Case Summary and Outcome

The Criminal Division of the Quebec Superior Court invalidated Articles 163.1(1)(c) and 163.1(6)(b) in Canada’s Criminal Code (Cr. C), which criminalized child pornography, considering that they infringed on the right to freedom of expression guaranteed in the Canadian Charter of Rights and Freedoms (the Charter)—because the provisions were too broad in scope and their negative effects were not proportionate to the legislative objective of protecting minors.  After an author and his publisher were prosecuted for selling a book that depicted instances of child sexual abuse, the Court held that the statutory provisions under which they were prosecuted—which outlawed written depictions of child sex as child pornography—violated the Charter because they posed too great a risk of punishing and chilling aesthetically important, socially productive expressions.  To reach this conclusion, the Court applied a four-prong proportionality analysis which interrogated the relevant criminal statute’s objectives, its rationality in choosing a means to achieve them, whether it was unnecessarily broad, and its possible chilling effect on expression.  The Court found that while the government established that the legislation bore a rational relationship with the legislative objective of protecting minors, the definition of “child pornography” in those provisions was too broad, had the potential of criminalizing literary expressions— or even victim narratives— and could socially stigmatize the writers so charged. Thus, the Court concluded that these negative effects likely outweighed the salutary effects of the provisions.

Facts

Éditions ADA is a Quebecois book publisher that sells a line of novels for adults known as “Contes Interdits” (Forbidden Tales).  These novels take fairy tales, such as Beauty and the Beast, Jack and the Bean Stalk, and Snow White, and adapt them into horror stories, engaging different Quebecois novelists to write them.  One of the tales they chose to adapt was Hansel and Gretel.  Yvan Godbout was enlisted to write the adaptation.

Godbout’s novel depicted several instances of sexual activity involving minors.  It also included a photograph of two children on the front cover (not itself sexually explicit), which seemed to represent the two child characters who are abused throughout the novel. Both e-book and hard copy versions of the novel were sold.  The hard copy versions were widely distributed throughout Quebec, including in grocery stores like Costco.

Godbout and Éditions ADA were charged under Article 163 of Canada’s Criminal Code (C. Cr.), which criminalized the production, distribution, and possession of child pornography, and its access.  Article 163.1 of the Criminal Code defined child pornography as, among other things, “any written material . . .  that advocates or counsels . . . [or] whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years.”  The aforementioned article also provides for an affirmative defense against this charge if the defendant can show that the relevant pornographic material “(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (b) does not pose undue risk of harm to persons under the age of eighteen years.”

Importantly, the relevant provisions on child pornography in Canada’s Criminal Code were amended in 2005, broadening the scope of the offense by eliminating the government’s need to show that the materials in question advocated or counseled illegal sexual activities with children.

Godbout applied to the Criminal Division of the Quebec Superior Court for relief from prosecution.  He argued that the Criminal Code’s definition of child pornography infringed on his right to freedom of expression under Article 2(b) of the Canadian Charter of Rights and Freedoms (the Charter).  Article 2(b) enshrines the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”  The Charter also provides, however, that this right, like all others, is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Decision Overview

The Honorable Marc-André Blanchard, J.S.C. delivered the judgment of the Court. The main issue before it was whether the Criminal Code’s prohibition and criminalization of depictions of sexual activities involving minors remained within the “reasonable limits,” prescribed by Art. 1 of the Charter, to limit freedom of expression, or, as Godbout argued, unjustifiably infringed on this right.

Godbout argued that including fictional works in the definition of child pornography had no rational connection to the goal of protecting children from sexual exploitation.  In his view, the only sort of pornography that harmed children were visual representations that used real child actors. Thus, he claimed that only a prohibition on visual representation would carry a rational relationship to the statute’s professed objective. Furthemore, the applicant argued that since the 2005 amendment to the Criminal Code broadened the scope of the definition of child pornography, and because R. v. Sharpe, 2001 SCC 2 (CanLII), [2001] 1 S.C.R. 45, declared that former provisions prior to the amendment breached Article 2 of the Charter, it followed that the broadened provisions necessarily violated Article 2 of the Charter.

The government, for its part, recalled the two-pronged mechanism established by Article 163.1(6) of the Criminal Code to balance the rights at issue and submitted that the task was to examine whether the harm was compatible with the proper functioning of society. The government did not present an argument about why the 2005 amendment that broadened the definition of child pornography was a reasonable solution to the perceived harm, but did claim that it was difficult to draft a provision that would cover every writing that might harm minors without prohibiting legitimate works.

The Court first established that Godbout’s novel, along with many other fictional or literary works that depicted sexual activities involving children, clearly fell within the statute’s definition of child pornography. Citing the Canadian Supreme Court’s opinion in R. v. Sharpe, the Court recognized that the relevant provisions in the Criminal Code constituted a prima facie violation of Article 2(b) of the Charter. Therefore, the government had the burden to show that the restrictions were justified under Article 1 of the Charter.  The Court then outlined the standard for refuting Godbout’s prima facie case:  The government bore the burden to show that (1) the legislation at issue had a “pressing and substantial” objective, and (2) the means by which the objective was furthered were proportionate.  The proportionality inquiry, the Court noted, further comprised three components: There should be (1) a rational connection between the measure and the objective, (2) a minimal impairment of the affected right; and (3) proportionality between the negative and salutary effects of the law.

Upon reviewing the legislative history of the 2005 amendment to the Criminal Code, the Court resolved that the objective of protecting children from being exploited in child pornography was “pressing and substantial.”  [para. 53]

On the “rational connection” prong, the Court had to consider whether the government showed that the legislation’s goals were logically furthered by the means chosen by the government. The Court disagreed with Godbout’s argument that only a prohibition on visual representation would bear a rational relationship to the legislative objective, though without directly addressing his distinction between visual representations of actual children and imaginary, written ones.

It noted instead, citing Mounted Police Association of Ontario (MPAO) v. Canada (Attorney General), [2015] 1 SCR 3, 2015 SCC 1, and Frank v. Canada (Attorney General), 2019 SCC 1 (CanLII), [2019] 1 S.C.R. 3., that it was generally “not particularly onerous” for the government to establish a rational connection between a legislative objective and the means used to accomplish it. According to the Court, “[a] reasonable inference that the means adopted by the government will help bring about the objective suffices,” [para. 56] and no empirical proof of a causal relationship was necessary. Since the Court found that in enacting the relevant criminal provisions, Parliament relied on evidence that “establishe[d] a reasoned apprehension of harm” [para. 60] resulting from the production of child pornography, the government had clearly established a rational connection between its policy and the harm it looked to remedy.

Regarding the “minimal impairment” part of the test, the Court considered whether there were significantly less drastic means for the government to achieve its objective in “a real and substantial manner.”  [para. 63]  According to the Court, the government did not need to choose the least burdensome means, as long as its chosen policy “[fell] on a range of reasonable solutions.”  [para. 77]

On this point, the Court expressed serious concerns about the contested statutory provisions’ potential to criminalize literary and aesthetically expressive depictions of pedophilia, as well as narratives by victims about their abuse.  While the amended provisions did include exceptions for works that fulfilled a “legitimate purpose related to . . . art,” to qualify for the exception, these works must also not pose an “undue risk of harm” to children.  [para. 119]  Moreover, the amended provisions eliminated the words “advocates or counsels” in the definition of child pornography.  The Court emphasized the open-endedness inherent in the notion of an “undue risk,” combined with the absence of the words “advocates or counsels,” warning that these statutory provisions gave prosecutors too much discretion in deciding which expression to target. In particular, the Court considered that the statute’s broad definition could result in criminal liability for libraries and bookstores housing aesthetically significant works or victim narratives containing sexually explicit depictions of children.

In the Court’s view, this was a major impairment of freedom of expression, which could be corrected without sacrificing the government’s legitimate objective. As the Court said, the government could modify its ban to include only speech that “advocates or counsels” child pornography and poses an undue risk of harm.

Regarding the final prong—“proportionality”—the Court analyzed whether the purported benefits of the law were proportional to its burden on the right to freedom of expression. Since the government did not offer evidence of any salutary effects resulting from its ban on written pornographic depictions (although it bore the burden of proof), the Court’s analysis only explored the law’s negative effects. The Court credited a brief written by the Québec Union of Writers, supported by bookstores and libraries of the region, about the chilling effect of this case, and highlighted the immense social stigma writers would face if accused of creating child pornography.

Ultimately, the Court concluded that since these statutory provisions seriously impaired writers’ freedom of expression—and their deleterious effects would likely outweigh its salutary ones—they unjustifiably infringed on the right to freedom of expression enshrined in the Charter. In particular, the Court found that the inclusion of the notions of  “advocating” and “counseling” sexual activity with a minor was a prerequisite to the constitutionality of the relevant statutory provisions. As such, the Court declared Articles 163.1(1)(c) and 163.1(6)(b) of the Criminal Code unconstitutional and ordered that the charges against Godbout and Éditions ADA be dismissed.