National Post (National Edition)
B.C. court tosses sexting conviction
Says child-porn law may be too broad in cell era
VANCOUVER • Constitutional concerns about Canada’s child pornography laws and how they apply to teenage “sexting” have caused B.C.’s highest court to overturn a Victoria girl’s convictions.
The B.C. Court of Appeal says there may be no more compelling objective than preventing harm to children, but the anti-porn legislation may be too broad and grossly disproportionate when applied to youth.
Chief Justice Robert Bauman said that there may have been “a change in circumstances or evidence which fundamentally shifts the parameters of the debate; namely, there is now widespread use by teenagers of cellphones to send sexual images of themselves or third parties.”
In the important ruling that reopens a difficult issue the Supreme Court of Canada last addressed in 2001, Bauman said it was time to consider “the nature of harm caused by youths distributing intimate images as compared to the harm they suffer by encountering the criminal justice system as a result of sexting.”
Writing with the support of colleagues Peter Lowry and Daphne Smith, Bauman worried that charging vulnerable offenders, such as the youth identified only by the initials M.B., could brand them for life and do more harm than good.
This case involved two teenage girls, one on Vancouver Island and the other, C.B., in the B.C. Interior, who got into a nasty digital brawl over a boy, I.S.
“Over the course of a few weeks, hundreds of text messages were sent between M.B. and C.B.,” Bauman explained.
“On 13 November 2012, one of the text messages sent from M.B.’s phone to C.B. read: ‘I hope you know that you’ll get stomped if you come to this school, dirty bitches like you aren’t welcome here.’”
This message was only one of a plethora of aggressive and insulting correspondence Bauman cited:
“Cool. You’ll have like no friends. Our school is really cliquey and no one likes fat pregnant bitches.”
“Ha ha. Been at my school for three years. I think I know how things go and I bet the kid’s not even (I.S.)’s. Lol.”
This ugly teenage soap opera, however, was transformed into a potentially landmark child-pornography case because I.S. kept on his phone sexual images of C.B. taken during their relationship when she was between 14 and 16.
He showed these images to M.B., who used her own phone to photograph them and send them to a friend and to C.B. through Facebook.
As a result, she was charged with possession of child pornography and possession of child porn for the purpose of distribution or sale. She was also charged with threatening.
The youth was convicted on all three counts.
On appeal, her lawyer maintained the trial judge should have considered her arguments about constitutional flaws in the anti-pornography laws.
M.B.’s lawyer said the Criminal Code provisions violated Section 7 of the Charter of Rights and Freedoms because they captured conduct that bore no connection to Parliament’s stated objective.
Her conduct was not connected to the evils associated with child pornography or to child sexual abuse, M.B.’s lawyer said.
Furthermore, her lawyer added, the Supreme Court ruling had been delivered before there was widespread use of cellphones with cameras — “the court could not have foreseen the frequency with which adolescents take and share sexual photos of themselves” or the wide accessibility of Facebook that occurred in 2006.
Bauman agreed new legal issues were being raised that should have been considered and ordered a new trial on the child pornography charges.
“Despite the fact that it is far from certain that M.B. will succeed in her Section 7 challenge, in my opinion, there is a reasonable likelihood that an evidentiary hearing can assist in determining the constitutional issues she raises,” he concluded.
He dismissed her appeal on the threatening charge.