« Condamnations pour pornographie juvénile » : différence entre les versions

{{CanLIIRP|Sharpe|523g|2001 CSC 2 (CanLII)|[2001] 1 RCS 45}}{{perSCC-H|McLachlin CJ}}{{atL|523g|28}} ( {{Tr}}« This brings us to the countervailing interest at stake in this appeal: society’s interest in protecting children from the evils associated with the possession of child pornography.  Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation of children.  The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children.  However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children.  Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.  Some of these links are disputed and must be considered in greater detail in the course of the s. 1 justification analysis.  The point at this stage is simply to describe the concerns that, according to the government, justify limiting free expression by banning the possession of child pornography.")</ref>  

{{supra1|Sharpe}}{{atL|523g|158}} ( {{Tr}}« The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society.  This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children.  The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society.  Child pornography eroticises the inferior social, economic, and sexual status of children.  It preys on preexisting inequalities.")<br>

{{CanLIIR-N|Pecchiarich| [2001] OJ No 3940}}{{perONSC|Hill J}} ( {{Tr}}« Possession of child pornography increasingly menaces our young people and threatens our values as a society.")

{{supra1|Sharpe}}{{atL|523g|89}} ( {{Tr}}« The second alleged harm is that possession of child pornography fuels fantasies, making paedophiles more likely to offend.  The trial judge found that studies showed a link between highly erotic child pornography and offences.  However, other studies suggested that both erotic and milder pornography might provide substitute satisfaction and reduce offences.  Putting the studies together, the trial judge concluded that he could not say that the net effect was to increase harm to children (para. 23). Absent evidence as to whether the benefit from sublimation equals the harm of incitement or otherwise, this conclusion seems tenuous.  More fundamentally, the trial judge proceeded on the basis that scientific proof was required.  The lack of unanimity in scientific opinion is not fatal.  Complex human behaviour may not lend itself to precise scientific demonstration, and the courts cannot hold Parliament to a higher standard of proof than the subject matter admits of.  Some studies suggest that child pornography, like other forms of pornography, will fuel fantasies and may incite offences in the case of certain individuals.  This reasoned apprehension of harm demonstrates a rational connection between the law and the reduction of harm to children through child pornography.")<br>

{{supra1|D(D)}}{{atL|1db6b|36}} ( {{Tr}}« In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.")</ref>  

{{supra1|Sharpe}}{{atL|523g|169}} ( {{Tr}}« Pornography that depicts real children is particularly noxious because it creates a permanent record of abuse and exploitation.")</ref>

( {{Tr}}« the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution.")</ref>

{{supra1|Sharpe}}{{atL|523g|93}} ( {{Tr}}« The ability to possess child pornography makes it available for the grooming and seduction of children by the possessor and others.  Mr. Sharpe does not deny that some child pornography can play an important role in the seduction of children.  Criminalizing the possession of child pornography is likely to help reduce the grooming and seduction of children.")</ref>

{{CanLIIRP|Sharpe|523g|2001 CSC 2 (CanLII)|[2001] 1 RCS 45}}{{perSCC-H|McLachlin CJ}}{{atL|523g|92}} ( {{Tr}}« The link between the production of child pornography and harm to children is very strong.  The abuse is broad in extent and devastating in impact.  The child is traumatized by being used as a sexual object in the course of making the pornography.  The child may be sexually abused and degraded.  The trauma and violation of dignity may stay with the child as long as he or she lives.")

{{CanLIIRx|Alexander|hzbjt|2019 BCCA 100 (CanLII)}}{{perBCCA|MacKenzie JA}}{{atL|hzbjt|39}} ( {{Tr}}« At sentencing, the appellant asserted a CSO was a fit sentence for him as the facts of this case are analogous to those in Swaby BCSC. However, the judge accurately distinguished Mr. Swaby’s circumstances from those of the appellant. Moreover, recent authorities say incarceration will be necessary in all cases of possession of child pornography, except in exceptional cases, to appropriately emphasize the principles of denunciation and deterrence. I do not consider the present case to be exceptional.")

{{CanLIIR|MM|jpl6k|2022 ONCA 441 (CanLII)}}{{TheCourtONCA}}{{AtsL|jpl6k|14| and 15}} ( {{Tr}}« Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.")