FOE under section 2(b)? Yes
• meaning of expression need not be “redeeming” in the eyes of court to merit protection of s.2(b) whose purpose is to ensure that thoughts and feelings may be conveyed freely in non-violent ways without fear of censure
B. Is s.163 a limit prescribed by law? Yes
• “does the law provide an intelligible standard according to which the judiciary must do its work?”
I) P&SO? Yes
• harm caused by the proliferation of materials seriously offend the values fundamental to our society
II) Proportionality
• type of expression which is sought to be advanced does not stand on equal footing with other kinds of expression which directly engage “core” of FOE values
• Targeted material is expression which is motivated by economic profit
i) Rational Connection Yes
• Inconclusive social science evidence (Irwin Toy)
• Sufficient rational link b/w criminal sanction and objective to restrict negative societal influence of dissemination of materials
ii) Minimal Impairment Yes
• Not necessary that the legislative scheme be the “perfect” scheme, but that it be appropriately tailored in context of the infringed right (Irwin Toy – “least ambitious means”)
• Provision is designed to catch material that creates a risk of harm to society
• Materials which have scientific, artistic or literary merit are not captured by the provision
• Not subject to the PRIVATE use or viewing of obscene materials, it is only the PUBLIC distribution and exhibition of obscene materials at issue here
iii) Deleterious Effects Yes
• This kind of expression lies far from the CORE of FOE guarantee
• Appeals only to most base aspect of individual fulfillment, and is primarily economically motivated
• Legislative Objective is aimed at avoiding harm to society as a whole by the distribution of these materials (fundamental importance)
• Restriction on FOE does not outweigh the importance of the legislative objective
Sex and s.2b in 2001:
R. v. Sharpe [2001] SCC Criminalizing Possession
Facts: Sharpe charged under CC for possession of child porn; challenged CC section on basis that it violated his FOE; Crown conceded violation of s.2b but argued justified by s.1
Issue: Does Canada’s law banning possession of child pornography injustifiably intrude on the constitutional right to freedom of expression?
Holding: • Law strikes a constitutional balance between FOE and prevention of harm to children; constitutional except for two peripheral applications relating to expressive material privately created for personal use
• Two categories of material (self-created expressive, privately held materials; and private visual recordings of lawful sexual activity made by or depicting the persons in possession, intended only for private use) are READ IN as exceptions to definition of child porn in CC
• Possession of child porn is a form of expression protected by s.2b
• Criminalizing possession of child porn that posed reasoned risk of harm to children was P&SO
• Means chosen by gov’t were RC to this Objective
• Provision, however, did not constitute MI insofar as it applied to written material or visual recordings created by accused or held by the accused exclusively for personal use
Analysis:
Majority
McLachlin Values at stake: importance of FOE balanced against the countervailing societal interest in protecting children from the evils associated with possession of child porn
s.163.1(4) criminalizes: Possession of range of material posing risk of harm to children; incidentally catches forms of expression that seriously implicate self-fulfillment and do not pose risk of harm to children; Highly valuable/low risk categories (above)
A. Does CC provision against possession of child porn violates FOE under section 2(b)? Yes
• Possession of expressive materials is protected by s.2b
• FOE extends to even offensive speech
B. Section 1 Analysis:
I) P&SO? Yes
• Objective is to criminalize possession of child porn that poses a reasoned risk of harm (abuse and exploitation) to children by principally targeting clear forms of child pornography
• Incidental to the law’s main purpose in the reduction assertion of inherent value of children
II) Proportionality between the limitations of the right and the benefits of the law
i) Rational Connection (Is the law rationally connected to Parliament’s goal) Yes
• Parliament must show that possession of child porn (as opposed to its manufacture, distribution or use) causes harm to children
• No need for concrete scientific evidence (Butler);“reasoned apprehension of harm” is adequate
• Common Sense: Private use/viewing of child porn increases the risk of child abuse
ii) Minimal Impairment (Does the law impair the right of free expression only minimally) Yes
• Not necessary to show that Parliament adopted least restrictive means of achieving its end;
• Law must be reasonably tailored to its objectives
• Law must impair the right no more than reasonably necessary
• Legislation construed narrowly to avoid problems of overbreadth
iii) Deleterious Effects Yes and No
• Do the benefits the law may achieve in preventing harm to children outweigh the detrimental effects of the law on the right of free expression?
• Main impact of the law and the restrictions on FOE are outweighed by the risk of harm to children
• Two problematic categories are not justified
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