What I had previously overlooked was what was said on the Talk page of the Wikipedia article on R v Sharpe. Here’s what a Wikipedia user wrote in 2008:
Interpreting “person” in accordance with Parliament’s purpose of criminalizing possession of material that poses a reasoned risk of harm to children, it seems that it should include visual works of the imagination as well as depictions of actual people. Notwithstanding the fact that ‘person’ in the charging section and in s. 163.1(1)(b) refers to a flesh-and-blood person, I conclude that “person” in s. 163.1(1)(a) includes both actual and imaginary human beings.
This article mentions that he [Sharpe] was charged with (4) and (3). (1) does not involve an actual charge, but rather clarifies the terms under which the following charges are written. I was hoping someone with a better understanding of this case might shed some light on some aspects of Judge McLachlin’s statement. What would she mean by “charging section”? The word ‘charging’ does not show up in 163.1 at all. It is not clear which section she was referring to which would couple with (b) in regards to referencing only flesh and blood people.
I would think her judgment in this situation would imply that 163.1 should be rewritten to make this more clear, such as mentioning that it can apply to imaginary human beings. For example, the Person article on Wikipedia doesn’t mention imaginary people being classed as a person. Nor does the Legal person article. While the subject of personhood is addressed in fiction, we do not consider fictional characters to be people. This is why the word ‘character’ (fictional character and non-fictional character respectively) exists, to denote that it is a characterization and not a real person. While it is certainly within the realm of the Supreme court to change laws or draft new ones, I think it is important that the wording of laws clearly state what it is they outlaw. Currently it is ambiguous.
It seems that this interpretation has set a precedent as in the origin linked in the title of this topic, a man was later convicted solely for possession of media portraying characters, presumably fictional ones.
TL;DR The word “person” refers to real humans, according to the Wikipedia pages on Person and Legal person.
If you go on the Wikipedia page on “legal person”, you’ll notice that there are two categories: “natural person” (which is a real human) and “juridical person”. The latter refers to organizations such as corporations, firms and government agencies.
Chie said it best:
Of course, there is another problem posed by banning lolicon / shotacon. Another Wikipedia user wrote (also from 2008):
Most citizens do not know university professors or major figures in the Canadian art community whom they can call upon to interpret or defend Japanese artwork. This is a relevant factor in regards to prosecution of art imported from Japan, where a different language is spoken and there are relevant cultural differences that may interpret artistic interpretations. It is also relevant to manga which are scanlations in which someone dubbing english text over the Japanese text may mistranslate it, or purposefully rewrite it. They may mistakenly or purposefully rewrite a fictional character’s age to be older or younger than the original artist, or their species to be human if they are not human, or non-human if they are human.
This is relevant to the section (5) Defence on grounds of what the age the person is believed to be. In regards to fictional characters, since they have no real age (not being actual flesh and blood humans), the only relevant statement is in regards to the depiction of the age. In regards to rewrites, that can be changed. ‘Depiction’ can also be interpreted on both the grounds of the written description of a character (via narration, speech bubbles and thought bubbles) as well as interpretation of the neotenic characteristics present in a character’s illustration.
TL;DR What happens if someone changes a fictional character’s age or species?
What if the character was originally written as a child, but a fan changed that same character into an adult (or vice versa)?
What if a non-human character became a human (or vice versa)?
What if the character looks pretty young, but is an adult (such as a petite woman)?
Take, for example, the character Kanna Kamui from the manga / anime Miss Kobayashi’s Dragon Maid.
You see, Kanna appears to be a 9 year old human girl… But, she’s actually a decades-old dragon (and there are times in the manga / anime where she swears, using words such as “cuckold”, “slut” or “pervert”) and she’s a child by “dragon standards” (seriously). There’s a moment in the manga / anime where she attempts to have sex with another girl (but, due to certain circumstances, it doesn’t happen).
Anyway, there are several moments in the Miss Kobayashi’s Dragon Maid manga where Kanna is presented naked, but with her “private parts” censored (it also happens in the anime, but less). In case you’re wondering, there is uncensored nudity in the manga (not in the anime, it’s all censored), but it only happens with adult characters, never with “minor” characters.
I’ll get to the point. You can buy the Miss Kobayashi’s Dragon Maid manga in Canada (both online and in bookstores), even though there is a depiction of a nude fictional minor. It’s legal to sell because the “unlawful” content is censored. It’s probably the closest thing you can legally get to lolicon in Canada right now.
As I wrote in this post, I used to own a book about the human body written for kids. The book contained drawings of nude children. In my post, I said:
There’s a certain bit of irony seeing nude drawings of children in a book (about the human body, but still) for children being sold in Canada. The reason why it’s legal is because the kids aren’t being “sexualized”, which apparently makes it okay. Just ignore the man and woman having sex in the book (again, for kids).
As a sidenote, I’ve seen pictures of real kids naked… But only in certain books, such as from National Geographic, which should be noted are legal because they’re not sexualizing kids. Also, most of the nude kids that I’ve seen in photos are of little boys from Africa.
I guess what I’m trying to say is that nudity in and of itself isn’t sexual. Context matters.
So, you can actually buy a book in Canada with a fictional nude “minor” character in it… Provided that the character isn’t being sexualized. In the case of manga / anime, it probably requires some censorship as well.