Understanding Child Pornography Laws in Canada: What You Need to Know
Child pornography laws in Canada can be tricky to understand – what is it, when is it a criminal offence, and what can you do if you are struggling with an interest in it? Let’s break it down.
It is a criminal offense in Canada to make, print, publish, or possess for the purpose of distribution, any child pornography. Individuals found guilty of the above offense will be liable for imprisonment for a minimum of one year and for a maximum of fourteen years.
Child pornography is a legal term defined at section 163.1 of the Criminal Code. This content may also be referred to as “child sexual abuse material” (CSAM) or “child sexual exploitation material” (CSEM) in other forums. Given the focus of the information below, we will use the term ‘child pornography’ as it remains the current legal term and the term that most individuals are familiar with.
Child pornography may be in the form of photo, film, video, visual representation (drawn or mechanical), written material, or audio recording. Child pornography includes material where a person depicted to be under eighteen years is engaged in explicit sexual activity, or where the dominant purpose of the material is for a sexual purpose, or where the material’s dominant characteristic is the depiction of a sexual organ, or the anal region of a person depicted to be under eighteen years. Material that counsels or advocates sexual activity with a person under eighteen years of age is also child pornography.
Who is a “Person”?
For the purposes of child pornography laws, a “person” includes both actual and imaginary human beings including drawings from the imagination, cartoons, or computer-generated composites.
Images of Persons Above Eighteen Years of Age
The definition of child pornography includes any person who is or is depicted as being under the age of eighteen years.
If a reasonable observer [would] perceive the person in the representation as being under 18 and engaged in explicit sexual activity, they meet the threshold. This means that even where a person (real or fictional) is over the age of eighteen, where a reasonable person seeing the representation would perceive them as being under the age of majority, the content is liable to contravene the Criminal Code’s prohibition on child pornography.
Dolls used for a Sexual Purpose
Dolls or realistic life-size forms of a person who appears to be under eighteen years of age, where that form is used for sexual gratification, would be a “visual representation” for a sexual purpose and therefore fall within the definition of child pornography.
Written or Audio Works
Child pornography laws also apply to written and audio works. If the dominant characteristic of a written or audio work is the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen that would be an offence under [the Criminal Code], the content is child pornography.
Additionally, works that encourage illegal sexual activities with individuals under eighteen years of age, also counts as child pornography, specifically, where these works advocate or counsel sexual activity with a person under the age of eighteen. The inducement or encouragement does not need to be explicit; even if the message is implied in the story, it may constitute child pornography.
Images or Works Generated by Artificial Intelligence
Where the product is one covered by child pornography laws (i.e., a photographic, film, video or other visual representation, any written material, or audio recording) this content is contained in the definition of child pornography.
Text Messages
As explained above, the definition of child pornography can include “written material”. Text messages fall under the umbrella of “written material”. Courts have explained that electronic communications between individuals – i.e., communicative acts – falls within the definition of ‘any written material’.
It is important to note that just because the sexual text messages (or “sexts”) may only make up a small part of a larger correspondence; it does not prevent them from constituting child pornography. As explained above, for written works what matters is the “dominant characteristic” of the written material, and for “sexts” this refers to the dominant characteristic of only the message in question, not the entire conversation as a whole.
Auto-Depictions
Child pornography laws have been written so broadly that they included images or video taken by a child of themselves or written or audio materials made by the author for their own personal use only.
Because of this, Courts have created two exceptions to the statute. The first exception “protects the possession of expressive material created through the efforts of a single person and held by that person alone, exclusively for his or her own personal use.” This may include any written or visual expressions of thought “confined to a single person in its creation, possession and intended audience.”
The second exception protects a person’s possession of a visual recording created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted.
For the second exception, it is important to note that unlawful sexual activity is not protected. For example, sexual relations with someone under the age of eighteen based on exploitation, dependency, trust or authority are illegal, and therefore would not fall under this exception. This exception does not protect possession of visual recordings by adults of individuals under the age of sixteen. This is because one must be at least 16 years old to legally consent to sexual activity.
Need Help?
If you are concerned about your risk to use sexual content of children, or are worried about someone you know, reach out to the Talking for Change phone or chat line for help.