The provincial Crown is seeking to dismiss a constitutional challenge by a 17-year-old Victoria girl found culpable last year of possessing and distributing child pornography.
The girl, who cannot be named under terms of the Youth Criminal Justice Act, shared nude photos of her boyfriend’s ex-girlfriend. The pictures were sent to the boyfriend and another friend.
In September 2013, four months before the girl’s trial took place, defence lawyer Christopher Mackie launched a constitutional challenge of Canada’s child pornography laws. In what could be a precedent-setting case, Mackie is challenging whether youth “sexting” constitutes child pornography.
“It is unconstitutional to charge teenagers as child pornographers when what they’ve done has nothing to do with pedophilia or child exploitation,” Mackie said Wednesday as legal arguments got underway in Youth Justice Court.
Mackie believes his client is being treated unfairly as a youth for something adults can do. Adults can forward sexts — sexualized messages or images of adults — they’ve received to others without facing criminal charges, he said.
The Crown wants the constitutional challenge dismissed, arguing that the defence does not have a reasonable prospect of succeeding at a hearing on the constitutional challenge.
Prosecutor Rod Garson said that the acts were committed — that the girl possessed and shared third-party child pornography images without consent.
He noted that the Youth Criminal Justice Act will shield the youth from the more severe consequences faced by an adult convicted of the same offences.
The act protects young people by shielding their identity, he said. Once a youth sentence is concluded, it disappears and the young person is deemed not to have been convicted.
“If they are no longer involved in criminal activity, the record will no longer exist,” Garson said.
But the youth could be imprisoned for these offences, said Mackie.
Sentencing has been put on hold until the conclusion of the legal arguments.
During the girl’s trial, court heard that the situation started when the boyfriend broke up with his old girlfriend and moved to Victoria. The girl testified that her boyfriend was still in touch with his former girlfriend and she didn’t like it. She tried to mock and ridicule the ex-girlfriend by sharing the naked photos.
Mackie said his client regrets her conduct.
“I expect if she had the opportunity to do it over again, as we all would when we make mistakes, that she wouldn’t do the same thing.”
In December, a provincial court judge in Kamloops said three youths were unfairly stigmatized by being charged originally with distributing child pornography.
The Crown dropped the child-pornography distribution charges in exchange for the three pleading guilty to criminal harassment. Court heard that the youths made persistent and threatening demands to young girls for nude photos.
The boys traded images of the girls, who were between 13 and 15 years of age.
The three boys were given conditional discharges by Judge Roy Dickey.
