Should the term “child pornography” in the Criminal Code be changed to “child sex abuse materials”? While there may be laudable principles for considering to do so, it would be a legal gamble – with children at risk – to amend the law. This gamble could very likely provide child abusers with a new legal defence when faced with charges related to child pornography. The EFC has a long history of public policy engagement on matters of child protection.

Several months ago, a Canadian organization launched a campaign to pressure the Government of Canada to amend the Criminal Code in a manner intended to better protect children from sexual predators, a worthy and laudable goal to be sure. One of the current key initiatives of the Child Safe Nation (CSN) campaign is to demand that the Canadian government change the language used in s. 163.1 of the Criminal Code (which is incorrectly identified in the petition as s. 163, a section that does not deal with child pornography).

The section defines “child pornography” as photographic, film, video or other visual representation, that shows a person who is or is depicted as being under 18 years old engaged in explicit sexual activity, or depicts, for a sexual purpose, their sexual organ or anal region. The definition also includes any written material or visual representation that advocates or counsels sexual activity with an underage person.

Specifically, CSN requests, and is enlisting others by means of petition to request, that Parliament amend the Criminal Code to change “the legal terminology in Section 163 from child pornography to child sex abuse materials (our emphasis).”

At first glance, the reasons given for this request make sense. CSN argues that the term “child pornography” does not reflect the full seriousness of this particular crime against children, and the abuse of children in this manner bears no similarity to pornography as pornography is generally understood in Canadian society.

However, prior to seeking legislative change of the terms currently used in the Criminal Code, it is essential to consider how the current provisions have been interpreted by the courts and whether the proposed change will help or hinder in accomplishing the stated objective of keeping children safe. There are several reasons why the suggested change in terminology could have disastrous legal consequences for children, law enforcement officers and others seeking to strengthen protections for children.

1. Change the words, change the law.

When it comes to changing the law, there is nothing simple about it. What may seem a simple change in terminology in fact means an entirely new interpretation will be required for an entirely new legal term.

It may seem fairly simple and straightforward to  replace the term “child pornography” with “child sex abuse materials” but it’s not. Legislators cannot simply replace two words with three others in section 163.1 of the Criminal Code and leave the existing legal understanding of the section intact.

Legal terms and concepts are defined primarily in two ways.

First, a definition of a term can be spelled out in legislation, in this case section 163.1 of the Criminal Code defines ‘child pornography’.

Second,  when legislated definitions are challenged in court cases –  as s. 163.1 has – the courts consider them and  define the active scope of terms or concepts. The Supreme Court of Canada has so defined the active scope of s. 163.1, child pornography. Not evident on a simple reading of s. 163.1 is that the definition of child pornography includes imaginary human beings as well as actual human beings. In R. v. Sharpe, the Supreme Court of Canada was asked to consider a case where Mr. Sharpe was found to be in possession of sexually explicit stories he wrote about children, as well as boxes of drawings and photographs of naked children –  some in sexually explicit poses or acts. All levels of the court system that heard the case were tasked with considering the Criminal Code definition of child pornography  in an effort to determine if the fictional stories, drawings and photographs fit within the definition.

This refining of legislated terms by the courts is part of the normal legal practice in Canada.

As the final court of appeal to consider the application of s. 163.1 in R. v. Sharpe, the Supreme Court of Canada provided definition to the term “child pornography.”

Subsequent to the Supreme Court of Canada decision, Parliament amended s. 163.1 to add the categories identified in (c) and (d) as a result of the Supreme Court of Canada decision and subsequent decision of the B.C. Supreme Court at Sharpe’s trial.

If a new term is introduced to replace “child pornography”, the courts  will be confronted with having to reconsider the meaning of each word (“child”, “abuse”, “sex”, “materials” and then “child sex abuse materials”) of the new term and redefine the scope and definition of the term as applicable to the facts of each case before them. 

The existing cases which addressed this section of the Criminal Code would  become guidance rather than definitive in regard to the law. The degree of certainty with which police officers and lower courts operate in regard to child pornography could be forfeited. A new word, or new words, would mean that new consideration is necessary.

Would the new common-law definition of the proposed amended term “child sex abuse materials” be as strong and straightforward as the current definition of “child pornography”? There’s no way to know.

Adding a new term to the Criminal Code may sideline years of court decisions that have defined and shaped the legal concept of “child pornography”. Neither does the proposed change guarantee that the courts will give an equal or stronger understanding to the term “child sex abuse materials” in order to ensure or enhance the continuing protection of children and prosecution of those who trade in child sex and abuse images

The proposed change is a legal gamble. The stakes are our children.

2. A change in terms provides fresh legal opportunity to those who seek to possess, develop and distribute materials that exploit children.

A change to the existing terminology would actually provide ammunition to those individuals who believe that graphic child pornographic materials should be legal. By creating a new term for graphic images, two terms or categories would exist for such images – the old and the new. The proposed change to section 163.1 would provide a legal argument to those that want to create and distribute images of children that their images are not “child sex abuse materials” but something else entirely, art or even  a form of non-sexual and non-abusive pornography.

The end result could be that certain types of graphic images of child pornography that are presently illegal would be ‘decriminalized’ or deemed legal.

3. The Existing Legal Definition Already Contains the Images Described

The term “child sex abuse materials” is actually a narrowed category of explicit material that is already contained within the inclusive definition of child pornography provided by the Supreme Court of Canada’s interpretation of the existing s. 163.1.

The proposed term, on its initial reading, does not necessarily include graphic stories or poetry of children being abused, engaged in sexual activity or depicted pornographically. All of these are deemed child pornography under the current definition.

And while the suggested terminology is less encompassing than the current language, what it describes is already included in the existing definition of child pornography. “If it ain’t broke, don’t fix it.”

Conclusion

Seeking the proposed amendment of section 163.1 of the Criminal Code could have precisely the opposite effect to that which is intended.

The term ”child sex abuse materials” may be beneficial for societal understanding outside of the courtroom or perhaps the term ‘images of child sexual abuse’ as suggested by KINSA (Kids Internet Safety Alliance).

But legislatively and inside the justice system we should be thankful for the current strong legal interpretation of the term “child pornography” and use it within the courtroom.

And, we should be vigilant, well informed and strategic in our efforts to better protect our children.

By Don Hutchinson, Vice-President and General Legal Counsel, Faye Sonier, Legal Counsel,and Julia Beazley, Policy Analyst, Canadian and International Poverty.

The EFC was an intervenor before the Supreme Court of Canada in R. v. Sharpe and advocated on behalf of the amendments to strengthen s. 163.1 that were made by Parliament in 2005. 

Commentary amended October 1, 2010 to correct reference to petition wording which states “child sex abuse materials” rather than “child sex and abuse images” as used in CSN promotional materials.

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163.1 (1) In this section, “child pornography” means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

(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; or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.