Intervener Attorney-General-of

Publication Ban
Interdiction de
publication
Court File Nos. 35977 and 36064
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA)
BETWEEN:
DONALD JERRY BARABASH
Appellant
AND:
HER MAJESTY THE QUEEN
Respondent
AND:
ATTORNEYGENERALOFCANADA
ATTORNEY GENERAL OF ONTARlO
CANADIAN CIVIL LIBERTIES ASSOCIATION
AND
BEYOND BORDERS AND THE CANADIAN CENTRE FOR CHILD PROTECTION INC.
Interveners
AND BETWEEN:
SHANE GORDON ROLLISON
Appellant
AND:
HER MAJESTY THE QUEEN
Respondent
AND:
ATTORNEY GENERAL OF CANADA
ATTORNEY GENERAL OF ONTARlO
CANADIAN CIVIL LIBERTIES ASSOCIATION
AND
BEYOND BORDERS AND THE CANADIAN CENTRE FOR CHILD PROTECTION INC.
Interveners
FACTUM OF THE INTERVENER
THE ATTORNEY GENERAL OF CANADA
(Rules 37 and 42 oftheRules ofthe Supreme Court ofCanada)
Jeffrey G. Johnston
William F. Pentney, Q.C.
2127 - 284 Wellington Street
Ottawa, Ontario
KlA OH8
Deputy Attorney General of Canada
50 O'Connor Street, 5th Floor, Room 556
Ottawa>Ontario
KlAOH8
Per: Robert J. Frater, Q.C.
Tel: (613) 941-3528
Fax: (613) 957-8412
Tel: (613) 670-6289
Fax: (613) 954-1920
Email: [email protected]
Email: robert. [email protected]
Counsel for the Intervener,
the Attorney General of Canada
Solicitors for Counsel for the Intervener,
the Attorney General of Canada
Publication Ban
Interdiction de
publication
Peter J. Royal, Q.C.
Marie-France Major
Royal Teskey
9636 - 102A Avenue, Suite 200
Edmonton, Alberta
T5H OG5
Tel: (780) 432-0919
Fax: (780) 439-6562
Email: [email protected]
Eugene Meehan, Q.C.
Supreme Advocacy LLP
100 - 340 Gilmour Street
Ottawa, Ontario
K2P OR3
Tel: (613) 695-8855 ext. 101
Fax: (613) 695-8580
Email: [email protected]
Counsel for the Appellant, Donald Jerry
Barabash
Ottawa Agent for the Appellant, Donald Jerry
Barabash
Diana C. Goldie
Legal Aid Society of Alberta
300 Revillon Building
10320 102 Avenue
Edmonton, Alberta
T5J 4Al
Tel: (780) 232-4625
Fax: (780) 422-3757
Email: [email protected]
Supreme Advocacy LLP
100 - 340 Gilmour Street
Ottawa, Ontario
K2P OR3
Tel: (613) 695-8855 ext. 101
Fax: (613) 695-8580
Email: [email protected]
Counsel for the Appellant, Shane Gordon
Rollison
Ottawa Agent for the Appellant, Shane Gordon
Rollison
Jolaine Antonio
Julie Morgan
Attorney General of Alberta
Justice and Solicitor General
Arfpeals, Education & Prosecution Policy Branch
3 Floor, Centrium Place
300,332 - 6 Avenue S.W.
Calgary, Alberta
T2P OB2
Tel: (403) 297-6005
Fax: (403) 297-3453
Email: [email protected]
[email protected]
D. Lynne Watt
Gowling Lafleur Henderson LLP
Barristers & Solicitors
160 Elgin Street, Suite 2600
Ottawa, Ontario
KIP 1C3
Tel: (613) 786-8695
Fax: (613) 788-3509
Email: [email protected]
Counsel for the Respondent, the Attorney
General of Alberta
Eugene Meehan, Q.C.
Ottawa Agent for the Respondent, the Attorney
General of Alberta
Publication Ban
Interdiction de
publication
Christine Bartlett-Hughes
Ministry of the Attorney General
Crown Law Office - Criminal
1O'b Floor, 720 Bay Street
Toronto, Ontario
M5G2K1
Tel: (416) 326-2351
Fax: (416) 326-4656
Email: [email protected]
Robert E. Houston, Q.C.
Burke-Robertson
41 J MacLaren Street, Suite 200
Ottawa, Ontario
K2P2H3
Tel: (613) 236-9665
Fax: (613) 235-4430
Emrul: [email protected]
Counsel for the Intervener, the Attorney
General for Ontario
Ottawa Agent for the Intervener, the Attorney
General for Ontario
Ale xi N. Wood
Kate Southwell
Davis LLP
1 First Canadjan Place, Suite 6000
P.O. Box 367, 100 King Street West
Toronto, Ontario
M5X 1E2
Tel: (416) 941-5403
Fax: (41 6) 369-5248
Email: [email protected]
Colin S. Baxter
Conway Baxter Wilson LLP
1111 Prince of Wales, Suite 401
Ottawa, Ontario
K2C3T2
Tel: (613) 780-2012
Fax: (613) 688-0271
Email: [email protected]
Counsel for the Intervener, the Canadian Civil
Liberties Association
Ottawa Agent for the Intervener, the Canadian
Civil Liberties Association
David Matas
Barrister & Solicitor
602 - 225 Vaughan Street
Winnipeg, Manjtoba
R3C 1T7
Tel: (204) 944-1831
Fax: (204) 942- 1494
Email: [email protected]
Counsel for the Intervener, Beyond Borders
and the Canadian Centre for Child Protection
Inc.
D. Lynne Watt
Gowling Lafleur Henderson LLP
Barristers & Solicitors
160 Elgin Street, Suite 2600
Ottawa, Ontario
KIP 1C3
Tel: (613) 786-8695
Fax: (613) 788-3509
Email: [email protected]
Ottawa Agent for the Intervener, Beyond
Borders and the Canadian Centre for Child
Protection Inc.
Publication Ban
Interdiction de
publication
TABLE OF CONTENTS
Page No.
PART I - OVERVIEW AND STATEMENT OFFACTS .................................................... l
A. Overview .......................................................................................................................... 1
B. Facts ................................................................................................................................. 1
PART TI- RESPONSE TO THE QUESTION IN ISSYE .................................................... !
PART m- ARGUMENT ........................................................................................................ 2
A. The "Private Use Exception" to Making and Possessing Child Pomography ................. 2
B. The Absence of Exploitation or Abuse as a Requirement of the "Private Use
Exception" is Consistent with Parliamentary Intent ....................................................... 3
C. The "Private Use Exception" Does Not Apply to Child Pornography Which Poses a
Reasoned Risk of Hann to Children ............................................................................... 6
D. The Vulnerability of Children is Relevant to the Interpretation of the "Private Use
Exception" ....................................................................................................................... 6
E. The "Private Use Exception" Should be Interpreted as Part of the Statutory Regime
Governing Sexual Offences Involving Children ............................................................. 9
PART IV - COSTS ................................................................................................................. 10
PART V- ORDER SOUGHT ............................................................................................... ! 0
PART VI - LIST OF AUTHORITIES ................................................................................. 11
PART VII -STATUTES AND REGULATIONS ............................................................... 13
Publication Ban
Interdiction de
publication
PART I-OVERVIEW AND STATEMENT OF FACTS
A.
Overview
1.
The "private use exception" to making or possessing child pornography is premised on the
absence of exploitation or abuse in its production. This exception was never intended to permit the
making of child pornography involving exploitation or abuse or circumstances which otherwise
pose a reasoned risk of harm to children.
Such an interpretation would defeat Parliament's
objectives of protecting children from exploitation and abuse and ensuring that any defences
afforded an accused to child pornography offences do not pose an undue risk of harm to children.
This interpretation is also contrary to Canada's international obligations and is inconsistent with the
"private use exception" itself as articulated by this Court in R. v. Sharpe. 1
2.
Children, on account of their age, are inherently vulnerable to sexual exploitation and abuse.
Because of this, the law affords them heightened protections from sexual offences, including child
pornography. Holding that the consent of a child to recorded sexual activity is sufficient to engage
the "private use exception" without requiring independent evidence that consent was not vitiated by
factors such as exploitation or abuse would render s. 163.1 of the Criminal Codi virtually
ineffectual in protecting children from the harms associated with making child pornography.
B.
Facts
3.
The Attorney General of Canada accepts the facts as stated by the parties.
PART II- RESPONSE TO THE QUESTION IN ISSUE
4.
The "private use exception" to making and possessing child pornography contrary to ss.
163.1(2) and 163.1(4) of the Criminal Code should be interpreted as having four requirements:
(i) The recorded sexual activity is itselflawful;
(ii) The recording is held exclusively for private use;
(iii)The participants must have consented to the sexual activity in question; and
(iv)The consent of any child participants who have attained the age of consent must not be
precluded by exploitation or abuse or other circumstances which pose a reasoned risk of
harm to children.
1
2
(2001) 1 S.C.R. 45, 2001 SCC2 ("Sharpe").
R.S.C. 1985, c. C-46.
Publication Ban
2
Interdiction de
publication
PART ill- ARGUMENT
A.
The "Private Use Exception" to Making and Possessing Child Pornography
5.
The interpretation of the '1>rivate use exception" requires an explanation of why tlris Court
in Sharpe held that this exception had to be read in to the offences of making and possessing child
pornography in order to render these provisions constitutional.
6.
The Court in Sharpe recognized that Parliament's intent in enacting the child pornography
provisions was to protect children from harm in the production of child pornography which poses a
reasoned risk of harm to children.3
The Court had no difficulty in concluding that child
4
pornography produced in circumstances involving exploitation or abuse meets this harm threshold
and that preventing harm of this magnitude must prevail over freedom of expression where the two
sets of interests collide.5
7.
The Court found that the provisions went too far in catchlng child pornography produced in
circumstances which pose Jess than a reasoned risk of harm to children.6 The Court concluded that
child pornography made or possessed for '1>rivate use" was not an offence, provided:
(i) the
recorded sexual activity is lawful; (ii) is held exclusively for private use; and (iii) the participants
depicted in the recording consented to the sexual activity. 7 Unless all three conditions are met, the
recorded sexual activity would be unlawful. In effect, "private use" operates as a defence.
8.
Sections 163.1(2) and (4) create the offences of making and possessing child pornography.
The narrow question to be decided in this case is whether, to qualify for the "private use exception",
an accused charged with either of these offences must demonstrate that the consent of any child
participants to recorded sexual activity was obtained in the absence of exploitation or abuse. The
detennination of this issue turns on whether, in addition to showing evidence of consent, the
accused has to point to facts capable of showing that the consent of any child participants was not
obtained in circwnstances involving explpitation or abuse. While the majority of the Alberta Court
of Appeal answered this question in the affinnative, the trial judge and the dissenting judge in the
Courts below rejected this as a requirement.
9.
This approach is flawed for three reasons. First, this Court in Sharpe never envisaged the
'1>rivate use exception" applying to child pornography produced in circumstances which pose a
reasoned risk of harm to children. Viewing the consent requirement as providing a full answer to
3
Sharpe at paras. 34, 72, 82 and 122.
Ibid. at paras. 72 and 122.
5
Ibid. at para. 30.
6
Ibid. at paras. 75-76.
7
Ibid. at paras. 115-116 and 128.
4
Publication Ban
Interdiction de
publication
3
the absence of factors capable of vitiating consent in the case of children allows for this situation.
This outcome is also at odds with Parliament's intent in enacting the child pornography provisions
of protecting children from exploitation and abuse.
10.
Second, this approach is not supported by principles of statutory interpretation or this
Court's approach to defences. It detracts from truth-finding in supporting the fiction that the
consent of child participants to recorded sexual activity was genuine. It is also not consistent with
the Criminal Code scheme governing sexual offences against children as a whole which mandate
that these offences, including those pertaining to child pornography, are made out where the
offending conduct poses an undue risk of harm to children.
11.
Finally, interpreting the ''private use exception" without regard to indicia of exploitation or
abuse or other circumstances which pose a reasoned risk of harm fails to take into account the
inherent vulnerability of children to exploitation and abuse and other factors which stand to render
their purported consent to sexual activity neither voluntary nor meaningful. The law affords
child~en heightened protections
from sexual offences in recognition of this vulnerability.
B.
The Absence of Exploitation or Abuse as a Requirement of the "Private Use
Exception" is Consistent with Parliamentary Intent
12.
A statute must be interpreted in light of the problem it was intended to address. 8 This
principle extends to the interpretation of defences.
Any defences to the child pornography
offences must not be interpreted in a manner which undermines Parliament's objective of
protecting children from exploitation and abuse.9
13.
Defences must not permit outcomes which are contrary to the rationale for their
existence.
10
Thus, to the extent that a defence is capable of more than one interpretation, it
should not be interpreted in a way which would produce absurd results by allowing the mischief
the legislation was designed to prevent. 11
The "private use exception" ''must...be strictly
controlled and scrupulously limited to situations that correspond to its underlying rationale." 12
14.
"True" defences promote truth-findingY The objectives of trial fairness are to get at the
truth while preserving procedural fairness. 14 One of the main goals of adapting rules of evidence
8
Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (I'rustee of), [2006) 1 S.C.R. 865, 2006 SCC 24 at para. 36.
R. v. Katigbak, [2011] 3 S.C.R. 326, 2011 SCC 48 (''Katigbalf') at para. 38.
10
R. v. Jobidon, [1991] 2 S.C.R. 714 at pp. 762-766; and R. v. Bouchard-Lebrun, (2011) 3 S.C.R. 575, 2011 SCC 58 at para. 86.
11
R. v. Mcintosh, [1995] 1 S.C.R. 686 at paras. 35-36.
12
Perka v. The Queen, [1984] 2 S.C.R. 232 at p. 250.
13
R. v. Chaulk, [1990] 3 S.C.R. 1303 atp. 1401.
14
R. v. Harrer, [1995] 3 S.C.R. 562 at para. 45.
9
Publication Ban
4
Interdiction de
publication
is to remove barriers to truth-finding. 15 An accused cannot claim a vested right in a rule of
evidence enabling a "defence" which distorts truth-finding. 16
15.
These principles dictate that the "private use exception" should not be interpreted in a way
which perpetuates the fiction that consent by child participants is valid where it was obtained in
exploitative or abusive circumstances. Interpreting the exception as including the requirement of an
absence of exploitation or abuse or other circumstances which pose a reasoned risk of hann to
children ensures that the exception is limited to situations where there is true consent
16.
The history of the child pornography provisions demonstrate that the child pornography
offences are aimed at addressing the sexual exploitation and abuse of children.
17.
The provisions can be traced to the Badg]ey and Fraser Reports which recognized that
criminalizing the making and distribution of child pornography is necessary to prevent sexual
exploitation and abuse of children. The Badgley Report concluded, "(c]hild pornography is a
direct product of child sexual abuse.
It comes into existence... through the base and coldly
premeditated exploitation of a young person's sexual vulnerability." 17
The Fraser Report
similarly found that "the harms wrucb have to be demonstrated in order to justify intervention by
the state are different for children in comparison with adults. Precisely because of their status as
children, they are entitled to protection over a wider range of activities than are adults."
18.
18
The 1993 amendments to the Criminal Code responded to Canada's obligations under the
Convention on the Rights of the Child19 which required Canada to take measures to protect
20
children under eighteen years of age from "all forms of sexual exploitation and sexual abuse"
21
and, specifically, "exploitative use of children in pornographic performances and materials."
19.
In Sharpe, this Court recognized that the child pornography provisions further the
objective of preventing harm to children by protecting them from exploitation and abuse in
prohibiting material that poses a reasoned risk of harm to children. 22 The Court identified four
harms associated with possessing child pornography: (i) it promotes cogrutive distortions that
IS R.
16
17
v. Levogiannis, [1993] 4 S.C.R 475 at p. 487; and Mitchell V. M.N.R., [200 1] 1 S.C.R 911,2001
sec 33 at para. 30.
R. v. Darrach. [2000] 2 S.C.R 443, 2000 SCC 46 at paras. 24 and 37; and R. v. Mills. [1999] 3 S.C.R 668 at para. 74.
Canada, Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children: Summary ofthe
Repon ofthe Committee on Sexual Offences Against Children and Youths (Ottawa: Minister of Supply and Services Canada,
1984) (the "Badgley Report") at p. 58.
18
Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada: Repon of the
Special Commitlee on Pornography and Prostitution (Ottawa: Minister of Supply and Services Canada, 1985) (the ''Fraser
Report"), Vol. 2 at p. 571.
19
Can. T.S. 1992 No.3.
20
Ibid. , Article 34.
21
Ibid., Article 34(c).
22
Sharpe at para. 93.
Publication Ban
5
Interdiction de
publication
risk normalizing sexual relations with children; (ii) it fuels sexual fantasies that may incite
offenc.es against children; (iii) it can be used for the grooming and seduction of child victims;
and (iv) it encourages the abuse of children to produce child pomography?3
20.
In March 2001, shortly after the Sharpe decision, Parliament created new offences related to
4
child pornography, including the Internet luring provisions considered in R. v. Legari , as well as
offences related to accessing, transmitting and making available child pornography via the Internet
and exporting child pomography?5 These amendments were also intended to protect children as
vulnerable members of Canadian society: "The amendments... respond to serious crimes against
children....The provisions ... ensure that children are protected from those who would prey upon their
26
vulnerability'' and "better protect... children against sexual exploitation."27
21.
The 2001 amendments coincided with Canada's signing of the Optional Protocol to the
Convention on the Rights of the Child on the sale of children, child prostitution and child
pornograph/8 aimed at combating child exploitation through child pornography. The Protocol
states that children, particularly girls, are vulnerable to sexual exploitation and calls on state parties
to take action to address the exploitation of children caused by child pornography?9
22.
In sum, the child pornography offences, both now and at the time of their inception, are
driven by the underlying policy concern that children, on account of their age, are vulnerable and
this vulnerability requires heightened safeguards to protect them from sexual offences.
This
vulnerability is particularly acute in the context of sexual activity where adults are involved and
children are susceptible to exploitation and abuse and other factors which can lead to their
victimization. As explained by Professor Andrea Slane, "criminalizing child pornography is mainly
justified by a legal system's obligation to protect minors from sexual exploitation, based on the
belief that youth are more vulnerable to exploitation because of their still-developing reasoning
capacity, lower financial and social independence, and lack of life experience."30
23
Ibid. at paras. 86-94.
[2009] 3 s.c.R. 551 , 2009 sec 5.
25
The Criminal Law Amendment Act, 1001, S.C. 2002, c. 13.
26
The Honourable Anne McLellan, MiniSter of Justice and Attorney General of Canada, Canada, House of Commons,
Commons Debates, May 3, 2001 at p. 3581.
27
The Honourable Anne McLellan, Minister of Justice and Attorney General of Canada. Canada, Senate, Proceedings ofthe
Senate Standing Committee on Legal and Constitutional Affairs, Issue 20- Evidence, December 5, 2001 at p. 2.
28
A/RES/54/263 (2000), Annex ll.
29
Ibid., Preamble.
30
Andrea Slane, "From Scanning to Sexting: The Scope of Protection of Dignity-Based Privacy in.Canadian Child Pornography
Law", 48 Osgoode Hall L.J. 543 2010 at pp. 566-567.
14
Publication Ban
Interdiction de
publication
6
C.
The "Private Use Exception" Does Not Apply to Child Pornography Which Poses a
Reasoned Risk of Harm to Children
23.
The availability of the "private use exception" is subject to an important caveat. Sharpe
held that the ''private use" of recorded lawful sexual activity involving child participants poses
"little or no", a "negligible", "nomina]" or "relatively remote" risk ofhann to children with any risk
being "small", "incidental" and ''tenuous."31
Thus, if the making or possession of child
pornography poses a reasoned risk ofhann to children the "private use exception" is not available.32
In applying and interpreting the exception the focus should invariably be on whether the child
pornography poses a reasoned apprehension ofhann to children as compared to a minimal risk. 33
24.
In creating the "private use exception", the Court in Sharpe did not recognize an exception
to the offences of making or possessing child pornography resulting from exploitation or abuse. To
the contrary, the Court stated that the level of harm posed by the private use of child pornography
constituted an unreasonable limit on freedom of expression precisely because no exploitation or
abuse was involved in making the child pornography which did not pose a reasoned risk ofharm to
children with the result that recognizing this exception would not subvert Parliament's objective.34
25.
Accordingly, to interpret the ''private use exception" as including a requirement that consent
by child participants to recorded sexual activity was obtained in circumstances precluding
exploitation or abuse not only ensures that Parliament's intention is respected, it is also entirely in
keeping with what this Court intended in Sharpe, namely, that the exception does not apply to child
pornography produced in circumstances which pose a reasoned risk ofhann to children.
D.
The Vulnerability of Children is Relevant to the Interpretation of the "Private Use Exception"
26.
Just as the contextual approach to s. 1 of the Charter treats as a relevant consideyation the
vulnerability of the group which the legislator seeks to protecf5, so too should this consideration
inform the interpretation of the child pornography offences and the "private use exception."
27.
Viewing the "private use exception" as not taking into account indicia of exploitation or
abuse or other factors which can vitiat~ consent has the effect of treating the consent of children to
sexual activity as the same as that of adults. Not making this distinction ignores the inherent
vulnerability of children vis-a-vis adults which make them especially susceptible to circumstances
which call into question whether any consent to sexual activity was truly voluntary and meaningful.
31
Sharpe at paras. 75, 77, 95, 99, 100, 105, I20, 122 and 125.
R. v. Bono, (2008) O.J. No 3928 (S.C.J.) at para. 26.
33
Sharpe at para. I23; and Katigbak at para. 38.
34
Ibid. Sharpe at paras. I 00, I 05 and 122.
35
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at p. 993; Ross v. New Brunswick School District No. 15,
[1996] 1 S.C.R. 825 at paras. 86- 88; and Sharpe at para. 157.
32
Publication Ban
7
Interdiction de
publication
28.
Children are seen as needing heightened legal protections on account of their age36 :
"[r]ecognition of the inherent vulnerability of children has consistent and deep roots in Canadian
law ... .The law attributes the heightened vulnerability based on chronology, not temperament."37
Where the issue of decision-making like that involved in deciding whether to participate in sexual
activity is concerned, children are not the same as adults and for this reason are treated differently.
There is a compelling state interest in protecting children in this situation as a vulnerable group
that are ''hampered in making informed choices."38
29.
As McLachlin C.J. stated in A. C. v. Manitoba (Director of Child and Family Services/ 9 in
relation to children consenting to medical treatment, "[t]he legislative decision to vest treatment
authority regarding under-16 minors in the courts is a legitimate response ...to heightened
concerns about younger adolescents' maturity and vulnerability to subtle and overt coercion and
40
influence."
Justice Fish made the same observation in R. v. L.T.H 41 in relation to the protections
afforded young persons under the Youth Criminal Justice Act42 : ''young persons... are presumed on
account of their age and relative unsophistication to be more vulnerable than adults· to
suggestion, pressure and influence.'.43 Indeed, we have a separate legal regime for young people
since, "because of their age, young people have heightened vulnerability, less maturity and a
reduced capacity for moral judgment.,,44
30.
The same is true of the child pornography offences. Thus, "[t]he protection afforded by the
legislation extends to all children under 18, no matter their age, and rightly so. Society has
recognized the legitimate need to safeguard all children in this category from exploitative
conduct. Children are not adults and cannot be expected to exercise judgment as if they were.'.45
31.
In determining whether consent is voluntary and meaningful, regard must be had to the
vulnerabilities of the person purportedly consenting and the need to protect this person owing to
these vulnerabilities. As this Court stated in R. v. Audel6, "[t]he relative positions of the parties
have always been relevant to the validity of consent under Canadian criminal law. The common
law has long recognized that exploitation by one person of another person's vulnerability. .. can have
Ibid. Sharpe at para. 170.
A.B. v. Bragg Communications Inc. , [2012] 2 S.C.R. 567, 2012 SCC 46 ("Bragg") at para. 17.
38
R. v. Keegstra, [1990) 3 S.C.R. 697 at p. 761.
39
[2009) 2 s.c.R. 181 , 2oo9 sec 30 ("A. C.").
40
Ibid. at para. 143.
41
[2008) 2 s.c.R. 739, 2oo8 sec 49 ("L.T.H").
42
S.C. 2002, c. 1 ("YCIA").
43
L.T.H. at para. 3.
44
R. V. D. B.' [2008] 2 S.C.R. 3, 2008 sec 25 at para 41.
45
R. v. Hewlett (2002), 167 C.C.C. (3d) 425 (Alta. C.A.), 2002 ABCA 179 at para. 24.
46
[1996] 2 S.C.R. 171.
3(i
37
Publication Ban
Interdiction de
publication
8
an impact on the validity of consent."47 As McLachlin J., as she then was, stated in Jacobi v.
48
Gri.ffiths
32.
,
"children are vulnerable as potential victims of... sexual abuse.'"'9
The vulnerability of children rests on the innate power imbalance that exists between
adults and children based on age.
The Court in Sharpe identified this dynamic as both
explaining the high incidence of sexual violence and exploitation of children and as necessitating
enhanced measures to protect children from sexual offences. 5°
33.
The approach of the trial judge and the dissenting judge in the Courts below and that
proposed by the Appellants fails to recognize the vulnerability of children and the need to protect
them in omitting the relationship between age, vulnerability and exploitation and abuse from the
consent of child participants to recorded sexual activity under the "private use exception."
34.
To interpret the ''private use exception" as only requiring evidence of bare consent
supports the fiction that de facto or ostensible corisent is synonymous with the absence of
exploitation or abuse or other factors capable of vitiating consent in the case of children. 51
35.
The case at bar illustrates the fallacy of equating evidence of consent with the absence of
exploitation or abuse in obtaining consent. The trial judge treated the complainants' control over
the recorded sexual activity and their behavior in the recordings coupled with the absence of
coercion, violence or inducements as all indicative of consent. 52 This analysis obscures completely
the way in which age disparity or other factors can impact on consent, particularly where the
complainants were drug-dependent teenage runaways and the much older Appellants were
providing them with shelter and drugs. 53 While all children are vulnerable, troubled adolescent
children are more vulnerable than most. 54
36.
To interpret the consent aspect of the "private use exception" based on the viewing of the
recorded sexual activity without also requiring evidence that valid consent was not vitiated by
factors such as exploitation or abuse fails to treat children as children. It is no more appropriate than
concluding that a child's smiling appearance in pornographic images means that the child was a
willing participant who was not negatively affected by the experience.55 It also verges on treating
47
Ibid. at para. 20.
[1999] 2 S.C.R. 570 ("Jacobi") .
49
Ibid. at para. 19.
so Sharpe at para. 170.
51
R. v. Cocke//, (2013), 299 C.C.C. (3d) 221 (Alta. C.A.), 2013 ABCA 11 2, application for leave to appeal dismissed, [2013)
S.C.C.A. No. 309 ("Cockelf1 at paras. 37-38.
52
R. v. Barabash, 2012 ABQB 99 at paras. 92-95, 100 and 171-172.
53
Ibid. at paras. 44 and 213; and R. v. Barabash, 2014 ABCA 126 at paras. 2 and 36.
54
Jacobi at para. 19.
ss R. v. D.C., 2009 NBCA 59 at para. 2 1.
48
Publication Ban
Interdiction de
9
publication
the vulnerability of children as a question of temperament56 This outcome is not supported by the
')Jrivate use exception" as conceived in Sharpe and runs counter to the directive in Katigbak
cautioning against an overly broad construction of defences to child pornography offences. 57
E.
The "Private Use Exception" Should be Interpreted as Part of the Statutory Regime
Governing Sexual Offences Involving Children
37.
Section 163.1 does not exist in isolation. As this Court stated in Sharpe, "s. 163.1(4) is part
of a broader scheme of Criminal Code offences which recognize the vulnerability of children and
attempt to protect them from exploitation. ,,ss As the legislature is presumed to have created a
coherent, consistent and harmonious statutory scheme, the offence provisions in s. 163 .l ,
including any available defences, should be interpreted in a manner that is both informed by and
consistent with related provisions targeting the sexual exploitation and abuse of children,
including ss. 153 and 163.1(6) of the Code. 59
38.
The provisions of a statute are ')Jresumed to work together dynamically, each
contributing something toward accomplishing the intended goal.',60
The sexual offence
provisions of the Criminal Code aimed at children should therefore be construed in a harmonious
fashion to promote the common goal of providing heightened protections to young persons in the
interests of protecting them from sexual exploitation and abuse owing to their vulnerability.
39.
61
Section 153 makes it an offence for a person who is in a position of trust or authority
towards a young person, a relationship of dependency or an exploitative relationship to engage in
sexual activity with the young person. Significantly, s. 153(1.2) permits an exploitative relationship
to be inferred from the nature an.d circumstances of the relationship, including based on specific
factors. This provision has been interpreted as allowing an inference of an exploitative relationship
to be drawn as a result of a power imbalance between the person and the young person which
renders the latter vulnerable to the actions and conduct of the former. 62
40.
The nature of the adult-child relationstrip should also inform the "private use exception."
This consideration should require that, for the consent of child participants to recorded sexual
activity to be valid, it is not enough to point to evidence of de facto or ostensible consent. An
accused should be required to go further and demonstrate that any purported consent was not
56
Bragg at para. 17.
Katigbak at para. 38.
58 Sharpe at para. 172.
59
R. V. Summers, (2014] 1 S.C.R. 575, 2014 sec 26 at para. 59.
60
Ruth Sullivan, Sullivan and Driedger on the Construction ofStatutes, 4th ed. (Markham, Ont.: Butterworths, 2002) at p. 168.
61
L.T.H. at para. 47.
62
R. v. Anderson (2009), 241 C.C.C. (3d) 432 (P .E.I. C.A.), 2009 PECA 4 at para. 74.
57
Publication Ban
Interdiction de
publication
10
obtained in the context of an exploitative or abusive relationship or based on factors like those listed
ins. 153(1.2) capable of rendering consent neither voluntary nor meaningful. For example, the age
disparity between the victim and the accused and the evolution of their relationship may support the
finding that the victim was exploited by the accused into making child pornography.63
41.
To hold otherwise is to remove the child aspect from the child pornography equation
altogether and to treat decision-making and the notion of consent by children to sexual activity as
the equivalent to that of adults.64 This interpretation of the "private use exception" discounts
entirely the inherent vulnerability of children based on their age which put them at increased risk of
sexual exploitation and abuse and which, depending on the nature and circumstances of the
relationship, can render de facto or ostensible consent to recorded sexual activity no consent at all. 65
42.
Section 163.1(6) is also relevant to the interpretation of the "private use exception." The
exception should likewise be limited to private uses that do not pose an "undue risk of harm to
persons under the age of eighteen years." This would ensure that the exception is both consistent
with Parliament's objective in legislating defences and with Sharpe which never intended that the
exception would apply to private uses that pose a reasoned risk or apprehension of harm to children.
PART IV - COSTS
43.
The Attorney General of Canada does not seek costs and submits that the ordinary rule that
costs are not awarded against interveners should apply.
PART V- ORDER SOUGHT
44.
The Attorney General of Canada asks that the appeals be disposed of in accordance with the
foregoing submissions and requests permission to make oral argument at the hearing of the appeals.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated at the City of Ottawa, in the Province of Ontario, this 5th day of January, 2015.
Jcl:il:~ ~t-of Counsel for the Intervener, the Attorney General of Canada
63
Cocke// at paras. 43-44.
A.C. at para. 116.
65
R. v. J.A., [20 II] 2 S.C.R. 440, 201 1 SCC 28 at para. 60.
64
Publication Ban
Interdiction de
publication
11
PART VI - LIST OF AUTHORITIES
Cases Cited
A.B.
V.
Bragg Communications Inc., [2012] 2 S.C.R. 567,2012 sec 46
A. C. v. Manitoba (Director of Child and Family Services), [2009] 2
s.c.R. 181 , 20o9 sec 30
Para. No(s).
28,36
29,41
Canada 3000 Inc., Re; Inter-Canadian {1991) Inc. (Trustee of), [2006] 1
s.c.R. 865, 20o6 sec 24
12
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927
26
Jacobi v. Grijjlths, [1999] 2 S.C.R. 570
31,35
Mitchell v. MN.R., [2001) 1 s.c.R. 911 , 2001 sec 33
14
Perka v. 'fl1e Queen, [ 1984] 2 S.C.R 232
13
R. v. Anderson (2009), 241 C.C.C. (3d) 432 (P.E.I. C.A.), 2009 PECA 4
39
R. v. Audet, [ 1996] 2 S.C.R. 171
31
R. v. Bono, [2008] O.J. No 3928 (S.C.J.)
23
R. V. Bouchard-Lebnm, [201 1] 3 S.C.R. 575, 2011 sec 58
13
R. v. Chaulk, [1990] 3 S.C.R. 1303
14
R. v. Cockell, (2013), 299 C.C.C. (3d) 221 (Alta. C.A.), 2013 ABCA I 12,
appli cation for leave to appeal dismissed, [2013] S.C.C.A. No. 309
34, 40
R. v. D.B., [2008] 2 S.C.R. 3, 2008 SCC 25
29
R. v. D.C., 2009 NBCA 59
36
R. V. Darrach, [2000] 2 S.C.R. 443, 2000 sec 46
14
R. v. Harrer, [1995] 3 S.C.R. 562
14
R. v. Hewlett (2002), 167 C.C.C. (3d) 425 (Alta. C.A.), 2002 ABCA 179
30
R. v. J.A., [2011] 2 S.C.R. 440,2011 SCC 28
41
R. v. Jobidon, [1991] 2 S.C.R. 714
13
R. v. Katigbak, [2011] 3 s.c.R. 326, 201 1 sec 48
12, 23, 36
Publication Ban
Interdiction de
publication
12
R. v. Keegstra, [1990] 3 S.C.R. 697
28
R. v. L.TH, (2008J 2 s.c.R. 739, 2oos sec 49
29,38
R. v. Legare, [2009] 3 S.C.R. 551,2009 SCC 5
20
R. v. Levogiannis, [1993] 4 S.C.R. 475
14
R. v. Mcintosh, [1995] 1 S.C.R. 686
13
R. v. Mills, [1999] 3 S.C.R. 668
14
R. v. Sharpe, [2001] 1 S.C.R. 45,2001 SCC 2
R.
V.
Summers, [2014] 1 S.C.R. 575, 2014 sec 26
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825
Authors and Secondary Sources Cited
Canada, Committee on Sexual Offences Against Children and Youths,
1, 5-7, 9, 19, 23, 24,
26,28,32,36,37
37
26
Para. No(s).
17
Sexual Offences Against Children: Summary of the Report ofthe
Committee on Sexual Offences Against Children and Youths (Ottawa:
Minister of Supply and Services Canada, 1984)
Canada, House of Commons, Commons Debates, May 3, 2001
20
Canada, Senate, Proceedings ofthe Senate Standing Committee on
Legal and Constitutional Affairs, Issue 20- Evidence, December 5, 2001
20
Canada, Special Committee on Pornography and Prostitution,
17
Pornography and Prostitution in Canada: Report ofthe Special
Committee on Pornography and Prostitution (Ottawa: Minister of
Supply and Services Canada, 1985)
Andrea Slane, "From Scanning to Sexting: The Scope of Protection
of Dignity-Based Privacy in Canadian Child Pornography Law",
48 Osgoode Hall L.J 543 2010
22
Ruth Sullivan, Sullivan and Driedger on the Construction ofStatutes,
4th ed. (Markham, Ont.: Butterworths, 2002)
38
Publication Ban
13
Interdiction de
publication
PART Vll- STATUTES AND REGULATIONS
Criminal Code, R.S.C. 1985, c. C-46, s. 163.1
Definition of "child pornography"
Definition de « pornographie juvenile »
163.1 (1) In this section, "child pornography"
means
163.1 (1) Au present article, « pomographie
juvenile» s'entend, seton le cas :
(a) a photographic, film, video or other
visual representation, whether or not it was
made by electronic or mechanical means,
(a) de toute representation photographique,
filmee, video ou autre, realisee ou non par
des moyens mecaniques ou electroniques :
(i) that shows a person who is or is
depicted as being under the age of
eighteen years and is engaged in or is
depicted as engaged in explicit sexual
activity, or
(i) soit oil figure une personne agee de
moins de dix-huit ans ou presentee
comme telle et se livrant ou presentee
comme se livrant a une activite sexueUe
explicite,
(ii) the dominant characteristic of which
is the depiction, for a sexual purpose, of
a sexual organ or the anal region of a
person under the age of eighteen years;
(ii) soit dont Ia caracteristique dominante
est la representation, dans un but sexuel,
d'organes sexuels ou de la region anale
d'une personne agee de moins de dix-huit
ans;
(b) any written material, visual
representation or audio recording that
advocates or counsels sexual activity with a
person under the age of eighteen years that
would be an offence under this Act;
(c) any written material whose dominant
characteristic is the description, for a sexual
purpose, of sexual activity with a person
under the age of eighteen years that would
be an offence under this Act; or
(d) any audio recording that has as its
dominant characteristic the description,
presentation or representation, for a sexual
purpose, of sexual activity with a person
under the age of eighteen years that would
be an offence under this Act
(b) de tout ecrit, de toute representation ou de
tout enregistrement sonore qui preconise ou
conseille une activite sexuelle avec une
personne agee de moins de dix-huit ans qui
constituerait une infraction a Ia presente Joi;
(c) de tout ecrit dont la caracteristique
dominante est la description, dans un but
sexuel, d'une activite sexuelle avec une
personne agee de moins de dix-huit ans qui
constituerait une infraction a Ia presente loi;
(d) de tout enregistrement sonore dont Ia
caractenstique dominante est la description,
la presentation ou la simulation, dans un but
sexuel, d'une activite sexueUe avec une
personne agee de moins de dix-huit ans qui
constituerait une infraction ala presente loi.
Publication Ban
Interdiction de
publication
Making child pornography
(2) Every person who makes, prints, publishes
or possesses for the purpose of publication any
child pornography is guilty of
14
Production de pornographie juvenile
(2) Quiconque produit, imprime ou publie, ou a
en sa possession en vue de la publication, de la
pomographie juvenile est coupable :
(a) an indictable offence and liable to
(a) soit d'un acte criminel passible d'un
imprisonment for a term not exceeding ten
years and to a minimum punishment of
imprisonment for a term of one year; or
emprisonnement maximal de dix ans, la
peine minimale etant de un an;
(b) soit d' une infraction punissable sur
(b) an offence punishable on summary
conviction and is liable to imprisonment for
a term not exceeding two years less a day
and to a minimum punishment of
imprisonment for a term of six months.
declaration de culpabilite par procedure
sommaire et passible d'un emprisonnement
maximal de deux ans moins un jour, la peine
minimale etant de six mois.
Distribution, etc. ofchild pornography
Distribution de pornographie juvenile
(3) Every person who transmits, makes
available, distributes, sells, advertises, imports,
exports or possesses for the purpose of
transmission, making available, distribution,
sale, advertising or exportation any child
pornography is guilty of
(3) Quiconque transmet, rend accessible,
distribue, vend, importe ou exporte de la
pomographie juvenile ou en fait la publicite, ou
en a en sa possession en vue de Ia transmettre, de
la rendre accessible, de la distribuer, de la
vendre, de 1'exporter ou d' en faire la publicite,
est coupable :
(a) an indictable offence and liable to
imprisonment for a term not exceeding ten
years and to a minimum punishment of
imprisonment for a term of one year; or
(a) soit d'un acte criminel passible d' un
(b) an offence punishable on summary
(b) soit d'une infraction punissable sur
declaration de culpabilite par procedure
sommaire et passible d'un emprisonnement
maximal de deux ans moins un jour, la peine
minimale etant de six mois.
conviction and is liable to imprisonment for
a term not exceeding two years less a day
and to a minimum punishment of
imprisonment for a term of six months.
emprisonnement maximal de dix ans, la
peine minimale etant de un an;
Possession ofchild pornography
Possession de pornographie juvenile
(4) Every person who possesses any child
pornography is guilty of
(4) Quiconque a en sa possession de la
pomographie juvenile est coupable :
(a) an indictable offence and is liable to
(a) soit d'un acte criminel passible d'un
imprisonment for a term of not more than
five years and to a minimum punishment of
imprisonment for a term of six months; or
emprisonoement maximal de cinq ans, la
peine minimale etant de six mois;
Publication Ban
Interdiction de
publication
(b) an offence punishable on summary
conviction and is liable to imprisonment for
a term of not more than 18 months and to a
minimum punishment of imprisonment for a
term of 90 days.
15
(b) soit d'une infraction punissable sur
declaration de culpabilite par procedure
sommaire et passible d'un emprisonnement
maximal de dix-huit mois, la peine minimale
etant de quatre-vingt-dix jours.
Accessing child pornography
Acces a Ia pornographie juvenile
(4.1) Every person who accesses any child
pornography is guilty of
(4.1) Quiconque accede ade la pornographie
juvenile est coupable :
(a) an indictable offence and is liable to
imprisonment for a term of not more than
five years and to a minimum punishment of
imprisonment for a term of six months; or
(a) soit d'un acte criminel passible d'un
emprisonnement maximal de cinq ans, la
peine minimale etant de six mois;
(b) soit d'une infraction punissable sur
(b) an offence punishable on summary
conviction and is liable to imprisonment for
a term of not more than 18 months and to a
minimum punishment of imprisonment for a
term of90 days.
declaration de culpabilite par procedure
sommaire et passible d'un emprisonnement
maximal de dix-huit mois, la peine minimale
etant de quatre-vingt-dix jours.
Interpretation
Interpretation
(4.2) For the purposes of subsection (4.1), a
person accesses child pornography who
knowingly causes child pornography to be
viewed by, or transmitted to, himself or herself
(4.2) Pour !'application du paragraphe (4.1 ),
accede ade la pomographie juvenile quiconque,
sciemment, agit de maniere aen regarder ou fait
en sorte que lui en soit transmise.
Aggravating factor
Circonstance aggravante
(4.3) If a person is convicted of an offence under
this section, the court that imposes the sentence
shall consider as an aggravating factor the fact
that the person committed the offence with
intent to make a profit.
(4.3) Le tribunal qui determine la peine a infliger
aune personne declaree coupable d'infraction au
present article est tenu de considerer comme
circonstance aggravante le fait que cette
personne a commis I 'infraction dans le dessein
de realiser un profit.
Defence
Moyen de defense
(5) It is not a defence to a charge under
subsection (2) in respect of a visual
representation that the accused believed that a
person shown in the representation that is
alleged to constitute child pornography was or
was depicted as being eighteen years of age or
more unless the accused took all reasonable
(5) Le fait pour !'accuse de croire qu'une
personne figurant dans une representation qui
constituerait de la pornographie juvenile etait
agee d'au moins dix-huit ans ou etait presentee
comme telle ne constitue un moyen de defense
contre une accusation portee sous le regime du
paragraphe (2) que s'il a pris toutes les mesures
Publication Ban
Interdiction de
16
publication
steps to ascertain the age of that person and took raisonnables, d'une part, pour s'assurer qu'elle
avait bien cet age et, d'autre part, pour veiller a
all reasonable steps to ensure that, where the
person was eighteen years of age or more, the
ce qu'elle ne soit pas presentee comme une
representation did not depict that person as being personne de moins de dix-huit ans.
under the age of eighteen years.
Defence
Moyen de defense
(6) No person shall be convicted of an offence
under this section if the act that is alleged to
constitute the offence
(6) Nul ne peut etre declare coupable d'une
infraction au present article si les actes qui
constitueraient 1'infraction :
(a) has a legitimate purpose related to the
administration of justice or to science,
medicine, education or art; and
(b) does nol pose an undue risk ofharm to
persons under the age of eighteen years.
(a) ont un but legitime lie a }'administration
de la justice, a Ia science, a la medecine, a
1'education ou aux arts;
(b) ne posent pas de risque indu pour les
personnes agees de moins de dix-huit ans.
Question of law
Question de droit
(7) For greater certainty, for the purposes of this
section, it is a question of law whether any
written material, visual representation or audio
recording advocates or counsels sexual activity
with a person under the age of eighteen years
that would be an offence under this Act.
(7) II est entendu, pour I' application du present
article, que la question de savoir si un ecrit, une
representation ou un enregistrement sonore
preconise ou conseille une activite sexuelle avec
une personne agee de moins de dix-huit ans qui
constituerait une infraction a la presente loi
constitue une question de droit.
Criminal Code, R.S.C. 1985, c. C-46, s. 153
Sexual exploitation
Exploitation sexuelle
153. (1) Every person commits an offence who is
in a position of trust or authority towards a
young person, who is a person with whom the
young person is in a relationship of dependency
or who is in a relationship with a young person
that is exploitative of the young person, and who
153. (1) Commet une infraction toute personne
qui est en situation d'autorite ou de confiance
vis-a-vis d'un adolescent, a l'egard de laquelle
!'adolescent est en situation de dependance ou
qui est dans une relation ou elle exploite
}'adolescent et qui, selon le cas:
(a) for a sexual purpose, touches, directly or
(a) a des fins d'ordre sexuel, touche,
indirectly, with a part of the body or with an
object, any part of the body of the young
person; or
directement ou indirectement, avec une partie
de son corps ou avec un objet, une partie du
corps de }'adolescent;
(b) for a sexual purpose, invites, counsels or
(b) ades fins d 'ordre sexuel, invite, engage
ou incite un adolescent a la toucher, a se
toucher ou a toucher un tiers, directement ou
indirectement, avec une partie du corps ou
incites a young person to touch, directly or
indirectly, with a part ofthe body or with an
object, the body of any person, including the
Publication Ban
17
Interdiction de
publication
body of the person who so invites, counsels
or incites and the body of the young person.
avec un objet.
Punishment
Peine
(1.1) Every person who commits an offence
under subsection ( 1)
( 1.1) Quiconque commet 1'infraction visee au
paragraphe (1) est coupable:
(a) is guilty of an indictable offence and is
liable to imprisonment for a term of not more
than 10 years and to a minimum punishment
of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on
summary conviction and is liable to
imprisonment for a term of not more than 18
months and to a minimum punishment of
imprisonment for a term of 90 days.
(a) soit d'un acte criminel passible d'un
emprisonnernent maximal de dix ans, la peine
minimale etant de un an;
(b) soit d'une infraction punissable sur
declaration de culpabilite par procedure
sornmaire et passible d'un emprisonnement
maximal de dix-huit mois, la peine minimale
etant de quatre-vingt-dix jours.
Deduction
Inference ofsexual exploitation
(1.2) A judge may infer that a person is in a
relationship with a young person that is
exploitative of the young person from the nature
and circumstances of the relationship, including
(1.2) Le juge peut deduire de la nature de la
relation entre la personne et !'adolescent et des
circonstances qui l'entourent, notamment des
elements ci-apres, que celle-ci est dans une
relation ou elle exploite !'adolescent:
(a) the age of the young person;
(a) I' age de I' adolescent;
(b) the age difference between the person and
the young person;
(b) la difference d'age entre Ia personne et
l' adolescent;
(c) the evolution of the relationship; and
(c) }'evolution de leur relation;
(d) the degree of control or influence by the
person over the young person.
(d) l'emprise ou l'influence de Ia personne
sur !'adolescent.
Definition of "young person"
Definition de « adolescent»
(2) In this section, "young person, means a
person 16 years of age or more but under the age
of eighteen years.
(2) Pour !'application du present article,«
adolescent)) s'entend d'une personne agee de
seize ans au moins mais de moins de dix-huit
ans.
Publication Ban
Interdiction de
publication
18
Conve11tion on the Rights of the Child, Can. T.S. 1992 No.3
Article 34
States Parties undertake to protect the child from all forms of sexual exploitation and sexual
abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral
and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
Optional Protocol to the Convention on the Rights of the Child on the sale of children,
child prostitution and child pornography, AIRES/54/263 (2000), Annex D
[ ... ] Considering that, in order further to achieve the purposes of the Convention on the Rights of
the Child and the implementation of its provisions, especially articles 1, I 1, 21 , 32, 33, 34,35
and 36, it would be appropriate to extend the measures that States Parties should undertake in
order to guarantee the protection of the child from the sale of children, child prostitution and
child pornography,
Considering also that the Convention on the Rights of the Child recognizes the right of the child
to be protected from economic exploitation and from performing any work that is likely to be
hazardous or to interfere with the child's education, or to be harmful to the child's health or
physical, mental, spiritual, moral or social development,
Gravely concerned at the significant and increasing intemational traffic in children for the
purpose of the sale of children, child prostitution and child pornography,
Deeply concerned at the widespread and continuing practice of sex touris~ to which children
are especially vulnerable, as it directly promotes the sale of children, child prostitution and child
pornography,
Recognizing that a number of particularly vulnerable groups, incJuding girl children, are at
greater risk of sexual exploitation and that girl children are disproportionately represented among
the sexually exploited,
Concerned about the growing availability of child pornography on the Internet and other
evolving technologies, and recalling the International Conference on Combating Child
Pornography on the lntemet, held in Vienna in 1999, in particular its conclusion calling for the
worldwide criminalization of the production, distribution, exportation, transmission, importation,
intentional possession and advertising of child pornography, and stressing the importance of
closer cooperation and partnership between Governments and the Internet industry,
Believing that the elimination of the sale of children, child prostitution and child pornography
will be facilitated by adopting a holistic approach, addressing the contributing factors, including
underdevelopment, poverty, economic disparities, inequitable socio-economic structure,
Publication Ban
Interdiction de
19
publication
dysfunctioning families, Jack of education, urban-rural migration, gender discrimination,
irresponsible adult sexual behaviour, harmful traditional practices, armed conflicts and
trafficking in children,
Believing also that efforts to raise public awareness are needed to reduce consumer demand for
the sale of children, child prostitution and child pornography, and believing further in the
importance of strengthening global partnership among all actors and of improving law
enforcement at the national level,
Noting the provisions of international legal instruments relevant to the protection of children,
including the Hague Convention on Protection of Children and Cooperation in Respect of
Intercountry Adoption, the Hague Convention on the Civil Aspects of International Child
Abduction, the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement
and Cooperation in Respect of Parental Responsibility and Measures for the Protection of
Children, and International Labour Organization Convention No. 182 on the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour,
Encouraged by the overwhelming support for the Convention on the Rights of the Child,
demonstrating the widespread commitment that exists for the promotion and protection of the
rights of the child,
Recognizing the importance of the implementation of the provisions of the Programme of Action
for the Prevention of the Sale of Cluldren, Child Prostitution and Child Pornography and the
Declaration and Agenda for Action adopted at the World Congress against Commercial Sexual
Exploitation of Children, held in Stockholm from 27 to 31 August 1996, and the other relevant
decisions and recommendations of pertinent international bodies,
Taking due account of the importance of the traditions and cultural values of each people for the
protection and harmonious development of the child, Have agreed as follows [ ... ]