‘Fascinating' child porn charges could lead to criminal code challenge

[Neighbor]

<Sigh> It never fails... every time you think that things have bottomed-out, that things just couldn't get any weirder or more bizarre, it happens.  Canada has some of the most stringent child pornography laws on the planet, and it looks like they're stretching them once again.

'Fascinating' child porn charges against Toronto man could lead to criminal code challenge
Jennifer Hough
June 17, 2014 8:42 PM ET

http://news.nationalpost.com/2014/06/17/man-accused-of-taking-public-photos-of-children-and-adding-comments-online-faces-child-porn-charges/ (tor-safe, ensure scripts disabled)

New child pornography charges laid against a Toronto man could test a little-used part of the criminal code if the matter gets to court, say legal experts.

Police allege that a man took photographs of children in public places in the Greater Toronto Area and then put the images online, adding sexualized comments to them. He now faces several charges, including making child pornography.

The charges were laid after members of the sex crimes unit conducted a warrant on Thursday in the area of Pharmacy Avenue and Steeles Avenue East.

Boris Bytensky, a criminal defence lawyer with Adler Bytensky Prutschi Shikhman, said he hadn't come across a case like it.

"It is not common and is fascinating... it all hinges on what the words were," he said. "I don't think anyone taking pictures and adding comments would believe it to be child porn."

Mr. Bytensky said the key words under the act are "advocates or counsels" sexual activity.

Under the criminal code, it's a child pornography offence if any written material, visual representation or audio recording "advocates or counsels sexual activity" with a person under 18.

Monique St. Germain, general counsel for the Canadian Centre for Child Protection, agreed this is a part of the code that's not often used in court.

She said the "vast majority of cases" are taken based on the first classification outlined in the Act -- that's it's illegal to show an under 18-year-old, or someone who appears to be under 18, engaging in, or depicted as engaging in, explicit sexual activity.

"Perhaps this is a signal that it will be used more," she said.

Mr. Bytensky pointed out an even lesser-used part of the criminal code that says any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under 18, would be an offence.

"It could be argued that a book like Lolita, for example, or scores of other classics written about sex between adults and children, falls under this category. But it's not surprising we don't see cases like that."

Allan Bradley Vanderspek, 33, faces two counts of possessing child pornography, making available child pornography, making child pornography, accessing child pornography and distributing child pornography.

National Post

As a postscript, I should perhaps point out that the Canadian child pornography statute used to have an "artistic merit" exemption, but this was repealed and replaced with a much weaker "public good" provision some years ago. I find myself wondering when the library shelves are going to be emptied of classic works like Nabakov's Lolita, and the bonfires lit.

Neighbor

[ministraw]

It's not hard to just decide to stop counting things like written works and 'suspicious comments' @ non-nude photos child porn, then they don't have to put themselves through a logical labyrinth.

[Neighbor]

It's not hard to just decide to stop counting things like written works and 'suspicious comments' @ non-nude photos child porn, then they don't have to put themselves through a logical labyrinth.

The problem is, politically, that the politicians have painted themselves into a corner. Any move to make the laws more reasonable or rational would be met with a tsunami of fury from victims groups', such as Beyond Borders, ECPAT Canada (and likely, a host of others). No politician is going to put themselves in that position, especially with an election due next year -- they're not going to stick their necks out and risk being painted as 'soft on child predators' at any time -- and that goes double in an election year.

Neighbor

[gameover]

It's not hard to just decide to stop counting things like written works and 'suspicious comments' @ non-nude photos child porn, then they don't have to put themselves through a logical labyrinth.

The problem is, politically, that the politicians have painted themselves into a corner. Any move to make the laws more reasonable or rational would be met with a tsunami of fury from victims groups', such as Beyond Borders, ECPAT Canada (and likely, a host of others). No politician is going to put themselves in that position, especially with an election due next year -- they're not going to stick their necks out and risk being painted as 'soft on child predators' at any time -- and that goes double in an election year.

Neighbor

That is why I believe we should show how these laws are damaging. Point to those "child victim" groups and show to the world they are actually the enemy as they aid the rapist to commit their crimes by tying up resources with such idiotic definitions