Key Cases

** This article, although about case law, also expresses the personal opinion of the author and not that of the Canadian Department of Justice or the NCECC. **

Brief Overview of Key Cases in Canada

By Nancy Leclair
Legal Counsel
Canadian Department of Justice

The problem of child pornography is not a new one; however, the last 10 years have seen major changes both in how child pornography is viewed, and in how our society has chosen to deal with the problem.

Canada has established responsive legislation to address the issue of child pornography. Against the backdrop of this legislation, there would inevitably be a challenge to the legislation. In Canada, the challenge came from a man called Robin Sharpe, in a very important case called Regina v. Sharpe.

Mr. Sharpe was charged for possession as well as possession for the purpose of distribution or sale. Robin Sharpe barely contested the charges of possession for the purpose of trafficking charges; however, he argued that the prohibition against mere possession of child pornography alone violated his guarantee under section 2(b) of our Canadian Charter of Rights and Freedoms to freedom of expression. He essentially argued that the law against simple possession should be struck down as it is unconstitutional to limit what he can possess.

His arguments were not taken lightly. This issue went to Supreme Court of Canada. Appearing before the Supreme Court were 15 different lawyers, including 13 interveners from provinces and different special interest groups.

During the trial, the Crown conceded that simple possession infringed the guarantee of freedom and expression. However, in Canada, if the Crown can prove that the limitation or legislation is justifiable, then the legislation can stand.

The Court also stated that the defences found in the act for educational, scientific, medial purposes, artistic merit and public good should be liberally construed.

The Court however found that any written material or visual representation created by the accused alone and held by the accused alone exclusively for his or her own us would be an exception to the offence. So, if Mr. Sharpe writes a story or draws a picture on his own for himself that contains child pornography, it would not be an offence under section 163.1.

This decision, for the most part, was viewed as a victory for those attempting to deal with the issue of child pornography. The prohibition on even simple possession of child pornography had been upheld.

The next case that left its mark on all Canadians with respect to child pornography is a sad one.

Now, it’s important to remember when considering this next case, that one of Robin Sharpe’s arguments had been that simple possession was innocuous – it didn’t hurt anyone if he was viewing it on his own. In fact, he argued that simple possession should not be an offence because that law would then be catching material that poses no harm to children because the links between possession of child pornography and harm to children are weak.

Holly Jones was a 10-year-old girl living in Toronto, Ontario visiting a friend. She had walked a friend home and returned by herself in daylight and only a few blocks from her house. In the time that it took her to walk home, she was picked up by a stranger off the street, brought back to his house, sexually assaulted and murdered in less than an hour.

Michael Briere was a 35-year-old software developer who lived between Holly’s home and the home of the friend she was visiting that day. He was unknown to the police and had no prior criminal record. After an investigation by police, he was charged with her assault and murder.

He plead guilty, and at his sentencing, this was his explanation:

248 He had fantasies about young girls, as he put it in his words “probably forever … for me, this concept of having relationships with a child has been there forever … it’s always been part of my life.”

249 He denied ever having had sexual involvement with any other children, but he acknowledged that he had downloaded child pornography material from sites on the Internet, both at home and at his workplace.

250 … it’s easy … you don’t need a degree … With time, and I don’t know how it is for other people, but for myself, I would say that, yes; viewing the material does motivate you to do other things. In my case, for sure. The more I saw, the more I longed for it in my heart. The more I wanted it. And that’s the one time where I actually tried to do it …

251 Mr. Briere also advised that he had been thinking about actually finding a young girl and taking her off the street for , as he put it, “maybe a year or two.”

253 He also confirmed that he had never before seen Holly; that he had never spoken to her via the Internet; that he never knew she existed.

So, legislatively, what has Canada done recently with respect to child pornography? A number of things:

• We have created a section on Internet luring – so for those who use the Internet to meet a child for sex, it is now an offence (Section 172.1(1)).

• We broadened the definition of child pornography which will include audio formats – that do not have to include a visual component.

• We have created a prohibition against advertising child pornography – punishable by a maximum penalty of 10 years.

• We have increased maximum penalties for some child pornography offences and introduced mandatory minimum sentences of imprisonment.

• We have restricted the availability of defences. In the Sharpe case, the Supreme Court said the defences had to be liberally construed. Legislatively, the Government has tried, within the bounds of the constitution to limit defences by requiring that any defence now meet the test of having both a legitimate purpose AND that the act does not pose an undue risk of harm to children.

• We have created a new offence of voyeurism – which prohibits secretly observing or recording a person who has a reasonable expectation of privacy where the person is nude or engaged in sexual activity.

• We have facilitated testimony by children as witnesses in proceedings – they can use screens, closed-circuit television, support persons to help them testify.

• We have changed our Canada Evident Act to allow children under 14 to give their evidence as long as they can respond to questions and promise to tell the truth, without competency hearing.

These new laws are intended to reinforce law enforcement tools and resources, and assist society in dealing with child pornography.

For more information on Canadian legislation, please visit www.parl.gc.ca/legisinfo/.