Revisiting the “Private Use Exception” to Canada’s Child Pornography Laws: Teenage Sexting, Sex-Positivity, Pleasure, and Control in the Digital Age

Abstract

In R v Sharpe, the Supreme Court of Canada read in a "private use exception" to the offence of possessing child pornography. The Court reasoned that youths' self-created expressive material and private recordings of lawful sexual activity-created by, or depicting the accused and held by the accused exclusively for private use-would pose little or no risk to children and may in fact be of significance to adolescent self-fulfillment, self-actualization, sexual exploration, and identity. Fundamental changes in the technological, social, sexual, and legal landscape since Sharpe have resulted in a lack of clarity regarding the exception's scope. Federal and provincial police and federally funded child protection agencies now regularly inform young people that they do not have the legal right to consensually create and share their digital sexual images with an intimate partner. Scholarly opinion on the exception's application to teenage sexting is under-considered and varied, and subsequent judicial interpretations of the exception have extended the boundaries of private use while also circumscribing the protection by requiring youth to retain the ability to "maintain control" of their images. Via a mapping of our new technological and legal landscape, as well as a consideration of shifting privacy, communication, and sexual norms, this article examines and clarifies the application of the private use exception to teenagers contemporary digital sexual expression practices. This article argues that the private use exception as set out in Sharpe is inclusive of consensual teenage sexting in private yet is too narrow to adequately protect the sexual speech of teens. While subsequent judicial interpretations of the exception have extended the boundaries of private use, these analyses have also potentially and paradoxically circumscribed the protection by requiring youth to retain the ability to "maintain control" their own images. A key goal of this article is thus to interrogate the relationship between privacy and control as it relates to youths' consensual sexual expression. Finally, this article argues that future considerations of the parameters of the private use exception incorporate an analysis of the benefits of sexual expression for young people as well as a positive sexual rights framework that recognizes the autonomy of youth who are of legal age to consent to sexual relations.