The offence of obscene materials is outlined in section 163(1) of the Criminal Code.
A person commits the offence of obscene materials when they make, print, sell, publish, distribute, circulate, or expose to public view an obscene text, picture, object, sound recording, show, or other material, or if they have such a material for the purpose of publicly displaying and distributing it.
Person A creates a violent pornographic video starring person B, who is beaten to death during the video, and intends to publish it on various porn sites.
Person C creates a pornographic video wherein person D is being mocked and humiliated by person C while performing various sex acts that person D is clearly uncomfortable with.
R. v. Smith, 2012 ONCA 892
In R. v. Smith, the accused was charged with five counts of obscene materials when he created videos, still photographs, and written stories of violent sexual acts being committed against women and posted them to various websites he maintained.
Offence Specific Defence(s)
If a person is publishing the obscene material for the public good, then this person may not be convicted of the offence of obscene materials. For example, where the person is a law enforcement agent creating copies of the obscene material to preserve as evidence, they may not be convicted of the offence of obscene materials.
Unknowingly Publishes or Exhibits
Where the person does not realize that they have distributed an obscene material or does so unintentionally, they may not have completed the offence of obscene materials. For example, if person A is using person B’s phone to post a picture of the two of them, but accidentally posts an obscene video they did not know was stored on person B’s phone, then person A may not have completed the offence of obscene materials.
Not Obscene Material
Where the material does not meet the definition of “obscene,” the person who publishes it will not have completed the offence of obscene materials. Explicit sex without violence that is neither degrading nor dehumanizing is not obscene where only adults are depicted. Non-violent degrading and dehumanizing material showing explicit sex is not obscene if it depicts acts tolerated by the community.