PARLIAMENT of CANADA
Home Parliamentary Business Senators and Members About Parliament Visitor Information Employment

CIR 84-3E

The Evolution of Pornography Law in Canada

Prepared by:
Lyne Casavant
James R. Robertson
Law and Government Division
Revised 25 October 2007

PDF (189 Kb, 39 pages)

Disclaimer


Table of Contents


Introduction

Pornography is difficult to define. What is viewed as pornographic varies from one person to another, from culture to culture, and over time. The term “pornography” can be used in discussion and debate to refer broadly to material that is sexually explicit, or more specifically to sexually explicit material designed primarily to produce sexual arousal in viewers, or to sexually explicit material that subordinates women or is harmful to women and children, or with some other definition in mind.

Under Canadian criminal law, the term “pornography” occurs only in section 163.1 of the Criminal Code, which provides a definition of “child pornography.” Pornographic material featuring consenting adults is regulated through the “obscenity” provision of the Criminal Code (section 163). In other words, unlike child pornography, pornographic material involving consenting adults is legal in Canada if it is not deemed to be obscene. As a consequence, child pornography tends to be much more clandestine and difficult to detect than adult pornography, which is readily accessible in retail stores through the sale and exchange of DVDs, videos, films, books and magazines, as well as in theatres, on television and over the Internet.

This paper reviews the evolution of Canadian pornography legislation and provides the facts and arguments that have informed the debate surrounding the censorship and regulation of pornographic material involving adults and children in Canada. To begin, it explores the definitions of pornography and the challenges resulting from the lack of agreement over what is meant by the term.

Background and Analysis

A. “Pornography” and Harm

A great deal of the difficulty in discussing pornography results from lack of agreement over what is meant by the term. Except for a 1993 amendment regarding “child pornography,” the criminal law does not use the word “pornography” but rather “obscenity.”

Some people consider any depiction of nudity or sexual activity to be pornographic. What is objectionable to others, however, is not sexual content per se, or “erotica,” which depicts normal consensual sexual activity, but material in which one or more participants are demeaned, degraded or abused in some manner. Pornography, according to this view, is material that condones or encourages sexual debasement. Such a distinction cuts across conventional definitions because it means that very explicit sexual depictions can be called “erotica,” while sexual material with relatively unexplicit but demeaning content can be called “pornography.” At the same time, much conventional pornography depicts naked women, and it is argued that such material perpetrates images of women as sexual objects and, thus, can victimize women directly and indirectly.

The lack of consensus over the definition also contributes to society’s difficulty in determining the prevalence of pornography. It is clear, however, that pornographic material is more easily accessible than in the past, mainly because the Internet has created new opportunities for downloading, exchanging and distributing such material. This practice presents unique challenges for the enforcement and prosecution of law related to pornography, since crimes committed over the Internet are “often envisioned as being borderless.”(1) It has also been suggested that community standards have changed to the point where 30% of all Canadian newsstand sales in the mid 1980s consisted of periodicals that would have been illegal 20 years before.

Notwithstanding the uncertainties of definition, many believe that material that depicts violence toward – or demeans – women is demonstrably harmful and should be controlled. There is, however, considerable divergence on the appropriate strategy. Harm is said to flow from pornography in two ways. First, it is theorized that there is a direct causal link between violent pornography and violence against women, so that such material can act as a “trigger” to aggression. Second, it is said that pornography contributes in a general way to myths about sexuality and about women that ultimately make violence and degradation more acceptable to society as a whole. According to this view, distinctions among types of pornography are invidious. Such material constitutes a continuum: consumers are desensitized or “numbed” by “soft” pornography, the wide distribution of which makes the allegedly more directly harmful “hard” pornography easier to accept and, indeed, encourages its production.

It can be, however, difficult to find objective proof of the harmful effects of pornography. Two potential sources of such proof are available:

Statistical evidence is unable to establish a causal link between pornography and violence. The presence of such material may be merely symptomatic of anti social behaviour, rather than its cause. Indeed, some research has purported to show that many rapists report having had little exposure to pornographic material. As for statistical evidence, rates of sexual assault have increased, but not significantly more than those of other forms of crime. In any event, establishing a statistical link of this sort is extremely problematic.

Experimental studies can lay claim to being the likeliest source of a proven link between violence and pornography, and, indeed, some work has shown that, under laboratory conditions, there may be a measurable relationship between aggressive behaviour and exposure to aggressive pornography. Critics point out, however, that such experiments are inherently artificial, and that the results are not convincing. Even those conducting the experiments concede that their results are not readily transferable from the laboratory to the real world, where a wealth of other stimuli and inhibitions also affect social behaviour.

Not all studies of the effects of pornography inquire into its negative consequences. Some subscribe to the so called “catharsis” theory – that pornography can act as a safety valve of sorts, allowing its consumers to satisfy aggressive impulses in a non violent way. The catharsis theory is as unprovable as the theory that pornography induces aggression, and some of the attempts to find substantive proof in the experience of countries that have liberalized obscenity laws have been discredited.

Some contend that the absence of conclusive scientific proof of a direct causal link between pornography and violence should not deter action to suppress such material; because of the nature of the phenomenon and its social context, such “proof” is next to impossible to obtain. According to this view, the self evident fact that pornography contributes negatively to societal perceptions of women and sexuality is sufficient justification for its suppression. Opponents of this view contend that society should impose limitations on expression only where there is demonstrable proof of actual harm, and that, in any event, current legal sanctions, possibly with slight modifications, are sufficient to deal adequately with the problem.

The 1985 report of the Special Committee on Pornography and Prostitution (the Fraser Committee) made several significant findings on pornography in Canada. The Committee declined to give an explicit definition of what it considered “pornography,” prin¬cipally because there is no accepted definition in the community at large. It acknowledged the validity of the idea that pornography should be distinguished from erotica, and agreed that, although it is violent pornography that is of most concern, to some extent there is a continuum from apparently mild sexually offensive material to violent material.

Pornographic material was found to be almost exclusively imported into the country, and to be more widely available in 1985 than 15 years earlier, although this conclusion seemed to depend “not on concise and comprehensive statistics, but on the piecing together of some statistics with indications, trends and general observations.” Moreover, the Committee could not determine with any precision whether more people were actually using pornographic materials than before. It concluded:

The research which has been conducted on magazines and videos does not confirm the overwhelmingly awful picture presented by some groups and individuals in their briefs to the Committee. ... [T]he view that large amounts of violent pornography or child pornography are being consumed is not substantiated by the research.

The Committee strongly suggested that pornography represents and nourishes attitudes and activities inimical to the equality of men and women and that it presents demeaning images as normal and commendable, so that it perpetrates “lies about aspects of women’s humanity and denies the validity of their aspirations to be treated as full and equal citizens.”

B. The Current Law

The principal existing sanctions against pornography are found in the criminal law. Section 163 of the Criminal Code creates a number of offences in relation to the fabrication and distribution of “obscene” publications, or to possessing them for the purpose of distribution. It is also an offence to mail obscene matter, or to give an “immoral, indecent or obscene” theatrical performance. These offences may be punished on summary conviction or by indictment, with up to two years’ imprisonment where the latter course is chosen. There is also provision for the seizure and forfeiture of obscene materials.

Central to these prohibitions is the elaboration of what is obscene in section 163(8):

For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

Whether there is “undue” exploitation is almost invariably determined by reference to community standards, i.e., if a dominant characteristic is the exploitation of sex or of sex and any other enumerated quality, the trier of fact must determine the community standard of tolerance. Would the community tolerate the presentation, publication or distribution of the material as presented or published? If not, the material is deemed obscene. As the Supreme Court of Canada pointed out in the Butler case, the community standards test is concerned not with what Canadians would not tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed to.

It should be noted that crime, horror, cruelty and violence by themselves are not obscene; it is only when they are portrayed in conjunction with sex that obscenity exists for legal purposes.

The obscenity standard is flexible – it responds to shifts in public acceptance of explicit material. Notwithstanding the theory that it is also national in application, there is potential for considerable variation, because the criminal law is administered by the provinces, which may set different prosecution standards. Finally, the obscenity standard is today quite “liberal.” In media such as magazines or films, where there is little likelihood that those unwilling to view the material will be exposed to it, there is considerable leeway; in other, less discretionary forms of expression, such as television, tolerance is lower.

Section 163.1 of the Criminal Code was enacted in 1993. It prohibits the production, distribution and sale of “child pornography,” and also makes it an offence to possess such material. Maximum sentences of ten years for its production and distribution, and five years for simple possession, are prescribed. The section contains a definition of child pornography that includes:

Other than the criminal sanctions, there is little else in federal law that purports to control sexually explicit or violent material. Under the Customs Tariff, customs officials were, until 1985, empowered to forbid entry into Canada of material of an “immoral or indecent” character, as determined by reference to community standards; the scope of those words was wider than that of “obscenity.” Thus, a broader range of materials could be kept out of the country by administrative action than by criminal prosecution. On 14 March 1985, however, the Federal Court of Appeal found that this provision was too vague to be compatible with the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms and, therefore, was of no force or effect. The Customs Tariff was subsequently amended to change the reference in the Schedule to materials “deemed to be obscene” under subsection 163(8) of the Code, or found to be hate propaganda under section 320(8). Since 1993, it has also referred to material that constitutes “child pornography” within the meaning of that term in the Criminal Code.

The provinces have a relatively narrow role in the control of pornography. Because the enactment of criminal legislation is beyond provincial jurisdiction, direct prohibition by regulation is not possible, although regulation may incidentally deal with, or complement, obscenity laws. Such is the case with the censorship and classification of films by provincial boards, the constitutionality of which was vindicated by the Supreme Court of Canada in 1978. The power of such boards to order deletions from motion pictures, or to prohibit exhibition entirely, has been put in doubt by a 1984 decision of the Ontario Court of Appeal. The Court held that the absence of specific guidelines concerning censorship rendered the power of the Ontario Censor Board (now the Ontario Film Review Board) an unreasonable limitation on freedom of expression under the Charter of Rights and Freedoms.

Beyond regulation of film, provincial involvement in this area is limited. Municipalities, using powers derived from the provinces, can regulate the pornography industry by prescribing how such material is to be displayed, or through licensing and zoning restrictions, but this control must not infringe on criminal jurisdiction. This limitation on provincial jurisdiction was emphasized in October 1984 by a decision of the Ontario Divisional Court dealing with a provision of that province’s Municipal Act (and particularly a by law of the municipality of Toronto) that would have allowed the regulation of the sale of erotic magazines. The provision was struck down on the ground that the by law affected public morality – something that can be dealt with only by the federal criminal power.

The use of new technologies such as the Internet has created unique challenges and problems: computer pornography is an increasing concern, especially because dissemination of such material cannot generally be controlled. There are also issues regarding the potential liability of the owners or managers of computer networks, such as universities. Although criminal charges have been laid regarding the distribution or possession of pornography on the Internet, to date there has been little judicial guidance on the issues involved.

C. The Obscenity Standard

The criminal prohibitions of obscenity, with their emphasis on sexual explicitness, are viewed by many as inadequate. Furthermore, many do not find the community standards test to be particularly useful – if pornography is in fact harmful in some way, an objective standard is required, rather than a mere subjective assessment of what the community will not tolerate.

In 1984, as part of Bill C-19, the Liberal government proposed a new definition of obscenity that would have taken into account some of these criticisms. It would have read as follows:

For the purposes of this Act, any matter or thing is obscene where a dominant characteristic of the matter or thing is the undue exploitation of any one or more of the following subjects, namely, sex, violence, crime, horror or cruelty, through degrading representations of a male or female person or in any other manner.

This proposal would have effected two major changes. First, it would have made it quite clear that the definition would apply to all “matters or things” and not merely publications, thus removing a persistent ambiguity. Second, it would have severed the link between sex and cruelty, horror or violence now necessary for material to be deemed obscene.

The proposal would have retained the requirement of “undue exploitation,” however, and thus the community standards test would still have applied. The suggested addition of a reference to degradation would have added little to the existing sanction; it is within the current power of the courts to find undue exploitation arising from circumstances of degradation.

A different approach to redefinition has been proposed by some feminist groups. This would not rely on an assessment of the community standard of toleration at all, but rather on a purportedly objective determination of whether material can be taken to express approval of the behaviour that it depicts. One version, which has been proposed by the National Association of Women and the Law, would replace the word “obscenity” with “pornography,” which would be defined as:

A presentation or representation whether live, simulated, verbal, pictorial, filmed, video taped or otherwise represented, of sexual behaviour in which one or more participants are coerced overtly, or implicitly, into participation; or are injured or abused physically or psychologically; or in which an imbalance of power is obvious, or implied by virtue of the immature age of any participant or by contextual aspects of the presentation, and in which such behaviour can be taken to be advocated or endorsed.

The clear basis of the proposal is that any depiction of sexual activity beyond an ideal of mutual consent is harmful and should be suppressed. Nevertheless, the potential difficulties with such a definition, in the context of enforcement of the criminal law, would be significant. Many of the terms used are extremely vague, and would require the courts to analyze the intentions of those who made the representations.

The Special Committee on Pornography and Prostitution (the Fraser Committee) proposed a thorough revision of the criminal law in relation to obscenity. The suggested changes would have gone considerably farther than the 1984 government proposals, but would have avoided the subjectivity inherent in some feminist proposals. Suggested revisions were based on the view that two “harms” flow from pornography: harm to those involuntarily subjected to it, and the broader social harm resulting from the undermining of the right to equality.

The most notable aspect of these proposals was the jettisoning of the “community standards” test. It was intended that pornography would be subject to an assessment based not on “taste,” but on more objective grounds, although the defences of scientific or educational purpose, or of artistic merit with respect to sexually violent or degrading pornography, would continue to require a large element of subjective analysis. Furthermore, sexual explicitness alone would not be a sufficient ground for application of the criminal sanction. Some may still question, however, whether it would in fact be appropriate to permit in this way any sexual depiction, however explicit, so long as it was not violent, did not involve children, and was not indiscriminately open to the public.

The Fraser Committee was of the opinion that its proposals were constitutional; although they might infringe upon freedom of expression, the Charter allows freedom to be subject to reasonable limits. In the Committee’s view, such limits could be justified on the grounds that pornography may encourage inequality for certain elements of society.

D. Pornography as a Human Rights Issue and as Hate Literature

The Fraser Committee took the position that new ways of seeking redress for the social harm caused by pornography should be explored. One of these was the inclusion in human rights legislation of measures intended to reduce exposure to pornography in the workplace, stores and other venues. It was also suggested that consideration be given to the provision of a civil right of action in respect of the promotion of hatred through pornography.

Anti-pornography activists are attempting to move their fight into the realm of human rights law, and seek to build on previous cases in which depictions of naked women in the workplace have been found to be harassment of female employees. The Ontario Human Rights Commission argued in 1993 before a board of inquiry that the presence of men’s sex magazines in corner stores is a form of discrimination against women. The case targets “soft-core” materials, such as Penthouse and Playboy, which are generally considered to meet the community standard of tolerance outlined by the Supreme Court of Canada in Butler. In a 2-1 decision, the case was dismissed on a preliminary motion on the basis that the Commission had not complied with its statutory obligation to endeavour to effect a settlement before proceeding to a board of inquiry (Findlay and McKay v. Four Star Variety, 22 October 1993). In May 1996, the Commission finally quashed the complaint on the basis that “evidence” against the store owner, and the “current state of the law,” made further inquiry into it “inappropriate.”

Finally, the hate propaganda provisions of the Criminal Code could be amended to include sex, age, and mental or physical disability as attributes of “identifiable groups” protected by those sections. The inclusion of “sex” would presumably allow for the prosecution of a distributor or maker of material that promotes hatred of either sex. Whether amendments such as these would have anything other than symbolic significance is open to question. The intention to promote hatred, according to the current provisions of the Criminal Code, has proved very difficult to establish; this would probably also be the case if the provisions were extended to include pornographic material.

E. Child Pornography

Child pornography is generally acknowledged to raise some issues that do not apply to pornography dealing exclusively with adults. Those issues have to do with the participation of children in the production of such material and their exposure to it. It is assumed that adults may choose to be involved in pornographic productions or to view them, while children are deemed incapable of giving informed consent to such activity. Accordingly, it is argued by some that the use of children should be outlawed, and that any sexually explicit display involving children should be deemed obscene.

The Committee on Sexual Offences against Children and Youths (the Badgley Committee) – a special committee appointed by the Ministers of Health and Justice – issued its report in August 1984. Part of its mandate had to do with the use of children in the production of pornography, and their access to such material. The Committee found that there was no evidence to support claims that child pornography had reached “epidemic” proportions in Canada, as some had claimed. What child pornography there is, is imported and constitutes a small proportion of all pornography entering Canada. There is a good deal of “pseudo child pornography” – pornography that uses adults who appear to be children – entering the country, however, and this may appeal to the same tastes and evoke the same responses as material actually using children. The Committee urged a concerted effort to strengthen the processes whereby the importation of such material could be prevented.

As for domestically produced child pornography, the Badgley Committee found that it existed in an “informal and fragmented” system of private production, primarily undertaken to serve the sexual gratification of those involved. It also found that such production almost invariably involves the sexual abuse of the children used, and that new communications technology holds the potential for much more production. Accordingly, the Committee recommended that it be made an offence to use children in the production, manufacture, sale or distribution of, and to possess, visual representations of “explicit sexual conduct” of persons under age 18. All except the possession offence would be indictable, punishable by up to 10 years’ imprisonment; the possession offence would be punishable on summary conviction.

The Badgley Committee also found that the existing laws governing restrictions on children’s access to pornography were inadequate. The criminal obscenity law does not specifically deal with restricting access, and provincial and municipal laws are unevenly applied, or non existent. The Committee suggested a summary conviction offence of knowingly selling, displaying or offering to sell “visual pornographic materials” to persons under the age of 16.

The Fraser Committee’s 1985 report set out its recommendations with respect to children and pornography separately, to emphasize the special treatment children should receive. Perpetrators of child pornography would be subject to the severest punishment. It would also be an offence to “induce, incite, or coerce” a person under age 18 to participate in any representation of explicit sexual conduct. Significantly, the Committee also recommended an offence, punishable on summary conviction, of being in possession of child pornography. Possession of adult pornography would be an offence only where that possession was for the purposes of sale or distribution. The Committee acknowledged that this was a severe recommendation, but justified it on the ground that it was necessary in order to deter the production of child pornography.

On 13 May 1993, the federal government tabled in the House of Commons Bill C-128, An Act to amend the Criminal Code and the Customs Tariff (child pornography and corrupting morals). The bill was dealt with expeditiously by both the House of Commons and the Senate, receiving all-party support. Various arts and cultural groups and civil libertarians, while endorsing the need for measures to combat child pornography, expressed serious reservations and concerns about the wording of the bill, which nevertheless received Royal Assent on 23 June 1993, and was proclaimed in force on 1 August 1993. For a more detailed discussion of the bill, see Library of Parliament Legislative Summary LS-178E, Bill C-128: An Act to amend the Criminal Code and Customs Tariff (child pornography).

A controversial case that arose in December 1993 involved child pornography charges against a Toronto artist, Eli Langer, and the art gallery that displayed his work. Mr. Langer’s paintings and drawings show children performing a variety of sexual acts. Subsequently, in February 1994, the Crown dropped charges against Mr. Langer and an art gallery official, but applied for forfeiture of the artwork in order to destroy the paintings and drawings seized in the case. The case raises questions about the scope of the new legislation and its exemption for works of artistic merit. Arts groups have expressed concerns that serious and legitimate artists run the risk of violating the new law, and that the prospect of criminal charges will have a “chilling” effect on artistic activity because of the loss of time and money and the notoriety they involve. At the same time, advocates of tougher child pornography measures are concerned about the definition of art and the ambiguity of the artistic defence, as well as the prospect that it could be used to justify or cloak pornography involving children.

In April 1995, Mr. Justice David McCombs ruled that Langer’s art was not illegal. Although he called the pictures “shocking and disturbing,” the judge said that they had “artistic merit,” and that he was not convinced that they “pose a realistic risk of harm to children.” At the same time, the judge rejected the constitutional challenge by Langer and groups representing artists, writers and civil libertarians. He said that the child pornography law was a reasonable restriction on artists’ freedom of expression and was designed to protect children from the harmful impact of child pornography. The case was appealed to the Supreme Court of Canada on the basis that the law contravened the Charter of Rights and Freedoms, and also with respect to the issuance of warrants authorizing the seizure of allegedly pornographic materials. Although the application was supported by the Ontario government, leave to appeal and cross-appeal was refused by the Court on 11 October 1995. (Ontario (Attorney General) v. Langer (1995), 97 C.C.C. (3d) 290, 123 D.L.R. (4th) 289, 40 C.R. (4th) 204, leave to appeal to S.C.C. refused 100 C.C.C. (3d) vi, 126 D.L.R. (4th) vii, 42 C.R. (4th) 410n.)

In January 1999, in R. v. Sharpe [169 D.L.R. (4th) 536, 22 C.R. (5th) 129, 58 C.R.R. (2d) 261, 40 W.C.B. (2d) 507], a justice of the Supreme Court of British Columbia ruled that the prohibition against possession of child pornography in the Criminal Code was unconstitutional, although he upheld the prohibitions on the possession of child pornography for purposes of publication, distribution and sale. The case was appealed, on an expedited basis, to the Court of Appeal for British Columbia, where a majority decided, in June 1999 [136 C.C.C. (3d) 97, 175 D.L.R. (4th) 1], that section 163.1(4) – the offence of possession of child pornography – contravened the Canadian Charter of Rights and Freedoms. The case was appealed to the Supreme Court of Canada, where it was heard on 18-19 January 2000, and a decision was rendered on 26 January 2001. The Court found that the law on child pornography strikes a constitutional balance between freedom of expression and the prevention of harm to children. Nevertheless, the Court read into the law two exceptions relating to expressive material privately created and kept by the accused. It found that possession of such material poses no reasonable risk of harm to children if it is:

The Court ruled that the possession of these materials should be excepted from section 163.1(4). It should be noted that in the second instance all parties involved must have consented to both the activity and the creation of the record, and the possessor of such material must have personally recorded or participated in the sexual activity it portrays.

The Supreme Court also ruled on the wording of section 163.1(1)(b), which prohibits “any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.” In order to meet the requirement of “advocates” or “counsels,” the Court ruled that the material must be viewed objectively and seen as “actively inducing” or encouraging the described offences with children. Thus, the mere description of the act is not enough to contravene the law.

Section 163.1(6) provides that material that constitutes child pornography can be defended if it has “artistic merit.” The Supreme Court defined “artistic merit” as “possessing the quality of art” or having “artistic character.” This defence must also be established objectively. The Court then set to define what is meant by “art.” It found that the decision must, for each case, be left to trial judges to make the determination on the basis of a variety of factors. These can include the subjective intention of the creator, the form and content, and its connections with artistic conventions, traditions or styles. Judges may even rely partly on the opinion of experts. The Court did find that the defence of artistic merit does not incorporate a community tolerance standard because it was not included in the legislation. The Court decided that reading such a standard in would run counter to the logic of the defence that artistic merit outweighs any harm that might result from the work. The Court also held that the defences of medical, educational, and scientific purpose should also be taken into consideration regarding what can be deemed as child pornography.

Finally, the Supreme Court ordered that the charges against Mr. Sharpe be sent back to the British Columbia Supreme Court for trial. There, the trial judge, Mr. Justice Shaw, rejected Mr. Sharpe’s defence that the photographs of children he had had in his possession were lawful as they were intended exclusively for his own private use. Mr. Sharpe also argued that the boys depicted were likely over 14 years old and since the age of consent for sexual activity in Canada is 14, the children had legally consented to be depicted in the materials.

Mr. Justice Shaw ruled that Mr. Sharpe could not prove that the pictures were for his own personal use, nor could he prove that the boys depicted had any further involvement in the use of the photographs after they were taken. Thus, on account of these photographs, Mr. Sharpe was convicted of possessing child pornography. As a result, in May 2002, “he received a conditional four-month sentence that restricted his use of the Internet, forbade him from interacting with anyone under the age of 18, and placed him under house arrest from 4 p.m. to 8 a.m.(2)” As for the written materials in Mr. Sharpe’s possession, the judge found that, while they were morally repugnant, they did not counsel or advocate the commission of sexual crimes against children. Mr. Sharpe, therefore, was acquitted of the offence of possessing child pornography for the purpose of distribution or sale.

As for the issue of artistic merit, Mr. Justice Shaw went on to address Mr. Sharpe’s “artistic merit” defence although it was no longer necessary for his decision. Three English professors and one psychiatrist testified as expert witnesses on the matter. The majority found some artistic merit in the writings. One of the professors denied artistic merit but was found to have applied a community standard of tolerance test in his assessment, thereby mistakenly letting considerations of morality play a role in assessing the work. The trial judge concurred with the majority of the expert witnesses and found evidence of artistic merit in Mr. Sharpe’s writings. Such factors included the portrayal of people, events and scenes that were reasonably well written, parody and allegory, characterization, imagination, and at times reasonably complex plots.

This case has been controversial. Concerns over the implications of striking down part of the prohibition against possession of child pornography resulted in the House of Commons holding a vote to invoke the notwithstanding clause of the Charter to ensure that the law remains in force. This initiative was defeated in the House by a vote of 143 to 129 on 2 February 1999.

1. Bill C-20

After a public consultation initiated by the Department of Justice(3) on child victims, on 5 December 2002 the federal government introduced Bill C-20, which proposed further amendments to the Criminal Code and the Canada Evidence Act. The purpose of the bill was to protect children and other vulnerable persons from sexual exploitation, abuse and neglect, as well as to provide protection for victims and witnesses in criminal justice proceedings.(4)

Bill C-20 expanded the s.163.1(1) definition of “child pornography” provided in the Criminal Code to include written material, “the dominant characteristic of which 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.” Therefore, the accused person need not possess written material intended to “advocate or counsel” sexual activity with a person under 18 to be found guilty of a child pornography offence.

As a result of the Supreme Court of Canada’s interpretation of the “artistic merit” defence in the Sharpe case, Bill C-20 replaced the “artistic merit” defence against child pornography charges with the defence of “public good.”

Bill C-20 also introduced a new category of sexual exploitation in s.153 of the Criminal Code, making it an offence for an adult to have sexual contact with a person between the ages of 14 and 18 in a relationship that is “exploitative of the young person.”

Furthermore, the bill proposed the creation of hybrid offences of “voyeurism,” making it an offence to secretly observe or record a person for sexual purposes or where there is a reasonable expectation of privacy. Voyeurism offences would be punishable by up to five years’ imprisonment when prosecuted by indictment or by six months’ imprisonment upon summary conviction.

This bill died on the Order Paper when Parliament was prorogued on 12 November 2003.(5)

2. Bill C-12

Bill C-20 was reintroduced as Bill C-12 on 12 February 2004, after the adoption of a motion by the House of Commons on 10 February 2004 that provided for the reintroduction of government bills that had died on the Order Paper when Parliament was prorogued on 12 November 2003.

Since Bill C-12 responded to the same concerns and promoted the same goals as its predecessor, it followed that the bill faced similar criticism. Some expressed concern that it did not go far enough in responding to the needs of children and other vulnerable persons, while others expressed concern that it might infringe upon individual Charter rights. In particular, several interest groups voiced their concerns that the proposed definition of child pornography might infringe upon the freedom of expression of artists.

In May 2004, Bill C-12 died on the Order Paper with the dissolution of the 37th Parliament.(6)

3. Bill C-2

The government demonstrated its ongoing commitment to the goals of Bill C-20 and Bill C-12 by introducing Bill C-2 in the subsequent Parliament. Bill C-2 was introduced in the 1st Session of the 38th Parliament, on 8 October 2004. Like its predecessors, Bill C-2 proposed amendments to the Criminal Code and the Canada Evidence Act intended to “crackdown on child pornography” as well as to better protect children and other vulnerable persons from sexual exploitation and abuse.(7) The bill expanded existing child pornography and sexual exploitation offences, created a new prohibition against advertising child pornography, replaced the “artistic merit” defence with the new defence of “legitimate purpose,” increased penalties for child sexual offences, including the introduction of mandatory minimum sentences, and established new “voyeurism offences.”

Bill C-2 received Royal Assent on 20 July 2005, and its offence and sentencing reforms came into full force and effect on 1 November 2005. Other reforms included in the bill that were intended to facilitate testimony by child witnesses and other vulnerable victims and witnesses came into force on 2 January 2006.(8)

Since the 1993 amendments to the Criminal Code, which added provisions in s. 163.1 dealing specifically with child pornography, it is now a criminal offence to make, print, publish, import, distribute, sell, or simply possess child pornography. The punishment for child pornography offences ranges from a maximum of five years’ imprisonment for the possession of child pornography to a maximum of ten years’ imprisonment for making or selling it.

As a result of the amendments in Bill C-2, the definition of child pornography in s 163.1(1) is now expanded to include audio formats as well as written material whose “dominant characteristic” is the description “for a sexual purpose” of sexual activity involving a person under 18 years of age that would be an offence under the Criminal Code.(9) As mentioned earlier, it is no longer required that written material “advocates or counsels” sexual activity with a person under age 18.

Interestingly, if the Sharpe case were decided today, it is likely that Robin Sharpe would have been found guilty of the offence of possessing child pornography for the purpose of distribution or sale with respect to the written material at issue. Whereas in that case the trial judge found that the writings before him did not “advocate or counsel” sex with children, it would no longer be required under s. 163.1(1) that the material, viewed objectively, be seen as “actively inducing” or encouraging the described offences with children.

In response to the broad interpretation of the “artistic merit” defence by the Supreme Court of Canada in Sharpe, Bill C-2 removed the “artistic merit” defence against child pornography charges for material with “artistic merit or an educational, scientific or medical purpose” and replaced it with the “legitimate purpose” defence. Section 163.1(6) of the Criminal Code now requires that the accused satisfy an objective, two-step harms-based test:

No person shall be convicted of an offence under this section if the act that is alleged to constitute an offence

  1. has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
  2. does not pose an undue risk of harm to persons under the age of eighteen years.

There are concerns that Bill C-2, like its predecessors, may interfere with individual Charter rights, particularly freedom of expression. It remains to be seen whether the amended Criminal Code provisions will be upheld by the courts.

Bill C-2 increased the penalties for all child pornography offences. The maximum penalty for child pornography offences has been increased from 6 to 18 months on summary conviction, with the additional requirement that “intent to profit” be considered as an aggravating factor in sentencing. Furthermore, Bill C-2 introduced mandatory minimum sentences of imprisonment for all child pornography offences.

Bill C-2 also expanded the offence of sexual exploitation in s. 153 of the Criminal Code, making it an offence for an adult to have sexual contact with a person between the ages of 14 and 18 where the relationship is “exploitative of the young person.” Previously, s. 153 applied only to persons “in a position of trust or authority towards a young person” or persons “with whom the young person is in a relationship of dependency.” Courts may now infer, based on the nature of the circumstances, that a relationship is exploitative of a young person. Courts may consider factors such as the age of the young person, any difference in age between the young person and the accused, the evolution of the relationship, and the degree of control or influence exercised over the young person.

In recognition of the increased accessibility of child pornography as a result of recent developments in technology such as the Internet, camera cell phones, and webcams, Bill C-2 created two new, hybrid “voyeurism” offences. Section 162(1) prohibits the “surreptitious” observation by any means, or the visual recording, of any person in circumstances giving rise to a reasonable expectation of privacy, in any one of three situations:

  1. when the person being observed or recorded is in a place where he or she can reasonably be expected to be in a state of nudity or engaged in explicit sexual activity;
  2. when the person is in a state of nudity or engaged in explicit sexual activity and the purpose is to observe or record the person in that state; and
  3. when the observation or recording is done for a sexual purpose.
Bill C-2 also makes it an offence in s. 162(4) to knowingly distribute voyeuristic material or to possess such material knowingly obtained through the commission of an offence under s. 162(1). Voyeurism offences are punishable by up to six months’ imprisonment upon summary conviction, or up to five years’ imprisonment upon indictment. The defence of “public good” against voyeurism charges is laid out in ss. 162(6) and (7).

It should also be noted that Bill C-2 contained numerous amendments intended to facilitate child testimony, including the exclusion of the public in certain cases and the provision of testimonial aids such as support persons, screens, closed-circuit televisions, and the use of video-recorded evidence. In addition, Bill C-2 amends the Canada Evidence Act to clarify that a person under 14 years of age is presumed to have the capacity to testify. Consequently, in addition to the expansion of child pornography offences, new tools have been provided that may facilitate the prosecution of such offences.

Finally, Bill C-2 is subject to review by a parliamentary committee five years after coming into force.(10)

F. Pornography on the Internet

1. Legislative Updates

a. Bill C-15A

Technology has become increasingly sophisticated in recent years. In addition to the dramatic increase in Internet access, technological developments such as wireless Internet, webcams and camera cell phones have made children ever more vulnerable to sexual exploitation.(11) In March 2001, in recognition of growing public concern and in light of the Supreme Court of Canada decision in Sharpe, the government introduced Bill C-15A, which included amendments to the Criminal Code intended to protect children from sexual exploitation involving the Internet, such as online child pornography and Internet “luring.” Bill C15-A received Royal Assent on 4 June 2002, and the amendments came into force on 23 July 2002.

The bill amended s. 163.1(3), which prohibits the distribution of child pornography, to include language such as “transmission,” “making available” and “accessing,” thereby prohibiting the distribution of child pornography online. The bill also added ss. 163.1(4.1) and (4.2), making it an offence to “access” any child pornography, where this is done “knowingly.” The provisions of Bill C-15A also addressed the issue of child luring on the Internet by adding Criminal Code s. 172.1.(12)

Furthermore, in 2002, in response to growing public concern about the impact of rapid technological developments on personal privacy, the Department of Justice launched a public consultation on the issue of voyeurism, in order to obtain public input regarding the creation of new Criminal Code offences for voyeurism and the distribution of voyeuristic material.(13) The responses to the consultation document were largely in favour of enacting new criminal offences of sexual voyeurism and the distribution of voyeuristic materials, which led to the inclusion in Bill C-2 of amendments to the Criminal Code creating the two new voyeurism offences discussed above.

2. Internet Regulation

In recent years, the Internet has become increasingly recognized as the most common channel for the distribution of child pornography. Unfortunately, despite growing concern, it has proven extremely difficult to detect and prevent the distribution of child pornography by this means. Moreover, there is a consistent lack of consensus both nationally and internationally on how to deal with the issue; while some argue that a global Internet regulation system is necessary, others argue that strategies such as the development of filtering technologies are more appropriate.

In an effort to involve parents, teachers and Internet service providers in the protection of children from illegal Internet content and sexual exploitation via the Internet, in February 2001 the government announced the launch of the Canadian Strategy to Promote Safe, Wise and Responsible Internet Use.(14) The priorities of the strategy are to:

In September 2002, the public online reporting service Cybertip.ca, was launched by the Government of Canada, law enforcement agencies, the private sector, and non-profit groups. Cybertip.ca is a “national tipline” that allows the public to report illegal Internet content and the online sexual exploitation of children, with the goals of protecting children from sexual exploitation through the Internet and providing Canadians with the information, support and resources to improve the safety of the Internet for their children.(16)

3. The US Child Online Protection Act

In February 1996, the United States Congress passed the Communications Decency Act. One of its goals was to punish those who disseminate “indecent” material over the Internet. In June of that year, however, a three-judge panel from a District Court in Philadelphia found that the word “indecent” was too vague, and the Act was ruled unconstitutional. In 1998 the US Congress enacted the Child Online Protection Act (COPA), which imposes prison sentences and fines of up to $100,000 for placing material that is “harmful to minors” on a website available to those under the age of 17; the statute has never taken effect, as a Federal District Court order was imposed against its enforcement in February 1999 and was continued in effect by a decision of the US Supreme Court in May 2002.

In March 2003, COPA was again struck down as unconstitutional by the 3rd Circuit Court of Appeals. The government appealed the decision to the US Supreme Court, and on 29 June 2004 the high court issued a decision upholding the lower court injunction against the enforcement of the law, ruling that the legislation was likely unconstitutional. The Court held that the government had not demonstrated that there are no “less restrictive alternatives” to COPA for protecting children from Internet pornography; consequently, the Court sent the case back to the lower court for a trial to determine whether content-filtering technologies would be more effective than the provisions of COPA.(17) These issues remain unresolved.

The nature and extent of pornography on the Internet remain matters of some dispute. Although Internet pornography appears to be increasing, at the same time it defies traditional government regulation. The issues involved are complex.

G. Judicial Developments

A number of court decisions have involved the obscenity provisions of the Criminal Code. In Ontario, in what is believed to have set a Canadian precedent, a seller of pornography was jailed in August 1990 after being convicted of 12 charges relating to his magazine distribution business. In Ottawa, a record company and record distributor were charged with distribution of obscene material and possession of such material, in relation to two records by a British Columbia punk band, Dayglo Abortions. The defendants were acquitted after a trial that lasted several days. In July 1991, a bookstore owner in London (Ontario) was found guilty of selling obscene material after police seized copies of an album by the controversial US rap group 2 Live Crew.

In 1992, the Supreme Court of Canada handed down its decision in the case of R. v. Butler ((1992), 70 C.C.C. (3d) 129, [1992] 1 S.C.R. 452, 11 C.R. (4th) 137, [1992] 2 W.W.R. 577). The Court unanimously upheld the constitutionality of the obscenity provisions of the Criminal Code, holding that, although the prohibition against pornography contravened the freedom of expression guarantee in section 2(b) of the Charter of Rights and Freedoms, it could be justified under section 1 of the Charter as a reasonable limit prescribed by law. Mr. Justice Sopinka, writing on behalf of the Court, said that, although a direct link between obscenity and harm to society may be difficult, if not impossible, to establish, there was nevertheless sufficient evidence that depictions of degrading and dehumanizing sex do harm society, and, in particular, adversely affect attitudes toward women. He held that the overriding objective of the law was not moral disapprobation but the avoidance of harm to society, and that the threat to equality resulting from exposure to certain types of violent and degrading material cannot be ignored.

In the course of his reasons, Mr. Justice Sopinka provided some guidance in applying the various tests to determine what constitutes undue exploitation: the community standards test, the degradation or dehumanization test, and the internal necessities test or artistic defence. He also divided pornography into three categories:

  1. explicit sex with violence;
  2. explicit sex without violence but that is degrading or dehumanizing; and
  3. explicit sex without violence that is neither degrading nor dehumanizing.
He believed that the first two categories would almost always constitute undue exploitation of sex, but the third category would generally be tolerated. However, two of the other judges disagreed, arguing that not only the content but also the representation can be objectionable. A more detailed discussion of the case appears in Library of Parliament BP-289, Obscenity: The Decision of the Supreme Court of Canada in R. v. Butler.

The Supreme Court’s decision in Butler helped to clarify the provisions of the Criminal Code, but there continues to be confusion about what constitutes obscenity. As expressed in an article in The Globe and Mail on 26 March 1993: “A year after Canada became the first country to define pornography as materials that harm women by degrading them, enforcement is infrequent, inconsistent and based on ill-defined terms.” Police authorities complain that they cannot act without more guidance as to what constitutes “degradation.” Some women’s groups, while admitting that few charges have been laid, believe that the law and the Supreme Court decision have nevertheless had a self-policing effect on distributors.

In September 1991, Toronto police seized sexually explicit videotapes as being obscene. Two people were charged with various criminal counts of owning and distributing obscene material, notwithstanding the fact that the tapes had been viewed and cleared by Ontario’s Film Review Board. In October 1993, the Ontario Court of Appeal ruled that the definition of obscenity is limited in order to capture only material that creates a substantial risk of harm. Moreover, the fact that films or videos have been approved by a provincial agency such as the Ontario Film Review Board, while relevant in terms of community standards, does not amount to a lawful justification or excuse for their content, or a bar to prosecution: “The [film] board’s approval is not binding on a court or determinative of whether the films are criminally obscene” (R. v. Hawkins (1993), 15 O.R. (3d) 549). This incident highlights the differences between federal and provincial laws. It also illustrates the problems of enforcement of the obscenity provisions when some provinces adopt a more lenient attitude than others, as well as the difficulties and unpredictability inherent in the “community standards” test.

In November 1995, the Supreme Court of Canada ruled that retailers cannot assume that a film is not obscene simply because it received prior approval from a film review board. At the same time, the Court held that retailers of pornographic material must have at least a “general idea” that their products are obscene if they are to be found guilty of knowingly selling obscene materials. The Court warned, however, that retailers cannot avoid liability by simply turning a blind eye to whether or not the material could be obscene under the law, or viewing the material themselves and deciding whether or not it is obscene (R. v. Jorgensen, [1995] 4 S.C.R. 55).

In the autumn of 1994, the British Columbia Civil Liberties Association, the Little Sisters Book and Art Emporium in Vancouver and its owners challenged provisions of the Customs Tariff and its Schedule VII that authorize the seizure of obscene materials at the border, or “prior restraint,” arguing that the system violated the Charter’s section 2(b) freedom of expression guarantee. It was also contended that the law’s application discriminated against the authors and consumers of the prohibited material on the basis of their sexual orientation, contrary to section 15. Government defendants conceded the section 2(b) infringement, but argued that it was justified under section 1 of the Charter; they denied any section 15 violation.

The January 1996 ruling of the Supreme Court of British Columbia considered the constitutionality of both the legislation and its application. Turning first to the law, the Court acknowledged a disproportionate impact on lesbian and gay individuals; however, it found this “inevitable” unequal effect not to be discriminatory under section 15, because “homosexual obscenity is proscribed because it is obscene, not because it is homosexual.” The Court also found the legislation to be a justifiable limit on freedom of expression under section 1. In its view, criteria previously articulated by the Supreme Court of Canada in relation to section 2(b) and obscenity were equally applicable to homosexual material. Having found the law per se in compliance with the Charter, however, the Court concluded that systemic deficiencies in the law’s application and patterns of arbitrary and improper practices by Customs officials had resulted in the wrongful prohibition of admissible materials. These shortcomings infringed the section 2(b) rights of the plaintiffs as well as of authors, artists and other consumers in Canada. In the result, the Court issued a declaration that the legislative provisions at issue had been construed and applied in violation of section 2(b) and section 15 (Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice of Canada) (1996), 131 D.L.R. (4th) 486).

In June 1998, the British Columbia Court of Appeal ruled that harm could arise from the proliferation of obscenity – whether homosexual or heterosexual – and that the Customs Act is reasonable legislation in a free and democratic society. The majority of the Court felt that the law allowing agents to seize gay material is not unconstitutional. There was, however, a lengthy dissenting opinion from the third judge. The case was appealed to the Supreme Court of Canada, which heard arguments on 16 March 2000; on 15 December 2000, the Supreme Court rendered its decision, with three judges dissenting in part. While the Court ruled that the Customs Act and Customs Tariff were constitutional, it found that Customs officials’ adverse treatment in applying the legislation, targeting the appellants at the administrative level, was prejudicial and demeaning to their dignity. The resulting section 15 violation was not capable of section 1 justification as it was not “prescribed by law” (Little Sisters Book and Art Emporium v. Canada (Minister of Justice)).

Several cases involved indecent or immoral theatrical performances, such as so-called “lap dancing.” In R. v. Ludacka (1996), 105 C.C.C. (3d) 565, 28 O.R. (2d) 19, the Ontario Court of Appeal ruled that performances involving physical sexual contact between the performers and patrons constituted an immoral performance contrary to section 167(1) of the Criminal Code. The activity was not protected under section 2 of the Charter, as it could not be characterized as a form of expression. In March 1997, the Supreme Court of Canada confirmed that “sexual touching” in such circumstances was illegal: writing for a unanimous court, Mr. Justice John Sopinka said that the practice is degrading to women and “objectifies [them] in a socially unacceptable manner.” In the Court’s view, lap dancing exceeds community standards of tolerance, although it is not clear whether other forms of touching between dancers and patrons would be permissible (R. v. Mara, [1997] 2 S.C.R. 630).

1. A New Standard for Measuring “Indecency”: The “Swingers Club” Cases

In decisions released on 21 December 2005, the Supreme Court of Canada ruled that two Montreal clubs featuring group sex and partner-swapping, or “swingers clubs,” were not illegal.(18) In each of the two cases before the Court, the club owners, Jean-Paul Labaye and James Kouri, faced charges of keeping a common bawdy house for the practice of indecency under s. 210(1) of the Criminal Code. A “common bawdy house” is defined in s. 197 of the Criminal Code as “a place that is kept or occupied, or resorted to by one or more persons, for the purpose of prostitution or the practice of acts of indecency.”

Club L’Orage, owned by Jean-Paul Labaye, is a members-only club where members can access a locked room on the club’s third floor to observe or participate in group sex acts. Coeur à Corps, owned by James Kouri, is a couples-only club where “liberated couples” can engage in group sex activities. The club features a dance floor around which, every 30 minutes, a semi-transparent black curtain closes and people behind the curtain can observe or participate in sex acts. As neither case involved the exchange of money for sex acts, the central issue in both cases was whether the acts constituted criminal indecency.

Traditionally, whether an act is indecent is determined on the basis of a Canadian “standard of community tolerance.” In their rulings, however, the Supreme Court replaced the community standards test with a new objective harm-based test. The standard of community tolerance considers what “the community would tolerate others being exposed to, on the basis of the degree of harm that may flow from that exposure.”(19) The community standards test was established by the Supreme Court in the 1992 pornography case of R. v. Butler, which dealt with the interpretation of the “obscenity” provisions in s. 163 of the Criminal Code.

As a result of the Supreme Court’s decisions in Labaye and Kouri, in order to establish indecent criminal conduct the Crown must now satisfy a two-branch, objective test for harm. First, the Crown must prove beyond a reasonable doubt that:

[B]y its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti-social behaviour, or (c) physically or psychologically harming persons involved in the conduct.

Once the Crown has satisfied this first requirement, it must also demonstrate that “the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.” In both cases the Court found that the Crown had failed to establish indecent criminal conduct. Accordingly, the Court allowed the accuseds’ appeals and set aside their convictions.

Two Supreme Court justices expressed concern about the new approach to indecency taken by the majority of the Court. Justice Bastarache, in dissent, stated that “this new harm based approach also strips of all relevance the social values that the Canadian community as a whole believes should be protected” and that “whether or not harm is sustained is merely one of several indicators or contextual factors that make it possible to gauge the degree of tolerance of the Canadian community.”

The “swingers club” decisions have created much controversy. Although many support the Supreme Court’s approach and ultimate decision in these cases, others are concerned that replacing the community standard of tolerance with the new harms-based test will have an impact on the definitions of obscenity and child pornography, making it more difficult to successfully prosecute such cases.(20) Whether these concerns are warranted remains to be seen.

Parliamentary Action

Numerous private members’ and government bills related to pornography have been tabled in Parliament. The bills presented in this section are those tabled by the government as well as private members’ bills that went beyond first reading.

A. Justice Committee Report, 22 March 1978

The House of Commons Standing Committee on Justice and Legal Affairs issued a report after conducting a study of the subject matter of several private members’ bills dealing with pornography. The report made a number of recommendations, among them a new definition of obscenity that would have included “degradation,” and that would also have included reference to materials involving children.

B. Bill C-51, First Reading 1 May 1978
(3rd Session, 30th Parliament)

This omnibus Criminal Code amendment bill included a redefinition of obscenity similar to the Justice Committee’s recommendation. It died on the Order Paper, as did identical Bill C-21, introduced in November 1978.

C. Bill C-19, First Reading 7 February 1984
(2nd Session, 32nd Parliament)

This omnibus Criminal Code amendment bill included a new definition of obscenity which no longer required that obscene material have a sexual element; the bill also specified degrading representations as a means of “undue exploitation” and substituted “matter or thing” for “publication” in the definition. It provided for forfeiture of obscene material, and would have placed limitations on prosecutions of materials passed by provincial classification boards. The bill died on the Order Paper in July 1984.

D. Bill C-38, First Reading 1 April 1985
(1st Session, 33rd Parliament)

This bill, which received Royal Assent on 3 April 1985, amended the Customs Tariff to incorporate the obscenity standard in the Criminal Code by reference. It was necessitated by a court decision striking down the previous prohibition on the importation of “immoral or indecent” material as contrary to the Charter of Rights and Freedoms. Originally slated to expire on 30 June 1987, the tariff item was extended on an annual basis until 1989, when it was made permanent. It is now Tariff Item 9956 of Schedule VII to the Customs Tariff.

E. Bill C-114, First Reading 10 June 1986
(1st Session, 33rd Parliament)

This bill would have repealed the obscenity provisions in the Code (and in the Customs Tariff), replacing them with strict and more objective provisions dealing with various types of pornography. It died on the Order Paper in August 1986.

F. Bill C-54, First Reading 4 May 1987
(2nd Session, 33rd Parliament)

Bill C-54 constituted a revision of Bill C-114, with some relatively minor changes and a few important additions.

The bill proposed amendments to the Criminal Code and the Customs Tariff that were similar in structure to the recommendations of the Fraser Committee, with some significant differences. There would have been a series of “tiered” offences, the severity of punishment depending on the nature of the material in issue. The offences would have applied to visual matter, i.e., child pornography, pornography showing physical harm in a sexual context, sexually violent pornography, “degrading” pornography, and what might be termed “simple” pornography. Each type of pornography would have had a specific statutory definition, and “dealing” in any would be an offence. All, except child pornography and pornography showing physical harm, would have been subject to a defence based on artistic merit or scientific, medical or educational purpose. Perhaps the most significant difference between the bill and the recommendations of the Fraser Report was with respect to “simple pornography,” i.e., the depiction of non violent, non degrading sex acts involving consenting people. The Fraser Committee would have placed restrictions only on the display of such material; the bill (subject to the defences just noted) would presumptively have prohibited manufacture, distribution, sale and any other dealing in such material.

Child pornography would have been treated harshly, with the use of persons under the age of 18 in the production of sexually explicit material severely punished. Simple possession (i.e., not for commercial or distribution purposes) would also have been made a summary conviction offence. In a new departure, dealing in matter or “commercial communication” that “incites, promotes, advocates or encourages” any of the conduct covered by the definition of the various types of pornography (except the conduct involved in simple pornography) would also have been made a severely punished offence.

The bill would have incorporated the new pornography standards into offences dealing with theatrical performances, with the corresponding defences, and into that provision of the Customs Tariff dealing with prohibited imports. Finally, following a recommendation of the Fraser Report, “sex” would have been included in the definition of “identifiable group” in the hate propaganda provisions of the Criminal Code.

Bill C-54 was very controversial. Although some efforts were made to limit the scope of its proposed restrictions on pornography, some contend that the changes were merely cosmetic. It was argued that, in limiting defences as it did, and in proposing to apply the full force of the law only to material which was sexually explicit and not to that which was violent or degrading, the bill was an overreaction, and a threat to civil liberties. There remains, however, a significant constituency that wishes to see even greater controls on explicit materials. It may not be possible to reconcile these views in legislation.

Bill C-54 died on the Order Paper when Parliament was dissolved on 1 October 1988.

G. Bill C-128, Royal Assent 23 June 1993
(3rd Session, 34th Parliament)

Bill C-128 received widespread support and speedy passage through Parliament. Dealing solely with “child pornography,” which is given its own definition, the bill creates separate offences for the production, distribution and possession of such material, and prohibits the importation of child pornography.

H. Justice Committee Report, 16 November 1994
(1st Session, 35th Parliament)

In April 1994, the Minister of Justice tabled in the House of Commons draft legislation that would prohibit the importation, sale and distribution of crime cards and board games to those under the age of 18. The House of Commons Standing Committee on Justice and Legal Affairs undertook a broad study of this issue, and tabled its Fourth Report in November 1994. The Committee rejected the draft legislation as too narrow, and recommended that the Minister of Justice table amendments to the obscenity provisions of the Criminal Code dealing with the undue glorification or exploitation of horror, cruelty and violence.

I. Bill C-15A, Royal Assent 4 June 2002
(1st Session, 37th Parliament)

This bill amended the Criminal Code to include provisions intended to protect children from sexual exploitation involving the Internet, such as online child pornography and Internet “luring.”

J. Bill C-20, First Reading 5 December 2002
(2nd Session, 37th Parliament)

This bill proposed amendments to the Criminal Code and the Canada Evidence Act. The purpose of the bill was to protect children and other vulnerable persons from sexual exploitation, abuse and neglect, as well as to provide protection for victims and witnesses in criminal justice proceedings. Bill C-20 died on the Order Paper on 12 November 2003. Bill C-20 was reintroduced in the 3rd Session of the 37th Parliament. However, Bill C-12, the reinstated version of Bill C-20, died on the Order Paper in May 2004. The amendments proposed in Bill C-20 eventually led to Bill C-2, which was proclaimed in force on 1 November 2005 and 2 January 2006.

K. Bill C-12, First Reading 12 February 2004
(3rd Session, 37th Parliament)

Bill C-12 was the reinstated version of Bill C-20. It died on the Order Paper at the dissolution of the 37th Parliament in May 2004. The amendments proposed in Bill C-12 eventually led to Bill C-2, which was proclaimed in force on 1 November 2005 and 2 January 2006.

L. Bill C-2, Royal Assent 20 July 2005
(1st Session, 38th Parliament)

This bill was similar to its predecessors, Bill C-20 and Bill C-12, with a few important additions.

The bill proposed amendments to the Criminal Code and the Canada Evidence Act dealing with child pornography and increased protection for children and other vulnerable persons from sexual exploitation and abuse. The bill expanded existing child pornography and sexual exploitation offences, created a new prohibition against advertising child pornography, replaced the “artistic merit” defence by the new defence of “legitimate purpose,” increased penalties for child sexual offences (including the introduction of mandatory minimum sentences) and established new “voyeurism offences.”

The reforms in Bill C-2 were proclaimed in force on 1 November 2005 and 2 January 2006.

M. Bill C-277, Royal Assent 2 June 2007
(1st Session, 39th Parliament)

This bill, which came into force on 22 June 2007, amends the Criminal Code to increase from five years to ten the maximum punishment for luring a child (section 172.1). In the case of a summary conviction, the maximum punishment is specified at 18 months’ imprisonment.

Chronology

1959
The Criminal Code was amended to include a statutory definition of obscenity based on “undue exploitation,” instead of the common law concept which involved assessment of whether material had a tendency to “deprave” or “corrupt.”
19 January 1978
The Supreme Court of Canada, in the McNeil case, upheld the constitutionality of provincial film censorship and classification boards.
22 March 1978
The House of Commons Justice Committee issued its report on pornography.
1 May 1978
Bill C-51, which would have redefined obscenity, was introduced in the House of Commons.
12 January 1981
Bill C-53, which contained amendments to the Criminal Code on child pornography, was introduced in the House of Commons.
16 February 1981
The Committee on Sexual Offences Against Children and Youth (the Badgley Committee) was formed, part of its mandate being to inquire into child pornography.
17 April 1982
The Charter of Rights and Freedoms, which contains a guarantee of freedom of expression, was proclaimed in force.
31 March 1983
The Ontario Divisional Court ruled, based on the Charter, that the powers of the Ontario Censor Board to order deletions from films, or to ban films, must be supported by explicitly enunciated guidelines, which do not abridge freedom of expression. The Court of Appeal later upheld this decision.
23 June 1983
The Minister of Justice announced the formation of the Special Committee on Pornography and Prostitution (the Fraser Committee).
7 February 1984
Bill C-19, which contained several amendments to the obscenity provisions of the Criminal Code, was given first reading in the House of Commons.
22 August 1984
The Badgley Committee issued its report, recommending the establishment of new offences having to do with the production of child pornography and the sale of pornography to children.
31 October 1984
The Ontario Divisional Court struck down a Toronto by-law and a provision of the Ontario Municipal Act which purported to regulate the sale of erotic magazines.
14 March 1985
The Federal Court of Appeal ruled that that part of the Customs Tariff which forbade the importation of “immoral or indecent” material was constitutionally invalid. In response, the Act was amended by R.S.C. 1985 (1st Supp.), chap. 21, to incorporate the obscenity standard, by reference. Subsequently, the tariff item was extended annually until 1989, when it became permanent.
3 April 1985
Bill C-38, which amended the Customs Tariff to incorporate the obscenity standard in the Criminal Code by reference, received Royal Assent.
23 April 1985
The Fraser Committee’s report on pornography and prostitution was released, recommending extensive revision of the law.
10 June 1986
The government introduced Bill C-114 embodying proposals for new laws on pornography. This bill died on the Order Paper when Parliament was prorogued in August 1986.
4 May 1987
The government introduced Bill C-54, a revision of the proposals on pornography in Bill C-114. This bill died on the Order Paper when Parliament was dissolved in October 1988.
27 February 1992
The Supreme Court of Canada upheld the constitutionality of the obscenity provisions in the Criminal Code, in R. v. Butler.
13 May 1993
The government introduced Bill C-128, dealing with child pornography. The bill was passed quickly by the House of Commons and Senate, and received Royal Assent on 23 June 1993. It was proclaimed in force on 1 August 1993.
16 November 1994
The House of Commons Standing Committee on Justice and Legal Affairs, in its Fourth Report, recommended that the Minister of Justice table amendments to the obscenity provisions of the Criminal Code dealing with the undue glorification or exploitation of horror, cruelty and violence. In its response of 19 April 1995, the government agreed, and undertook further study of possible amendments to the obscenity provisions of the Criminal Code.
November 1999 The Department of Justice circulated a Consultation Paper, Child Victims and the Criminal Justice System, to discuss public concerns and develop options to deal with issues affecting child victims, such as the age of consent to sexual activity, the creation of additional child-specific criminal offences, sentencing reform, and improving the experience of child witnesses and facilitating their testimony in court.
4 June 2002 Bill C-15A, which amended the Criminal Code to include provisions intended to protect children from sexual exploitation involving the Internet, such as online child pornography and Internet “luring.”
September/October 2002 The Department of Justice launched a public consultation on the issue of voyeurism, seeking public input into the creation of new Criminal Code offences for voyeurism and the distribution of voyeurism material.
5 December 2002 The government introduced Bill C-20, which proposed amendments to the Criminal Code and the Canada Evidence Act. The purpose of the bill was to protect children and other vulnerable persons from sexual exploitation, abuse and neglect, as well as to provide protection for victims and witnesses in criminal justice proceedings. Bill C-20 died on the Order Paper on 12 November 2003.
12 February 2004 The government introduced Bill C-12, the reinstated version of Bill C-20. Bill C-12 died on the Order Paper in May 2004.
8 October 2004 The government introduced Bill C-2, which proposed amendments to the Criminal Code and the Canada Evidence Act dealing with child pornography and increased protection for children and other vulnerable persons from sexual exploitation and abuse. Bill C-2 was similar to bills C-20 and C-12; however, it included some important changes, including the addition of a prohibition against the advertising of child pornography and the introduction of mandatory minimum sentences for all child pornography offences, and replaced the “artistic merit” defence against child pornography charges with the statutory defence of “legitimate purpose.” Bill C-2 received Royal Assent on 20 July 2005 and came into force on 1 November 2005 and 2 January 2006.
14 September 2005 The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, signed in November 2001, was ratified by Canada. The Protocol requires signatories to criminalize producing, distributing, disseminating, importing, exporting, offering, selling or possessing “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.”(21)

References

Adler, Amy. “The Perverse Law of Child Pornography.” Columbia Law Review, March 2001, pp. 209-73.
Bailey, Jane. “Confronting Collective Harm: Technology’s Transformative Impact on Child Pornography.” University of New Brunswick Law Journal, Vol. 56, 2007, pp. 65-102.
Benedet, Janine. “Children in Pornography After Sharpe.” Cahiers de droit, June 2002, pp. 327-50.
Campagna, Norbert. La pornographie, l’éthique & le droit. Harmattan, Montréal, 1998.
Curry, Ann. “Child Pornography Legislation in Canada: Its History and Current Developments.” The Canadian Journal of Information and Library Science, Vol. 29, No. 2, 2005.
Deleu, Xavier. Le consensus pornographique. Mango-Document, Paris, 2002.
Fiss, Owen M. The Irony of Free Speech. Harvard University Press, Cambridge, 1996.
Gotell, Lise. Inverting Image and Reality: R. v. Sharpe and the Moral Panic Around Child Pornography. Constitutional Forum, 12, Fall 2001, pp. 9-22.
Grace, Sharon. Testing Obscenity: An International Comparison of Laws and Controls Relating to Obscene Material, Home Office, Research and Statistics Directorate, London, 1996.
Jenkins, Philip. Beyond Tolerance: Child Pornography on the Internet. New York University Press, New York, 2001.
Johnson, Kirsten. Undressing the Canadian State: The Politics of Pornography. Fernwood, Halifax, NS, 1995.
Lane, Frederick S. Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age, Routledge, New York, 2000.
Library of Parliament. Bibliography Nos. 241 and 241 (Supp.) Pornography and Prostitution in Canada.

Endnotes

* The original version of this Current Issue Review was published in February 1984; the paper has been regularly updated since that time.
  1. Steven Kleinknecht, Borders Conference – Rethinking the Line: The Canada–U.S. Border / Child Pornography on the Internet Session, Research and Statistics Division, Department of Justice Canada, 2001.
  2. Ann Curry, “Child Pornography Legislation in Canada: Its History and Current Developments,” Canadian Journal of Information and Library Science, Vol. 29, No. 2, 2005, p. 150.
  3. Department of Justice Canada, Making the Criminal Justice System More Responsive to Victims, November 1999.
  4. Department of Justice, News Release - Justice Minister Introduces Measures to Better Protect Children and Other Vulnerable Persons from Harm, December 2002.
  5. For a more detailed discussion of the bill, see Robin MacKay and Marilyn Pilon, Bill C-20: An Act to amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act, LS-444E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 12 February 2004.
  6. For a more detailed discussion of the bill, see Robin MacKay and Marilyn Pilon, Bill C-12: An Act to amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act, LS-467E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 16 February 2004.
  7. Department of Justice, Backgrounder - Highlights of Bill C-2 Amendments to Protect Children and Other Vulnerable Persons, July 2005.
  8. For a more detailed discussion of Bill C-2, see Robin MacKay, Bill C-2: An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act, LS-480E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 16 June 2005.
  9. Ibid., ss. 163.1(c) and (d).
  10. For a more detailed discussion of the bill, see MacKay (2005).
  11. Department of Justice Canada (2001).
  12. For a more detailed discussion of the bill, see David Goetz and Gérald Lafrenière, Bill C-15A: An Act to amend the Criminal Code and to Amend Other Acts, LS-410E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 30 September 2002.
  13. Department of Justice Canada, 2002, Voyeurism as a Criminal Offence: A Consultation Paper.
  14. Industry Canada, Backgrounder - Launch of Cybertip.ca (see near bottom of page).
  15. Ibid.
  16. Cybertip.ca.
  17. Ashcroft v. American Civil Liberties Society, [2004] 542 U.S. 656 (2004).
  18. R. v. Labaye, [2005] S.C.J. No. 83 [Labaye]; R. v. Kouri, [2005] S.C.J. No. 82 [Kouri].
  19. Labaye, Ibid. at para. 21; R. v. Butler [1992], 1 S.C.R. 452.
  20. “Supreme Court swings the right way,” Montreal Gazette, Editorial, 23 December 2005; “Just like that, there go community standards,” The Globe and Mail, Editorial, 22 December 2005.
  21. Optional Protocol to the Convention on the Rights of the Child on the Sale of the Children, Child Prostitution and Child Pornography, 25 May 2000, art. 2(c), 3(c).
Top of Document