Definition of Child Pornography

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95721)

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.

[omitted (2), (3), (4), (4.1), (4.2), (4.3), (5), (6) and (7)]
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.

– CCC (CanLII), (DOJ)

Note up: 163.1(1)

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

163.1
[omitted (1), (2), (3), (4), (4.1), (4.2), (4.3), (5) and (6)]

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; 2015, c. 23, s. 7.

– CCC (CanLII), (DOJ)

Note up: 163.1(7)

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]

Audio

A recorded message made on a telephone chat-line containing graphic descriptions of sexual activity between adults and children may meet the definition.[3]

  1. ↑ R v Lamb, 2010 BCSC 1911 (CanLII), BCJ No 2701, per Ehrcke J, at paras 41 to 47
  2. ↑ Lamb, ibid., at para 43
  3. ↑ R v Fisher, 2020 SKQB 197 (CanLII), 65 CR (7th) 475, per McCreary J

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, per McLachlin CJ, at paras 37 to 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. ↑ R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, 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, per McLachlin CJ, at para 42
  2. ↑ Sharpe, ibid., at para 43
    cf. R v Rowe, 2011 ONCA 48 (CanLII), per curiam
  3. ↑ Sharpe, supra, at para 43
  4. ↑ R v Garbett, 2008 ONCJ 97 (CanLII), 56 CR (6th) 91, per MacDonnell J, 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), 56 CR (6th) 91, per MacDonnell J, at para 70
  2. ↑ R v Rowe, 2011 ONCA 48 (CanLII), per curiam

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)
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.[6]

Collage Photos

A child's face pasted upon images of adult pornography may amount to child pornography.[7]

  1. ↑ R v Loring, 2001 BCSC 200 (CanLII), 54 WCB (2d) 617, per Wilson J, at paras 14, 15 ("In the absence of any evidence of the ages of the other persons depicted in these video recordings, Mr. Lauder submits that it is open to me to make a finding of "apparent age" by looking at the video recording. I have no expertise in assessing the age of young persons. I have no confidence that I would be able to give a reliable opinion on "apparent age" or otherwise, which would permit a distinction between one aged seventeen years and nine months, and one aged eighteen years one month. My confidence is in no way enhanced if I am asked to distinguish between an eighteen year old and a fifteen, sixteen or seventeen year old. These matters ought not to be determined on a guess. I decline Mr. Lauder's invitation to speculate on the apparent age of the unidentified persons depicted in the video recording.")
    cited with approval by R v Garbett, 2008 ONCJ 97 (CanLII), 56 CR (6th) 91, per MacDonnell J, at para 84 ("question that remains is whether the Crown has proved beyond a reasonable doubt that either of the persons in image #41 is or would be perceived by a reasonable observer as being under the age of eighteen years. I have been left to make that determination on the basis of my own experience and knowledge[11]. That is a daunting task, and I am not the first judge to recognize the problems inherent in it.")
  2. ↑ R v Keough, 2011 ABQB 312 (CanLII), 271 CCC (3d) 486, per Manderscheid J, at para 121
  3. ↑ R v Lanning, 2012 ABPC 171 (CanLII), per Ayotte J, at para 23
  4. ↑ R v Garbett, 2008 ONCJ 97 (CanLII), 56 CR (6th) 91, per MacDonnell J, at para 90
    Lanning, supra, at para 23
  5. ↑ R v AW, 2012 ONCJ 560 (CanLII), OJ No 4184, per Kastner J, at para 22
  6. ↑ R v Lamb, 2010 BCSC 1911 (CanLII), BCJ No 2701, per Ehrcke J, at para 42
  7. ↑ R v Grobbelaar, 2016 ONCJ 832 (CanLII), per Sparrow J, at para 37
    R v FHO, 2014 ABCA 30 (CanLII), AJ No 49, per curiam - not addressed directly, there is reference to consideration of Sharpe defence, implying it was CP
    US: US v Anderson 759 F3d 891 (CA8 2014)

"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] OJ No 2811, per Lang JA at 36
  2. ↑ R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at para 49
  3. ↑ Sharpe, ibid., at para 49
  4. ↑ Sharpe, ibid., at para 48
  5. ↑ R v Pecchiarich, [2001] OJ No 3940 (ONSC)(*no CanLII links) , at para 4
  6. ↑ Pecchiarich, ibid., at para 4
    R v Yau, 2011 ONSC 1009 (CanLII), OJ No 720, per MacDonnell J, at para 23
    R v Garbett, 2008 ONCJ 97 (CanLII), 56 CR (6th) 91, per MacDonnell J, at para 83 - regarding cunnilingus
  7. ↑ R v Hawkins, 1993 CanLII 8587 (ON CA), 86 CCC (3d) 246, per Robins JA - "male ejaculation, masturbation", and the "utilization of sexual aids"
    R v DDM, 2011 ABPC 9 (CanLII), per Allen J - depict female "with her hands between her thighs apparently masturbating"
    R v Braudy, 2009 CanLII 2491 (ON SC), per Stinton J
  8. ↑ R v Ewing, [2007] OJ No 1710(*no CanLII links) , at para 50
  9. ↑ Ewing, ibid., at para 50
  10. ↑ R v G, 2004 NSCA 7 (CanLII), 694 APR 318, per Cromwell JA
  11. ↑ e.g. R v Rowe, 2011 ONCA 48 (CanLII), per curiam

"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]

Assessing the dominant characteristic requires examining of the whole work and not only segments or passages.[3]

Sexual Purpose[4]
Images of clothed children can be considered child pornography where there is "a dominant prurient purpose."[5] The dominant characteristic of an image can be influenced by the context of the image.[6] 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. [7]

“Sexual purpose” is determined similarly where it was reasonably perceived as intended to cause sexual stimulation to some viewers.[8]

It is not necessary for there to be an "extreme" sexual purpose.[9]

Factors to Determine Purpose

Context will include factors such as whether the pictures were taken surreptitiously.[10] It is not determinative where there is nudity only and no overt sexual activities.[11]

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.[12]

Surreptitious recordings of girls in the bathroom can be child pornography.[13]

  1. ↑ R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at para 50
  2. ↑ Sharpe, supra, at paras 50 to 51
  3. ↑ Godbout c. Procureure générale du Québec, 2020 QCCS 2967 (CanLII), {{{4}}}, at para 100
    R v Rubin, 1962 CanLII 80 (SCC), [1962] S.C.R. 681(complete citation pending)
  4. ↑ See also Sexual Interference (Offence)
  5. ↑ R v Rudiger, 2011 BCSC 1397 (CanLII), 278 CCC (3d) 524, per Voith J, at paras 129 to 140
  6. ↑ R v JEI, 2005 BCCA 584 (CanLII), 204 CCC (3d) 137, per Finch JA [also referred to as R v Ilhas]
  7. ↑ Rudiger, supra, at para 140
    Sharpe, supra, at paras 50, 51
  8. ↑ Sharpe, supra, at paras 50 to 51
  9. ↑ JEI, supra
  10. ↑ JEI, supra
  11. ↑ JEI, supra
  12. ↑ R v Hurtubise, 1997 CanLII 1838 (BC SC), per KJ Smith J at 16, 17 cited positively in Sharpe at 51
  13. ↑ Ilhas, supra

"Sexual Organs and Anal Region"

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

  1. ↑ R v VPS, 2001 BCSC 619 (CanLII), 50 WCB (2d) 34, per Bauman CJ, at para 82
    R v DDM, 2011 ABPC 9 (CanLII), per Allen J, at paras 158 to 172
    R v Nedelec, 2001 BCSC 1334 (CanLII), BCJ No 2243, per Wedge J
    R v Knox, 2010 ONSC 330 (CanLII), 251 CCC (3d) 272, per Dambrot J
    R v TW, 2014 ONSC 4532 (CanLII), OJ No 3667, per KL Campbell J, at paras 12 to 13
  2. ↑ R v Rudiger, 2010 BCPC 182 (CanLII), per Blaskovits J, at para 30

Written Materials and Texts

Definition of “child pornography”

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

(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

...
 [omitted (2), (3), (4), (4.1), (4.2), (4.3), (5), (6) and (7)]
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.

– CCC (CanLII), (DOJ)

Note up: 163.1(1)

Writings in the form of electronic communications, such as text messages or chatroom logs, are capable of constituting child pornography.[1] This will still be the case even when the communications are strictly private between the accused and another person.[2]

Purpose of Criminalizing Text-based Child Pornography

The purpose of criminalizing text-based child pornography is aimed to prevent offenders from sending the message that sex with children "can and should be pursued."[3] It seeks to prevent the "normalization" of child sexual abuse and prevent the dissemination of the idea of children as sexual objects to be abused.[4]

Actively Inducing or Encouraging

A communication will be captured by s. 163.1(1)(c) where the materials when "viewed objectively" is seen as "actively inducing or encouraging the described offences" against a young person.[5] This may be implicit from the narrative of the stories themselves, by sending messages that "sex with children can and should be pursued."[6]

Chat logs and text messages that depict sexually explicit activity with a person under the age of 18 or depict a conversation between adults inducing or encouraging sexual activity with persons under 18 may also meet the definition of child pornography.[7]

"counselling of advocacy"

Interpretation of counselling or advocacy under s. 163.1(1)(b) suggests a neccessary "inducement" that "need not be overt" and can be "subtle or implied."[8]

Jokes, Fantasy and Role-playing

see Agree or Arrange a Sexual Offence Against Child (Offence)#Fantasy and Roleplaying vs Reality

Alleged textual child pornography does not become more or less likely to meet the definition based on the motive of the person who creates or distributes it.[9]

  1. ↑ R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 51
    R v Gagne, 2011 QCCA 2157 (CanLII), per curiam, at para 14
    R v Tomasik, 2016 ONSC 3719 (CanLII), per Hennessy J, at para 95
    R v AR, 2017 ONCJ 849 (CanLII), per Latimer J, at paras 24 to 25
  2. ↑ McSween, supra, at para 55
  3. ↑ R v Levin, 2015 ONCJ 290 (CanLII), 122 WCB (2d) 179, per McArthur J, at para 100 (" For the making child pornography count, the section aims to prevent offenders from sending the message that "sex with children can and should be pursued". The section seeks to prevent the normalization of child sexual abuse and the dissemination of the offensive idea that children are sexual objects who are there to be abused by depraved predators. ... Children as a group are thus protected by the prohibition on making written child pornography. ...")
  4. ↑ Levin, ibid., at para 100
    R v Beattie, 2005 CanLII 10273 (ON CA), 201 CCC (3d) 533, per Laskin JA leave to SCC denied
  5. ↑ R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at para 56
  6. ↑ Beattie, supra
  7. ↑ e.g. Template:CanLIIRN, per Deluzio J at para 38
  8. ↑ R v AR, 2017 ONCJ 849 (CanLII), per Latimer J, at para 19
    Beattie, supra, at paras 21 to 23
  9. ↑ McSween, supra

Proof of Child Pornography

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

  1. ↑ R v Lamb, 2010 BCSC 1911 (CanLII), BCJ No 2701, per Ehrcke J, 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
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