Court defines child porn broadly
April 9, 2005
By Tracey Tyler
Written child pornography is capable of employing all the subliminal tricks of consumer advertising and isn't restricted to material that explicitly promotes sex with children, the Ontario Court of Appeal has ruled.
"Material that describes sex with children as enjoyable, normal and beneficial, and the children as willing may send the message that sex with children can and should be pursued," said Justice John Laskin, who was also writing on behalf of Justices David Doherty and Robert Armstrong.
"An entirely different business — the advertising industry — uses implicit messages all the time to persuade customers to buy a company's products," he said.
The decision means a new trial for John Beattie, a retired teacher from London, Ont., who was acquitted of one count of possessing child pornography in 2003. Justice Roland Haines of the Ontario Superior Court ruled that 33 sexually graphic stories found in Beattie's house did not meet the definition of child porn in the Criminal Code, which was elaborated on by the Supreme Court of Canada in the case of Vancouver resident John Robin Sharpe in 2001.
The Criminal Code distinguishes between visual and written forms of child pornography and says written material only meets the definition if it "advocates" or "counsels" sex with children under 18.
Writing in the Sharpe case, Chief Justice Beverley McLachlin said this means written material must "actively" induce sex crimes with children to be considered pornography.
Sharpe was retried and acquitted of two counts of possessing written child porn.
In Beattie's case, the trial judge found the stories depicting children willingly participating in sex didn't equate to active inducement. But Haines failed to consider the power of the implicit messages that children want sex , Laskin said.