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Re Paintings, Drawings, and Photographic Slides of Paintings [by Eli Langer]

Between

Her Majesty the Queen, Applicant

and

Paintings, Drawings and Photographic Slides of Paintings [by Eli Langer]
seized on February 23, 1994 by virtue of a warrrant issued on February 23, 1994
pursuant to s.164 of the Criminal Code of Canada, Respondent

and

Canadians for Decency,
The Canadian Civil Liberties Association,
The Canadian Conference of the Arts,
and Pen Canada, Interveners

[1995] O.J. No. 1045
DRS 95-13511
Court File No. U219/94

Ontario Court of Justice (General Division)
McCombs J.

April 20, 1995
(73 pp.)

Criminal law -- Sexual offences, public morals, and disorderly conduct -- Public morals, obscenity -- Child pornography, distribution -- Defences -- Artistic merit -- Statutes -- Operation and effect -- Validity -- Reading down -- Freedom of speech or expression -- Limitations on -- What constitutes unreasonable search and seizure.

The court heard a forfeiture application which the Crown had brought under section 164 of the Criminal Code. All charges were dropped; in the forfeiture application, the things seized were treated as if they were the accused. The seized items consisted of paintings and drawings by an artist, L, dealing with sexual themes involving adults and children, taken by police from an art gallery where they had been on display. In the present hearing, the first issue was whether new law child pornography legislation was constitutional. If it was, the second issue would arise: whether the paintings and drawings had to be forfeited to the Crown.
Held: The application for forfeiture had to fail. L was entitled to the return of his paintings and drawings. The impugned provisions of the Criminal Code were not unconstitutional. However, the paintings and drawings were entitled to the defence of artistic merit. The statutory definition of child pornography in section 163.1(1) of the Criminal Code violated section 2(b) of the Canadian Charter of Rights and Freedoms but was saved by section 1. The court rejected the argument that section 163.1 was overbroad. While the legislation had a large scope, such a scope was required to ensure that the objectives of the legislation were addressed. The legislation did not exceed the boundaries of its legitimate objectives. The references to child pornography in section 164, the forfeiture provisions included the defence of artistic merit contained in section 163.1(6). Section 164 of the Criminal Code violated the right to be secure against unreasonable search and seizure by removing judicial discretion in the issuance of a warrant to seize alleged child pornography. This was also violated section 2(b) of the Charter in that it caused suppression of materials prior to trial. These breaches of sections 2 and 8 of the Charter could court would apply the remedy of reading down the section by substituting "may" for "shall".

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, ss. 1, 2(b), 8.
Criminal Code, ss. 163(1), 163(2), 163(3), 163(4), 163(5), 163(8), 163.1(1)(a)(i), 163.1(1)(a)(ii), 163.1(1)(b), 163.1(5), 163.1(6), 163.1(7), 164(1), 164(2), 164(3), 164(4), 164(5).
Income Tax Act, s. 231.3.

Counsel:

David Butt and James Hughes, for the applicant the Attorney General of Ontario.
Frank Addario and Paul Burstein, for the respondent.
Graham Reynolds, Q.C., for the intervener the Attorney General of Canada.
Peter R. Jervis, for the intervenor Canadians for Decency.
Sheila Block and Mark Gannage, for the intervenor Canadian Civil Liberties Association.
Kenneth D. Smith and Alan N. Young, for the intervenor Canadian Conference of the Arts.
Paul Bennett, for the intervenor Pen Canada.

INDEX

Part I -- INTRODUCTION

(a) Factual Background [1]
(b) The Basic Issues [4]
(c) The Forfeiture Hearing [6]
(d) The Parties [8]
(e) The "Artistic Merit" Defence [12]
(f) The Subject-Matter of the Seized Paintings and Drawings [13]
(g) Relevant Legislation [16]

Part II -- THE EVIDENCE

Part III -- THE CONSTITUTIONAL ISSUES

Part IV -- CONCLUSION [172]

Part V -- CONSTITUTIONAL QUESTIONS -- SUMMARY OF CONCLUSIONS [178]

Part I
INTRODUCTION

MCCOMBS J.:--

(a) Factual Background

[1]
On December 14, 1993, the Globe and Mail newspaper published an art critic's review under the headline, "Show Breaks Sex Taboo". The review concerned a showing of paintings and drawings dealing with sexual themes involving adults and children, which was on display at the Mercer Union Gallery in Toronto.

[2]
The review prompted a citizen to call police, and the resulting investigation led to the paintings and drawings being seized. The artist, Eli Langer, and the director of the Mercer Union Gallery were charged under both the obscenity provisions and the new child pornography provisions of the Criminal Code of Canada (the Code).

[3]
The Crown later withdrew the charges against the individuals, and proceeded instead with a forfeiture application under s.164, a seldom-used section of the Code. In explaining the decision to withdraw the charges and resort to a forfeiture application, the Crown described this as a test case, and cited the need for judicial interpretation of the new child pornography legislation without placing any individual in jeopardy of a criminal conviction.

(b) The Basic Issues

[4]
In this forfeiture hearing I must first decide whether the new law is constitutional, and if it is, whether the paintings and drawings must be forfeited to the Crown.

[5]
This test case involves a clash between two important societal interests: the fundamental freedom of expression, crucial to a free and democratic society, enshrined in the Charter of Rights and Freedoms, and society's legitimate concern for the protection of children, its most vulnerable group, from the life-long harm caused by sexual abuse.

(c) The Forfeiture Hearing

[6]
A forfeiture proceeding is like a criminal trial, except no person is charged. Instead, the things seized are treated as if they are the accused. The forfeiture provisions came into being in 1959, and until recently, dealt only with obscene material and hate literature. When the new child pornography legislation came into force, the forfeiture provisions were amended to include that material within its reach.

[7]
The forfeiture scheme requires the material to be forfeited to the Crown if it is child pornography within the meaning of the new s.163.1 of the Code. If it is not child pornography within the meaning of the section, then the artist is entitled to its return.

(d) The Parties

[8]
The scheme recognizes that the interests of the maker and the product are merged, and therefore, although Mr. Langer is no longer facing criminal charges, the law permits him to be represented by legal counsel in order to oppose the forfeiture application.

[9]
Counsel for Mr. Langer and the paintings and drawings have brought a motion challenging the constitutionality of the relevant legislation. The Crown is represented by the Attorney General of Ontario, and the Attorney General of Canada has also exercised his right to join in opposing the constitutional challenge.

[10]
I have also granted limited status to four groups as interveners. Each group was permitted to file written argument concerning the constitutional issues, and was given 15 minutes for oral argument. The groups are:
(i)
Canadian Civil Liberties Association;
(ii)
Canadian Conference of the Arts;
(iii)
Canadians for Decency; and
(iv)
PEN Canada.

[11]
I am grateful to all counsel, not only for their skilful presentation of the evidence, and their able and thoughtful submissions, but also for the very high quality of the written submissions which were filed with the court.

(e) The "Artistic Merit" Defence

[12]
Where the accused is charged, the new child pornography scheme requires the court to acquit if the material has artistic merit, or an educational, scientific or medical purpose. In this case, I must resolve three issues about the defence of artistic merit: Does the defence apply at a forfeiture hearing where there is no accused person? Does "artistic merit" have a specific legal meaning which includes considerations of standards of community tolerance based on the risk of harm? Finally, should the defence of artistic merit succeed in this case?

(f) The Subject-Matter of the Seized Paintings and Drawings

[13]
The material before me consists of 5 large oil paintings and 34 small pencil drawings. The drawings, from the artist's sketchbook, had been on display at the gallery. They were displayed along with the oil paintings to allow the viewer to gain insight into the thinking which led to the creation of the major work.

[14]
The 34 pencil drawings consist mainly of explicit depictions of children engaging in a variety of sexual activities. In some cases, an adult is shown lurking in the background, and as a whole, the subject-matter is deeply disturbing.

[15]
The oil paintings are also disturbing. Exhibit 50 shows a naked child with her head near the genital area of a naked elderly man. Exhibit 51 depicts a naked young girl defecating. Exhibit 52 depicts a young person and an adult under the covers of a bed. It is apparent that the adult is engaged in some sort of sexual activity with the child, who has a look of anguish on his/her face. Exhibit 53 depictsa naked young girl standing over an elderly man lying in bed. A drop of liquid is drooling from her mouth, and she has a look of sorrow on her face. Exhibit 54 depicts a naked man, apparently with an erection, lying on his back on a bed. Straddling his chest is a young girl, whose labia are clearly visible just inches from his face, which is turned to the side. A barely visible masked figure is entering through the window.

(g) Relevant Legislation

[16]
For convenience, I have reproduced, in edited form, some of the important provisions in the relevant legislation. I have highlighted words and phrases of particular relevance to this case:

The Child Pornography Provisions

s.163.1
(1)
In this section, "child pornography" means,
(a)
a ... representation ...
(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;
. . .
. . .
(5)
It is not a defence to a charge ... that the accused believed that a person shown .. was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.
(6)
Where the accused is charged ... the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.
(7)
Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to ... [child pornography].
The Obscenity Provisions
s.163.

(1)
Every one commits an offence who
(a)
makes ... or has in his possession for the purpose of publication, distribution, or circulation any obscene ... thing...
. . .
(2)
Every one commits an offence who ...
(a)
... exposes to public view ... any obscene ... thing;
. . .
(3)
No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.
(4)
For the purposes of this section, it is a question of law whether an act served the public good ... but it is a question of fact whether the acts did or did not extend beyond what served the public good.
(5)
For the purposes of this section, the motives of an accused are irrelevant.
. . .
(8)
For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex ... shall be deemed to be obscene.
The Forfeiture Provisions
s.164

(1)
A judge who is satisfied by information on oath that there are reasonable grounds for believing that ...
(b)
any representation or written material, copies of which are kept on premises within the jurisdiction of the court is child pornography within the meaning of s.163.1,
shall issue a warrant authorizing the seizure of the copies.
(2)
Within seven days of the issue of the warrant under subsection (1), the judge shall issue a summons to the occupier of the premises requiring him to appear before the court and show cause why the matter seized should not be forfeited to Her Majesty,
(3)
The owner and maker of the matter seized under section (1), and alleged to be ... child pornography, may appear and be represented in the proceedings in order to oppose the making of an order for the forfeiture of the matter.
(4)
If the court is satisfied that the publication, representation or written material referred to in subsection (1) is ... child pornography, it shall make an order declaring the matter forfeited to her Majesty ...
(5)
If the court is not satisfied that the publication, representation or written material referred to in subsection (1) is ... child pornography, it shall order that the matter be restored to the person from whom it was seized forthwith after the time for final appeal has expired.
The Charter Provisions

s.1
The Charter ... guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

s.2
Everyone has the following fundamental freedoms:
(b)
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

s.8
Everyone has the right to be secure against unreasonable search or seizure.

Part II
THE EVIDENCE

The witnesses

[17]
During the two-week hearing, I heard from 22 witnesses, and received 109 exhibits. The evidence dealt with, among others, the following themes:

[18]
The expert witnesses fell into three broad categories. First, there was a general category of expert witnesses, who gave relevant evidence touching on a variety of problems related to this case. For the Crown, Staff Sergeant Robert Matthews of the O.P.P. provided samples of the type of material produced by child pornographers; and Ontario Film Review Board member Eileen Winterwerb explained the board's classification system. For the defence, lecturer and social scientist Varda Burstyn provided insight into sexual expression in popular culture; artist and therapist Tasse Geldart provided insight into the ways in which survivors of sexual abuse, for therapeutic purposes, produce art depicting their suffering; and broadcasting executive and programmer Patrick Watson spoke of, among other things, the chilling effect that ambiguous, overbroad legislation has on the artistic community.

[19]
Second, there were the behavioral sciences experts. Crown witnesses in this category included psychiatrist Dr. Peter Collins, and psychologists Dr. Howard Barbaree, Dr. William Marshall, and Dr. Richard Berry. Defence experts in this category were psychologists Dr. Jonathan Freedman, and Dr. Ronald Langevin.

[20]
Finally, there were the art experts. These included noted Canadian artists Ronald Bloore, David Blackwood, Harold Feist, Doris McCarthy, and Michael Snow, as well as art historian Dennis Reid, art critic Christopher Hume, and gallery owner Avrom Isaacs.

The nature and extent of child pornography

[21]
Detective Matthews and other officers gave evidence about "NAMBLA" (the North-American Man-Boy Love Association), an organization which champions sexual relationships between adult men and young boys. It publishes a journal, a sample of which was introduced as exhibit 62 at this hearing. The publication panders to homosexual paedophiles. It contains pseudo-intellectual editorializing purporting to justify sexual relations between men and boys, and argues for the removal of societal taboos against such behaviour. It also panders to the prurient interests of its readers with photographs of young boys, and first-person accounts of sexual activity between men and boys.

[22]
As further examples of child pornography, the Crown also tendered an obscene collage depicting an unspeakably depraved fantasy involving a male adult and an infant (ex.72); a photograph of a pre-pubescent girl performing fellatio upon a male adult (ex.77); and an issue of an Amsterdam magazine called "Lolita Chick" (ex. 73), which editorializes about the virtues of paedophilia, and panders to the prurient interests of paedophiles with stories describing child sexual abuse, photos of young girls exposing their genitals, and a comic strip story which explicitly depicts the seduction and rape of a young girl by a male adult pretending to be her friend.

[23]
Some of the material is an actual photographic record of child sexual abuse, depicting children engaging in sexual activity with adults. Other material, such as exhibit 72 (the collage), and the comic strip found in ex. 73, the "Lolita Chick" publication, are images of children being abused which are the product of the depraved imagination of the maker.

[24]
The evidence shows that paedophiles fuel their sexual fantasies not only with explicit sexual images of children, but also with material that is not overtly sexual. Indeed, it appears that mainstream materials which are innocuous to the normal person, can be highly erotic to the paedophile.
[25]
Although sexually explicit material that panders to paedophiles is not widely distributed, the evidence satisfies me that the determined paedophile is able to get his hands on it, and as will be seen, uses it in ways that are harmful to children.

Does exposure to child pornography increase the danger that children will be sexually abused?

[26]
There is considerable controversy within the behavioral science community about the effects, if any, of child pornography upon behaviour. The main reason for the controversy appears to be that it is virtually impossible to conduct studies with sufficiently rigorous adherence to proper scientific method to produce statistically reliable results. After all, paedophiles are not anxious to identify themselves or to co-operate with researchers. The problems of small sample size, false reporting, interviewer distortion, and a myriad of other inherent difficulties, contribute to the difficulty of scientific study.

[27]
Dr. Jonathan Freedman and Dr. Ronald Langevin testified that there is no sound scientific basis for concluding that exposure to explicit depictions sexualizing children increases the likelihood of sexual abuse of children. However, although the evidence may not scientifically establish a clear link between child pornography and child sexual abuse, I accept the clinical opinions of experts Dr. Peter Collins, Dr. Howard Barbaree, and Dr. William Marshall, each of whom has extensive experience in treating sex offenders, that paedophiles are often highly motivated to get their hands on explicit child pornography, and to use it in ways that put children at risk.

[28]
The evil of child pornography lies not only in the fact that actual children are often used in its production, but also in the use to which it is put. Although behavioral scientists disagree about the reliability of scientific studies, there is general agreement among clinicians that some paedophiles use child pornography in ways that put children at risk. It is used to "reinforce cognitive distortions" (by rationalizing paedophilia as a normal sexual preference); to fuel their sexual fantasies (for example, through masturbation); and to "groom" children, by showing it to them in order to promote discussion of sexual matters and thereby persuade them that such activity is normal.

[29]
Because of the ways in which child pornography is used by paedophiles, the risk of harm is present whether or not real children are used in its creation. The sexually explicit comic strip found in ex. 73, the "Lolita Chick" publication, for example, which depicts the seduction and rape of a child, probably did not involve the use of a child in its production. However, possession of that material by a paedophile would give rise to the same risks as would child pornography in which real children were involved in its production. In either case, the risk is that the paedophile would use it to reinforce his cognitive distortions, fuel his fantasies, and perhaps show it to children to facilitate their exploitation.

Do the seized paintings and drawings pose a realistic risk of harm to children?

[30]
The three Crown behavioral experts, Drs. Collins, Barbaree, and Marshall, each expressed the opinion that the seized materials would be of interest to paedophiles, and would increase the risk that they would act on their fantasies. They each felt that the Langer paintings and drawings could reinforce a paedophile's perception that sex with children was not a bad thing. Dr. Barbaree suggested that although a normal person would see that the children depicted in the paintings are in distress, that fact would not likely be apparent to a paedophile.

[31]
Each of the Crown experts agreed that material that stimulates the arousal of paedophiles is on a continuum, with explicit motion pictures being more stimulating than still photos, which in turn are more potently arousing than less explicit depictions. To a paedophile, the more realistic and explicit the depiction, the greater the erotic stimulation.

[32]
Defence witness Dr. Ronald Langevin, also a respected clinician and academic, disagreed with the Crown experts about the likely effects of the Langer paintings and drawings. In his view, they are less likely than other visual depictions to be used to fuel the paedophile's fantasies, and lead to sexual acting out. His evidence was to the effect that concrete photographic depictions showing the genitalia are much more likely to be used by paedophiles to fuel their fantasies.

[33]
In Dr. Langevin's view, paedophiles would be more aroused by photographic images, even relatively innocuous mainstream advertising images such as children modelling swimwear or underwear, than they would by the seized paintings and drawings, which in his view have a frightening quality that would be disquieting to paedophiles.

Conclusion concerning the risk of harm posed by the Langer artwork

[34]
Having compared the paintings and drawings to the other types of child pornography which were filed as exhibits, and in light of the differing opinions of the experts concerning the risk posed by the Langer paintings and drawings, I am not satisfied that they pose a realistic risk of harm to children.

The meaning of the phrase "artistic merit" within the artistic community

[35]
I had the benefit of the evidence of several gifted and respected artists, who were called by both the Crown and the defence: Ronald Bloore, David Blackwood, Harold Peist, Michael Snow and Doris McCarthy. As well, I heard from three noted art experts: art historian Dennis Reid, art critic Christopher Hume, and gallery owner Avrom Isaacs. These witnesses gave evidence concerning the history of art, its value in furthering awareness and enlightenment, and society's often unwelcoming response to it. As well, each provided an opinion about the artistic community's definition of artistic merit, and about the quality of Mr. Langer's work.

[36]
Although the expert opinions differed in some respects, the consistent thread was that assessment of artistic merit is itself an art, requiring experience and sensitivity to the role and purpose of works of art. One role of art is to provide a different perspective, often giving rise to a necessity to provoke and confront the viewer. Art consequently has a tradition of often being the source of images which are disturbing to society.

[37]
The experts testified that although no precise definition of artistic merit is possible, many factors are relevant. The presence or absence of these factors and their interrelationship within the particular work is what ultimately determines whether it has artistic merit. Some of the factors are:
(a)
whether the artist acted with integrity;
(b)
whether the work has technical merit, for example in the use of light and colour to strengthen the power of the image or otherwise evoke a mood or convey the desired effect;
(c)
the complexity of the work, and whether the various aspects of the work such as colour and light are well integrated within the work;
(d)
the accessibility of the work to the viewer, that is, whether the work lets the viewer bring his or her personal experience to the viewing and to take something of value away from the viewing. Good art should disturb and provoke.

The opinion of the artistic community as to whether Mr. Langer's paintings and drawings have artistic merit

(a) The decision to show the Langer artwork at the Mercer Union Gallery

[38]
Moira Clark is an artist and teacher who was president of Mercer Union Gallery's 13-member board of directors at the time the Langer artwork was approved for showing. She testified that the board's mandate is to select contemporary Canadian art, and thereby to provide artists with an opportunity to showcase their work.

[39]
Ms. Clark testified that each year the gallery board receives about 300 submissions from artists, but mounts only about 15 shows. On the recommendation of the six-person main gallery committee, the Langer work was approved for showing by the gallery's board of directors.

(b) Expert opinion concerning the quality of Mr. Langer's work

[40]
With varying degrees of enthusiasm, each of the art experts described Mr. Langer's work as having artistic merit. At one end of the spectrum of enthusiasm, an expert said that while he did not think much of the paintings, he nevertheless thought they were works of art. At the other end of the spectrum of enthusiasm, Mr. Langer's work was described as "important, serious, and passionate"; and "of quality and significance".

(c) Conclusion of the artistic community concerning Mr. Langer's artwork

[41]
I prefer the view expressed by some of the experts that although the subject-matter of the paintings and drawings is shocking and disturbing, the work as a whole is presented in a condemnatory manner that is not intended to celebrate the subject-matter. In other words, the purpose of the work is not to condone child sexual abuse, but to lament the reality of it.

[42]
Moreover, I accept the uncontradicted evidence of the art experts that, in the view of the artistic community, Mr. Langer's work has artistic merit.

[43]
The presence of artistic merit is provided by statute to be an absolute defence to a charge involving child pornography. However, the mere fact that the artistic community regards the work as having artistic merit does not determine the issue. There remains the issue of whether the artistic merit defence applies at a forfeiture hearing. There also remains the important question as to whether the phrase "artistic merit" in the child pornography provisions means the same in law as it does to the artistic community, or whether it has a different legal meaning, requiring a consideration of community standards of tolerance based on the risk of harm to children.

[44]
These issues require awareness of the purpose of the legislation, as well as consideration of the law dealing with other forms of sexual expression. The issues are examined in detail later in this judgement.

Part III
THE CONSTITUTIONAL ISSUES

[45]
The following constitutional questions are raised by this case:
1.
Does s.163.1 infringe the fundamental freedom of expression guaranteed by s.2(b) of the Charter?

2.
If s.163.1 does infringe s.2(b) of the Charter, can the infringement be demonstrably justified under s.1 of the Charter as a reasonable limit prescribed by law?

3.
Does s.164, the forfeiture hearing provision, violate s.2(b) of the Charter, (a), by adopting s.163.1, and (b), by failing to import the defence of artistic merit?

4.
If s.164 does infringe s.2(b) of the Charter, can the infringement be demonstrably justified under s.1 of the Charter as a reasonable limit prescribed by law?

5.
Does s.164 violate the right to be secure against unreasonable search and seizure guaranteed by s.8 of the Charter by removing judicial discretion in the issuance of a warrant to seize alleged child pornography?

6.
Does s.164 infringe s.2(b) of the Charter by removing judicial discretion in the issuance of a warrant of seizure, thereby making pre-hearing suppression of freedom of expression mandatory?

7.
If the removal of judicial discretion in the issuance of a warrant violates either s.8 or s.2(b), can the violations be demonstrably justified under s.1 of the Charter?

8.
If there has been a violation of s.8 and/or s.2(b) which cannot be saved by s.1, can the legislation be saved by applying a constitutional remedy?

The First Step -- Interpretation of the Child Pornography Provisions

[46]
Before the constitutional issues can be resolved, it is appropriate to first determine the meaning of the new provisions. In approaching this task, any ambiguity or uncertainty should be resolved by reference to the meaning given to similar language in other sections of the Criminal Code. The child pornography provisions are new, but they are linked to the obscenity provisions, and their meaning should therefore be assessed by reference to the jurisprudence concerning the law of obscenity.

Differences between obscenity and child pornography legislation

[47]
There are two basic differences between the legislative schemes:

(1)
differences in the definitional approach

Parliament has defined obscene material broadly as material whose dominant characteristic is the undue exploitation of sex. In contrast, child pornography is specifically defined in detail within the statute.

(2)
differences in the approach to "artistic merit"

The obscenity provisions do not provide for a defence based on artistic merit. Instead, the courts have evolved a definition of obscenity which takes artistic merit into consideration. In contrast, the child pornography provisions explicitly provide for an absolute defence where the material has artistic merit.

[48]
In the decision of the Supreme Court of Canada in R. v. Butler, [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449, 11 C.R. (4th) 137, 70 C.C.C.(3d) 129, the Court upheld the constitutionality of the obscenity provisions. Sopinka J., writing for the majority, undertook a thorough review of the history of judicial attempts to arrive at a clear definition of obscenity. His analysis shows that the elusiveness of a workable definition of obscenity is partly due to the generality of the statutory definition.

[49]
With obscenity, Parliament left most of the definitional work to the courts, but in s.163.1, Parliament has specifically defined child pornography so as to encompass three types of material:
1. - s.163.1(1)(a)(i)
material showing a person who is the age of eighteen years who is or is depicted as being engaged in explicit sexual activity
2. - s.163.1(1)(a)(ii)
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
3. - s.163.1(1)(b)
material that advocates or counsels sexual activity with a person under eighteen that would be a criminal offence
[50]
The word "undue", which provides the foundation for the evolution of the definition of obscenity, is not found in the definition of child pornography contained in s.163.1.

Is the artistic merit defence in the child pornography provisions the same as the "artistic defence" in the obscenity provisions?

[51]
In both the child pornography provisions, and in the law of obscenity, the courts are required to consider artistic merit. In the case of obscenity law, the notion of artistic merit emerges from, and is bound up with, considerations of contemporary standards of community tolerance, based on the risk of harm to society.

[52]
Should obscenity and child pornography both have the same approach to the defence of artistic merit? An understanding of this issue requires a comparison of the obscenity law to the new child pornography legislation.

The "artistic defence" in the obscenity provisions

[53]
A review of the Butler obscenity case will help in comparing the artistic merit defence in the child pornography provisions with the "artistic defence" for obscenity. In Butler, the Supreme Court of Canada confirmed that in determining when the exploitation of sex becomes "undue", the courts should employ a "community standards" test. That test involves considering whether the national community would tolerate others seeing the material, on the basis of the risk and degree of harm caused by predisposing people to act in an anti-social manner.

[54]
The Court held that pornography could be usefully divided into three types:
(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.
[55]
The Court held that the first type of pornography, explicit sex with violence, would almost always exceed standards of community tolerance as an undue exploitation of sex, while the second type of pornography, explicit sex without violence which was degrading and dehumanizing, might constitute the undue exploitation of sex if the risk of harm was substantial. Finally, the Court held that sex which was merely explicit would not qualify as the "undue exploitation of sex" unless it employed children in its production.

[56]
The Court held, at pp. 150-151 (C.C.C.), that the determination of whether a depiction would cause harm:
is not ... susceptible of proof in the traditional way, and because we do not wish to leave it to the individual tastes of judges, we must have a norm that will serve as an arbiter in determining what amounts to an undue exploitation of sex. That arbiter is the community as a whole.

The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an antisocial manner... Antisocial conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm the lesser the likelihood of tolerance. The inference may be drawn from the material itself or from the material and other evidence. Similarly evidence as to the community standards is desirable but not essential. [emphasis added]

[57]
The Supreme Court went on to discuss the "artistic defence". Sopinka J. referred with approval to the Court's earlier ruling in the Lady Chatterley's Lover case, R. v. Brodie, [1962] S.C.R. 681, 32 D.L.R. (2d) 507, 37 C.R. 120, 132 C.C.C. 161 (S.C.C.). In that case, in holding that the novel was not obscene, Judson J. had applied a test of artistic merit:
the serious-minded author must have freedom in the production of a work of genuine artistic and literary merit and the quality of the work ... must have real relevance in determining not only a dominant characteristic but also whether there is undue exploitation.
[58]
In Butler, the Court held that if a work contains sexually explicit material which constitutes the "undue exploitation of sex" using the community standards test, the trier must then consider whether that is the dominant theme of the work as a whole. In this second test, the trier must apply the "internal necessities", or "artistic defence" test, to determine whether the national community would tolerate others being exposed to the sexually explicit material contained in the work in view of a number of factors, including the maker's artistic purpose, and the manner and degree of skill exhibited in the portrayal. If the trier concludes that the community would not tolerate others being exposed to such material viewed in the context of these factors, then the material is obscene within the meaning of s.163 of the Code. If there is a reasonable doubt as to whether the community would tolerate it, then the material is not obscene. The presence of artistic merit does not, however, necessarily guarantee acquittal [See: R. v. Brodie, supra; R. v. Metro News Ltd. (1986), 32 D.L.R. (4th) 321, 56 O.R. (2d) 321, 53 C.R. (3d) 289, 29 C.C.C. (3d) 35 (Ont.C.A.), at 73-74 (C.C.C.)].

[59]
The Butler case shows that in the obscenity provisions, artistic merit is not, strictly speaking, a true defence, but rather it is a factor whose presence may negate one of the essential elements of the offence. The approach to the defence of artistic merit in the child pornography provisions, however, is conceptually different. With child pornography, artistic merit is a statutory defence. Unlike with the obscenity law, its presence does not negate proof of an essential element of the offence. Instead, it provides a justification or excuse which mandates acquittal by excusing material that would otherwise be child pornography within the meaning of s.163.1.

[60]
Although a distinction exists between the approach to artistic merit in the obscenity provisions and in the child pornography provisions, it is merely a conceptual distinction without a practical difference, as was pointed out in another context by Dickson, C.J.C. in R. v. Holmes, [1988] 1 S.C.R. 914, 50 D.L.R. (4th) 680, 64 C.R. (3d) 97, 41 C.C.C. (3d) 497 (S.C.C.), at 513 (C.C.C.):
The common law has not distinguished in this area between defences that challenge the existence of a necessary element of the offence and those defences that admit the mens rea and actus reus but avoid liability because of circumstances that excuse or justify the conduct.
[61]
It can be seen, therefore, that if there is a difference in approach to the artistic merit defence for obscenity and the artistic merit defence for child pornography, it rests on a conceptual distinction which is of no practical consequence.

Should the defence of artistic merit in the child pornography scheme involve considerations of contemporary standards of community tolerance?

[62]
It has been argued that the community standards test applicable to the law of obscenity arises from its definition based upon the requirement of undueness, and that since no similar notion has found its way into the definition of child pornography, community standards of tolerance should be irrelevant in that context.

[63]
Further, the respondent submits that it is inappropriate to graft notions of community standards of tolerance onto the artistic merit defence in s.163.1(6). The respondent argues that if material meets the artistic community's definition of artistic merit, an acquittal is mandatory.

[64]
With respect, I cannot agree with an interpretation of the defence of artistic merit which ignores standards of community tolerance for the reasons which are set out below:

1. The purpose of the child pornography provisions is to protect children from harm --- harm must be measured with reference to community standards

[65]
The central purpose of the obscenity legislation was said in Butler, supra, and reaffirmed in R. v. Hawkins (1993), 15 O.R. (3d) 549, 26 C.R. (4th) 75, 20 C.R.R. (2d) 362, 86 C.C.C. (3d) 246 (Ont. C.A.), to be the protection of society from harm. The purpose of the new child pornography legislation is the same: to protect children, society's most vulnerable members, from the harm caused by the evil of child pornography.

[66]
In Butler, Sopinka J., held that deciding whether a particular allegedly obscene depiction causes societal harm should not be left to the individual tastes of judges, but should be determined by reference to community standards of tolerance. The greater the risk of harm, the lesser the likelihood of tolerance.

[67]
In my view, it would be incongruous to measure harm with reference to community standards of tolerance when dealing with obscenity, and yet ignore those same standards when dealing with child pornography.

2. Community standards test is not restricted to obscenity law

[68]
The community standards of tolerance test is not restricted to the law of obscenity, but applies as well to other offences involving sexual expression. In 1977, Laskin, C.J.C., in R. v. Dechow, [1978] 1 S.C.R. 951, (1977) 40 C.R.N.S. 129, 35 C.C.C.(2d) 22 (S.C.C.), suggested that it should be applied to other offences revolving around "sex considerations". He held, at p. 30 (C.C.C.), that:
I am not only satisfied to regard s.159(8) [now s.163(8)] as prescribing an exhaustive test of obscenity in respect of a publication which has sex as a theme or characteristic but I am also of the opinion that this court should apply that test in respect of other provisions of the Code such as ss. 163 and 164 [now ss. 167 and 168] in cases in which the allegation of obscenity revolves around sex considerations. [Emphasis added]
[69]
Since then, courts have clarified what the Chief Justice said in Dechow and it is now well-established that the community standards test applies to allegations revolving around sexual matters where obscenity is not alleged, but where the issue is whether a particular act is "indecent", or "immoral". [See, for example: R. v. Tremblay et al, [1993] 2 S.C.R. 932, 106 D.L.R. (4th) 413, 23 C.R. (4th) 98, 84 C.C.C.(3d) 97 (S.C.C.), per: Cory J. at p. 115 (C.C.C.); R. v. Giambalvo (1982), 39 O.R. (2d) 588, 70 C.C.C.(2d) 324 (Ont.C.A.), per: Martin J.A. at 330 (C.C.C.).]

[70]
Again, it would be incongruous if other criminal offences involving sexual expression were measured with reference to contemporary standards of community tolerance, while the child pornography provisions are left to ignore those standards.

3. Some of the language in the child pornography scheme parallels language in the law of obscenity.

[71]
Some of the language contained in the child pornography scheme suggests that Parliament intended to borrow from the obscenity law. For example:
(i)
In s.163.1(1)(a)(ii), the phrase "dominant characteristic" is used. That phrase is contained in the obscenity provisions and is a component of the community standards test.
(ii)
In s.163.1(1)(a)(i), the phrase "explicit sexual activity" is used. This notion is clearly borrowed from Butler, in which the court discussed types of explicit sexual activity in the context of a discussion of the community standards of tolerance test.
(iii)
The child pornography scheme expressly imports some of the provisions contained in the obscenity section. s.163.1(7) expressly provides that subsections (3) to (5) of s.163, the obscenity section, apply to the child pornography provisions.

Conclusion concerning the applicability of community standards of tolerance to the defence of artistic merit

[72]
If the artistic merit defence were to be assessed without reference to a community tolerance test based on harm, the result would be that if a scintilla of artistic merit were present, even the most harmful depictions would be excused. That could not have been the intention of Parliament.

[73]
There are strong policy grounds for requiring a community standards test based on harm when weighing a defence based on artistic merit. As I have already observed, the purpose of the legislative scheme is to protect children from harm. To read the entire child pornography scheme as excluding considerations of standards of community tolerance based on the risk of harm would be to rob it of its very reason for existing. Therefore I conclude, both on policy grounds, and on grounds of consistency of interpretation with other criminal offences involving sexual expression, that the legal meaning of "artistic merit", as it is used in s.163.1(6), is the same as in the law of obscenity. The test requires that the depiction, taken as a whole, having regard to its wider purpose and the degree of risk of harm, does not exceed contemporary standards of community tolerance.

How should the phrase "artistic merit" be defined?

(i) The legal meaning of "artistic merit"

[74]
For convenience, I reproduce part of s.163.1(6):
... the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.
[75]
The wording of subsection (6) indicates that Parliament has distinguished between artistic "merit", and educational, scientific or medical "purpose". It can be seen that Parliament has imposed an objective "merit" requirement for a successful defence of artwork, instead of a subjective "purpose" requirement for a successful defence of educational, scientific, or medical work.

[76]
This objective standard of artistic merit must be negatived by the Crown beyond a reasonable doubt before criminal sanctions may be imposed. The requirement of an objective standard means that the creator must not only have had an artistic purpose, but also have Produced something with actual artistic merit.

[77]
It is argued that this provision is unfair because it potentially punishes the sincere but failed artist. Moreover, it has been submitted that by making a community standards of tolerance test a component of an objective artistic merit defence, the unfairness is compounded because it makes the artistic merit standard even more difficult to meet.

[78]
I am sympathetic to this argument, because for artistic expression to flourish, artists must be free to test the limits, to provoke and challenge, and of course, to fail. But in the end, society's interest in protecting its children is paramount, and where the safety of children is concerned, community standards of tolerance based on the risk of harm are more important than freedom of expression, no matter how "fundamental" that freedom may be to a free and democratic society.

[79]
The limits of the artistic merit defence will doubtless be repeatedly examined in future cases. The task of the courts will be to refine the legal definition of the defence, following the guiding principles in Butler, which seek to respect artistic freedom, while at the same time drawing the line at depictions which are so harmful that they exceed standards of community tolerance.

[80]
In my view, the following are some of the factors which should guide the courts in developing a legal standard for the defence based on artistic merit:
(a)
The word "merit", suggests that the subjective intention of the artist is not the test. "Merit" implies the application of standards by someone other than the artist who created the work.
(b)
The word "artistic" encompasses work that is not only sincerely created, but also skilfully and sensitively produced.
(c)
Judges should not become art critics, or otherwise attempt to impose their tastes. On the other hand, the views of the artistic community are highly relevant and if favourable, usually will determine the issue in favour of the accused. Therefore, although not determinative, such factors as the purpose and integrity of the artist, as well as the technical merit of the work are significant considerations.
(d)
In order for a work to have artistic merit in the legal sense, it must potentially provide something of value to the viewer. The greater the risk of harm to children, the less the value of the work.
(e)
In the rare circumstance where a depiction has merit in the view of the artistic community, but nevertheless creates a strong risk of harm to children, in the sense of predisposing people to act in an anti-social manner, then the work would exceed standards of community tolerance, and the defence based on artistic merit would fail.
(f)
Finally, the issue of artistic merit should be considered with Sopinka J's observations in mind:
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. [see Butler, supra, at p. 151 (C.C.C.).]

Constitutional Issue #1 - Does s. 163.1 infringe the fundamental freedom of expression guaranteed by s. 2(b) of the Charter?

[81]
The first question is whether the legislation under attack is an attempt to regulate expression that is protected under s. 2(b) of the Charter. If it does fall within its scope of protection, then the question becomes whether the legislation is saved as a reasonable limitation under s.1 of the Charter.

[82]
The general rule is that if a particular law has either the purpose or effect of restricting the content of expression, then the fundamental freedom of expression protected by s.2 (b) of the Charter has been infringed. [See: Reference re: ss. 193 and 195.1(1) (c) of the Criminal Code, [1990] 1 S.C.R. 1123, 77 C.R. (3d) 1, 56 C.C.C.(3d) 65 (S.C.C.), per: Lamer, J. at 112-3 (C.C.C.).]

[83]
Because of the importance of freedom of expression to a free and democratic society, it has been enshrined in s.2(b) of the Charter as a "fundamental" freedom, and has been given a very wide scope by the courts. It is trite to observe that there is no need for constitutional protection of popular, or mainstream, expression. Instead, the provision is there to protect unpopular, offensive expression.

[84]
As long as the content is expressive or attempts to convey a meaning, however offensive it may be, it is presumptively protected by s.2(b). In R. v. Keegstra, [1990] 3 S.C.R. 697, 1 C.R. (4th) 129, 3 C.R.R. (2d) 193, 61 C.C.C. (3d) 1, in which the Supreme Court of Canada dealt with the constitutionality of the hate propaganda provisions of the Criminal Code, McLachlin, J. said this (at p. 97 (C.C.C.)):
... the content of a statement cannot deprive it of the protection accorded by s.2(b), no matter how offensive it may be. The content of Mr. Keegstra's statements was offensive and demeaning in the extreme; nevertheless, on the principles affirmed by this court, that alone would appear not to deprive them of the protection guaranteed by the Charter.
[85]
Despite its wide scope, however, not all expressions or attempts to convey meaning are protected by s.2(b). Where the expression or meaning is conveyed by means of violence, (such as vandalism or assault as a means of expressing political dissent), the Charter will not protect it, because violence "is inimical to the rule of law on which all rights and freedoms depend". [see: McLachlin, J., in R.v. Keegstra, supra, at p. 98 (C.C.C.); Irwin Toy v. A.G. Quebec, [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577, 39 C.R.R. 193 (S.C.C), per: Dickson, C.J.C. at p. 229 (C.R.R.); and Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174, 25 C.R.R. 321 (S.C.C.), per: McIntyre J. at 332 (C.R.R.).]

[86]
In Keegstra, supra, the Chief Justice of Canada explained the exception for violent expression, at p. 26 (C.C.C.):
... all activities are considered expression for the purposes of s.2(b); the content of expression is irrelevant in determining the scope of this Charter provision. ... [however] ... an exception has been created where meaning is created directly via physical violence, the extreme repugnance of this form to free expression values justifying such an extraordinary step.
[87]
Clearly, the impugned child pornography provisions seek to regulate expressive activity, and therefore would constitute an infringement of the freedom of expression protected by s.2(b) of the Charter, unless the expression sought to be regulated falls outside its scope.

[88]
It has been argued that child pornography is not a form of expression which is protected by s.2(b) because child sexual abuse is an inherently harmful and violent activity. I agree that child sexual abuse is an act of violence. If the child pornography legislation sought to restrict only depictions of actual children involved in sexual activity with adults in circumstances where the activity itself constitutes a crime, then it would prohibit only expression which is conveyed directly via violence, and would not be within the scope of protection of s.2(b) of the Charter. However, the legislation under scrutiny reaches well beyond the proscription of depictions of actual child sexual abuse (a violent act), to proscribe other depictions which are not directly violent, such as:

[89]
It can be seen that the legislation seeks to reach beyond expressions of child sexuality involving direct violence in the form of actual child sexual abuse.

[90]
The Crown submits that the determination of whether the child pornography legislation violates s.2(b) of the Charter must now be assessed in light of Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193, 84 B.C.L.R. (2d) 1, in which the Supreme Court of Canada unanimously held that restrictions on religious communication between a parent and child do not, if such restrictions are in the best interests of the child, violate s.2(b) Charter rights. In my view, the decisions of the Supreme Court of Canada in Young v. Young, supra, and in the recent case of R.B. v. Children's Aid Society of Metropolitan Toronto, (unreported, released January 27, 1995) (S.C.C.), should not be taken as a departure from the well-established principles repeatedly enunciated by the Supreme Court of Canada in decisions such as Irwin Toy, supra, Keegstra, supra, and Butler, supra. In my view, I remain bound by the rule as stated by Lamer, J. in Reference re: ss. 193 and 195.1(1)(c) of the Criminal Code, supra, at p. 111 (C.C.C.):
... a law that makes it an offence to convey a meaning or message, however distasteful or unpopular, through a traditional form of expression like the written or spoken word or art must be viewed as a restriction on freedom of expression, and must be justified, if possible, by s.1 of the Charter.
[91]
I conclude that the statutory definition of child pornography in s.163.1(1) which is referred to in s.164(1)(b) and (4) violates s.2(b) of the Charter. Accordingly, if the legislation is to meet constitutional requirements, it must be justified as a reasonable limitation on freedom of expression under s.1 of the Charter.

Constitutional Issue #2 - Can the violation of s.2(b) be demonstrably justified under s.1 of the Charter as a reasonable limit prescribed by law?

The s.1 Test

[92]
In R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 50 C.R.(3d) 1, 24 C.C.C. (3d) 321 (S.C.C.), Dickson J. held, at pp. 348-349 (C.C.C.), that to be saved as a reasonable limitation under s.1, a law which limits a fundamental freedom must meet the following criteria:
(a)
it must be prescribed by law (that is, it must not be so vague that it fails to provide an intelligible standard for discussion):
(b)
it must have legislative objectives which are pressing and substantial in a free and democratic society, and which are sufficient to warrant overriding a constitutionally protected right; and
(c)
the means used must be proportional or appropriate. In assessing this proportionality the court must weigh three factors:
(i)
whether the measure is carefully designed to achieve the objective without being arbitrary, unfair or based on irrational considerations. This is often called the "rational connection" test;
(ii)
whether the means chosen impair the freedom in question as little as possible, having regard to the context and surrounding circumstances (the "minimal impairment" test); and
(iii)
whether there is proportionality between the effects of the measures and the identified object (the "proportionality" test).
[93]
The onus rests upon the Crown, as the party seeking to uphold the law, to justify on a balance of probabilities by cogent and persuasive evidence that the legislation meets s.1 criteria: R. v. Oakes, supra, per: Dickson, C.J.C. at 346-7 (C.C.C.). Moreover, in undertaking the s.1 analysis, a court must take the facts of the case into account, in order to properly evaluate both the right or freedom at stake and the relevant aspects of the values in competition with it: R. v. Keegstra, supra. With these general comments in mind, I turn to the s.1 analysis.

(A) "Prescribed by Law" -- Vagueness

[94]
People are entitled to know what a law means. If the law is too vague, people will not know how to comply with it, and police will not have enough information to ensure appropriate enforcement. A law that is too vague is not "prescribed by law", and so cannot be saved by s.1.

[95]
A law will be void for vagueness if it is not expressed in sufficiently clear terms to permit a determination of its parameters. If it fails to provide an intelligible standard because it is so lacking in precision that it makes clear legal debate impossible, then it will be void for vagueness: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36, 15 C.R. (4th) 1, 74 C.C.C. (3d) 289 (S.C.C.), per Gonthier J. at 310-11 (C.C.C.); R. v Morales, [1992] 3 S.C.R. 711, 17 C.R. (4th) 74, 77 C.C.C. (3d) 91 (S.C.C.), per: Lamer C.J.C. at 99-100 (C.C.C.).

[96]
Vagueness is not to be confused with the notion of overbreadth, which deals with the question whether legislation is drafted so widely that it catches more conduct than is constitutionally permissible: Committee for Commonwealth of Canada, [1991] 1 S.C.R. 139, 77 D.L.R. (4th) 385, 4 C.R.R. (2d) 60 (S.C.C.), per: L'Heureux-Dube J, at 110-11 (C.R.R.). The issue of overbreadth will be considered later in the discussion of the issue of proportionality.

[97]
The doctrine of vagueness is derived from the principles of fair notice to citizens and limitation of the extent of the discretion given to law enforcement officials. With respect to expression, the rationale for invalidating statutes that are vague is that they have a chilling effect on legitimate speech because individuals are unable to tell whether their speech falls within the statute or not: R. v. Nova Scotia Pharmaceuticals, supra, at 311 (C.C.C.); R. v. Keegstra, supra, per: McLachlin J., dissenting, at 90 (C.C.C.).

[98]
It has been submitted that the child pornography provisions are unconstitutionally vague because the language used makes it impossible to stay within the law. Phrases found in the legislative scheme such as: "who is or is depicted as being under the age of eighteen years"; "explicit sexual activity"; "for a sexual purpose"; and "artistic merit", are said to be so vague that it is impossible to know if the law is being complied with.

[99]
The Supreme Court of Canada has repeatedly indicated a reluctance to find a law unconstitutional on the grounds that it is so vague so as not to qualify as "law", preferring to defer the question for assessment when applying the "minimal impairment" test: Canada (Canadian Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, 75 D.L.R. (4th) 577, 3 C.R.R. (2d) 116, (S.C.C.) at 621-622 (D.L.R.); Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, 82 D.1.R. (4th) 321, 125 M.R. 241, 4 C.R.R. (2d) 30 (S.C.C.), at 46 (C.R.R.) and R. v. Nova Scotia Pharmaceuticals, supra, at 302 (C.C.C.).

[100]
The threshold for a finding of vagueness is relatively high: Young v. Young, supra, per: L'Heureux-Dube J. at 238 (D.L.R.). In assessing whether a law prescribes an intelligible standard, the Supreme Court has held that courts must consider: (1) the manner in which courts have previously interpreted the provision: R. v. Butler, supra at 155 (C.C.C.); or (2) whether the courts can give clear content to new provisions.

[101]
In my view, none of the language in the child pornography provisions is so lacking in precision that it makes clear legal debate impossible. The difficulties in interpretation and application can be resolved by the courts on a case-by-case basis, so that clear definitional lines may be drawn over time.

(B) Pressing and Substantial

[102]
This issue, as I have already observed, involves a consideration of whether the child pornography scheme has legislative objectives which are sufficiently important to warrant overriding the constitutionally protected guarantee of freedom of expression.

[103]
The legislation has three objectives:
(1)
protecting children from the sexual abuse that takes place when some types of child pornography is produced;
(2)
protecting children, who have been sexually abused in the making of child pornography, from being further exploited by the circulation of a film or photographic record of their sexual abuse; and
(3)
protecting all children from the harmful effects caused by child pornography.
[104]
The first two objectives are inextricably related. Counsel are all agreed that they are pressing and substantial. In my view, Parliament has not only a right but a responsibility to do what it lawfully can to protect children from being used by child pornographers and from having photographic records of their abuse circulated.

[105]
The third objective is much wider, and seeks to protect children who were not involved in the making of the child pornography from the allegedly harmful effects caused by the dissemination and possession of child pornography. I have already held that I accept the expert opinion evidence of Dr. Collins and Dr. Marshall that possession of explicit child pornography increases the risk to children because some paedophiles use it for the three purposes which have been identified: to rationalize that sex with children is acceptable; to fuel their paedophiliac fantasies; and to show it to children to facilitate their attempts to engage them in sexual activity.

[106]
Having accepted the expert evidence on this issue, I conclude that although the third objective of the legislation is wide, its breadth is necessary in view of the pressing and substantial objectives of the legislation.

(C) The Proportionality Branch of the s.1 Analysis

[107]
The proportionality branch of the s.1 analysis involves balancing the freedom which has been infringed, against the government's objectives. In this regard, the contextual approach to analyzing an infringement of a right or freedom is particularly significant:
... the s.1 analysis of a limit upon s.2(b) cannot ignore the nature of the expressive activity which the state seeks to restrict. While we must guard carefully against judging expression according to its popularity, it is equally destructive of freedom of expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s.2(b): [Keegstra, supra, per: Dickson, C.J.C., at 760 (S.C.R.)] (emphasis added)
[108]
In assessing the proportionality of the limitation of the freedom of expression protected in s.2(b) of the Charter, it must be born in mind that the expressive activity which the state seeks to restrict is child pornography, a form of expression which can hardly be said to be crucial to the principles which lie at the core of s.2(b). The proportionality test requires weighing the restriction of this type of expression against the pressing and substantial objective of protecting children from the potentially dangerous effects of child pornography.

(i) The Rational Connection Test

[109]
This test involves a determination of whether the legislation has been "carefully designed to achieve the objective in question" and is not "arbitrary, unfair, or based on irrational considerations": Oakes, supra, at 348 (C.C.C.).

[110]
It has been argued that the application of criminal sanctions to the private possession of child pornography is not rationally connected to the objectives of the legislation. I am unable to accept that submission. In my opinion, in light of the evidence which I have accepted concerning the use to which child pornography is sometimes put, and the consequent risk of harm to children, Parliament had a reasonable basis for criminalizing not only the creation and dissemination of child pornography, but its possession as well.

[111]
s.163.1 includes a number of defences designed to ensure minimal infringement of freedom of expression. s.163.1(6) provides for a defence based either on artistic merit, or an educational, scientific, or medical purpose. s.163.1(5) provides for a defence based on an honest belief, arrived at through due diligence, that the material does not depict anyone apparently under the age of 18 years. Moreover, the legislation imports from the obscenity provisions, a defence based on the public good [(s.163.1(7), and ss. 163(3) and (4)].

[112]
The cumulative effect of the availability of these defences is to ensure the protection of material that is not covered by one of the three objectives of the legislation.
[113]
Accordingly, I conclude that the legislation is carefully designed to meet Parliament's legitimate objectives, and is rationally connected to those objectives.

(ii) The Minimal Impairment Test

[114]
The second part of the proportionality branch of the s.1 analysis addresses whether or not section 163.1 impairs the right to freedom of expression as little as reasonably possible. In Irwin Toy, the Supreme Court, in balancing the interests of children against a restriction of freedom of expression in the context of commercial advertising, held that Parliament was not rehired to choose the least ambitious means to protect vulnerable groups. In considering the minimal impairment standard, the Court stated at p. 252 (C.R.R.):
While evidence exists that other less intrusive options reflecting more modest objectives were available to the government, there is evidence establishing the necessity of a ban to meet the objectives the government had reasonably set. This court will not in the name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups. (emphasis added)
[115]
In this case, I have accepted expert opinion evidence that the restrictions are necessary in order to further Parliament's legitimate objectives relating to protecting children from harm. I therefore conclude that the child pornography provisions impair freedom of expression as little as possible in order to meet those objectives.

(a) Overbreadth

[116]
The respondent contends that section 163.1 is overbroad by attaching liability to actions that fall outside its objectives. The concept of overbreadth should be distinguished from the doctrine of vagueness as discussed under the "prescribed by law" requirement of a section 1 analysis. A discussion of vagueness includes principles of fair notice and the ability to ensure appropriate enforcement discretion. However, the concept of overbreadth is an analytical tool which involves a determination of whether the impugned law reaches areas which are not reasonable, given the objectives of Parliament, the nature of the right infringed, and the context of the infringement.

[117]
While there is no specific test to apply in determining whether a law is overbroad, a court should always:
... [compare] ... the ambit of the provision touching upon a protected right with such concepts as the objectives of the state, the principles of fundamental justice, the proportionality of punishment ... to name a few. [R. v. Nova Scotia Pharmaceutical Society, supra, per: Gonthier, J., at 304 (C.C.C.)]
[118]
The defence contends that s.163.1 captures activity which is outside of the necessary scope of the legislation, and cites five examples of alleged overbreadth:
(1)
the law criminalizes images of persons depicted as being under 18 even if they are actually over 18;
(2)
the law criminalizes the depiction of behaviour between persons under 18 but over 14 years of age which is not itself subject to criminal proscription;
(3)
the law criminalizes private possession of publications even if possessed by those persons over 14 years of age who may have consensually participated in the production of the material;
(4)
the law criminalizes sexual depictions of children regardless of whether they have been used in the production of the depiction; and
(5)
the law criminalizes artistic endeavours which do not meet the legal definition of artistic merit.
[119]
I will deal with each of these objections in turn. In doing so, it is important to keep in mind the legitimate objective of Parliament to protect children from harm.

(1) The criminalization of images of persons depicted as being under 18 even when they are actually over 18

[120]
By extending the reach of the legislation to material in which persons are "depicted as" being under the age of 18 years in the legislation, Parliament has targeted depictions of persons over 18 who pose as children engaging in explicit sexual activity. This type of material, known as "dress down" pornography, often employs models who are childlike in appearance, posing, for example in children's nightclothes, clutching a teddy bear or similar prop, and engaging in explicit sexual activity. Such material is clearly aimed at paedophiles, so that they may fantasize about sex with children. In my view, it poses the same risk that the paedophile will act on his fantasies as if the person depicted was actually under 18 years of age. The issue of this type of material was addressed in R. v. Wise, unreported, released 22 June, 1990, (Ont.Dist.Ct.). In that case, Locke, J. was dealing with "dress down" magazines of the type described above. In holding that the material was obscene, Justice Locke observed that:
Every one of ... the photographs show, in a childlike context, are nothing more than a series of blatant invitations to anyone who reads these publications to have sexual relations with children.
[121]
In my view, the proscription of sexually explicit material in which a person over 18 is "depicted as" being under the age of 18, is not unconstitutionally overbroad, given the legitimate objective of Parliament in targeting sexually explicit material that poses a realistic threat of harm to children.

(2) The criminalization of depictions of behaviour between persons under 18 but over 14 years of age which is not itself subject to criminal proscription

[122]
Counsel for the respondent submit that since it is not a criminal offence for two 14 year-olds, for example, to engage in consensual sexual activity, it is anomalous to criminalize the depiction of that activity. I find no merit in that submission. It is one thing for Parliament to refrain from criminalizing the sexual activity of a person under 18. It is quite another to permit the public dissemination of explicit images of that activity particularly when, in the hands of a paedophile, such images may give rise to a realistic risk of harm to children.

(3) The criminalization of private possession of publications even if possessed by those persons over 14 years of age who may have consensually participated in the production of the material

[123]
This objection ignores the reality that, on the basis of the opinion evidence which I have accepted, private possession of child pornography poses a realistic risk of harm to children, by reinforcing cognitive distortions, fuelling fantasies, and its potential use in "grooming" possible child victims. It is entirely reasonable and within the legitimate objectives of Parliament to criminalize private possession of child pornography.

(4) The criminalization of sexual depictions of children regardless of whether they have been used in the production of the depiction

[124]
In my view, the risk of harm is present whether or not real children are used in the production of child pornography. The sexually explicit comic strip story in exhibit 73, the "Lolita Chick" publication, for example, could be created from the imagination of the maker without using a child in its production. Yet it graphically depicts a full range of explicit sexual activity with a child by a man who seduces her by pretending to be her friend. The material gives rise to a realistic risk of consequent harm to children. In an age of technical breakthroughs such as computer imaging, child pornography legislation should not be limited to images created through the use of real children. The legislation is not overbroad.

(5) The criminalization of artistic endeavours which do not meet the legal definition of artistic merit

[125]
The respondent also argued that section 163.1 is overbroad with respect to the artistic merit defence, because it means that the sincere but failed artist faces possible criminal sanctions. In R. v. Butler, supra, the Court upheld as reasonable, a rule requiring allegedly obscene material to meet an objective artistic merit consideration that includes not only a legal standard of sufficiency but also a community standard of tolerance. The same rule is also reasonable in the context of the child pornography provisions.

[126]
Despite the fact that purported art must meet an objective merit standard, I think that it would be the rare case in which an artist, acting with sincerity and integrity in the creation of a work, would run afoul of this law. The words of Sopinka J. in Butler, supra, at 151 (C.C.C.), apply to the defence of artistic merit:
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.
[127]
The scope of section 163.1 is large, but a large scope is required to ensure that the objectives of the legislation are addressed. The child pornography legislation does not exceed the boundaries of its legitimate objectives, and is not overbroad.

(b) Reasonable Alternatives

[128]
In Edwards Books and Art v. The Queen, [1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1, 55 C.R. (3d) 193, 30 C.C.C. (3d) 385 at 428 (C.C.C.), the Supreme Court of Canada held that the Crown must show that no other reasonable alternative exists that would offer Parliament less restrictive means to fully address the legitimate objectives of the legislation.

[129]
The defence submits that there were other less restrictive alternatives available to Parliament when enacting the child pornography provisions:
(1)
suppression of only material that shows child sexual activity that would be an offence under the Criminal Code;
(2)
suppression of only material that uses real children in its production; and
(3)
suppression of only material which was created with no artistic purpose.
[130]
While these alternatives are indeed less restrictive, they do not fully address the legitimate objectives of Parliament, for reasons which have already been developed earlier in this discussion. Shortly stated, the realistic risk of harm to children must be the paramount consideration, and none of the less restrictive means which have been suggested fully addresses that risk.

[131]
I therefore conclude that Section 163.1 meets the minimal impairment branch of the proportionality test. The legislation is not overbroad, there have been no reasonable alternatives presented to the court, and finally there are several defences within the provisions to ensure that non-dangerous depictions are excluded from criminal liability.

(iii) Effects of the Limitation

[132]
The final branch of the proportionality test includes a weighing of the legislative objectives against the effects of the legislation. Even if legislation otherwise meets s.1 criteria, a provision will not constitute a reasonable limitation if its effects are so deleterious that they outweigh the importance of its objectives.

[133]
The child pornography provisions, designed to protect children, do indeed limit the fundamental freedom of expression. However, in the contextual approach that is required, it is appropriate to bear in mind the type of expression that has been limited. As Dickson, C.J.C. observed:
it is equally destructive of freedom of expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s.2(b): [Keegstra, supra, per: Dickson, C.J.C. at 760 (S.C.R.)]
[134]
The expression inherent in the production of child pornography is not crucial to the principles which lie at the core of freedom of expression. There is no evidence to support the contention that the effects of the legislation are so deleterious that they outweigh the pressing and substantial objective of the legislation.

(D) Conclusion

[135]
Although s.163.1 of the Criminal Code infringes the fundamental freedom of expression protected by s.2(b) of the Charter, the provision is a reasonable limit prescribed by law in a free and democratic society. The purpose of section 163.1 is pressing and substantial and the legislation satisfies all elements of the proportionality test. While the fundamental guarantee of freedom of expression is one of the most important rights in our democratic society, intrusions on this freedom are sometimes justified. The objective of protecting children from the harmful impact of child pornography is sufficiently important to justify limitations on the right to freedom of expression, particularly when the nature of the expression is less worthy of protection than others. Section 163.1 meets constitutional criteria and should be upheld.

Constitutional Issue #3 - Does s.164, the forfeiture hearing provision, violate s.2(b) of the Charter by, (a), adopting s.163.1, and (b), by failing to import the defence of artistic merits

Interpretation of the Forfeiture Hearing Provisions

(i) What is the purpose and functioning of the forfeiture provision?

[136]
The forfeiture application scheme contained in s.164 of the Code came into being in 1959, and was amended to include child pornography within its reach upon enactment of s.163.1.

[137]
The section does not create any offence. Although there is no accused, the impugned materials are treated as if they are the accused, with the maker given the right to have counsel present to represent his or her interests.

[138]
One value of the forfeiture provisions is that they provide an opportunity to decide the often difficult and controversial issue of whether impugned materials offend the Criminal Code, thereby giving notice to members of the public without placing any individual in jeopardy of a criminal conviction: R. v. Nicols (1984), 17 C.C.C. (3d) 555, 43 C.R. (3d) 54 (Ont. Dist. Ct.), per: Borins J.

(ii) Does the artistic merit defence apply to a forfeiture hearing?

[139]
The defence has argued that the forfeiture provisions, as they apply to child pornography, do not import the defence of artistic merit contained in s.163.1(6). The defence then argues that because there is no artistic merit defence, the constitutional validity of the forfeiture provisions cannot be sustained.
[140]
For convenience, I reproduce the legislation relevant to a discussion of this issue. I have highlighted passages of particular importance.
s.163.1

(1)
In this section, "child pornography" means,
(a)
a ... representation.
(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;
(6)
Where the accused is charged ... the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

s.164

(1)
A judge who is satisfied by information on oath that there are reasonable grounds for believing that ...
(b)
any representation or written material, copies of which are kept on premises within the jurisdiction of the court is child pornography within the meaning of s.163.1,
shall issue a warrant authorizing the seizure of the copies.
(4)
If the court is satisfied that the publication, representation or written material referred to in s. (1) is ... child pornography, it shall make an order declaring the matter forfeited to her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct.
[141]
The defence submits that a plain reading of s.163.1 of the Code shows that the artistic merit defence applies only "where the accused is charged". The defence submits that since this is a forfeiture proceeding and no accused is charged, the artistic merit defence contained in s.163.1(6) does not apply. Further, the defence submits that the definition of child pornography is completely self-contained in s.163.1(1), and does not include the defence of artistic merit in s.163.1(6). This means, in the defence submission, that when an accused person is charged with a child pornography offence, the court must first determine whether the material is child pornography, and if it is, only then does the court go on to consider whether it has a defence based on artistic merit under subsection (6).

[142]
The defence submits that the situation is different when the court is conducting a forfeiture hearing, which does not involve a situation "where the accused is charged" [as contemplated by s.163.1(6)]. The defence submits that since subsections 164(1)(b) and (4) make no reference to the defence of artistic merit, then Parliament must be taken as intentionally excluding the defence of artistic merit from the forfeiture provisions.

[143]
Although rigid statutory interpretation may yield a superficially logical basis for holding that the defence based on artistic merit is not available at a child pornography forfeiture hearing, other rules of statutory construction point in the opposite direction.

[144]
The criminal law should be interpreted with its purpose in mind, so that it harmonizes with other related statutes and is consistent with sound policy considerations. One purpose of the forfeiture hearing provision is to avoid charging any person with a crime, and at the same time to obtain a determination as to whether the impugned material offends the child pornography provisions. The interpretation urged by the defence would defeat that purpose, because it would mean that only an individual would have the benefit of the defence of artistic merit. The material itself could be forfeited to the Crown although the individual would be acquitted. Material that was not harmful, but met the definition of child pornography without reference to the defence of artistic merit, could be suppressed and destroyed. Moreover, the interpretation urged by the defence would yield the anomalous result that obscenity and child pornography would be treated differently at a forfeiture hearing. Allegedly obscene materials would enjoy a defence based on artistic merit, while alleged child pornography would not have the same protection.

[145]
If the position of the defence is accepted and the definition of child pornography is found to be completely self-contained in section 163.1(1), not only would the defence of artistic merit be inapplicable under section 164, but the other defences listed in section 163.1(6), such as educational, medical and scientific purpose would not apply to the forfeiture proceedings. Parliament should not be taken to have intended such an absurd result.

[146]
I conclude therefore that the references to child pornography in s.164, the forfeiture provisions, include the defence of artistic merit contained in s.163.1(6). Accordingly, the test to be applied in an application under s.164 to forfeit material which is alleged to constitute child pornography is the same as if a person was charged with an offence under s.163.1, the child pornography provisions.

[147]
In the result, the test for forfeiture in s.164 involves a breach of s.2(b) of the Charter in the same way as the child pornography provisions in s.163.1.

Constitutional issue #4 - Can the infringement of s.2(b) by the test for forfeiture contained in s.164 be demonstrably justified under s.1 of the Charter as a reasonable limit prescribed by law?

[148]
In light of my conclusion that a determination of the issue of forfeiture involves precisely the same considerations as a determination of culpability where a person is charged under s.163.1, it follows that there is no need to undertake the s.1 analysis, because the considerations are the same as for the child pornography provisions. I therefore conclude that although there is a violation of s.2(b) of the Charter, the provision is saved by s.1.

Constitutional Issue #5 - Does s.164 violate the right to be secure against unreasonable search and seizure guaranteed by s.8 of the Charter by removing judicial discretion in the issuance of a warrant to seize alleged child pornography?

[149]
s.164(1) provides for the initial seizure of allegedly offensive material, requiring that a judge "shall" issue a warrant authorizing seizure of material upon being satisfied by information on oath that there are reasonable grounds for believing that the material is either obscene or child pornography. The material is required to be held until the forfeiture hearing, at which the owner and the maker of the seized material may appear and be represented.

[150]
The defence submits that because the issuance of the seizure warrant is mandatory, the provision violates the right to be secure against unreasonable search and seizure under s.8 of the Charter, and that there is no justification under s.1: Baron v. Canada, [1993] 1 S.C.R. 416, 99 D.L.R. (4th) 350, 18 C.R. (4th) 374, 78 C.C.C. (3d) 510 (S.C.C.).

[151]
The position of the Crown, on the other hand, is that s.8 of the Charter has no application because s.164, the forfeiture provision, has nothing to do with gathering evidence, but instead is a free-standing statutory code of substance and procedure for an in rem criminal proceeding in which the things seized are the "accused", or parties. The Crown points out that in our constitutional system, only the Crown, and not the Court, can decide if a criminal proceeding should be commenced, and that the Court has no power to control prosecutorial discretion, except in the exceptional circumstance where the prosecution is clearly an abuse of the process of the Court: R. v. Power, [1994] 1 S.C.R. 601, 29 C.R. (4th) 1, 165 M.R. 241, 89 C.C.C. (3d) 1 (S.C.C.); R. v. V. T., [1992] 1 S.C.R. 749, 12 C.R. (4th) 133, 71 C.C.C. (3d) 32 (S.C.C.); R. v. Beare and Higgins, [1988] 2 S.C.R. 387, 55 D.L.R. (4th) 481, 66 C.R. (3d) 97, 45 C.C.C. (3d) 57 (S.C.C.) at 76 (C.C.C.).

[152]
The Crown argues that the court should have no more power to control the exercise of prosecutorial discretion in the commencement of a forfeiture proceeding under s.164 than it does in the commencement of any other criminal proceeding. Accordingly, the Crown submits that the existence of a mandatory requirement that a Court "shall" issue a warrant of seizure is both necessary and appropriate.

[153]
I have already decided in these reasons, that the child pornography law is constitutional, and that the threshold for forfeiture is the same as the test for criminal responsibility when the accused is personally charged. I have also decided that I am not satisfied that the Langer paintings and drawings pose a realistic risk of harm to children. Further, I am satisfied that in the view of the artistic community, the paintings and drawings have artistic merit. Finally, I have concluded that community standards of tolerance based on the risk of harm are relevant to the legal defence of artistic merit.

[154]
In light of those findings, it is not necessary, in order to decide this case, to deal with the s.8 issue raised by the defence. I have, however, been asked by all counsel to deal with the question in any event, and since this is the first time that this issue has been raised, I propose to deal with it, albeit in only general terms.

[155]
In my view, s.164(1) should be regarded as a seizure provision which directly affects Mr. Langer, who is a statutory party to these proceedings. Therefore, although the so-called "accused" materials do not enjoy a s. 8 right not to be unreasonably seized, Mr. Langer, as a party to the proceedings, does enjoy s.8 rights with respect to his paintings. Accordingly, the mandatory warrant of seizure provision must be subjected to constitutional scrutiny.

[156]
In Baron, supra, the Supreme Court held that if legislation does not provide for a residual discretion concerning the issuance of a search and seizure warrant, it violates s.8. The Court was dealing with a provision under the Income Tax Act which imposed & mandatory requirement that a justice issue a search and seizure warrant once satisfied that certain preconditions had been met. In Baron, the Court held that the exercise of a judicial discretion in the decision to grant or withhold authorization for a warrant to search or seize is fundamental to the concept of "prior judicial authorization" mandated by s.8 of the Charter: Hunter v. Southam, [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, 4 C.R. (3d) 97, 14 C.C.C. (3d) 97 (S.C.C), at 114 (C.C.C.). The Court in Baron held that the offending provision was an unconstitutional violation of s.8 of the Charter because it did not allow for the exercise of judicial discretion in the issuance of the warrant.

[157]
I am unable to identify any principled basis for distinguishing the Baron case from the case before me. I find therefore that s.164(1)(a) and (b) violate s.8 of the Charter.

Constitutional Issue #6 - Does s.164 infringe s.2(b) of the Charter by removing judicial discretion in the issuance of a warrant of seizure, thereby making re-hearing suppression of freedom of expression mandatory?

[158]
The defence raises a further issue. Does the lack of judicial discretion under s.164(1) violate s.2(b) by causing the suppression of the materials prior to trial, thereby restricting the owner's right to freedom of expression?

[159]
The defence urges the application of the American doctrine of prior restraint which holds that the state cannot impose conditions restricting expression prior to a hearing unless it can prove that such restrictions are necessary. [see, for example: Fort Wayne Books, Inc. v. Indiana 109 S. Ct. 916 (1989)].

[160]
Borrowing from the American approach, the defence submits that the following safeguards are needed in order to minimize the deleterious effects of the prior restraint on expression:
(1)
a return/report to the issuing judge to establish a prima facie violation of s.163.1 or s.164;
(2)
a guarantee that the hearing will be conducted expeditiously;
(3)
a mechanism for the owner of the material to claim interim relief from the continued detention of the materials pending the hearing;
(4)
a requirement that the state establish that the detention is necessary to ensure that the materials will be preserved until the hearing, and
(5)
a requirement that the owner or maker of the materials be given notice of the application for a warrant of seizure.
[161]
In my view, it is clear that the mandatory seizure and continued detention of the materials prior to trial does result in a restriction of freedom of expression protected by s.2(b) of the Charter. The proper determination of its constitutionality should involve a consideration of whether the infringement of s.2(b) can be saved by s.1 of the Charter.

Constitutional Issue #7 - If the removal of judicial discretion in the issuance of a warrant violates either s.8 or s.2(b) of the Charter, can the violations be demonstrably justified under s.1 of the Charter?

(a) The infringement of s.8

[162]
In my view, although the mandatory seizure requirement contained in s.164(1) is rationally connected to the valid objectives of the legislation which are related to the prevention of harm to children, the provision cannot meet the minimal impairment aspect of the proportionality branch of the test for constitutional sufficiency under s.1 of the Charter as set out in Oakes, supra.

[163]
Because s.164(1) employs the mandatory "shall", rather than the discretionary "may", the legislation reaches beyond what is minimally necessary in order to achieve its legitimate objectives. Other less restrictive means should be available to the court for use where appropriate. For example, where the material sought to be seized is hanging in an art gallery, it may be appropriate for a court not to order seizure, but instead to require its owner or custodian to undertake to bring it before the court at the time and place designated for the forfeiture hearing.

[164]
In my opinion, if the word "may" were to replace "shall" in the offending section, the section would meet the s.1 criteria, because it would then confer the necessary judicial discretion to ensure minimal impairment of the right against unreasonable search and seizure contained in s.8 of the Charter. Accordingly, I conclude that s.164(1) does not represent a reasonable limitation on the s.8 right. The section therefore cannot be saved by s.1 of the Charter, and is therefore unconstitutional in its present form.

(b) The infringement of s. 2(b)

[165]
I have concluded that the mandatory continued detention of the seized material until completion of the forfeiture hearing results is an infringement of s.2(b) of the Charter. In my opinion, in the absence of a judicial discretion which would allow a court to ensure that freedom of expression is minimally impaired, the infringement of s.2(b) also cannot be saved by s.1 of the Charter. Again, if the impugned section were to read "may" instead of "shall" the section would be saved by s.1.

Constitutional Issue #8 - If there has been a violation of s.8 and/or s.2(b) which cannot be saved by s.1, can the legislation be saved by applying a constitutional remedy?

[166]
Since I have concluded that s.164(1) of the Criminal Code violates both s.8 and s.2(b) of the Charter, and cannot be saved by s.1, the next question is one of remedy. I agree with the submission of the Crown that the remedy of "reading down" the section from "shall" to "may" precisely addresses the concern of the defence, and avoids the drastic step of striking down the subsection. This remedy, submitted in the alternative by the Crown, would allow for judicial discretion in the issuance of a warrant of seizure and would meet the saving criteria contained in s.1 of the Charter.

[167]
The justification for remedial actions such as severance and reading down, rather than striking down offending legislation, lies in the doctrine of judicial restraint: Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, 82 D.L.R. (4th) 321, 125 M.R. 241, 4 C.R.R. (2d) 30 (S.C.C.), at 104 (S.C.R.); Schacter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1, 139 N.R. 1, 10 C.R.R. (2d) 1 (S.C.C.), at 26-27 (D.L.R.).

[168]
The requirement of judicial restraint was also emphasized by the Supreme Court of Canada in Baron, supra, at 537 (C.C.C.) Justice Sopinka stated that:
" ... "reading down" by amending the clear intent of a statutory provision may be appropriate in some cases. The decision to do so requires a determination that this remedy will constitute the lesser intrusion into the role of the legislature consistent with upholding the values and objectives of the Charter."
[169]
Justice Sopinka did not apply the remedy of reading down to the search and seizure provisions of section 231.3 of the Income Tax Act in Baron for two reasons. First, he concluded that, in the section under scrutiny, the issuance of a search warrant was the "linchpin" of the legislation. He added that, "all of the other parts of the section depend for their relevance upon, and are inextricably caught up with, the valid issuance of a search warrant". The situation is different in the case before me. Although the mandatory warrant of seizure provision in s. 164(1) is important, it is not the linchpin of the legislation. Second, in Baron, the Crown did not seek the remedy of reading down, and presumably did not wish to rely on that method of saving the provision. In the case before me, the issue of remedy has been fully argued by the principal parties in the case.

[170]
In my view, reading down the provision from "shall" to "may" addresses the constitutional frailties of s.164(1), and is a less intrusive approach than striking down the entire provision. I am well aware that caution must be exercised in employing a remedy such as reading down, and that courts should not become legislators and rewrite the law. If the remedy of reading down were to result in "new' legislation that differed substantially from the legislation Parliament intended, it would be inappropriate to invoke that remedy. However, in a situation where reading down is less intrusive and in accordance with the objectives of the Charter, then it is an appropriate remedy, and is preferable to either invoking the American doctrine of prior restraint, or resorting to the drastic step of striking down the subsection entirely.

[171]
Accordingly, I rule that the word "shall" contained in s.164(1) of the Criminal Code should be read as "may", and that although the subsection as amended violates s.8 and s.2(b) of the Charter, it is saved as a reasonable limitation under s.1.

Part IV
CONCLUSION

[172]
In these reasons, I have concluded that the defence of artistic merit is available at a forfeiture hearing. I have also concluded that the legal meaning of the artistic merit defence includes a consideration of standards of community tolerance based on the risk of harm to children.

[173]
Moreover, I have concluded that I am not satisfied that the Langer paintings and drawings pose a realistic risk of harm to children. I therefore have a reasonable doubt as to whether the paintings and drawings exceed standards of community tolerance based on the risk of harm to children.

[174]
I have also accepted the unanimous opinion of the art experts called by both the defence and the Crown, that in the opinion of the artistic community, the paintings and drawings have artistic merit.

[175]
In light of these findings, I conclude that the paintings and drawings are entitled to the benefit of the defence of artistic merit.

[176]
In the result, I conclude that the application for forfeiture must fail, and that Mr. Langer is entitled to the return of his paintings and drawings.

[177]
In accordance with the provisions of s.164(5), an order will go that the paintings and drawings which were seized on February 23, 1994, pursuant to a warrant of seizure issued under s.164(1) of the Criminal Code, be returned to the person from whom they were seized forthwith after the time for final appeal has expired.

Part V
CONSTITUTIONAL QUESTIONS
SUMMARY OF CONCLUSIONS

[178]
For convenience, I have summarized the answers to the constitutional questions raised on this appeal.

Constitutional Issue #1
Does s.163.1 infringe the fundamental freedom of expression guaranteed by s.2(b) of the Charter? -- YES

Constitutional Issue #2
Can the violation of s.2(b) be demonstrably justified under s.1 of the Charter as a reasonable limit prescribed by law? -- YES

Constitutional Issue #3
Does s. 164, the forfeiture hearing provision, violate s.2(b) of the Charter,
(a)
by adopting s.163.1? -- YES
(b)
by failing to import the defence of artistic merit? -- NO

Constitutional issue #4
Can the infringement of s.2(b) by the test for forfeiture contained in s.164 be demonstrably justified under s.1 of the Charter as a reasonable limit prescribed by law? -- YES

Constitutional Issue #5
Does s.164 violate the right to be secure against unreasonable search and seizure guaranteed by s.8 of the Charter by removing judicial discretion in the issuance of a warrant to seize alleged child pornography? -- YES

Constitutional Issue #6
Does s.164 infringe s.2(b) of the Charter by removing judicial discretion in the issuance of a warrant of seizure, thereby making pre-hearing suppression of freedom of expression mandatory? -- YES

Constitutional Issue #7
If the removal of judicial discretion in the issuance of a warrant violates either s.8 or s.2(b) of the Charter, can the violations be demonstrably justified under s.1 of the Charter? -- NO

Constitutional Issue #8
If there has been a violation of s.8 and/or s.2(b) which cannot be saved by s.1, can the legislation be saved by applying a constitutional remedy? -- YES

MCCOMBS J.