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The inclusion of “fantasy” images and writing in Canada’s Criminal Code definition of child pornography at s. 163.1 is based upon and gives the force of law to a socially-constructed villain: the paedophile.1 I propose that this definition

This paper interrogates the breadth, necessity, and collateral effects of Canada’s child pornography law, as contained in the Criminal Code. The author argues that the inclusion of “fantasy” images in the definition of child pornography is over-inclusive, and considers that this may make the law illegitimate and discriminatory. She proposes that this over-inclusive definition arises from the conflation of a particular type of sexual desire with harm to children. The author draws loosely on deliberative democratic theory to structure her analysis of the law’s legitimacy, and uses Charter analysis to both critique the current law and suggest means of addressing the law’s potentially discriminatory character. The author does not support or promote sexual abuse or exploitation of children, nor does she suggest that child pornography should be wholly de-regulated or de-criminalized. Note: This paper was completed in April 2015. Due to current employment restrictions on updating the research, the case law and legislation cited herein are current to that date only. Citation: (2016) 25 Dal J Leg Stud 25. * Ms. Hansen obtained her J.D. in 2016 from the Schulich School of Law at Dalhousie University, where she was awarded the University Medal in Law. She makes her home in Vancouver, BC and will complete her articles in Vancouver. Ms. Hansen wrote this paper while in her second year of law school, and is deeply grateful for the wisdom and guidance provided by Professor Sheila Wildeman and the support of her now-husband Oker Chen. 26 AN ANALYSIS OF CANADA’S CHILD PORNOGRAPHY LAW Vol. 25 The inclusion of “fantasy” images and writing in Canada’s Criminal Code definition of child pornography at s. 163.1 is based upon and gives the force of law to a socially-constructed villain: the paedophile.1 I propose that this definition may be over-inclusive and requires reconsideration because the law may be illegitimate and discriminatory. In particular, this inclusion draws a largely unsubstantiated connection between a pathologized form of sexual desire on the one hand and harm to children on the other. Section 163.1 looks broad but acceptable if we accept at face value the Supreme Court of Canada’s (“SCC”) standard of assessment and justifications for the law as articulated in R v Sharpe.2 The laudable objective of protecting children buttresses such an interpretation. I propose we look deeper by questioning why the law is drawn so broadly and who is affected by this expansive approach. Paedophiles – by which I mean those with a sexual attraction to minors – are subject to criminal sanction for gratifying their sexual desire through the use of pornography.3 For child pornography involving actual children, the fact of sexual assault and exploitation in producing the materials unquestionably justifies this restriction.4 But that is not necessarily the case for “fantasy” materials. I propose that this question – whether fantasy materials are properly included in s. 163.1 or whether their inclusion makes the law illegitimate – has not been asked because paedophiles are not publicly, legislatively, or judicially seen as rights-holders in respect of that aspect of their personhood. To explore this perspective I draw on both deliberative democracy and constitutional arguments. Equality and reason are the twin deliberative democratic requirements. Equality refers to the idea that each citizen must occupy a position 1 Criminal Code of Canada, RSC 1985 c C-46, s. 163.1 [Criminal Code]. 2 R v Sharpe, 2001 SCC 2 [Sharpe]. The standard is a “reasoned apprehension of harm” and the justifications are incitement, grooming, and cognitive distortions. 3 I use the term “paedophile” throughout this paper to refer to people who are sexually attracted to minors. I recognize this is broader than the psychiatric definition and have chosen the term for convenience. I do not, however, unquestioningly support the pathologization of this form of sexual desire. For a fuller discussion of the medical definition, its relationship to the legal definition of child pornography, and the problems with categorizing certain sexual desires as mental illness, below. 4 But see Harris Mirkin, “The Social, Political, and Legal Construction fo the Concept of Child Pornography” (2009) 56:2 Journal of Homosexuality 233.