APPLICANT

RESPONDENT

1) Overview

1.

This appeal, if leave is granted, would provide this Court with an opportunity to determine the constitutional validity of amendments to the Criminal Code related to "child pornography". Specifically, the Applicant will ask the Court to decide:

(1)

whether the procedural requirements of s.164 of the Code adequately minimize the infringement of s.2(b) and s.8 of the Canadian Charter of Rights and Freedoms ("the Charter")["the prior restraint issue"]

(2)

whether the existence of an "artistic defence" is essential to the constitutionality of laws which restrict expression ["the constitutional right to an artistic defence issue"]

(3)

if so, whether an "artistic defence" can be read into s.164 to avoid striking down the provision ["the statutory construction v. constitutional remedy issue"]

(4)

whether the limit which s.163.1 imposes on the freedom of expression is a reasonable one prescribed by law having regard to:

(a)

the vagueness of its provisions;

(b)

the overbreadth of its terms; and

(c)

its potential impact on artistic expression [the freedom of expression issue]

2.

The appeal, in short, would provide this Court with an opportunity to carry forward and refine its consideration of freedom of expression issues under a law which is more sweeping than the obscenity provision at issue in Regina v. Butler. The appeal would also allow the Court to consider, for the first time, the constitutional validity of the forfeiture provisions in s.164 of the Criminal Code. Finally, the appeal would permit the Court to consider, in a case which directly raises the issue, the relationship between artistic expression and the core values protected by s.2(b) of the Charter.

Regina v. Butler, [1992] 1 S.C.R. 452

3.

During a two-week hearing before McCombs J. of the Ontario Court (General Division), the constitutionality of ss. 163.1 and 164 of the Criminal Code was challenged by the Applicant. Twenty-two witnesses testified and 109 exhibits were tendered. The evidence dealt with the following three broad themes:

(i)

the mischief at which the child pornography law was aimed; namely, the prevalence of child pornography in Canada and the relationship between child pornography and the sexual abuse of children;

(ii)

the potential impact of the child pornography legislation on pro-social activities; for example, the creation of art and the depictions of sexual abuse by survivors of sexual abuse engaged in therapy; and

(iii)

the availability and efficacy of lesser restrictive means to accomplish the legislative objectives of s.163.1 of the Criminal Code.

Both parties made extensive efforts to ensure that there was a full factual foundation upon which the constitutional issues could be decided in the expectation that appellate review would ultimately be sought.

2) Factual Background

4.

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 an exhibition of some 8 museum-size oil paintings and 50 pencil-sketch drawings on display at the Mercer Union Gallery in the City of Toronto. The Mercer Union is an artist-run gallery with a mandate to showcase the work of young Canadian contemporary artists. The work on display at the Gallery was the first show for Toronto artist Eli Langer.

5.

The Globe and Mail review prompted a citizen to call the Morality Bureau of the Metropolitan Toronto Police Force. This, in turn, prompted two officers from the Morality Bureau to visit the Gallery, examine the paintings and drawings, and obtain a search warrant to seize most of the paintings and drawings. The artist, Eli Langer, and the director of the Merer Union Gallery were charged under both the obscenity provisions and the new "child pornography" provisions of the Criminal Code of Canada.

6.

The Crown later withdrew the charges against the individuals and proceeded with a forfeiture application under s.164 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 an individual in jeopardy of a criminal conviction.

7.

The forfeiture hearing commenced on October 3, 1994, before McCombs J. For convenience, it was heard at the same time as an application to challenge the constitutional validity of parts of ss. 163.1 and 164 of the Criminal Code.

3) Evidence on the Constitutional Challenge
a) The Social Science Perspective

8.

There was a contest amongst the behavioural experts and social scientists who testified as to whether there exists either a scientific or a clinical basis for connecting the existence and use of explicit sexual images involving children and the prevalence of the sexual abuse of children.

9.

Dr. Peter Collins, a psychiatrist, and Drs. Howard Barbaree and William Marshall, both clinical and social psychologists, were called by the Crown to give evidence on the links between child pornography and paedophilia. They testified that although the subject is still poorly understood, there is a likely causal link between exposure to child pornography and paedophilic acts. First, a paedophile's exposure to child pornography may precipitate the sexual abuse of children by fueling their fantasies, the driving force behind paedophilic behaviour. Although paedophiles will fuel their fantasies with sexually neutral images of children, such as a Sears catalogue, sexually explicit depictions of children are a more potent stimulus. Second, paedophiles suffer from "cognitive distortions" with respect to their sexuality, and child pornography contributes to this. These cognitive distortions prevent a paedophile from distinguishing depictions with a condemnatory message from those which are designed to be arousing. Third, child pornography may be used by paedophiles to recruit and groom children for sexual activity. Fourth, although there is controversy as to whether or not child pornography has not been shown to not prevent paedophilic behaviour, Dr. Barbaree agreed that the elimination of child pornography would not, by itself, prevent the sexual abuse of children.

10.

Dr. Langevin, a clinical and social psychologist called by the Applicant, also testified about the nature and origins of paedophilia and the use of child pornography by those who sexually abuse children. In his view, there was no research supporting a causal link between exposure to child pornography and the commission of sexual offences against children. He disputed a number of the clinical "hunches" and observations made by Drs. Collins, Marshal, and Barbaree. He disputed that all paedophiles fantasize. He also disputed the link between fantasies and sexual acts by paedophiles. He testified that, of the small number of paedophiles who use pornography to groom children for sexual abuse, an even smaller percentage use child pornography in this manner.

11.

Finally, Dr. Jonathan Freedman, a research psychologist at the University of Toronto, analyzed the research methodology in studies which purport to establish a causal link between exposure to and consumption of pornography to sexual offences.

b) The Law Enforcement Perspective

12.

Det. Robert Matthews, of the Ontario Provincial Police, has extensive experience in investigating obscenity-related offences. Indeed, he testified before the House of Commons committee which examined the "child pornography" amendments to the Criminal Code before their 1993 enactment. At the hearing before McCombs J., he introduced into evidence a number of exhibits which revealed explicit sexual depictions of children that had been produced, possessed, and distributed amongst paedophiles in Canada.

c) Community Standards

13.

Eileen Winterwerb, a vice-chair of the Ontario Film Review Board, testified about the way in which her organization applies their conception of the community standards of tolerance to film and video depictions of explicit sexual activity. She explained how these government-appointed functionaries are trained and authorized to determine which expressive materials will be tolerated in the community. The nationally prominent broadcaster and writer, Patrick Watson, testified about the great difficulty in applying a community standard of tolerance that places the burden on the artists to anticipate the reaction and potential misuses of the art by its audience. A number of distinguished artists, as well as an art historian, testified as to the difficulty of predicating a criminal prohibition on the reaction of an audience to the artist's work.

d) The Survivor's Perspective

14.

Tasse Geldardt, an artists and graduate of the Ontario College of Art, testified that there is a community of child sexual abuse survivors who create depictions of their abuse as a form of recovery and as a means of raising awareness about those issues. She has met well over one hundred survivor "artists" who are engaged in creating such work. Much of this "art" would fall within the definition of "child pornography" found in s.163.1 of the Code. Furthermore, much of this work has no "artistic merit" and not all of the work is clearly condemnatory of the activity depicted.

e) The Feminist and Popular Culture Perspective

15.

Varda Burstyn is an academic, a writer, and a social scientist with a background in the areas of gender, sex and sexuality, and pornography, all of which are part of a body of social science inquiry into popular culture. She testified that the primary way that children learn about gender and sexuality is through popular culture rather than through edicts, such as s.163.1(1), or the formal learning process, such as that contemplated by s.163.1(6) (i.e., the educational purpose defence). The prohibition in s.163.1 is not complementary to other measures intended to arrest the sexual abuse of children, such as education or penal sanctions. Suppressing positive images of teenage sexuality -- as s.163.1 does -- will have a deleterious effect on teenagers' ability to learn and develop views about healthy and unhealthy sexual relationships.

f) The Artist's Perspective

16.

Patrick Watson testified that some of the terms employed by s.163.1 would pose problems of vagueness to members of the artistic community. He gave his opinion about the difficulties in interpreting the terms "artistic merit", "depicted as being under the age of 18 years", and "explicit sexual activity". He also offered an opinion on the understandability of a definition of "artistic purpose", put to him as an alternative to the test of "artistic merit" in s.163.1(6). He discussed the difficulty of imposing a burden on artists who, unlike the CBC, are not wealthy enough to obtain legal advice prior to creating or displaying their art.

17.

Michael Snow and Doris McCarthy, both respected Canadian artists, testified about the responsibility of artists to portray evil as well as virtue. They also offered opinion evidence about whether artists should be responsible for the reaction of the audience which views their work (i.e., if there is a risk that the sexual abuse of a child might be causally linked to viewing the work of an artist, should the artist be exposed to criminal liability?). Other noted Canadian artists also gave opinion evidence respecting these issues.

18.

The points in issue are:

(1)

whether the procedural requirements of s.164 of the Code adequately minimize the infringement of s.2(b) and s.8 of the Canadian Charter of Rights and Freedoms ["the prior restraint issue"]

(2)

whether the existence of an "artistic defence" is essential to the constitutionality of laws which restrict expression ["the constitutional right to an artistic defence issue"]

(3)

if so, whether an "artistic defence" can be read into s.164 to avoid striking down the provision ["the statutory construction v. constitutional remedy issue"]

(4)

whether the limit which s.163.1 imposes on the freedom of expression is a reasonable one prescribed by law having regard to:

(a)

the vagueness of its provisions;

(b)

the overbreadth of its terms; and

(c)

its potential impact on artistic expression [the freedom of expression issue]

I. JURISDICTIONAL ISSUES
1) Jurisdiction of the Supreme Court to Grant Leave to Appeal in this Case

19.

The Applicant Langer is an artist and the creator of the paintings and drawings where were the target of the forfeiture hearing. the Applicant brought an application challenging the constitutionality of parts of both s.163.1 and s.164 of the Criminal Code. This application was heard at the same time as the foreiture hearing. The application was dismissed in its entirety, save and except the challenge to the absence of discretion in the search and seizure provisions of s.164. The application for a declaration of inoperability under s.52 of the Constitution Act, 1982 was dismissed in relation to all of the challenged provisions. the application by the Crown for forfeiture of Langer's paintings and drawings was dismissed. No appeal from the dismissal of the forfeiture application has been taken by the Crown.

20.

There is no Criminal Code route of appeal available to the Applicant from the dismissal of his constitutional challenge to s.163.1 and s.164. In Regina v. Laba, this Court held that a ruling on the constitutionality of a law that cannot be "piggybacked" onto a Criminal Code appeal is appealable under s.40(1) of the Supreme Court Act. This reasoning, referred to by the court as a "dual proceedings, s.40" analysis of successful s.52 challenges, was further refined in Regina v. Keegstra. In that case, this Court held inter alia, that an accused who was acquitted may nonetheless apply for leave to appeal a failed constitutional challenge. Of importance to the Applicant, the Court held:

Rulings on the constitutionality of Criminal Code provisions are subject to the dual proceedings approach whether the party who seeks the s.40 route of appeal is the Crown or the accused, and whether the ruling sought to be appealed is one of constitutionality or unconstitutionality.

Regina v. Keegstra (#24296) released May 18, 1995 at 12 per Lamer, C.J.

Regina v. Laba, [1994] 3 S.C.R. 965 at 981-984 per Lamer, C.J.

21.

Recognizing a right to apply for leave to appeal a ruling on the constitutionality of a law arising from a forfeiture proceeding is the next logical step in this analysis of s.40. Although there was no accused charged with an indictable offence in the case at bar, there is a sound basis for analogizing the Applicant's position to that of the Crown in Laba and the accused in Keegstra:

(1)

the ruling upholding the constitutionality of the challenged law in the case at bar was distinct from the ruling respecting the forfeiture application. The two application were heard together solely for administrative convenience.

(2)

a Criminal Code avenue of appeal was available to the party which "lost" the forfeiture hearing [see s.164(6)]. This right of appeal was not exercised. Accordingly, the Applicant could not "piggyback" the constitutional challenge onto an appeal of the forfeiture ruling.

(3)

although the trial judge found that a portion of s.164 violated s.8 of the Charter, he dismissed the application for a declaration (under s.52 of the Constitution Act, 1982) that all of the challenged provisions were of no force or effect. This is analogous to the adverse constitutional ruling by the Court of Appeal for Ontario in Laba.

22.

It is submitted that this Court has jurisdiction to entertain an application for leave to appeal form the judgement of McCombs J. dismissing the application for a declaration that s.163.1(a), s.163.1(6) and s.164 of the Criminal Code are of no force or effect.

Regina v. Laba, supra at 984

2) The Mootness Issue

23.

The judgements of this Court in Laba and in Keegstra demonstrate that neither the justiciability or a constitutional challenge nor its amenability to review depend solely on the result of the initiating proceeding (in those cases, a criminal prosecution). At the heart of the "dual proceedings, s.40" analysis is a recognition that a mechanism for reviewability must exist if this Court is "to discharge its function to oversee the development of law in the courts of Canada". Thus, the Court has held that even an accused who is acquitted may apply for leave to appeal an unsuccessful constitutional ruling under s.40 (Keegstra, supra at 10).

Laskin, "The Role and function of Final Appellate Courts: the Supreme Court of Canada" (1975), 53 Can. Bar Rev. 469 at 475

24.

In the circumstances of this case, there is no reason in law or policy to refuse to grant leave on the basis of mootness:

(1)

the statutory basis for both the forfeiture hearing and the constitutional challenge remains in force. This is therefore not a case like Borowski, infra where the entire legislative underpinning of the challenge was eviscerated by an intervening judgement of this Court. The case is closer to the hypothetical accused in Keegstra who, having been acquitted, seeks a declaration that the law under which he was charged is unconstitutional. The Applicant, an artist, supported by two organizations representing a broad national base of artists (PEN Canada and the Canadian Conference on the Arts), challenged a law which restricts his freedoms to create, possess, exhibit, and distribute certain forms of his art. His challenge failed. The restriction on artistic freedom and the threat of criminal sanctions against artists like the Applicant have not diminished one iota as a result of the ruling of McCombs J.

(2)

the Applicant remains in jeopardy of having his drawings and paintings seized again should they be displayed in a gallery in any province outside Ontario. A catalogue or any other reproduction of this art would be exposed to a similar threat of seizure. Thus, even if the "concrete controversy" between the Applicant and the Crown has disappeared (which the Applicant does not concede), there are still collateral consequences for the Applicant from the decision to uphold the constitutionality of the law.

(3)

the Crown initiated this litigation as a "test case". Having obtained a favourable ruling on the constitutionality of the law, the Crown effectively chose not to pursue this "test case" any further by declining to appeal the forfeiture ruling. This ruling is binding on no other courts in Ontario or elsewhere in Canada. It is, however, the result of a lengthy evidentiary hearing followed by submissions from four intervenors, the Applicant, the Attorney general for Ontario, and the Attorney General for Canada. The benefit of the evidentiary record developed at this hearing will be lost if the constitutional ruling is not reviewed. An appeal from the Order of McCombs J. will promote judicial economy by avoiding a reprise of the same hearing, with its attendant expense to the parties, in another case.

Reasons for Judgement of McCombs J., Application for Leave, at p.14-16;

Borowski v. Canada (A.-G.), [1989] 1 S.C.R. 342

II. ISSUES ON THE PROPOSED APPEAL
1) The "Prior Restraint" Issue

25.

The Applicant challenged the procedural deficiencies of s.164 of the Code on two grounds. First, the Applicant, relying on this Court's decision in Baron, argued that the absence of a residual judicial discretion in s.164(1) violated s.8 of the Charter. the Applicant also argued that s.164(1) gives rise to an unconstitutional "prior restraint" of expressive materials which are protected by s.2(b) of the Charter; that is, that s.164(1) authorizes the state to remove expressive materials from the public domain without first having made a sufficient showing at an inter partes hearing that their unconditional suppression is either justified or necessary.

Baron v. Canada, [1993] 1 S.C.R. 416

26.

McCombs J. allowed the application in part. He held that the absence of a judicial discretion violated both ss. 8 and 2(b) of the Charter and that it could not be saved by s.1. He went on to hold that the appropriate remedy was to create the residual discretion that he found absent in s.164(1) (i.e., by reading the word "shall" in s.164(1) as "may"). He declined to give effect to the Applicant's argument that the constitutional "prior restraint" doctrine required further procedural safeguards to make the scheme in s.164 consistent with ss. 8 and 2(b) of the Charter.

27.

The proposed appeal provides this Court with an opportunity to consider for the first time the doctrine of "prior restraint", an integral part of the penumbra of constitutional protections afforded to expressive materials in the United States.

28.

The doctrine of prior restraint hold that the state cannot impose conditions restricting expression unless and until it can prove that such restrictions are necessary. In The System of Freedom of Expression, Thomas Emerson explained how a system of prior restraint operates to unduly restrict freedom of expression:

A system of prior restraint is in many ways more inhibiting than a system of subsequent punishment: It is likely to bring under government scrutiny a far wider range of expression; it shuts off communication before it takes place; suppression by a stroke of a pen is more likely to be applied than suppression through a criminal process; the system allows less opportunity for public appraisal and criticism; the dynamics of the system drive toward excesses, as the history of all censorship shows. It is true that in some situations subsequent punishment may be more restrictive. But this does not negate the fact that a system of prior restraint presents inherent dangers that make it highly disfavoured as a form of regulation.

Thomas I. Emerson, The System of Freedom of Expression (1970), at 506

29.

The U.S. Supreme Court has established a rigorous set of procedural safeguards which must be employed before any form of prior restrint of expressive material will survive constitutional scrutiny. The three minimum safeguards which must accompany any seizure or removal of expressive material are:

(1)

the burden of instituting judicial proceedings and of proving that the material is unprotected must rest on the censor;

(2)

Any restraint prior to judicial review of the expressive material can only be imposed for a specified and brief period of time and solely for the purpose of preserving the status quo;

(3)

A prompt and final judicial determination of the censorship application must be assured.

Freedman v. Maryland, 85 S.Ct. 734 at 7349 (1965);

Kingsley Books Inc. v. Brown, 345 U.S. 436 (1957);

United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971)

30.

The seizure and forfeiture scheme created by s.164 of the Criminal Code fails to provide sufficient safeguards to minimize the effects of the prior restraint on expressive materials:

(1)

Section 164 does not require a full adversarial hearing prior to the seizure and suppression of the expressive material. Nor does it require that the judge issuing the warrant of seizure be presented with the targeted expressive materials before issuing the warrant. The absence of such a safeguard has been repeatedly disparaged by the U.S. Supreme Court.

A Quantity of Books v. Kansas, 84 S.Ct. 1723;

Heller v. New York, 93 S.Ct. 2789;

Fort Wayne Books v. Indiana, 109 S.Ct. 916

(2)

Section 164 does not require that after the seizure, the police officer make a return or report to the issuing judge to establish a prima facie case that the expressive materials violate either ss.163 and 163.1 of the Code. In fact, s.164 does not require that a judicial officer ever see, hear, or read the impugned material until the police take it out of storage to produce it at the forfeiture hearing.

Protection of Children Act, 1978 (U.K.), c.37, ss.4,5

(3)

While s.164(2) guarantees that notice of the forfeiture hearing must be given within seven days of the seizure, there is no guarantee that the hearing itself will be conducted expeditiously.

Kingsley Books Inc. v. Brown, supra;

Marcus v. Search Warrant of Property, 81 S.Ct. 1709 (1961)

(4)

The scope of the seizure power authorized by s.164, unlike the general search warrant powers under Part XV of the Code, extends well beyond the seizure of mere evidence. Section 164 authorizes (and apparently encourages) the wholesale seizure of entire collections of expressive material irrespective of their necessity as proof of the allegation. The potential for abuse is obvious.

(5)

In contrast to the legal framework governing restraining orders on alleged proceeds of crime, s.164 does not require the state to establish that the detention of expressive material pending a forfeiture is necessary to ensure that the material will be preserved for the hearing. Further, the state is not liable for the costs of any damages which flow from the seizure and detention of expressive material that is subsequently found not to violate either ss. 163 or 163.1 of the Code.

31.

The case at bar is a paradigmatic example of the constitutional infirmities of s.164 of the Code. Notwithstanding that the police had seized the Applicant's art months earlier under a Criminal Code search warrant, they chose not to present any of it to the judge who issued the s.164 warrant to seize the material. Instead, the police provider her with selective, conclusory descriptions of the art. Further, the s.164(1) warrant application failed to demonstrate a need to remove any of the art from circulation pending the forfeiture hearing. The seizure was a significant portion of the entire exhibit of the Applicant's art displayed in the gallery. Although the police had photographic reproductions of the entire exhibit at the time of the s.164 seizure, they made no effort to minimize the effects of the prior restraint by using these photographs for the forfeiture hearing and returning the originals to the Applicant. Having regard to the constitutional implications of the forfeiture scheme, and having regard to the obvious potential for the abuse of its provisions at the hands of police, it is submitted that on this ground the proposed appeal raises issues of significant public importance.

32.

The proposed appeal also raises the question of the appropriate constitutional remedy after a finding that s.164 violates ss. 8 and 2(b) of the Charter: whether s.164 should be declared inoperative and of no force or effect (the Applicants position before McCombs J.), whether the violation could be cured by vesting a discretion in the issuing judge by changing "shall" to "may" (the remedy chosen by McCombs J.), or whether a new regime, similar to that proposed with respect to media search warrants by this Honourable Court in C.B.C. v. Lessard, should be erected.

2) The Constitutional Right to An Artistic Defence

33.

The "artistic defence" has an established position in Canadian obscenity jurisprudence. As this Court held in Butler:

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. ... ... materials which have scientific, artistic, or literary merit are not captured by [s.163]. As discussed above, the court must be generous in its application of the "artistic defence". For example, in certain cases, materials such as photographs, prints, books, and films which may undoubtedly be produced with some motive for economic profit, may nonetheless claim the protection of the Charter insofar as the defining characteristic is that of aesthetic expression, and thus represent the artist's attempt at individual fulfilment.

Regina v. Butler, supra at 486 and 505;

Regina v. Keegstra, [1990] 3 S.C.R. 697;

Regina v. Brodie, [1962] S.C.R. 681

34.

The existence of an "artistic defence" in the Criminal Code's obscenity provisions was essential to the s.1 justification found by this Court in Butler. The United States Supreme Court has also recognized the central role that artistic freedom enjoys under the free speech guarantee in the Bill of Rights. The proposed appeal will allow this Court to consider whether an "artistic defence" is essential to the constitutionality of laws which restrict expression.

U.S. v. Roth, 77 S.Ct. 1305 at 1309 (1959);

Memoirs v. Massachusetts, 86 S.Ct. 975 (1966);

Miller v. California,413 U.S. 15 at 24 (1973);

Pope v. Illinois, 481 U.S. 497 (1987)

3) Statutory Construction vs. Constitutional Remedies: Section 164 and the Artistic Defence

35.

On the face of s.164, no artistic defence is expressly made available in forfeiture proceedings aimed at either child pornography or obscene material. But, the artistic defence was read into the definition of obscenity in pre-Charter cases decided under pre-Charter rules of statutory construction. Thus, the artistic defence is available as a matter of common law in all obscenity cases -- both prosecutions under s.163 and forfeiture hearings under s.164. The artistic defence is also available in child pornography prosecution, by virtue of s.163.1(6). The question raised on the proposed appeal is whether the Court should read the artistic defence into s.164 forfeiture proceedings where material is alleged to be "child pornography".

36.

McCombs J. accepted the Attorney General's argument that in order to harmonize child pornography provisions with obscenity law, s.164 should be read as if it made the artistic merit defence available. This construction of s.164 raises a number of issues:

(1)

McCombs J. held in effect that Parliament would not have passed a law authorizing the destruction of expressive materials without also making an artistic defence available. While this reasoning was undoubtedly sound when this Court decided in Brodie that s.163 contained the artistic defence, it is questionable whether any court today could reach the same conclusion. For the first 27 years after the obscenity law was enacted, there was no substantive judicial review available to the courts. Rigid interpretation of laws could lead to unjust results. The entrenchment of the Charter changed this situation.

(2)

Since Hunter v. Southam, infra, this Court has consistently held that legislative gaps which make a statute unconstitutional should not be filled by the courts. This remedy doctrine is an acknowledgement of the different roles of the judicial and legislative branches. But the outer limits of these roles is often hard to define. When does a construction of a statute, required to make it consistent with the Charter, become a remedy under s.52 of the Constitution Act, 1982 ? The Applicant submits that the rule should be that when a court is faced with a statute which plainly infringes the Charter, it cannot resort to common law statutory construction rules to avoid its clear duty under s.52. The approach favoured by McCombs J. avoids a constitutional analysis by approaching the problem as one of mere interpretation. Yet, this result ("reading in" a defence to make the provision consistent with s.2(b)) can only be achieved by using tools which are unnecessary in Charter litigation. There is no longer any need or justification for employing pre-Charter statutory construction techniques which involved the courts in tortured analyses to avoid a finding of unconstitutionality (in the division of powers BNA sense) or require the court to skew the plain meaning of penal statues in order to give effect to an interpretation most favourable to the accused. While both of these methods of construction were appropriate to the tasks facing the courts which developed them, they do not serve s.52.

Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 168-169;

Schacter v. Canada, [1992] 2 S.C.R. 679 at 707-722;

Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 at 104

4) The Freedom of Expression Issue

37.

Section 163.1 undoubtedly imposes a limit on the freedom of expression guaranteed by s.2(b) of the Charter. The question raised on the proposed appeal is whether the law is vague or overbroad or imposes an unreasonable burden on artistic expression.

Regina v. Keegstra, supra at 828;

Regina v. Butler, supra at 488-489

a) Is s. 163.1 "prescribed by law": The Vagueness Issue

38.

The Applicant accepts that a law will only be unconstitutionally vague when it fails to provide "fair notice to the citizen" or an "intelligible standard" to limit the enforcement discretion conferred on the police. The proposed appeal would require this Court to decide whether the phrases "depicted as being under the age of 18 years" and "explicit sexual activity", fail to provide "fair notice" to artists exercising the freedoms protected by s.2(b) of the Charter. Further, the Court will be asked to determine whether these phrases adequately constrain the discretion of the police to decide when to invoke the limit on artistic expression authorized by s.163.1.

Osborne v. Canada (Treasury Board), supra at 94-96

b) Overbreadth and Minimal Impairment

39.

The proposed appeal raises generally the question whether s.163.1 has "the potential to catch more conduct than the government is constitutionally permitted in the pursuit of its legitimate goals".

Committee for the Commonwealth v. Canada,[1991] 1 S.C.R. 139 at 215-216

40.

Section 163.1 engages the overbreadth doctrine in at least five ways:

(i)

it criminalizes the depiction of persons who are actually over 18 years of age and engaged in sexual activity which is not "obscene".

(ii)

it criminalized the depiction of behaviour between persons over 14 years of age which is not itself subject to criminal proscription;

(iii)

it criminalizes the mere private possession of depictions created by persons over 14 years of age who have consensually participated in the creation of the depiction (i.e., a photograph, film, or video); and

(iv)

it criminalizes depictions of children regardless of whether children are actually used in the production of the depiction; and

(v)

it criminalizes artistic endeavours which do not meet some test of sufficiency under the legal definition of artistic "merit" (as opposed to scientific, educational, or medical "purpose").

41.

Related to this, the Court will be asked to decide whether other less restrictive measures would adequately achieve Parliament's goal, in enacting this law, to protect children from sexual abuse.

c) The Potential Impact of the Law on Artistic Expression

42.

In contrast to the other disciplines protected by s.163.1(6), artists who wish to avoid liability under this provision are not entitled to defend themselves by pointing to a good faith assertion of an artistic purpose. In other words, artists whose work fails to achieve some loosely defined standard of "merit" have no defence to a charge under this law. They will instead be criminalized for their failed attempt to create art. The law imposes a punitive burden on young or unknown artists by tying their freedom from criminal liability to the success of their art or to their acceptance by the artistic community.

43.

Moreover, existing collections of art in museums, galleries, and homes across Canada, never before in peril of seizure because they are no "obscene" are, since the enactment of s.163.1, at peril of seizure and destruction if a judge is not satisfied that they have "artistic merit". It is noteworthy that evidence filed at the hearing before the McCombs J. established that virtually every significant arts organization in this country opposed the enactment of s.163.1 on the basis of its potential impact on the artistic community.

PART IV
NATURE OF THE ORDER REQUESTED

44.

The Applicant respectfully requests that leave be granted to appeal against the decision of McCombs J. dismissing the application for a declaration that parts of both ss. 163.1 and 164 of the Criminal Code are of no force or effect.

ALL OF WHICH IS VERY RESPECTFULLY SUBMITTED BY:

---

FRANK ADDARIO
Ruby and Edwardh
Barristers and Solicitors
11 Prince Arthur Avenue
Toronto, Ontario
M5R 1B2

Tel. (416) 964-6366
Fax. (416) 964-5821

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PAUL BURSTEIN
Burstein and Paine
Barristers and Solicitors
11 Prince Arthur Avenue
Toronto, Ontario
M5R 1B2

Tel. (416) 966-4034
Fax. (416) 964-5821

Of counsel for the Applicant