Obscenity Laws in Canada: Offences, Defences, and Takedowns

Obscenity laws in Canada are set out in Section 163 of the Criminal Code, which makes it an offence to produce, distribute, sell, or publicly display any publication whose dominant characteristic is the “undue exploitation of sex.” The Supreme Court of Canada reshaped how that phrase is applied in its 1992 decision R. v. Butler, moving the test away from private morality and toward measurable social harm. Convictions can bring fines or up to two years in prison, and a separate, much harsher regime applies to any material involving a person under 18.

What the Criminal Code Treats as Obscene

Section 163(8) defines obscene material as any publication whose dominant characteristic is the undue exploitation of sex, or of sex combined with crime, horror, cruelty, or violence.¹ “Publication” is read broadly: print, film, digital files, audio recordings, and physical objects all fall within reach.

Two offences sit under the same section. Section 163(1) covers the supply side — making, printing, publishing, distributing, or possessing obscene material for the purpose of circulation. Section 163(2) covers selling, publicly exhibiting, or possessing obscene material for sale, and adds a knowledge requirement: the Crown must prove the accused acted “knowingly, without lawful justification or excuse.”² A retailer who had no idea what was on the shelves sits in a very different position from one who did.

How Courts Decide What Is “Undue”

The word “undue” carries the whole test. In R. v. Butler, the Supreme Court built the modern framework around community standards of tolerance, but the question is not whether the average Canadian is personally offended. It is what Canadians would tolerate other people being exposed to, measured by the risk of harm the material poses.³

That harm principle keeps the analysis objective. A judge is not asked whether the material is distasteful; the judge asks whether it creates a real risk of predisposing people to antisocial behaviour or reinforcing harmful attitudes toward identifiable groups. One judge’s personal reaction cannot decide the case.

The Three Categories From Butler

Butler sorts potentially obscene content into three groups to make the harm analysis more predictable:³

Explicit sex combined with violence is almost always obscene. Courts give this category virtually no tolerance.
Explicit sex that is degrading or dehumanizing is obscene where the risk of harm is substantial. Context decides whether it crosses the threshold.
Explicit sex that is neither violent nor degrading is generally tolerated. It is the hardest category to prosecute, and the Court said it is not the target of the law.

The categories are guides, not rigid boxes. Courts look at the work as a whole rather than picking out isolated scenes.

Defenses That Can Defeat a Charge

Section 163(3) provides a public good defense: no one can be convicted if the conduct served the public good and did not go beyond what the public good required.¹ Whether something served the public good is a question of law for the judge; whether it went beyond that purpose is a question of fact. The accused’s personal motives are irrelevant to either.

Butler also recognized what courts call the “internal necessities” or artistic merit defense. If sexually explicit content is essential to a broader artistic or literary purpose, it is not “undue,” even if community standards would otherwise reject it. Where there is genuine doubt about artistic merit, the doubt is resolved in favour of freedom of expression.³ A work that uses explicit material to explore a theme seriously is treated differently from one that exists only to exploit.

The Butler Court also confirmed that Section 163 limits freedom of expression under Section 2(b) of the Charter, but that the limit is justified under Section 1. The law targets a narrow band of material tied to real risk of harm, and explicit material on its own is not caught.

Penalties for General Obscenity

Obscenity under Section 163 is a hybrid offence. The Crown may proceed by indictment or by summary conviction, depending on the scale of the conduct.

On indictment, the maximum sentence is two years in prison. On summary conviction, the default penalties in Section 787 apply: a fine of up to $5,000, imprisonment for up to two years less a day, or both.⁴ Bill C-75, in force since 2019, raised the default summary conviction ceiling across most Criminal Code offences from the old six-month limit.⁵

A victim surcharge is added on top of any sentence. Where a fine is imposed, the surcharge is 30% of that fine. Where no fine is imposed, it is $100 for a summary conviction offence and $200 for an indictable offence. A court may waive or reduce the surcharge where it would cause undue financial hardship or be disproportionate to the seriousness of the offence.⁶

A Separate Regime for Material Involving Minors

Section 163.1 operates on a completely different scale from the general obscenity provisions. There is no community tolerance analysis; the material is illegal based on what it depicts. In 2024, Parliament renamed “child pornography” to “child sexual abuse and exploitation material” throughout the Criminal Code.⁷

The definition reaches any visual recording of a person who is or appears to be under 18 engaged in explicit sexual activity, or whose dominant characteristic is the depiction of a sexual organ or anal region of a person under 18 for a sexual purpose. It also captures written and audio material, and content that advocates sexual activity with a minor that would itself constitute a Criminal Code offence.⁸

The penalties carry mandatory minimum prison sentences, which are unusual in Canadian criminal law:

Producing or publishing: indictable only, with a one-year minimum and a 14-year maximum.
Distributing, selling, or making available: indictable only, with a one-year minimum and a 14-year maximum.
Simple possession: hybrid. On indictment, a one-year minimum up to 10 years; on summary conviction, a six-month minimum up to two years less a day.⁸

For visual material, it is no defence to say you believed the person was 18 or older, unless you took all reasonable steps to verify their age and to ensure the depiction did not portray them as under 18.⁷ The only statutory defense is a legitimate purpose connected to the administration of justice, science, medicine, education, or art, where the conduct also does not pose an undue risk of harm to anyone under 18. Both halves must be met.⁸ The Supreme Court’s 2001 decision in R. v. Sharpe also read in narrow exceptions for purely private, self-authored expressive works and for recordings created by minors of themselves engaged in lawful sexual activity, held solely for personal use.

Non-Consensual Intimate Images

Sharing someone’s intimate images without consent is a separate offence under Section 162.1, often called the “revenge porn” provision. The focus is not the nature of the content but the absence of consent.⁹

An intimate image is a visual recording in which a person is nude, exposing private body parts, or engaged in explicit sexual activity, made in circumstances giving rise to a reasonable expectation of privacy. Knowingly sharing that image without consent, or being reckless about whether the person consented, is punishable by up to five years in prison on indictment. The image does not have to meet the obscenity threshold. A public good defense is available, and again the accused’s motives do not matter to the analysis.

Seizure, Forfeiture, and Online Takedowns

Section 164 lets a judge issue a warrant to seize obscene material being kept for sale or distribution, on reasonable grounds that copies are at specific premises.¹⁰ Within seven days, the judge must summon the occupier to a show-cause hearing. The owner and the creator of the material both have the right to appear and be represented. Before ordering forfeiture, the court must be satisfied on a balance of probabilities (the civil standard, not the criminal one) that the material is obscene. If the court is not satisfied, the material must be returned once the time for appeal has run.

Section 164.1 extends this scheme to material on computer systems. A judge can order the custodian of a system — typically a hosting provider or platform — to supply the court with an electronic copy, remove the material so it is no longer available, and provide information identifying who posted it.¹¹ Before any permanent deletion, the person who posted the content must receive notice and a chance to argue it should stay up. If that person cannot be identified or located, or lives outside Canada, the custodian can be directed to post the notice at the location where the material was stored. A deletion order takes effect only after appeal deadlines have passed.

Bringing Material Across the Border

The Canada Border Services Agency screens imports under tariff item 9899.00.00 of the Customs Tariff, which prohibits bringing in books, images, films, and other goods deemed obscene under Section 163(8).¹² Officers apply the same two-part test the courts use: community standards of tolerance first, then the artistic merit defense if the material fails the first step. Doubt is resolved in favour of releasing the goods.

The CBSA flags material depicting sex combined with violence, degradation, humiliation, pain, sexual assault, bestiality, or necrophilia. The burden of proof rests on the Crown, not the importer. A 30-day service standard applies to classification; if the agency does not make a determination within that window, the goods should be released. If goods are seized, a request for ministerial review can be filed within 90 days of the enforcement action, with a further decision appealable to the Federal Court of Canada.¹³

1
Department of Justice Canada. Criminal Code RSC 1985 c C-46 – Section 163
2
Department of Justice Canada. Criminal Code RSC 1985 c C-46 – Part V
3
Supreme Court of Canada. R v Butler
4
Department of Justice Canada. Criminal Code RSC 1985 c C-46 – Section 787
5
Department of Justice Canada. SC 2019 c 25
6
Department of Justice Canada. Criminal Code RSC 1985 c C-46 – Section 737
7
Department of Justice Canada. SC 2024 c 23
8
Department of Justice Canada. Criminal Code RSC 1985 c C-46 – Section 163.1
9
Department of Justice Canada. Criminal Code RSC 1985 c C-46 – Section 162.1
10
Department of Justice Canada. Criminal Code RSC 1985 c C-46 – Section 164
11
Department of Justice Canada. Criminal Code RSC 1985 c C-46 – Section 164.1
12
Canada Border Services Agency. Policy on the Classification of Obscene Material – Memorandum D9-1-1
13
Canada Border Services Agency. How to File a Review for Seizures Under the Customs Act