Victory for the author of a work deemed child pornography by the police
In recent days, the Yvan Godbout affair, this author accused of producing child pornography material for his novel entitled Hansel and Gretel, was highly publicized, in particular because of the disturbing circumstances of his arrest, highlighted elsewhere in the decision of Judge Marc-André Blanchard, of the Superior Court. Before concluding that the author and his publisher have been acquitted, the judge conducted a detailed analysis of the constitutional principles applicable when such fundamental values as freedom of expression and the protection of children are in competition.
It was in 2015 that the author was charged, by way of direct indictment, with producing child pornography in violation of section 163.1 (2) of the Criminal Code (C.Cr.):
Production of child pornography
(2) Anyone who produces, prints or publishes, or has in their possession for the purpose of publication, child pornography is guilty of an indictable offense punishable by imprisonment for not more than fourteen years, with a minimum sentence of one year.
The unconstitutionality of the articles
In his defense, the author invokes the unconstitutionality of articles 163.1 (1) c), (2), (3), (4), (4.1) and (6) C.Cr. because they would violate the right to freedom of expression, enshrined in article 2 b) of the Canadian Charter of Rights and Freedoms, as well as the right to security, protected by Article 7, and would constitute a violation of the presumption of innocence provided for in Article 11 d). The judge is particularly interested in articles 163.1 (1) c) and 163.1 (6) C.Cr. in his analysis:
Definition of child pornography
163.1 (1) In this section, child pornography means,
vs) any writing whose dominant characteristic is the description, for a sexual purpose, of a sexual activity with a person under the age of eighteen which would constitute an offense against this law;
(6) No one may be convicted of an offense under this article if the acts which would constitute the offense:
at) have a legitimate aim related to the administration of justice, science, medicine, education or the arts;
b) do not pose an undue risk to persons under the age of eighteen.
Note that prior to the 2005 legislative changes, the definition under section 163.1 (1) c) included the concepts of “advocating” or “advising” sexual activity with a person under the age of 18 that would constitute an offense. to this law.
Freedom of speech
Regarding the violation of freedom of expression, the author quotes the following passage from the judgment Sharpe, of the Supreme Court:
” 21 Among the most basic rights Canadians have is freedom of expression. It makes our freedom, creativity and democracy possible, by protecting not only expression that is “good” and popular, but also expression that is unpopular and even offensive. […] “
After analysis, the court concludes that the provisions in question do indeed violate freedom of expression, which the Crown prosecutor admitted from the outset.
Child protection versus freedom of expression
The violation of fundamental rights by a law can be justified in the framework of a free and democratic society (art. 1 of the charter).
To determine whether the violation can be justified, the judge, relying on Carter c. Canada (Attorney General), specifies that “the [procureure générale du Québec] must demonstrate the urgent and real nature of the object of the law and that the means chosen prove to be proportional to this object. The legislator will meet the proportionality test if (1) the means adopted are rationally linked to this object, (2) the law minimally infringes the right in question, and (3) there is a proportionality between the harmful effects and the beneficial effects of the law ”(paragraph 36).
The judge concluded that, indeed, the legislative objective of criminalizing the possession of child pornography is a real and urgent concern. Regarding the proportionality of the means chosen, the judge analyzes it from the angle of rationality, minimal impairment and proportionality, as the Supreme Court teaches.
Thus, he concludes that there is clearly a rational connection to be made between the prohibition brought about by the provisions in question and the real and pressing objective of criminalizing child pornography.
Whether this is the minimum impairment remains to be seen. In other words, are there other means less restrictive of freedom of expression that would achieve the same ends?
At this stage, the judge reconsidered the legislative amendment of 2005 because, according to him, “this is a key element as to the fate of the present constitutional challenge” (paragraph 84).
More specifically, the judge mentions:
“At the level of minimal interference with freedom of expression, a finding is therefore necessary. Obviously, the testimony of Veilleux and the list of French-language works identified, shows that a large section of a certain pornographic literature, containing passages of child pornography, is now covered by this new definition of Criminal Code as well as certain works of other natures which contain such passages. Thus, many people and public institutions, such as university, municipal or school libraries as well as bookstores, potentially find themselves in a position to be accused of possessing or distributing child pornography since they possess, lend or sell such works. ”(Paragraph 109). [Caractères gras ajoutés.]
According to him, the test of minimal impairment is therefore not met, nor even that of the proportionality of the measure. In other words, prohibit literary material that does not neither advocates nor advises the commission of sexual acts against children does not add to the protection that the provisions in question would provide to children.
And he adds:
“It is important to remember, once again, that in the previous legislative framework that existed until 2005, a writing could only constitute child pornography in the event that it advocated or advised sexual activity with a minor. . Without showing recklessness, the Tribunal can affirm that under the old provisions it was almost unthinkable that one could then lay charges for a book similar to that of Godbout ”(paragraph 142).
In the light of its analysis also from the point of view of Articles 7 and 11 d) of the charter, the judge came to the conclusion that sections 163.1 (1) (c) and 163.1 (6) (b) C.Cr. violate articles 2 b) (right to freedom of expression) and 7 (right to security) of the charter.
Indeed, the inclusion of the notions of “advocating” and “advising” sexual activity with a minor, or an equivalent, constitutes a prerequisite for the constitutional validity of legislative provisions which deal with the criminalization of writings containing passages. child pornography.
The judge specified that, in the present case, this lacuna is manifested by the combination of articles 163.1 (1) c) and 163.1 (6) b) C.Cr.
- Godbout c. Attorney General of Quebec(CS, 2020-09-24), 2020 QCCS 2967, SOQUIJ AZ-51710102. As of the broadcast date, the decision had not been appealed.
- R. c. Sharpe (CS Can., 2001-01-26), 2001 CSC 2, SOQUIJ AZ-50082589, JE 2001-294,  1 RCS 45.
- Carter c. Canada (Attorney General), (CS Can., 2015-02-06), 2015 CSC 5, SOQUIJ AZ-51147227, 2015EXP-471, JE 2015-245,  1 RCS 33.