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R V Sharpe.docx

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Philosophy 2080
James Hildebrand

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R V SharpeMchlachlin majorityPossession of child porn is a form of expression protected by s 2brelated to the development of thought opinion and belief and expression as it allows us to understand the thought of others or consolidate our own thought thus it does violate s 2b of the charterIs it justified Oakes Test1 Objective Parliament was pursuing the pressing and substantial objective of criminalizing the possession of child porn because it poses a reasoned risk of harm to children 2 Proportionality a Rational connection oThe means chosen by parliament are rationally connected to this objectiveparliament is NOT required to adduce proof based on concrete evidence that the possession of child porn cause harm to childrenA REASONED APPREHENSION WILL SUFFICE oSeveral connections 1 Child porn promotes cognitive distortion2 Fuels fantasies that incite offenders to offend 3 Used for grooming and seducing victims 4 Children are abused in the production ocriminalizing possession may reduce the market for child porn and the abuse it involves b minimal impairment when properly interpreted the law catchers 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 consider child porn and that raise little harmrisk to children o1 Written or visual materials created and held by the accused alone exclusively for personal use o2 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 c reasonable limit in its main impact the law is proportionate and constitutional however the laws application to the two aforementioned classes while peripheral to its objective poses significant problems in proportionality othe restriction imposed regulates expression that borders on thought othe cost of prohibiting such materials to the right of free expression outweighs any tenuous benefit it might confer in preventing harm to children thus the law cannot be considered proportionate in its effects and the infringement on s 2b is not justified by s 1 Appropriate Remedy read in to the law an exclusion of the two classes the relation to the objective of parliament is most remote carving them out will not undermine the force of the law but will preserve the force of the statute while also recognizing the purposes of the charter while excluding the offending applications will not subvert parliaments objective striking down the statute altogether will 1it will be upheld on the basis that the definition of child porn should be read as though it contained an exception foro1 Any written material or visual representation created by the accused alone and held by the accused alone exclusively for own personal useo2 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 to the offence of making child porn but not to printing publishing or possessing child porn for the purpose of distributionpublicationthe exceptions will NOT be available where the person harbors any intention other than mere private possessionLHeureuxDube Minority although harmful the content of child porn cannot be the basis for excluding it from the scope of the s 2b guarantee no separate analysis under s 7 of the charter is required the only issue is whether the infringement of freedom of expression is justified by s 1an appraisal of the contextual factors in this case leads to the conclusion that the parliaments decision to prohibit child porn is entitled to an increased level of deference child porn is inherently harmful to childrenit 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 or susceptible to proof in the traditional manner the attitudinal harm inherent in child porn can be inferred from degrading o dehumanizing representations or treatment expression that degrades or dehumanizes is harmful in it self because it reinforces harmful attitudes possibility of dissemination heightens risk of attitudinal harm violation privacy rights od those depicted is an addition risk of harm from possibility of disseminationchild porn is harmful whether it violates real children or whether t is a product of the imagination the lack of scientific precision in the social science ev relating to attitudinal harm is not a valid reason for attenuating the courts deference to parliaments decisionimportance of protecting children is recognized both in criminal and civil lawuniversally accepted goalinternational law also as a from of expression child porn warrants less protection since it is low value expression that is far removed from the core values underlying the protection of freedom of expression parliament made a law that seeks to foster and protect equality rights of children and security of the person and privacy intereststhe importance of these cannot be ignored in the oakes test Parliament has a right to make moral judgments in criminalizing certain forms of conduct S 163 is a reasonable limit on freedom of expression Objectiveprotect children Proportionality Rationally connectedcognitive distortions fuels fantasiesoit is an integrated scheme which protects harms associated with child pornogroomingseducingoabuseexploitation in productionreduce market for this material minimal impairment 2
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