McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm

 

 

 

Articles and Publications

September 2018

"Let`s talk about Sexts"

Is my teenager in possession of child pornography?

David Elmaleh
David Elmaleh
Partner

Lee Chitty
Lee Chitty,
Law Student

By David Elmaleh and Lee Chitty

This article was reprinted in The Lawyers' Daily November issue

The Ontario Court of Appeal has struck down the mandatory minimum sentence for possession of child pornography. The Appellant, Nathaniel John, in R v John, 2018 ONCA 702, successfully convinced three judges that imposition of a mandatory minimum sentence of six months imprisonment is grossly disproportionate to the conduct of a reasonably hypothetical offender, using, for example, a youth “sexting”.

This case is noteworthy because of the pervasiveness of what is now commonly referred to as “sexting”. In a recent story, CBC reported at least one in four teens are receiving sexually explicit texts and emails, and at least one in seven are sending sexts.1 With the frequency of sexting and the overlap between definitions, one has to ask, “Is my teenager in possession of child pornography?” and if so, “what are the potential consequences”?

Background

In spring 2014, detectives of the Halton Regional Police Internet Child Exploitation Unit learned that an internet protocol address in Halton was associated with 174 files believed to contain child pornography. After retrieving the name and address of the subscriber assigned to the IP address, police obtained a search warrant for the residence and computers in the home. Following the investigation, Nathaniel John was arrested for possession of child pornography and convicted at trial.

Mr. John appealed both his conviction and sentence, on charges of possession of child pornography. He argued that the trial judge made errors when she admitted the evidence of child pornography found on his computer. As to the sentence, he submitted that the six months mandatory minimum in force at the time of the offence2 violated section 12 of the Charter.3

Reasonable hypotheticals and the Charter

“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

Section 12 of the Charter states, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” In interpreting this right, courts have found that prison sentences which are longer than necessary are grossly disproportionate and can be considered cruel and unusual, and therefore unconstitutional under section 12. Mandatory minimum sentences remove a judge`s discretion in sentencing, making them unable to consider all relevant circumstances related to an offence.

The Supreme Court of Canada established one means of addressing a manifestly unjust minimum sentence: if positing reasonable hypotheticals, an accused could show that a mandatory minimum sentence would result in cruel and unusual punishment, the law was unconstitutional and should be declared of no force or effect pursuant to section 52(1) of the Constitution.

Teens, Sexts, & Child Pornography?

Mr. John did not argue that the mandatory minimum was grossly disproportionate to his circumstances. Instead, he argued the application of mandatory minimums would be grossly disproportionate when applied to reasonable situations like:

  1. An 18-year-old who receives and keeps a “sext” from his 17-year-old girlfriend on his phone. The “sext” is a “selfie” of the girlfriend.

  2. An 18-year-old who receives a “sext” from his 17-year-old boyfriend. The “sext” is a 30-second video the 17-year-old secretly recorded of the pair engaged in consensual sexual activity.

  3. An 18-year-old whose friend forwards him a “sext” from the friend`s 17-year-old girlfriend without her knowledge. The 18-year-old doesn`t forward the “sext” but keeps it on his phone.4

... “sext” is “a sexually explicit photograph or message sent via mobile phone.”

The Oxford dictionary defines “sext” as “a sexually explicit photograph or message sent via mobile phone.”5 The Criminal Code of Canada defines “child pornography” as a photographic, film, video or other visual representation that shows a person who is under the age of eighteen, and is engaged in, or is depicted as engaged in, explicit sexual activity.6

As the law stands, it is permitted for a 17-year-old to have sexual relations with an 18-year-old partner and to record images for personal use. However, until this case, the law also imposed a mandatory six-month jail sentence on the 18-year-old partner for possessing the same images sent to him or her by their 17-year-old partner. This same mandatory minimum would have been applied to the 18-year who failed to delete the sext on his phone forwarded to him from a friend.

Conclusion

In light of the issue of ‘sexts`, the application of a mandatory minimum would result in grossly disproportionate punishment. The Court of Appeal concluded that the mandatory minimum was unnecessary and that sentencing guidelines already emphasizes the importance of denunciation and deterrence for any offence involving the abuse of a child.

Although successful in his constitutional challenge, Mr. John`s individual circumstances have not changed. The Court of Appeal dismissed his appeals from conviction and sentence, affirming the trial judge and upholding the 10-month sentence imposed.

This case serves as a harsh reminder for teenagers and young adults who may be romantically involved with individuals under the age of 18. It also serves as a lesson generally for any friends who may engage in sexting in the so-called “selfie era”. Teenagers and parents should have frank and open discussions with peers, romantic partners and children about the risk of being charged and convicted of possessing child pornography in situations where sexually explicit photos are being shared amongst friends, lovers or romantic partners who are under 18 years old.

Many people do not appreciate that mere possession is potentially a crime. The receipt of the text and an immediate failure to delete may lead to criminal convictions that will haunt the young persons for the rest of their lives.


1 Thomson Reuters, “Teen sexting may be more common than you think”, CBC (26 February 2018)
2 A six month mandatory minimum was applicable in R v John; however, since July 17, 2015, the mandatory minimum sentence for these offences was increased to one year in jail: Tougher Penalties for Child Predators Act, SC 2015, c 23, s 7(2).
3 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11.

4 R v John, 2018 ONCA 702 at para 29
5 The Oxford English Dictionary, online edition, sub verbo “sext”.
6 Criminal Code, RSC 1985, c C-46, at s163.1 (1).


TORONTO | OTTAWA | KITCHENER | BARRIE

Copyright McCague Borlack LLP - Legal Notice | mccagueborlack.com | Follow us on Twitter twitter

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLCs association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe.

clcnow.com | harmonie.org