The legality of fictional stories involving sex with minors in Canada?

Question

What Canadian laws govern the writing and publication of fictional stories involving sex with minors?

Answer 1

Written material can constitute child pornography in Canada

Section 163.1(1)(c) of the Criminal Code defines child pornography to include:

any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act...

Other subsections of 163.1 make it an offence to make, distribute, possess, or access child pornography.

Section 163.1(6) also provides a defence when the work "has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and ... does not pose an undue risk of harm to persons under the age of eighteen years."

The Supreme Court of Canada has read in an exception for works created alone and used solely by an accused for their own personal use

See R. v. Sharpe, 2001 SCC 2:

works aimed at description and exploration of various aspects of life that incidentally touch on illegal acts with children are unlikely to be caught. While Nabokov’s Lolita, Boccaccio’s Decameron, and Plato’s Symposium portray or discuss sexual activities with children, on an objective view they cannot be said to advocate or counsel such conduct in the sense of actively inducing or encouraging it. ... I note that in any event these examples would likely fall within the artistic merit, medical, educational, scientific, or public good defences, discussed below.

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The fact remains, however, that the law may also capture the possession of material that one would not normally think of as “child pornography” and that raises little or no risk of harm to children: (1) written materials or visual representations created and held by the accused alone, exclusively for personal use...

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The legislation prohibits a person from articulating thoughts in writing or visual images, even if the result is intended only for his or her own eyes. ... The inclusion of these peripheral materials in the law’s prohibition trenches heavily on freedom of expression while adding little to the protection the law provides children. To this extent, the law cannot be considered proportionate in its effects, and the infringement of s. 2(b) contemplated by the legislation is not demonstrably justifiable under s. 1.

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I conclude that in the circumstances of the case reading in an exclusion is the appropriate remedy. ...

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In this case, s. 163.1 might be read as incorporating an exception for the possession of:

1. Self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use...

Summary

If the written work falls within the definition of child pornography:

• the writing and possessing of the work would not be an offence if staying within the judicially created personal-creation-and-use exception;
• the publication or other distribution would be an offence unless if it falls within a defence in 163.1(6) ("a legitimate purpose related to the administration of justice or to science, medicine, education or art; and ... does not pose an undue risk of harm to persons under the age of eighteen years").