Child pornography laws in Canada
|The factual accuracy of parts of this article (those related to the table) may be compromised due to out-of-date information. (May 2013)|
Child pornography laws in Canada forbid the production, distribution, and possession of child pornography and is punishable by up to 20 years imprisonment.
Prohibition covers the visual representations of sexual activity by persons (real or imaginary) under the age of 18 years or the depiction of their sexual organ/anal region for a sexual purpose, unless an artistic (see: artistic merit), educational, scientific, or medical justification can be provided and the court accepts it.
It also includes the written depictions of persons or characters (fictional or non-fictional) under the age of 18 engaging in sexual activity. Courts in Canada can also issue orders for the deletion of material from the internet from any computer system within the court's jurisdiction
The current law criminalizes possession of purely fictional material and has been applied in the absence of any images of real children, including to possession of fictional stories with no pictures at all, or vice versa, cartoon pictures without any stories.
Dynamic aspects of the Internet
Law that addresses dynamic aspects of the Internet by regulating the nature of live-time chatting and email communications that may relate to enticing children for pornographic (e.g., web cam) or other sexual purposes has passed in 2002. It also criminalizes the intentional access of child pornography.
Canadian Criminal Code
Canadian laws addressing this are included in the C-46 amended Canadian Criminal Code passed in 1985. It is described under Part V: Sexual Offences, Public Morals and Disordery Conduct: Offences Tending to Corrupt Morals. 163.1 defines child pornography to include "a visual representation, whether or not it was made by electronic or mechanical means", 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 "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."
The current minimum penalty for possession of, or "accessing," child pornography is fourteen days imprisonment.
Eli Langer Art Show Trial
One early application of this law was the Eli Langer case. In 1993, this Toronto artist had an exhibition at the Mercer Gallery. His drawings included images of children in sexual positions. Police raided the gallery and confiscated the works. Langer was eventually acquitted after a trial because his work was considered artistic enough to be justified as protected speech.
R. v. Sharpe
The whole law against simple possession of child pornography was declared void for two years in British Columbia following a 1998 ruling (R v Sharpe) by the Supreme Court of British Columbia but this decision was subsequently overturned by the Canadian Supreme Court. Moreover, the definitive 2001 Supreme Court ruling on the case interprets the child pornography statute to include purely fictional material even when no real children were involved in its production. Chief Justice Beverley McLachlin wrote,
Interpreting "person" in accordance with Parliament's purpose of criminalizing possession of material that poses a reasoned risk of harm to children, it seems that it should include visual works of the imagination as well as depictions of actual people. Notwithstanding the fact that 'person' in the charging section and in s. 163.1(1)(b) refers to a flesh-and-blood person, I conclude that "person" in s. 163.1(1)(a) includes both actual and imaginary human beings.
Gordon Chin trial
In October 2005, Canadian police arrested a 26 year old Edmonton, Alberta man named Gordon Chin for importing Japanese magazines (manga) depicting explicit child sexuality. Chin's attorney Darcy Depoe claimed Chin did not know it was illegal, and that he was naive. Despite this, Chin was sentenced by Judge David Tilley to an eighteen-month conditional sentence, during which he was barred from using the Internet. He was also required to perform 100 hours of community service and receive counseling, as well as to provide his DNA for the national sex offenders list. This is the first known manga-related child pornography case in Canada. It is also the first known that exclusively prosecutes this offense, not used in conjunction with other laws to increase sentencing.
Dominic Sousa trial
In April 2006, a 21 year old American man from Long Island, New York named Dominic Sousa was sentenced to 30 days in jail for bringing child pornography to Yarmouth, Canada. While he had possession of three videos and three still images of real children, border services agency criminal investigator Blair MacDonald cited the 13,000 cartoon images in his possession and that being anime did not lessen the "prohibitive nature of these goods". He stated that "Canada doesn't tolerate the importation of such images".
Kenneth Klassen trial
- Criminal Code of Canada, section 163ff, accessed 2008-01-10
- Government of Canada. "BILL C-15A: AN ACT TO AMEND THE CRIMINAL CODE AND TO AMEND OTHER ACTS". Retrieved 2008-05-09.
- R. v. Beattie (8 April 2005). Retrieved March 12, 2007.
- "STRONGER CHILD PORNOGRAPHY LAWS RECEIVE ROYAL ASSENT". Government of Canada. 2002-06-10. Retrieved 2008-02-04.
- "BILL C-15A: AN ACT TO AMEND THE CRIMINAL CODE AND TO AMEND OTHER ACTS". The Parliament of Canada. 2002-09-30. Retrieved 2008-02-04.
- "CanLII - Fédéral - R.S.C. 1985, c. C-46 - Section 163.1". Canlii.org. Retrieved 2008-11-03.
- Tyler, Tracey (October 1994). "Artist backs right to paint sexual work". Globe and Mail.
- R v Sharpe (Supreme Court of British Columbia January 13, 1999) (“As s-s.(4) is in violation of s.2(b) of the Charter and is not justified under s.1, s-s.(4) must be and is declared void.”). Text
- R. v. Sharpe (26 January 2001). Retrieved February 20, 2006.
- Dear Edmonton Journal by Chris Macdonald of AnimeNewsNetwork
- Conviction for child toon porn - May be a first for Canadian courts by Tony Blais, Court Bureau, Edmonton Sun
- Canadian Arrested for Importing Loli-porn Manga (March 4, 2005, Anime News Network). Retrieved June 23, 2008.
- Canadian Sentenced over Loli-Porn Manga (October 20, 2005, Anime News Network). Retrieved January 20, 2006.
- Canadian Convicted of Possessing Hentai Kiddie Porn by Darklady of YNOT
- Jail time for man with cartoon child porn (April 4, 2006, CBC News)
- "B.C. man gets 11 years for child sex tourism". CBC News. July 28, 2010. Retrieved December 6, 2013.
- "Canadian man gets 11 years for sex tourism charges". The Seattle Times. July 28, 2010. Retrieved December 6, 2013.