In R. v. McSween, 2020 ONCA 343, the Court of Appeal for Ontario considered whether text messages from an adult to a 14-year-old boy describing sexual acts he would like to perform on another 14-year old constitutes child pornography. It does.
In the Canadian law child pornography includes
(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act. [Emphasis added.]
Section 163.1(1), Criminal Code [note: I have not included the definition of child pornography under 163.1(1)(a) or (d) in the interests of clarity].
Section 163.1 does not require the alleged child pornography to meet the definition under both s. 161.1(1)(b) and (c). One will suffice.
Electronic communications (email, text messages,etc.) may constitute “written material” within the meaning of ss. 163.1(1)(b) and (c).
R. v. McSween, 2020 ONCA 343, at para. 48: the ONCA interpreting s. 163.1 in light of Parliament’s goal in enacting the child pornography legislation (that is, protecting children from its various harms) and the wording of the section itself. For a discussion on the harms of child pornography that Parliament sought to address see R. v. Sharpe, 2001 SCC 2.
See also R. v. Gagné, 2011 QCCA 2157, at para. 14, where the QCCA held that any “writing”, whether electronic or otherwise, is capable of constituting child pornography.
An email or text conversation is not a document created by a single person and does not fall into the usual format for child pornography—that is, a visual representation, such as photograph, or a video (dealt with under s. 163.1(1)(a)). However, the fact that an email or text is a written communicative act does not remove it from falling within 163.1(1) of the Criminal Code.
R. v. McSween, 2020 ONCA 343, at para. 53, 54.
The “Dominant Characteristic” Framework: s. 163.1(1)(c)
The “dominant characteristic” and the “sexual purpose” of the written material are determined objectively.
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
s. 163.1(1)(c) requires the court to ask whether a reasonable viewer, looking at the written material (eg. text messages) objectively, and in context, would see its dominant characteristic as the description of sexual activity with a person under 18 for a sexual purpose.
R. v. McSween, at para. 71, 74.
It is an error to employ a quantitative approach to the “dominant characteristic” framework. A trial judge should focus on the characteristics of the impugned messages, not the relative tenor of all written communications between correspondents.
Ibid, at paras. 81-83.
Overlap between Child Pornography and Child Luring
A consequence of the Court of Appeal’s interpretation of child pornography under 163.1(1)(b) and (c) is that text messages which are sent and which constitute child pornography may also be caught under the child luring provisions of the Criminal Code, particularly section 172.1 of the Code.
On this score the Court of Appeal notes: “Importantly, not all communicative writings that come within the definition of child pornography will satisfy the requirements of child luring. It will depend on the circumstances.” (para. 53).
Section 172.1 makes it an offence to use a telecommunications device to communicate with a person under the age of 18 for, among other things, the purpose of facilitating distribution of child pornography (s. 163.1):
s. 172.1(1) Every person commits an offence who, by means of a telecommunications device communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under s. 153(1), section 155, 163.1, 170, 171, or 279.001 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2) [Emphasis added].
The thorny consequence of all this could be that if the pornographic text communication is done for the purpose of distributing it or making its content available to the recipient (as one would expect with any communicative writing), the sending of the text will trigger not only the offence of making child pornography available (163.1(2), Code), but also child luring (as the text communication facilitates the commission of the offence of distribution of child pornography/making child pornography available).
I imagine we will hear more from the courts on this in the future.
Written by Stuart O’Connell (Barrister/Solicitor)
