Sexting laws in Canada are developing and critical – the government’s response to sexting among teens is a reflection of how popular the practice is.

Let’s examine the sexting laws in Canada in more detail, leveraging the experience of a sexting lawyer in Toronto. 

What Is Sexting

Sexting is the act of sending or sharing intimate or sexual messages, images or videos with a partner, friends, acquaintances, or strangers online or through a connected device. In general, with some exceptions, It is only the “sexting” between two persons of images, videos or sexual messages of “legal” acts of those persons that is legal. The messages, images, or videos must be kept private between the persons, and not shared with others, with some exceptions.

With 87% of Canadian teenagers aged 12 to 17 owning a cellphone and with daily screen time averaging nearly eight hours for these teens, it’s only natural that we’d see a boost in sexting occurrences. Thus, the importance of young people to know what is legal, and what is not.

Canadian Sexting Laws Regarding Minors

Because of the explicit nature of the images and videos, minors who engage in sexting could potentially be committing illegal acts. 

This is a legally ambiguous area, which in turn leaves teens and parents confused and concerned. This article seeks to clarify the law so that young persons (and adults, as well) can restrict their sexting so as not to run afoul of the Criminal Code.

In the worst case scenario, teens who sext can be charged with possession and distribution of child pornography, which is defined as text, photos, and videos that are sexual in nature of people under 18.

Due to Canadian laws regarding age of consent, some legal experts argue that minors cannot consent to sexting – even if they are sending personal photos and videos – and are therefore committing a crime. This general statement of the law of “sexting” is inaccurate and misleading. 

Can It Be Legal?

Stephen Hebscher, senior criminal defence lawyer with The Criminal Law Team, a criminal law firm in Toronto, says sexting among minors, with certain restrictions, is legal. He points to a 2001 Supreme Court of Canada case, R v. Sharpe, and subsequent rulings that carved out “private use exceptions” to child pornography laws. 

In the Sharpe case, the judges ruled that laws against child pornography do not extend to personally made expressive materials or privately held images or videos of lawful sexual activities, as long as they are for the individuals’ personal use only.

Mr. Hebscher explains that this “private use exception” permits teens between the ages of 12 and 17 to share “child pornography” of themselves. They can produce, retain and share texts, photos, or recordings of themselves depicting consensual, lawful sexual activities. As long as these materials are maintained solely for personal use and are not distributed, the individuals involved are not liable for prosecution for possession of child pornography. Both parties must consent to the sharing and retention of the texts, photos, videos. Below, Mr. Hebscher explains what constitutes “lawful sexual activity”.

Mr. Hebscher points out that this ruling predates the widespread availability of the internet and mobile phones among young people. However, he believes that the decision remains relevant to contemporary minor relationships.

Mr. Hebscher emphasizes the law seeks to not criminalize this behaviour by recognizing the importance of how young people today interact in sexual relationships.  Sexting, which includes the sharing of intimate text messages and images, is a large part of their interactions.

Regarding the legality of sexting among young people, Mr. Hebscher stresses the necessity to first establish the legality of the images or conversations involved.

The Criminal Code specifies that the age of consent for sexual activity is 16 years of age. However, 12 and 13-year-olds can legally consent to sexual activity with a partner not more than two years older, and vice versa. Those aged 14 and 15 can legally consent to sexual activity with someone up to five years older, and vice versa. Young persons 11 years old and younger cannot legally consent to sexual activity with any partner. Meanwhile, 16 and 17-year-olds may consent to sexual relationships with any aged partner, and vice versa, as long as the relationship is non-exploitative. 

However, “child pornography” is generally defined as writings, images or videos of an explicit sexual nature of anyone under the age of 18.  Thus, the “private use exception” to the child pornography laws carves out an exemption in circumstances where the texts, images or videos are (1) of legal sexual activity (as per above); (2) of the individual(s) only; (3) that are only shared between these individuals; and (4) are shared with the consent of the individuals. Thus, “Sexting” within these parameters is legal.

Mr. Hebscher explains that, in legal proceedings, these age differences are calculated to the exact day. For instance, if one person is born on February 12 and another on February 13, two or five years and a day later, the latter would be committing a non-consensual sexual act.

Contact a Leading Criminal Lawyer for Help

If your child is under investigation, or has been charged, due to having participated in sexting, then you need qualified legal experts on your side to ensure that their rights and freedoms are protected. You need a criminal defence lawyer who can provide a vigorous and strong defence to the charges; or avoid charges being laid in the first instance. 

The Criminal Law Team can be your experienced criminal lawyer in North York, and the surrounding Toronto area, working diligently to protect your child – especially given the ambiguous understanding of the law even by some legal experts. 

By contacting Stephen Hebscher from The Criminal Law Team, you will have the benefit of the advice and representation from an experienced criminal defence lawyer. Mr. Hebscher has been practicing exclusively as a criminal defence lawyer for over 38 years. He has a deep familiarity of the Criminal Law in Canada, including the law of sexual offences, and the law of sexting.  

Given the severity of the charges associated with young persons (and adults) who may be prosecuted for running afoul of the laws of sexting, it is critical that you find a lawyer you can trust to represent them. Contact us at The Criminal Law Team so we can help protect your child or adult friend or relative. 

For a more complete discussion of this topic, follow this link to an article about “sexting” wherein Mr. Hebscher shares his knowledge and expertise of the law of “sexting” (you will be required to register for free to access the full article):  https://www.canadianaffairs.news/2023/12/06/are-your-kids-breaking-the-law-by-sexting/

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