Canadian Criminal Law/Offences/Child Pornography/Definition of Child Pornography

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. CCC The section sets out five types of child pornography: 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)) 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)) 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)) 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)) 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)) 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.R. v. Lamb, 2010 BCSC 1911 at para. 41 to 47 It is however, sufficient to establish reasonable grounds for a search warrant.Lamb at para. 43 The definition under s. 163.1(1)(a)(ii) has four elements: Person Under the Age of Eighteen Years Depiction of a Sexual Organ or Anal Region Dominant Characteristic For a Sexual Purpose 2 Person under the age of 18 "Person" includes imaginary human beings.R. v. Sharpe 2001 SCC 2, [2001] 1 SCR 45 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. R. v. Loring, 2001 BCSC 200 at para. 14, 15 cited with approval by R. v. Garbett, 2008 ONCJ 97 at para. 84 Courts have taken judicial notice that "assessing the age of an adolescent person or young adult is not always an obvious task."R. v. Keough, 2011 ABQB 312 at para. 121 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.R. v. Lanning, 2012 ABPC 171 at para. 23 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.R. v. Lamb, 2010 BCSC 1911 at para. 42 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." R. v. Garbett, 2008 ONCJ 97 at para. 90 R. v. Lanning, 2012 ABPC 171 at para. 23 Other factors to determine age include:R v AW, 2012 ONCJ 560 (CanLII) at para 22 absence of pubic hair; a buoyancy to the subject's skin which is indicative of a young age; no marks or blemishes on the subject's skin which one would expect on adult skin (moles, scars, calluses, wrinkles, etc.); absence of facial hair, child-like facial structure; clothing suggestive of children (child themed pajamas) 2 "Explicit sexual activity" "Explicit sex" does not include simple nudity.R. v. Smith [2005] O.J. No. 2811 at 36 "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.”R. v. Sharpe 2001 SCC 2, [2001] 1 SCR 45 at 49 2 "Dominant characteristic" and "sexual purpose" Images of clothed children can be considered child pornography where there is a "a dominant prurient purpose".R. v. Rudiger 2011 BCSC 1397 at paras 129 to 140 The dominant characteristic of an image can be influenced by the context of the image.R. v. J.E.I., 2005 BCCA 584 (CanLII) 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. Rudiger 2011 BCSC 1397 at para 140 R v Sharpe at 50, 51 Context will include factors such as whether the pictures were taken surreptitiously.J.E.I. It is not determinative where there is nudity only and no overt sexual activities.J.E.I. A court should take an "objective approach" to considering "dominant characteristic" and "sexual purpose".R. v. Sharpe, 2001 SCC 2 (CanLII), [2001] 1 S.C.R. 45 at para. 50 This means that the subjective belief of the possessor will not be a factor.see R. v. R.R.K., [2010] O.J. No.245 (S.C.J.) -- accused testified the images were not for sexual gratification 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.R. v. Hurtubise, 1997 CanLII 1838 (BC SC) at 16, 17 cited positively in R v Sharpe at 51 Surrepticious recordings of girls in the bathroom can be child pornography.R. v. Ilhas 2005 BCCA 584 "Sexual organ" can include bare breasts.R. v. S. (V.P.), 2001 BCSC 619 at 82 R. v. R.R.K., 2010 ONSC 330 R. v. D.D.M., 2011 ABPC 9 at 158-172 R. v. Nedelec 2001 BCSC 1334 R. v. Knox (2010), 251 C.C.C.(3d) 272 (ONSC) And "anal region" may include bottocks.R. v. Rudiger, 2010 BCPC 182 at 30 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”.Sharpe at para. 50-51 “Sexual purpose” is determined similarly where it was reasonably perceived as intended to cause sexual stimulation to some viewers.Sharpe, 2001 SCC 2, [2001] 1 SCR 45 at 50-51 It is not necessary for there to be an "extreme" sexual purpose.R v I(JE) (2005) 204 CCC (3d) 137 (BCCA) 2 Written Materials Written materials must provide 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.R v Beattie (2005) 201 CCC (3d) 533 (ONCA) leave to SCC denied 2