Could Canada’s child pornography laws be unconstitutional?

It seems a strange question to ask, if only because at first glance it appears the matter has already been clearly decided. In R v Sharpe, 2001 SCC 2, the Supreme Court of Canada addressed a constitutional challenge to the validity of Canada’s child pornography laws. The Court held that the Criminal Code’s prohibition on the possession of child pornography was consistent with s. 7 of the Canadian Charter of Rights and Freedoms. Central to the Court’s analysis was that Parliament had lawfully pursued criminalizing the possession of material that posed a reasoned risk of harm to children.

Yet a recent case from the British Columbia Court of Appeal, R v M.B., 2016 BCCA 476, suggests a reconsideration of this decision may be imminent, in light of both a changing legal landscape and the rapid technological revolution that has occurred in the years since Sharpe was decided.

Sharpe, an adult accused person, was charged with possession of a computer disc located by Canada Customs, and various materials found during a search of his home, including books, manuscripts, stories and photographs. The Crown alleged each item constituted or contained child pornography. While the Supreme Court recognized the importance of criminalizing the possession and distribution of child pornography, it also acknowledged that two categories of materials that one might not normally think of as “child pornography” and which raised little or no risk to children could be caught by the Code’s provisions.  Thus, the Court read into the Criminal Code two exceptions meant to ensure the law was not unconstitutionally overbroad: (1) any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.

Fifteen years later, a new set of facts unimaginable to the Supreme Court in 2001 may have placed the legitimacy of these provisions back before the courts. And the outcome appears surprisingly unpredictable.

In M.B., the accused was a young person. Her boyfriend had kept intimate images of his ex-girlfriend, C.B., on his smartphone. M.B. discovered and then distributed these intimate images of C.B. (who was 14-16 at the time the images were taken) without her consent, in an apparent effort to humiliate her. This was done primarily through the unchecked brushfire of social media, including direct messaging on Facebook. She was charged with possession and distribution of child pornography (Criminal Code ss. 163.1(2) and (3)).

M.B. brought a constitutional challenge to the child pornography provisions and argued that Sharpe was inapplicable for two reasons. First, that this type of behaviour – the widespread use of teenagers sending intimate pictures of each other via smartphones with digital cameras and/or social media – simply did not exist in 2001. Second, the jurisprudence surrounding s. 7 of the Charter had undergone such a revolution since Sharpe that new legal analytics were required to determine if the provisions were now unconstitutional.

The trial judge refused to entertain the challenge, finding that the Sharpe decision was binding authority. M.B. appealed.

In Canada (Attorney General) v Bedford, 2013 SCC 72, the Supreme Court held that trial courts were entitled to reconsider settled rulings of higher courts in two situations: (1) where new legal issues are raised, or (2) where a change in circumstances or evidence “fundamentally shifts the parameters of the debate”.[1]  M.B. argued both avenues justified granting her a hearing before a trial court to re-open the constitutional challenge to the child pornography provisions in question.

In a lengthy decision, the British Columbia Court of Appeal agreed. The Court of Appeal noted that the Supreme Court’s Charter jurisprudence with respect to s. 7 and how it interacts with s. 1 had undergone a significant evolution since Sharpe was decided.[2] Furthermore, the importance of distinguishing between the analysis required by each section represented a new legal issue as contemplated by Bedford.[3]

Additionally, the Court of Appeal refused to rule out of the possibility that M.B. could establish a Charter s. 7 infringement by leading evidence on “the nature of harm caused by youth distributing intimate images as compared to the harm they suffer by encountering the criminal justice system as a result of “sexting”…. and the stigma associated with child pornography convictions.”[4] A new trial was ordered.

The decision is striking for several reasons. The British Columbia Court of Appeal appears to have recognized, however tangentially at this stage, that there is indeed harm associated with the mere fact of young persons encountering the criminal justice system at all (i.e. by being charged), especially in the context of a deeply stigmatizing offence, such as possession or distribution of child pornography. That harm will have to be assessed and weighed against the societal value from the criminal prohibition on both young persons and adults sending intimate images (that may constitute child pornography) without consent.

Second, the Court’s ruling suggests that rapid technological change and the behavioural patterns that unfold alongside it can be a basis to reopen seemingly settled constitutional questions. But what if in five years teenagers are using soon to be developed technologies in a manner involving sexual imagery that “fundamentally shifts the parameters of the debate” yet again? Will the courts be called upon to reopen these questions with increasing regularity? Such potentially never-ending challenges to our criminal laws could represent something of a Sisyphean nightmare, with interminable constitutional litigation the only sure result.

There do not appear to be any cases of this nature decided by an Ontario Court at this time. One may be inevitable. And however M.B. is decided by a trial court in British Columbia, it may take an appeal to the Supreme Court of Canada to determine if this is truly what that Court envisioned when it permitted “settled” law on questions of the constitutional validity of legislation to be re-examined in Bedford.

The only thing certain, even in criminal and constitutional matters, may be uncertainty itself.