Tier 1 : Pornography using children or causing physical bodily harm
The most serious criminal sanctions would apply to material in the first tier, including a visual representation of a person under 18 years of age, participating in explicit sexual conduct, which is defined as any conduct in which vaginal, oral or anal intercourse, masturbation, sexually violent behaviour, bestiality, incest, necrophilia, lewd touching of the breasts or the genital parts of the body, or the lewd exhibition of the genitals is depicted. Also included in tier one is material which advocates, encourages, condones, or presents as normal the sexual abuse of children, and material which was made or produced in such a way that actual physical harm was caused top the person or persons depicted.
Penalties for Tier 1 offences
Producers and distributors of pornography using children under 18 would be liable to imprisonment for 10 years. Those selling or renting such material are liable to a five year prison term (if found guilty of an indictable offence) or a fine up to $5,000 and/or up to six months’ imprisonment (if guilty of an offence punishable on summary conviction). Having such material in one’s possession, “without lawful justification or excuse,” becomes an offence and is subject to a fine up to $2,000 and/or a six-month prison term.
Producers and distributors of pornography showing actual physical harm to those depicted are liable to five years in prison. Retailers are subject to two years’ imprisonment (indictable offence), or a fine up to $2,000 and/or six months in prison (summary conviction).
The kind of pornography which would come under this first tier definition would not be open for a defence based on artistic merit, educational or scientific purpose.
Tier 2: Sexually violent and degrading pornography
Less onerous criminal sanctions would apply to material in the second tier. Defences of artistic merit and educational or scientific purpose would be available. The second tier consists of any matter or performance which depicts or describes sexually violent behaviour, bestiality, incest or necrophilia. Sexually violent behaviour includes sexual assault, and physical harm depicted for the apparent purpose of causing sexual gratification or stimulation to the viewer, including murder, assault or bondage of another person or persons, or self-infliction of physical harm.
Penalties for Tier 2 offences
Producers and distributors of sexually violent and degrading pornography are subject to a five-year prison term. Retailers are subject to imprisonment for two years (indictable offence), or a $1,000 fine and/or six months in prison (summary conviction). Those displaying such material in a public place are subject to the same penalties as retailers.
Tier 3: Visual pornographic material
Material or productions in the third tier would attract criminal sanctions only when displayed to or performed before the public without a warning as to their nature or made accessible to people under 18. Unsolicited mail incorporating such material is also included. In tier three is visual pornographic material or performances in which are depicted vaginal, oral or anal intercourse, masturbation, lewd touching of the breasts or the genital parts of the body or the lewd exhibition of the genitals, but no portrayal of a person under 18 or sexually violent pornography is included.
Penalties for Tier 3 offences
Definite penalties for offences under this category are not proposed by the Committee. It stresses that display of this material only becomes an offence when there is no “prominent warning” notice advising of the display therein of visual pornographic material.
The Committee recommends that provinces and municipalities should be the authorities to play a major role in regulating this material. It warns, “the provinces should not, however, attempt to control such representations by means of prior restraint.”
