30 May 2. What does Canadian law say about this?

In her complaint about the February 26 article, Babin-Fenske compared it to child pornography. 

The Criminal Code defines child pornography as: “any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act (Criminal Code, RSC 1985, c. C-46, s 163.1(1)(b)).” ¹ Criminal Code, R.S.C., 1985, c. C-46, s 163.1 (1) https://laws-lois.justice.gc.ca/eng/acts/c-46/section-163.1.html

 Lisa Taylor, a former lawyer and CBC journalist and current professor at Toronto Metropolitan University’s School of Journalism, explains that this article would not constitute what is considered child pornography.  “The level of detail, whether it goes from informational to voyeuristic, is a tough call,” Taylor says.²Taylor, Lisa.  Interview conducted by Kiyoung Lee.  1 October, 2021. “[But] part of the reason this person complained to the NewsMedia Council is because the story made them feel very uncomfortable. [The] Journalists’ job is to bring uncomfortable truths to the people every single day.”

“Journalists covering proceedings in court have their work protected by what’s called ‘qualified privilege,’” added Taylor. “That means that they’re able to say things that, in a different realm, might be problematic.”  However, Taylor believes that even without the protections of qualified privilege, it’s unlikely journalists could face a charge of creating child pornography, while covering a trial about childhood sexual assault. “…we know that child pornography is created primarily with an interest for sexual purposes, the purpose of sexual gratification. Whereas covering a criminal trial is about telling people what’s happening in their public system of justice,” Taylor told J-Source.  “…certainly there will be overlap, but because the purpose is so different,…a journalist’s coverage of a trial involving childhood sexual assault is not in anyway tantamount or on par with the creation of actual child pornography.” ³— Interview conducted by Kiyoung Lee.  1 October, 2021

Additionally, Taylor points out, the Criminal Code limits journalists from reporting specific details that would allow most people to identify the child victim.  Taylor believes the details that were provided in the article did not allow people to identify the child victim.  And although Babin-Fenske may have been “harmed emotionally” by what she read in the article, she has not suffered a direct harm herself by the details included in the article.  “There’s nothing in the Criminal Code that says ‘we will not repeat horrific details’.  There’s no restriction on that,” said Taylor.⁴Taylor, Lisa.  Interview conducted by Kiyoung Lee.  13 August, 2021.

• 1
   Criminal Code, R.S.C., 1985, c. C-46, s 163.1 (1) https://laws-lois.justice.gc.ca/eng/acts/c-46/section-163.1.html
• 2
  Taylor, Lisa.  Interview conducted by Kiyoung Lee.  1 October, 2021.
• 3
  — Interview conducted by Kiyoung Lee.  1 October, 2021
• 4
  Taylor, Lisa.  Interview conducted by Kiyoung Lee.  13 August, 2021.