Legal Commentary

Despite concerns over its practicality, Ontario legislators passed a new child pornography reporting law last month.

Bill 37 — the Child Pornography Reporting Act, 2008 — passed at Queen’s Park Dec. 4 with the unanimous support of all three parties.

A similar statute was enacted in Manitoba earlier last year.

The Ontario bill, amending the Child and Family Services Act, aims to provide greater protection for children.

Existing legislation requires certain persons, such as health-care workers and teachers, to report suspicions that a child is in need of protection.

The new law goes a step further by making it an offence for anyone who stumbles across suspected child porn and fails to report it. Essentially, the legislation will make it a crime not to do something.

Though no date has been set for its implementation, the government hopes to bring the act into force soon.

Regulations must be drawn up before the act can be implemented. The Children and Youth Services Ministry is working on developing these rules, which will establish, among other things, an authority to which suspicions of child porn must be reported.

The act places strict reporting obligations on individuals who come across suspected child pornography. The act’s definition of child porn parallels that in the Criminal Code.

This act will have significant implications for people who work with computers or communications systems. Employers will have to ensure employees are made aware of the new law in case they stumble across child porn while doing their jobs.

The new legislation will place a positive obligation on individuals to report any reasonable suspicions that a representation or material is, or might be, child porn to an organization, agency or person designated by regulation.

However, the test for determining whether material should be reported to officials is subjective. Individuals will not be fined for failing to disclose suspicious material if in their own mind they reasonably believe it is not child porn, even if a court ultimately decides it is.

If convicted, a person who fails to meet the reporting requirements faces a fine of as much as $50,000, up to two years in jail, or both.

The duty to report is an ongoing one, and the informant must continue to make reports even if previous reports have been made with respect to the same child.

Though a person may be fined for failing to report, the act doesn’t require anyone to seek out child pornography.

Given the act’s strict reporting requirements, safeguards have been put in place in an effort to protect persons who report suspicions of child pornography.

The legislation provides that an action cannot be brought against a person who provides information to authorities in good faith, and makes it an offence to disclose the identity of, or retaliate against, an informant.

This act was created to provide a tool for the protection of Ontario’s children, but only time will tell whether it will accomplish its goal.