CANADIAN CRIMINAL CODE

 

What is "obscenity" in Canada?

What does this mean in simple English?

What is "child pornography" in Canada?

Artwork ©1988 Ken Steacy
From the back cover of THE TRUE NORTH

 


 

Section 163 of the Canadian Criminal Code provides the country's legal definition of "obscenity" :

163. (1) Every one commits an offense who

(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or

(b) makes, prints, publishes, distributes, sells or has in his possession for the purposes of publication, distribution or circulation a crime comic.

 

(2) Every one commits an offense who knowingly, without lawful justification or excuse,

(a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever;

(b) publicly exhibits a disgusting object or an indecent show;

(c) offers to sell, advertises or publishes an advertisement of, or has for sale or disposal, any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage; or

(d) advertises or publishes an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs.

 

(3) No person shall be convicted of an offense under this section if the public good was served by the acts that are alleged to constitute the offense and if the acts alleged did not extend beyond what served the public good.

 

(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

 

(5) For the purposes of this section, the motives of an accused are irrelevant.

 

(6) [Repealed. 1993, c. 46, s. 1.]

 

(7) In this section, "crime comic" means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially

(a) the commission of crimes, real or fictitious; or

(b) events connected with the commission of crimes, real or fictitious, whether occurring before or after the commission of the crime.

 

(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely crime, horror, cruelty and violence, shall be deemed to be obscene.

 


SYNOPSIS (from MARTIN'S CRIMINAL CODE, 1997)

Section 163 makes it an offense to produce, publish or distribute obscene things or crime comics.

Section 163(1)(a) is very broadly worded to prohibit all phases of the making, printing, publication, distribution and circulation, and the possession of obscene things, with the intention of doing any of the prohibited activities. The prohibited class of obscene things is expansive, covering written material, pictures, models, records or "any other thing whatsoever". Section 163(8) provides the sole definition of what is deemed to be obscene. It states that if a dominant characteristic of the publication is the undue exploitation of sex, or the combination of sex and at least one of crime, horror, cruelty or violence. The acts described within the section have received a broad interpretation, as reflected, for example, by a decision stating that the display of such objects in plain view within a store amounts to publication.

Section 163(1)(b), which deals with crime comics, prohibits many aspects of the publication process including the distribution and sale of crime comics, or their possession for such purposes. Section 163(7) defines what constitutes a crime comic.

Section 163(5) makes the accused's motives irrelevant. Subsection (6) purports to state that it is no defense that the accused was ignorant of the nature or presence of obscene content of the thing or of the crime comic. However, decisions made under the Canadian Charter of Rights and Freedoms have held that this subsection is unconstitutional and have established that it is a defense if the accused made an honest and reasonable mistake of fact. A mistake of law, which causes the accused to believe that the material he or she knows the nature or presence of is not obscene or a crime comic, is not a defense.

Section 163(2) makes it an offense to knowingly and without lawful justification or excuse engage in any of the acts listed in this subsection, which relate to obscenity, indecent objects, drugs and other things used to induce (or said to be useful to induce) abortions or miscarriages, and a number of other specified sex related materials.

Section 163(3) provides a defense if the accused establishes that the acts which make out the offense under this section served the public good, and extended no further than what was required to achieve that objective. Subsection (4) states that whether an act served the public good, and whether there is any evidence that the act extended beyond what was required to achieve that end, are questions of law. That means that in a jury trial these issues would be determined by the trial judge. However, the subsection also provides that if it is determined that there is some evidence, the decision as to whether the act actually extended beyond what was needed to achieve the public good is a question of fact and will, therefore, be determined by the trier of fact.

 


Recently, Canada Customs have been detaining adult comics on the grounds that they are "child pornography," as defined in Section 163.1 of the Criminal Code:

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; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offense under this Act.

 

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offense and liable to imprisonment for a term not exceeding ten years; or

(b) an offense punishable on summary conviction.

 

(3) Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of

(a) an indictable offense and liable to imprisonment for a term not exceeding ten years; or

(b) an offense punishable on summary conviction.

 

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offense and liable to imprisonment for a term not exceeding five years; or

(b) an offense punishable on summary conviction.

 

(5) It is not a defense to charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.

 

(6) Where the accused is charged with an offense under subsection (2), (3) or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.

 

(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offense under subsection (2), (3) or (4), 1993, c. 46. s. 2.


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