Definition of Child Pornography

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General Principles

Under s. 163.1, "Child Pornography" is defined as:

Definition of “child pornography”
163.1 (1) In this section, “child pornography” means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(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
(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;
(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.

...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17.


CCC

The determination of whether material meets the definition is a question of law:

163.1
...
Question of law
(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.

1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17.


CCC

Categories of Child Pornography

The section sets out five types of child pornography:

  1. images of sexual activity: visual representations 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" (s. 163.1(1)(a)(i))
  2. images of a sexual purpose:visual representations where "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" (s. 163.1(1)(a)(ii))
  3. text advocating or counselling sexual activity: written material "that advocates or counsels sexual activity with a person under the age of eighteen years that would be" a criminal offence (s. 163.1(1)(b))
  4. sexual purpose texts: written material where the "dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be" a criminal offence (s. 163.1(1)(c))
  5. sexual purpose audio recordings: audio recording with a "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" a criminal offence (s. 163.1(1)(d))

Context

Proof that a file is child pornography cannot be done simply through establishing that the accused's computer had a file with a corresponding hash value to a known child pornographic file from a police database such as the Wyoming database.This is because the hash value is hearsay and there is no direct evidence on the management of these databases which are largely maintained outside of Canada under different laws.[1] It is however, sufficient to establish reasonable grounds for a search warrant.[2]

  1. R v Lamb, 2010 BCSC 1911 (CanLII) at paras 41 to 47
  2. Lamb at para 43

Elements

Visual Representation of Explicit Sexual Activity
The definition under s. 163.1(1)(a)(i) has four elements:

  1. Person under the age of 18 years or appears to be under the age of 18 years
  2. Depiction explicit sexual activity

Visual Representation with Sexual Dominant Character
The definition under s. 163.1(1)(a)(ii) has four elements:

  1. Person under the age of 18 years or appears to be under the age of 18 years
  2. Depiction of a Sexual Organ or Anal Region
  3. Dominant Characteristic
  4. For a Sexual Purpose

Written Material That Advocates or Counsels
The definition under s. 163.1(1)(c) has four elements:

  1. written materials
  2. materials are advocate or counsels sexual activity with persons
  3. persons are those under the age of 18

Persons

"Person" refers to both real individuals and imaginary human beings.[1]

  1. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45 at para 37 - 41

"Visual Representation"

A "visual representation" refers to "any non-textual representation that can be perceived visually". This captures many media including photographs, film, video, drawings, prints, computer graphics, and sculpture. It is not important whether it was made by mechanical or electronic means.[1]

  1. Sharpe at para 35

"Depiction"

The use of the term "depict" is intended to be from the perspective of a reasonable person, not simply what the maker intends or observer perceives.[1] It would be inconsistent for a picture to be child pornographic in one person's hand and not pornographic in another person's hand.[2] The question is "would a reasonable observer perceive the person in the representation as being under 18 and engaged in explicit sexual activity?"[3]

Under this test of depiction, a 50-year old dressed as a child would not amount to the depiction of a person under 18 years old.[4]

  1. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45 at para 42
  2. R v Sharpe at para 43
    c.f. R v Rowe, 2011 ONCA 48 (CanLII)
  3. Sharpe at para 43
  4. R v Garbett, 2008 ONCJ 97 (CanLII) at para 74

"Is" vs "Depicts"

Under the first category of child pornography under s. 163.1(1)(a)(i), the Crown must prove that the image or video "shows" a person who "is" or is "depicted" as being under the age of 18 and involved sexually explicit activity.[1]It is suggested that visual representations under the "is" category do not need to depict any particular age.[2]

  1. R v Garbett, 2008 ONCJ 97 (CanLII) at para 70
  2. R v Rowe, 2011 ONCA 48 (CanLII)

Person Under the Age of 18

Establishing actual age and apparent age
Judges should not speculate or guess on the age or apparent age. The judge cannot distinguish between an age just below 18 and an age above 18. [1] Courts have taken judicial notice that "assessing the age of an adolescent person or young adult is not always an obvious task."[2]

However, a judge may assess "apparent age" without extrinsic proof of age or expert evidence, and determination will turn on the facts of the case.[3]

Physical Characteristics
While it is generally understood that physical characteristics of body under-development are consistent with girls under the age of 18, "some adult women are thin, lack, musculature, and have minimal breast development. Further, the amount of natural body hair, pubic or otherwise, that adults have varies from individual to individual." [4]

Factors to determine age include:[5]

  1. absence of pubic hair;
  2. a buoyancy to the subject's skin which is indicative of a young age;
  3. no marks or blemishes on the subject's skin which one would expect on adult skin (moles, scars, calluses, wrinkles, etc.);
  4. absence of facial hair,
  5. child-like facial structure;
  6. clothing suggestive of children (child themed pajamas)

There is some suggestion that a child's face pasted upon images of adult pornography may amount to child pornography.[6]

Factors Extrinsic to the Medium
The file name does not add to the determination of whether the file depicts someone under the age of 18. It is accepted that the file names are often mislabeled.[7]

  1. R v Loring, 2001 BCSC 200 (CanLII) at para 14, 15
    cited with approval by R v Garbett, 2008 ONCJ 97 (CanLII) at para 84
  2. R v Keough, 2011 ABQB 312 (CanLII) at para 121
  3. R v Lanning, 2012 ABPC 171 (CanLII) at para 23
  4. R v Garbett, 2008 ONCJ 97 (CanLII) at para 90
    R v Lanning, 2012 ABPC 171 (CanLII) at para 23
  5. R v AW, 2012 ONCJ 560 (CanLII) at para 22
  6. R v F.H.O., 2014 ABCA 30 (CanLII) - not addressed directly, there is reference to consideration of Sharpe defence, implying it was CP
  7. R v Lamb, 2010 BCSC 1911 (CanLII) at para 42

"Explicit Sexual Activity"

"Explicit sex" does not include simple nudity.[1] "Explicit sexual activity" refers to "acts which viewed objectively fall at the extreme end of the spectrum of sexual activity – acts involving nudity or intimate sexual activity, represented in a graphic and unambiguous fashion, with persons under or depicted as under 18 years of age." This does not include “casual sexual contact, like touching, kissing, or hugging, since these are not depictions of nudity or intimate sexual activity.”[2] It may however capture the "graphic depiction" of a naked female breast being caressed.[3]

Parliament intended that a "restrained interpretation" be taken. This should capture "intimate sexual activity represented in a graphic and unambiguous manner".[4]

Explicit sexual activity will include:

  • vaginal and anal intercourse.[5]
  • fellatio and cunnilingus[6]
  • male or female masturbation and ejaculation, and the "utilization of sexual aids".[7]
  • bondage[8]
  • bestiality[9]
  • sleeping child's face in close proximity to a adult sexual organ[10]

Whether the intercourse is actually happening or simply simulated is irrelevant in consideration of whether the image or video depicts it.[11]

  1. R v Smith, 2005 CanLII 23805 (ON CA), [2005] O.J. No. 2811 at 36
  2. R v Sharpe 2001 SCC 2 (CanLII), [2001] 1 SCR 45 at para 49
  3. Sharpe at para 49
  4. R v Sharpe at para 48
  5. R v Pecchiarich, [2001] OJ No 3940 (ONSC)(*no link) at para 4
  6. Pecchiarich at para 4
    R v Yau, 2011 ONSC 1009 (CanLII), at para 23
    R v Garbett, 2008 ONCJ 97 (CanLII), at para 83 - regarding cunnilingus
  7. R v Hawkins, 1993 CanLII 8587 (ON CA) - "male ejaculation, masturbation", and the "utilization of sexual aids"
    R v D.D.M., 2011 ABPC 9 (CanLII), - depict female "with her hands between her thighs apparently masturbating"
    R v Braudy, 2009 CanLII 2491 (ON SC)
  8. R v Ewing, [2007] O.J. No. 1710(*no link) at para 50
  9. Ewing at para 50
  10. R v G., 2004 NSCA 7 (CanLII)
  11. e.g. R v Rowe, 2011 ONCA 48 (CanLII)

"Dominant Characteristic" and "Sexual Purpose"

Standard
A court should take an "objective approach" to considering "dominant characteristic" and "sexual purpose".[1]

Test to satisfy s. 163.1(a)(ii) is to ask whether a reasonable viewer, looking at the pictures objectively and in context, would see their dominant characteristic as the depiction for a sexual purpose of a sexual organ or the anal region of a person under the age of eighteen”.[2]

Sexual Purpose[3]
Images of clothed children can be considered child pornography where there is "a dominant prurient purpose".[4] The dominant characteristic of an image can be influenced by the context of the image.[5] For example, where a photo of a bathing child in a family photo album will be treated differently than in the context of a album of sexual materials. [6]

“Sexual purpose” is determined similarly where it was reasonably perceived as intended to cause sexual stimulation to some viewers.[7]

It is not necessary for there to be an "extreme" sexual purpose.[8]

Factors to Determine Purpose
Context will include factors such as whether the pictures were taken surreptitiously.[9] It is not determinative where there is nudity only and no overt sexual activities.[10]

Factors to consider include the posing of the subject, such that the pose has sexual connotations to it, as well as captions that may create a sexual meaning to the image.[11]

Surreptitious recordings of girls in the bathroom can be child pornography.[12]

  1. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at para 50
  2. Sharpe, supra at paras 50-51
  3. See also Sexual Interference (Offence)
  4. R v Rudiger 2011 BCSC 1397 (CanLII) at paras 129 to 140
  5. R v JEI, 2005 BCCA 584 (CanLII) [also referred to as R v Ilhas]
  6. Rudiger 2011 BCSC 1397 (CanLII) at para 140
    R v Sharpe at 50, 51
  7. Sharpe, supra at paras 50-51
  8. JEI, supra
  9. JEI, supra
  10. JEI, supra
  11. R v Hurtubise, 1997 CanLII 1838 (BC SC) at 16, 17 cited positively in R v Sharpe at 51
  12. R v Ilhas

"Sexual Organs and Anal Region"

"Sexual organ" can include bare breasts.[1] "Anal region" may include buttocks.[2]

  1. R v S. (V.P.), 2001 BCSC 619 (CanLII) at para 82
    R v R.R.K., 2010 ONSC 330 (CanLII)
    R v D.D.M., 2011 ABPC 9 (CanLII) at paras 158-172
    R v Nedelec 2001 BCSC 1334 (CanLII)
    R v Knox, 2010 ONSC 330 (CanLII), (2010), 251 CCC (3d) 272 (ONSC)
    R v W.(T.), 2014 ONSC 4532 (CanLII) at paras 12 to 13
  2. R v Rudiger, 2010 BCPC 182 (CanLII) at para 30

Written Materials

Written materials must provide when "viewed objectively" some "active inducements" or "encouragement" of sexual activity with persons under 18 years. This may be be implicit from the narrative of the stories themselves, by sending messages that "sex with children can and should be pursued".[1]

Chat logs and text messages that depict sexually explicit activity with a person under the age of 18 or depict conversation between adults inducing or encouraging sexual activity with persons under 18 may also meet the definition of child pornography.

  1. R v Beattie, 2005 CanLII 10273 (ON CA), (2005) 201 CCC (3d) 533 (ONCA) leave to SCC denied

Proof of Child Pornography

Evidence of the "hash values and their correspondence with wit hthe Wyoming database" is not admissible to prove that the image is child pornographic.[1]

  1. R v Lamb, 2010 BCSC 1911 (CanLII), at para 44

Other Jurisdictions

In US federal law defines Child Pornography under s. 2256(8) of Title 18, US Code.

See http://en.wikipedia.org/wiki/Laws_regarding_child_pornography

See Also

External Links

  • Tanner scale method of measuring age based on physical developments
  • COPINE Scale for categorizing types of child pornography
  • Dost Test, the US test to determine if something is child pornographic