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It is a narrative willingly created by two men

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it is a narrative willingly created by two men communicating over a medium that recorded andtransmited their writen words across the internet." Nonetheless, after alluding to the exploitivepotential created by anonymous Internet communications, Latimer J., at para. 24, held that the fact thatthe writings were "communicative acts, rather than an individually prepared story or document, doesnot remove it from the ambit of s. 163.1(1)(b)".[55] I agree with this approach. Although not contemplated in Sharpe, given the objectives of Parliamentin enactings. 163.1of theCriminal Code, private text message communications fall within the reach ofthe section.[56] It is true that there may be some overlap between first-person communications under s. 163.1 andsimilar communications under other provisions of theCriminal Code, such s. 172.1 (child luring), which isdiscussed below. However, this does not shed those communications of their child pornographicproperties. Importantly, not all communicative writings that come within the definition of childpornography will satisfy the requirements of child luring. It will depend on the circumstances.[57] Consequently, the Crown has established that electronic communications between individuals -- i.e.,communicative acts -- fall within the definition of "any writen material" in s. 163.1(1).[58] The question now becomes whether these communications come within either of the definitions ofchild pornography set out above (in para. 44): whether these communications advocate or [page53]counsel sexual activity with a person under 18 years (s. 163.1(1)(b)); or whether the dominantcharacteristic of the communications is the description, for a sexual purpose, of sexual activity with aperson under 18 years (s. 163.1(1)(c)). I will consider both in turn.[59] Before doing so, it is important to briefly address the trial judge's use of the defences set out in s.163.1(6), which provides as follows:163.1(6) No person shall be convicted of an offence under this section if the act that is alle ged toconstitute the offence(a) has a legitimate purpose related to the administration of justice or to science, medicine, education orart; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.[60] Strictly speaking, the trial judge did not apply s. 163.1(6). In the passage reproduced in para. 32, hereferred to it as a "guide". However, s. 163.1(6) was not a valid guide. The trial judge's evaluation of thefault requirements in s. 163.1 was distorted by his application of the concept of "undue risk" in s.163.1(6).[61] The concept of "undue risk" has no role to play in determining whether writen material amounts tochild pornography. Section 163.1(6) is comprised of conjunctive components, in paras. (a) and (b).Neither has a life of its own. "Undue risk of harm to persons under the age of eighteen years" in para. (b)may only be considered if it is tied to one of the four legitimate purposes identified in para. (a). In otherwords, as McLachlin C.J.C. and Charron J. wrote in Katigbak, [2011] 3 S.C.R. 326, [2011] S.C.J. No. 48,2011 SCC 48, at para.64, "the provision only comes into play after the court has held that the accusedhad a 'legitimate purpose related to the administration of justice or to science, medicine, education orart'" (emphasis in the original).

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Term
Fall
Professor
N/A
Tags
Mental retardation, Antisocial personality disorder, Psychopathy

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