Canadian courts have determined that sexualized images of individuals under the age of 18, even when no private skin is being exposed, have at times been considered illegal and categorized as child sexual abuse materials (CSAM)
Are Young Sexualized Images Illegal?
Across Canada, there have been at least eight court cases, both at lower and higher levels, where images with clothing covering all the private areas were still considered illegal. One court even stated, “Youth ‘sexual organ’ or ‘anal region’ did not have to be ‘exposed’ in an image to constitute a ‘depiction’ of an image of child pornography” (R. v. M.B., 2019 ONCA 237).
For instance, in a 2011 BC Supreme Court case, an individual hiding used a camera to zoom in on youths private parts in a public park where many people were wearing swimsuits, and the court ruled those images were illegal. If you’re thinking that it was a public place and there should be no expectation of privacy, the court did point out that there is an expectation of privacy in public to prevent the zooming in and recording of genitals (R. v. Rudiger, 2011 BCSC 1397).
Similarly, in a 2010 Ontario court case, an image depicted a young person sleeping, fully covered but with adult genitals hovering over their head. The court ruled that the image was “clearly designed to depict the sexual act” and found it illegal, even though the young person was fully covered (R. v. Brandridge, 2010 ONCJ 450).
It should also be noted that AI, or edited images of naked young people, are also considered illegal. As an example, a Quebec man was arrested and sentenced to prison for creating such images https://www.cbc.ca/news/canada/montreal/ai-child-abuse-images-1.6823808
Court cases where youth private skin covered but images still unlawful
[11] With respect to the depiction of the sexual organs or anal regions for a sexual purpose, in particular, we note the following: the shape of the children’s sexual organs and anal regions through the indentation of their diapers is clearly visible in many of the images, and the children are posed in a sexualized manner; the female child’s pre-pubescent breasts are visible in image 1 in which the child is clad only in a diaper and posed in a sexualized manner across a bed. All of the children in those photos are clearly well under the age of 18 but also clearly beyond the age of children who ordinarily wear diapers. The principal focus of those photographs is the depiction of the children’s diapered groin areas. Image 7, primarily focussed on a male child’s naked buttocks and sexual organs, ostensibly during a diaper change, also properly fits within the definition of child pornography. Given the image’s primary visual emphasis and its placement among the other pornographic images, this photograph cannot be viewed objectively as a “family photo” but rather assumes from this context the dominant characteristic of the depiction of the child’s sexual organs and anal region for a sexual purpose: Sharpe, at para. 51.
[22] There can certainly no longer be any question as to whether nudity is required to conclude to a depiction meeting the definition of child pornography. This legal question has now long been discussed by various levels of courts and ought to be considered resolved. (R. v. Sharpe, supra; R. v. Rowe, supra; R. v. Rudiger, supra; R. v. Shacter, supra; R. v. Meikle, supra; R. v. Wanamaker, supra). It is also clear from the same case law that “sexual organ” or “anal region” means just that. A “sexual organ” is the vagina, vulva, penis or breasts, whether developed or not. The “anal region” is the anus or the region, which is the buttocks (see particularly Rudiger, supra and Meikle, supra on this point).
[36] The sexual purpose of the images possessed by Mr. Schacter is evidenced in numerous ways:
a. The content of the images on the USB drive as described in Exhibit 5(b), including numerous organized and categorized folders where the images are found;
b. The quantity of images found;
c. The images are not the type of photographs that a parent would tend to have of their child innocently cavorting in his or her underwear or bathing suit. The images are professional photos of sexualized poses – legs spread and hips thrust out towards the camera in a provocative manner, lying on their backs or sitting up with their legs spread;
d. Many of the images found on the USB drives, that are not relied upon by the Crown as meeting the definition of child pornography, are still overwhelmingly sexualized images of young boys;
e. Though there is no onus on the defence to prove anything, there is a complete absence of a reason other than the obvious reason of sexual stimulation, for Mr. Schacter possessing the number and nature of images found on his devices.
[37] The images in Mr. Schacter’s collection are clearly sexually exploitative of the children in them, even though they are wearing underwear or bathing suits. They are there for no other purpose but for sexual gratification of a certain audience. The sexual organs are the dominant characteristic of the photos. Of particular note:
– All of the photos show outlines of the penis’ and not merely a “bump”, as counsel put it;
– #4 and #5 show a translucent bathing suit, where the child’s penis is visible through the suit. The shaft of the penis and the outline of the scrotum are pressed against the bathing suit;
– #8 a boy wearing a Santa hat and red housecoat and red spandex-type shorts reveal the shaft of the penis and the scrotum of the child.
– #19 – a boy playing in a pool – only enough water to get him wet, but he is not swimming and playing – the groin area takes up the same space as the head and the groin is clearly the focus of the picture.
– #31 a boy in a blue bathing suit with legs splayed while chewing on something wrapped around his finger, in a teasing pose, clearly done for a sexual purpose.
– #32 is the most obvious example of child pornography in that it is a photo of a young boy’s groin area only and the head of the penis and the urethra of a circumcised penis that looks to be semi erect. That this is a depiction of a young boy is clear from the absence of body hair and immature muscular development of the subject.
[39] All of these images were organized and categorized with names and folders. They are not organized by fashion style, but are organized by child. The images have watermarks on them suggesting that they are professionally produced. The images Mr. Schacter had on his USB keys only serve one purpose: to normalize and utilize the objectification of children as sexual objects for the purpose of sexual gratification. Accordingly, I find that the Crown has proven beyond a reasonable doubt that the accused possessed child pornography, namely each of the 37[40] unique images in question, and accordingly, I find him guilty of that offence.
[4] The child pornography that “Y” is charged with possessing are two photographs of “A”, who went by the name “A” at trial and in the online communications in evidence. The photographs are “selfies” of “A”’s abdomen and torso. They depict her breasts. In posing for both photographs “A” pulled her shirt up above her breasts. In one photograph she is wearing a bra. In the other image, she is not.
[108] I find the Crown has proven the all three charges against “Y” beyond a reasonable doubt and I therefore convict him of:
• Amended Count 1, that at or near Halifax, Nova Scotia, between November 2, 2012 and November 14, 2013, “Y” , without reasonable justification or excuse and with intent to obtain photos, did attempt to induce “A”, to produce photos of “A” by threats, contrary to section 346(1.1) of the Criminal Code;
• Count 2, that at the same time and place, “Y” had in his possession child pornography, photographs of “A”, contrary to section 163.1(4) of the Criminal Code; and
• Count 3, that at the same time and place, “Y” did unlawfully have in his possession for the purpose of distribution, child pornography, “photos of “A””, contrary to section 163.1(3)(a) of the Criminal Code.
[26] The young girls in these images are, by my estimation, approximately 9 to 11 years of age. All three of the girls are dressed only in their underwear. Cst. Armstrong was correct in describing this underwear as “skimpy.” All three of the girls are posed provocatively. In one of the images the girl’s underwear is positioned such that almost all of her buttocks are exposed, and that area of the girl appears to be the focus of the photograph. In another image, the girl is lying on her back with her legs spread and her underwear pulled into her vaginal and buttock area. The focus of the picture appears to be on the area of her crotch. In the third image the young girl is standing in revealing underwear. Next to this third image and, to a certain extent, over top of part of the image are the printed words: “Sluts lie to themselves, let alone others.” These are highly sexualized images of three young girls, who are clearly not yet 18 years of age.
[27] In my opinion, the contents of this piece of paper amount to “child pornography” within the meaning of s. 163.1(1)(a)(ii) of the Criminal Code as it is a “photographic” or “other visual representation,” 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.” I did not understand defence counsel to suggest otherwise. See: R. v. Meikle, [2011] O.J. No. 4151, at paras. 4-5.
[132] One can conceive of many examples of depictions of a young child who is clothed to at least some degree, but which nevertheless depict a “sexual organ or the anal region” of the child. A wet bathing suit or the translucent material of an undergarment can easily adhere to and delineate a child’s sexual organs or anal region. Overtly sexual clothing, such as a leather or bondage gear, can be designed to draw attention to the sexual organs or anal region. So too can the position a child is placed in. The photograph of a young girl, though wearing underwear, which has a manifestly sexual caption attached to it and which depicts that child with her legs splayed, so that the focus is on her genitals, is unmistakably sexual to a reasonably objective viewer. There is no confusion that the dominant characteristic of the photograph is on her “sexual organs.”
[37] When I say that the pictures of the young girls were posed provocatively, I mean that myriads of the images were sexualized poses focussing on the genital areas of the young girls, often with their legs spread and hips thrust out towards the camera in a provocative manner. Alternatively, another prolific camera angle used by the photographer was of young girls taken from a rear view with their anal area protruding towards the camera. Some of the girls were dressed in corsets, garter belts, sexy lingerie, black fish net stockings and high heels. Such photos were especially found in the seized DVD titled “Cherry” referred to as seized Item 14 in the Computer Forensic Examination Report.
https://canlii.ca/t/2fb4b
[6] Mr. Lakie submitted the photographs of the second young girl showing the defendant’s penis hovering over a sleeping seven year old girl from a birds-eye angle making it look as though the penis was about to enter her mouth, while disgusting and vile, was not child pornography since it did not fit into any of the categories listed in s. 163.1(1). The section reads:
[7] I agree that while this likely does not show engagement in a sexual act, it is clearly designed to depict the sexual act of fellatio. In addition, I have no doubt that it advocates or counsels sexual activity with a minor, especially in the context of the rest of Mr. Brandridge’s collection. Accordingly, I find those two photographs made by the defendant to be child pornography.
[3] At the heart of this appeal is the sentencing judge’s exercise of his inference drawing power and, in particular, his characterization of the photographic images in question as being at the “lower end of the spectrum”. I disagree. The images of A.B. which were identified as child pornography were described in the Crown’s submission on appeal. The description was agreed upon by the accused. I take the liberty of reproducing verbatim the relevant excerpts on this point:
In the beginning, the images were traditional modeling type poses, but as time went on the images progressed towards sexual content. […] The series of photographs would begin with A.B. fully dressed, she would proceed to remove articles of clothing until dressed in lingerie or versions of thongs and bras or makeshift tops such as scarf, bandana. Birthday hats, pineapples […] There are thousands of the child in sexualized positions […] There are 362 images which meet the definition of child pornography and are graphic depictions of the sexual organs, including the breasts […] The focus of the images is on the sexual organs and often the full breast and nipples is visible […] A.B. is never fully undressed in any of the images but her breasts are visible as is her anal and vaginal area in the 362 images […] The organs are visible either because the material of the makeshift top has been wet or is of a material that is see through […] A.B. is posed in traditional pornography poses and performs traditional striptease displays both in a series of still photographs and amateur video.
Court cases where youth private skin covered but images were lawful
[39] With the greatest of respect, this analysis is flawed. Whether or not a photograph depicts sexual organs or the anal region is an objective matter, unrelated to whether or not the purpose of the maker of the photograph was sexual: that question becomes relevant only at the next step of the analysis. To conflate the two steps would mean that exactly the same photograph, depicting exactly the same body parts, taken by two different photographers, could both show and not show sexual organs depending on something extrinsic to the photograph itself, namely the intention of each photographer. That is not what the section says. The section calls on the Court to look to the photograph, not the photographer, to determine what the photograph depicts; further analysis proceeds if, and only if, the photograph depicts a sexual organ or the anal region.
[40] It is to avoid such absurdities as the same photograph both showing and not showing a sexual organ that the s. 163(1)(a)(ii) analysis must be done step by step, rather than allowing one step to influence the other. If the photograph does not depict sexual organs or the anal region, it is not capable of constituting child pornography, regardless of the intention of the photographer. If it does in fact depict sexual organs or the anal region, then and only then does the analysis proceed to ask whether such depiction is the dominant characteristic of the photograph, and whether or not that depiction is for a sexual purpose. Conflating the various tests under s. 163.1(1)(a)(ii) risks the definition of child pornography being reduced to a judge’s gut reaction, the kind of unhelpful analysis best illustrated by Justice Potter of the United States Supreme Court in Jacobellis v Ohio, 378 US 184 (1964), who declined to offer a definition of hardcore pornography, stating instead, “I know it when I see it.” The analysis degenerates into “this looks like child pornography, therefore I conclude that it depicts sexual organs or the anal region”.
[42] I conclude, therefore, that a covered female breast does not constitute a “sexual organ” for the purposes of s. 163.1(1)(a)(ii). Similarly, a photograph of the genital area where the genitals are covered and no details can be made out does not depict a sexual organ. It makes no difference whether the breast or genitals are covered by a hand, a piece of clothing or a fig leaf. I make no comment as to what degree of sheerness or opacity of the covering material might make a difference to this conclusion, or whether material molded so tightly to the skin as to show the organs underneath in detail might qualify: there is no such material before me, and I accordingly do not need to determine that question.
[43] The photographs of AB in which her breasts are covered, whether by clothing or by her hand (0011, 0014, 0015, 0037, 0038, 0039, 0040), and the photograph which shows her wearing clothes which cover her vulva (0033), therefore do not constitute child pornography. Similarly, 0028 of EF is not child pornography. Those photographs of EF which show her naked breast or breasts, however, are child pornography. Those are 0021, 0022, 0026 and 0027.
[55] There are no photographs of AB which constitute child pornography, and accordingly the accused is not guilty of possession of child pornography with respect to AB. With respect to EF, photographs 0021, 0022, 0023, 0026 and 0027 are child pornography. I am satisfied that he was in possession of them, from the evidence of AB and EF as well as Mr. Holynski himself, and he is accordingly guilty of this charge.
Provincial Intimate Image Laws That Include More Than Just "Nudes"
It should also be noted that eight Canadian provinces have civil liability laws regarding the distribution of intimate images, with some also including nearly-nudes. Distributing such images could lead to legal fines and damages to be paid by you to the person whose image you shared. Not only can there be criminal consequences, but also civil litigation that can be launched against you by the person who’s intimate image you non-consensually shared with others.
Provinces that extend the definition of intimate images in include "nearly nude"
“intimate image” means a visual recording or visual simultaneous representation of an individual, whether or not the individual is identifiable and whether or not the image has been altered in any way, in which the individual is or is depicted as
(a) engaging in a sexual act,
(b) nude or nearly nude, or
(c) exposing the individual’s genital organs, anal region or breasts,
and in relation to which the individual had a reasonable expectation of privacy at,
(d) in the case of a recording, the time the recording was made and, if distributed, the time of the distribution, and
(e) in the case of a simultaneous representation, the time the simultaneous representation occurred;
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/23011/
“intimate image” means a visual recording of a person, whether or not the person is identifiable and whether or not the image has been altered in any way, made by any means, in which the person is or is depicted as(image intime)
(a) engaging in a sexual act,
(b) nude or nearly nude, or
(c) exposing their genital organs, anal region, or breasts.
“visual recording” includes a live stream.
“intimate image” means a visual recording of a person, whether or not the person is identifiable and whether or not the image has been altered in any way, made by any means, in which the person is or is depicted as(image intime)
(a) engaging in a sexual act,
(b) nude or nearly nude, or
(c) exposing their genital organs, anal region, or breasts.
“visual recording” includes a live stream.(enregistrement visuel)
What is a “Nearly Nude” as written into provincial law?
Well… we don’t know. At this time we have not read any court cases where a judge had to make that determination.
Youth Requesting Image Deletion
In 2015, The Supreme Court of Canada suggested that youth under the age of 18 can withdraw consent for the possession of their nude images at any time. This is significant because if a teenager sent a nude image to their dating partner under the approved conditions, but later regrets it or fears it might be leaked, they can request the deletion of those images and withdraw consent at any time. If the other person refuses to comply, they could be breaking the law as was suggested by the Supreme Court of Canada. This situation would have to be tested in a court of law, but the Supreme Court of Canada heavily suggested that they would likely side on the person depicted in the image.
[30] It may well be that the right of a young person who participates in the recording to demand the return or destruction of the recording is also implicit in Sharpe’s weighing of the harm of child pornography against the values of self-expression and self-actualization (paras. 102-10). In my view, the balance struck between the right of free expression and preventing harm to children in Sharpe suggests that young persons who participate in a sexual recording caught by the private use exception retain the ability to ensure its return or destruction. This understanding of the exception would provide protection for young persons who may suffer anxiety or distress from the knowledge that another person possesses such material and could unlawfully share it. It would serve to address circumstances in which the risk of harm outweighs the expressive value of the recording, contrary to the principles articulated in Sharpe. However, since the question of a right to access or destruction is not relevant on the facts of these appeals, I would not make any final pronouncement about it.
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15374/index.do
However, it’s important to note that section 163.1, regarding child sexual abuse materials, does not require that private skin needs to be showing, as has been found in several court cases across Canada.
For anyone in possession of a nude, semi-nude, or sexualized image or video of their partner who is under 18 years of age here’s a warning – sharing another persons semi-nude images may or may not be illegal in your specific situation, but could be grounds for your partner and the police to launch a criminal investigation. Regardless of the content, if your partner sends you something privately, should you be sharing it with others? – the answer is no. We also think you need to ask yourself this other important question – “if my partner non-consensually shared my intimate image or video with others, is my relationship with this person even worth maintaining?
We here at The White Hatter have been working in the public safety field for over 30 years, and we recognize that not everyone we work with wants to get the police involved for many reasons. We both understand and respect that decision. However, there are steps that can be taken individually, without police involvement, to address some challenges specific to this issue.
Youth Deletion Notice
We have a resource document called the “Youth Deletion Notice of Intimate Image, Video, and Other Nude Media Request Letter” – we have seen this used with great success. It cites various court cases that are mentioned in this article, and serves to be a written notice that you are withdrawing consent from someone to be in possession of your nude, sexualized semi-nude image, or video.
Download the PDF
https://ln5.sync.com/dl/f38748d30/amr8i9b5-j8rtvp45-dfcyx353-urx4jyee
Again, images shared in a relationship that are private, consensual, lawful, and not exploitative, are not immediately illegal in Canada. However, once the person in the picture or video withdraws consent it can be. That’s where this notice takes effect. Sometimes asking a person who possesses your intimate image or video to delete it does not work. This document, once served on the person who possesses your intimate image or video, outlines the Canadian case law surrounding non-cooperation and the legal consequences if the picture or video is not deleted. Another added benefit of this notice – sometimes trying to prove to police that you told the other person to delete your images might be a bit difficult, Therefore, this written notice helps to create a paper trail that could assist both the police and the courts in proving intent to obtain a conviction.
If someone under the age of 18 sends a nude picture of themselves to another teen who they are dating, wouldn't that be illegal?
Just because something is written by the government into legislation and law, doesn’t necessarily mean it’s always applied as written. This is especially true when the written law may conflict with one’s rights under the Canadian Charter of Rights and Freedoms. In 2001 and 2015, Canada’s Supreme Court made some narrow exceptions to the possession of Child Sexual Abuse Material .
In summary, in Canada, it’s not illegal for two consenting teenagers under the age of 18 to possess or exchange naked/nude photos of each other. This also applies if a teen takes a private nude selfie of themselves; they won’t be arrested for it, at least not in Canada, although in other countries they may have different laws. However, it’s crucial that sending a nude image in a relationship is consensual, lawful, private, and not exploitative (R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2).
So, if two teens consent to send nude pictures to each other, they are of similar ages, and there are no power imbalances, threats, or violence involved, then it’s not illegal in Canada for teens to do so. In Canada, young people have rights under the Canadian Charter of Rights and Freedoms just like adults. Preventing teens from expressing themselves in this way within relationships was seen by the Supreme Court as a violation of their freedom of expression. However, it is illegal to distribute such images beyond the privacy of the relationship. Sharing a nude picture that was received from the dating partner with a best friend, for example, is a big no-no!
As digital literacy advocates working in schools, we often receive messages from students seeking help because their ex-partners or someone they trusted threatened to post their nudes online. This is clearly illegal, and you can imagine the panic that ensues when someone reaches out for help in such a situation.
However, we have also received messages from young people claiming that their “nude” images were leaked, only to discover that they were just underwear pictures. While these pictures may differ from a full nude or semi-nude , they can certainly have the same emotional impact if leaked publicly. However, and as mentioned earlier, there are Canadian court cases that have found that even if clothing covers all the private areas, sexualized images of individuals under the age of 18 can still be deemed illegal given the context of the picture or video.
We often discuss the crime of taking someone else’s fully nude image with all the private parts exposed and distributing, showing, sending, or making it public without consent. This falls under Criminal Code section 162.1 – the publication of an intimate image without consent. It is important to noted that this law applies to both youth and adults.
If these images involve someone under the age of 18, Criminal Code section 163.1 – child pornography – would also apply
Publication, etc., of an intimate image without consent
162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty
(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable on summary conviction.
Definition of intimate image
(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,
(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.
Marginal note:Defence
(3) No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.
Marginal note:Question of fact and law, motives
(4) For the purposes of subsection (3),
(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and
(b) the motives of an accused are irrelevant.
https://laws-lois.justice.gc.ca/eng/acts/C-46/section-162.1.html
Definition of child pornography
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.
https://laws-lois.justice.gc.ca/eng/acts/c-46/section-163.1.html
Help
If you are a youth or a teen and a nude or semi-nude image of you is being shared, please reach out for help to a parent, teacher, school counsellor, or even a police officer. Youth, teens, and even adults can also reach out to us with questions on how to best deal with this, and even other online challenges.
We are intensifying our commitment to combat online sexualized abusive material, regardless of its form. Our efforts extend beyond solely addressing fully nude images. We have provided assistance to individuals whose intimate images, whether they are fully nude or semi-nude, have been leaked or are being threatened to be made public. The emotional distress experienced is equally distressing, and this is unacceptable.
We aim to make a difference by educating others on new provincial and federal legislation that is becoming more common across Canada, and court interpretation of existing laws specific to this issue. Our mission is to aid teenagers and adults who grapple with the challenges of online spaces where sensitive and private content is maliciously used against them. This is not acceptable, and it serves as one of the motivating factors driving our work.
The White Hatter
