The rapid development of social media and the ubiquitous use of smartphones have made it easier than ever for youth to communicate privately. Unsurprisingly, these communications are often sexual in nature.
The law in this area is not well understood by the youth whom it affects nor their parents. This can lead to confusion about the legality of youth sexting and child pornography. This is a complex area that balances privacy interests, consent, and the protection of youth. This post will examine these issues as between youths. None of what follows pertains to adults.
What is a Youth in the Criminal Code?
The Criminal Code of Canada defines a youth or “young person” as someone between 12 and 18. A person who is 18 or older is legally an adult. A person who is 12 is a youth. And, a person under 12 is not criminally responsible for their actions in Canada.
“Sexting” is a portmanteau of “sex” and “texting”. It refers to the practice of sharing sexually explicit messages, images or videos between digital devices.
Is Sending Naked Selfies Illegal?
Section 163.1 of the Criminal Code makes it an offence to make, distribute, possess and access child pornography. The definition of “child pornography” includes photographs and videos of a person under 18. It also includes any written messages whose dominant purpose is sexual activity with a person under 18. This means that a 15-year-old sending a nude picture of themselves to another person could place the recipient in danger of possessing child pornography.
However, in R v Sharpe, 2001 SCC 2, to protect youths’ right to the freedom of expression, the Supreme Court of Canada created a narrow exception to child pornography. In short, a youth does not contravene the laws related to child pornography so long as:
- the sexual activity is lawful,
- all parties consent to the recording, and
- the recordings are kept private.
So long as all conditions of the personal use exception are met, one youth sending naked selfies to another youth is not illegal for either party. When making the exception, the court in Sharpe specifically considered sexual communications between a teenage couple:
“Thus, for example, a teenage couple would not fall within the law’s purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another.”
While Sharpe was released before the popularity of smartphones, social media and high-speed internet, the spirit of the law continues to protect teenagers. To benefit from the exception, it is necessary that all of the conditions for lawful possession exist.
First, the sexual activity itself must be lawful. Sexual activity that is criminal (e.g., a lack of consent or an abusive relationship) is not lawful, and therefore, not protected by the exception. Second, all parties depicted in the video or image must consent to the sexual activity being recorded. A recording taken surreptitiously or without one party’s agreement is not protected; the holder of such a recording may be convicted of a criminal offence. Third, all recordings must be kept private and not shared with anyone else. If the holder of a recording shares the recording in any way with another person, including by text message or showing it in-person, they may be convicted of a criminal offence.
This personal use exception permits consenting youths to possess images of each other in lawful sexual activity so long as the recordings are kept private. In other words, privately-held, consensual recordings of lawful sexual activity between youths fall within the exception to the laws prohibiting child pornography.
Can Consent Be Withdrawn Later?
In R v Barabash, 2015 SCC 29, a follow-up case to Sharpe, the Supreme Court of Canada suggested that a youth retains the right to demand the return or destruction of the recording/material created. The court wrote:
“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.
After balancing the right of youths’ free expression with the importance of preventing harm to children, the Supreme Court of Canada in Barabash recognized a right of a youth to demand the return or destruction of a recording. Such a right would allow a youth to withdraw their consent to another person having the recording and require them to return or destroy the recording. Failure to do so could become a criminal offence.
If you or your child is being investigated or has been charged with a sexual offence, call the experienced lawyers at Filkow Law for legal advice.
