Criminalising Child Pornography—A Canadian Study in Freedom of Expression and Charter-Led Judicial Review of Legislative Policy-Making

Abstract

The ease with which sexually explicit computer images of children can be created, disseminated and downloaded in the digital era has given renewed impetus to the efforts of national governments and supranational organisations to protect minors from the harms associated with child pornography. One common strategy has been to criminalise the mere possession of such material. In Canada, a recent constitutional challenge to the validity of penal restrictions has required the Supreme Court to consider the boundary between protected expressive activity and the welfare interests of children. In what follows, the legitimacy of this judicial intervention in an admittedly complex area of social policy is queried. In particular, it is suggested that the court may have failed to evaluate the true value of the expression interests at stake in child pornography in the face of the legislature's attempt to advance other significant Charter values.