[35] In R v Barabash, 2015 SCC 29, [2015] 2 SCR 522 [Barabash], the Supreme Court considered the Sharpe exceptions and clarified the lawfulness component that is required for the second exception to apply. The decision in Barabash examined alleged child pornography that was created in the context of an exploitative sexual relationship that would otherwise be prohibited pursuant to s. 153 of the Criminal Code. The Supreme Court held that if the Crown proved beyond a reasonable doubt that the sexual activity occurred in the course of an exploitative relationship, then the private use exception would not be available. This is so because such sexual activity would not be lawful, even if it were consensual. The exploitation inquiry is not a separate step in the Sharpe analysis for the private use exception and is subsumed in the lawfulness inquiry. Importantly, this decision did not enlarge the Sharpe exceptions and reiterated the three necessary elements for the private use exception (at para 18):
(a) “the recording must depict lawful sexual activity”;
(b) “the persons depicted must consent to the recording”; and
(c) “the recording must be held for private use”.
[36] No other court in Canada has expanded the exceptions listed in Sharpe. Instead, courts have tended to narrowly apply the two existing exceptions: see, for example, R v T.W., 2014 ONSC 4532, and R v L.W. (2006), 2006 CanLII 7393 (ON CA), 208 OAC 42 (CA).
[37] Turning more specifically to the proportionality analysis under s. 1 of the Charter, I find that the sections of the Criminal Code prohibiting the dissemination of audio recordings are rationally connected to their objective.
[38] As a first point, I note that there was no evidence that any of the children discussed in the audio recordings actually existed. However, the Supreme Court has already determined that visual depictions of sexual activity involving imaginary children are caught by the definition of child pornography in s. 163.1(1)(a)(i) and s. 163.1(1)(b) and can be harmful to children even if the children who are depicted are imaginary: Sharpe at para 38 (majority) and at para 167 (concurring minority). I can see no principled reason why this would not be equally true of explicit audio descriptions of sexual activity with children who have not been proven to exist.
[39] More pertinently, as set out by McLachlin C.J.C. in Sharpe (at paras 87–92), the prohibition on the possession of child pornography addresses the risk of harm to children created through the following:
(a) cognitive distortions that normalize sex with children among the consumers of such material;
(b) the fuelling of fantasies that may incite sexual abuse of children;
(c) its role in the grooming of potential victims; and
(d) the actual abuse of real children who are used to create the material.
These four harms are also present with regard to the offences of accessing and making child pornography. Despite Mr. Fisher’s assertions to the contrary, these same risks were created by his audio recordings, although, perhaps, to a lesser degree than some other forms of child pornography. The prohibition of the conduct in question, as set out in s. 163.1 of the Criminal Code, seeks to prevent the recognized risk of harm to children created through the production, possession and dissemination of such audio recordings. It is, therefore, rationally connected to Parliament’s objective of lessening this risk of harm.
[40] In further considering whether the impugned sections are proportionate, it is instructive to more closely examine the two exceptions that were set out in Sharpe under s. 1 of the Charter. The first exception exempts written or visual material that is entirely self-created and not shared with any other person. While such material still engenders potential harm by promoting cognitive distortion and fueling fantasies, the Supreme Court determined that the expressive value outweighs the harm. In my view, the requirement that such material be self-created and remain completely private weighed heavily in the balancing that resulted in this exception.
[41] The second exception is aimed at visual recordings of young persons engaging in lawful sexual activity, possession of which, by virtue of their ages, would otherwise constitute an offence. Again, the exception applies only if the recording is purely held for private use. Virtually none of the types of harm set out in Sharpe are implicated in this second exception. The risk is low and the expressive value is high. The same cannot be said in relation to Mr. Fisher’s use of Interactive Male. The second exception requires the sexual activity being described or depicted to be lawful, and, even if all of the participants in the creation of the material consent, to be strictly private: Barabash. The activity described in the Interactive Male recordings was not a description of lawful sexual conduct and the recordings were shared.
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