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Criminal - Child Pornography (2). R. v. Marshman
In R. v. Marshman (Ont CA, 2026) the Ontario Court of Appeal allows a Crown criminal appeal, here brought against acquittals for "making written child pornography[1] (s. 163.1(2)); distributing written child pornography (s. 163.1(3)); possession of written child pornography (s.163.1(4)); and two counts of child luring (s. 172.1(1)(b))".
Here the court considers the CCC s.163.1(1) ['Definition of child sexual abuse and exploitation material'] 'child pornography' definitions:[26] Section 163.1(1) of the Criminal Code defines child pornography in broad terms. The definitions with respect to written material are found in ss. 163.1(1)(b) and (c):(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;[2]
(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; ....
[32] As discussed in McSween, at paras. 85-94, motive is irrelevant when a person communicates in writing with another person about committing sexual acts with children. Sections 163.1(1)(b) and (c) of the Criminal Code do not criminalize mere thought. As McLachlin C.J. said in Sharpe, at para. 108: “our thoughts become choate only through their expression.” There may be a number of reasons why someone might be motivated to act out in this way. In McSween, the claimed motive was that the accused was “joking”. It did not matter. Whether the stated reason is sexual gratification, grooming, or as role-playing, it is still child pornography.
[33] I would allow the appeal on this basis.
Advocates or Counsels: s. 163.1(1)(b)
[34] The trial judge also erred in failing to apply the definition of written child pornography in s. 163.1(1)(b). As held in Sharpe, at paras. 56-58, and R. v. Beattie (2005), 2005 CanLII 10273 (ON CA), 75 O.R. (3d) 117 (C.A.), at paras. 22-25, leave to appeal refused, [2005] S.C.C.A. No. 319, written material will fall within this definition of child pornography when, viewed objectively, it induces or encourages sexual activity with children that is an offence under the Criminal Code. This will be the case whether the message is conveyed explicitly, or implicitly through the narrative of the communications: Beattie, at para. 23. Either way, it constitutes child pornography under s. 163.1(1)(b): McSween, at paras. 63-66.
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