In Canada, pornography is regulated by the provinces. So I gather this is the general guideline?
Porn is harmful. (What is harm?)
Porn is obscene. (What is obscenity?)
What is consent?
## 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:
self-created expressive material, i.e., any written material or visual representation created by the accused alone, exclusively for his or her own personal use; and
private recordings of lawful sexual activity, i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.
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.
## 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:
support initiatives that educate and empower users;
promote effective industry self-regulation;
strengthen the enforcement of laws in cyberspace;
implement hotlines and complaint reporting systems; and
foster consultation between the public and private sectors and their counterparts in other countries.(15)
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.