[Makarov]

Originally Posted by photon

I agree with this, but in this case the peeper was caught so there was actually harm done, and I agree the behaviour in general even if not caught is harmful to society (in that it increases the chance that they'll be caught and bring harm).

But what if they were never caught? What if the peeper saw what they saw, and mentally used it to feed their fantasy life, but never got caught?

As we already discussed, I would argue that this situation, at the very least, creates the risk that the victim will learn that his or her privacy has been breached and creates the risk of harm to the complainant. Therefore I think that the state/society is justified in prohibiting this behaviour if it so chooses.

Originally Posted by photon

What if the peeper didn't actually peep, but drew a picture of someone they knew in the shower and used that privately?

In a circumstance like this, I think that, objectively, the risk of harm is so negligible (i.e., if a person discovered that a neighbour had drawn a sexually suggestive picture of them, most people would be creeped out but would not feel nearly as violated as they would in a peeping tom situation; deeply personal information has only been imagined, rather than "stolen".)

Interestingly, the s. 163.1 definition of "child pornography" includes written material and "any visual representation", which would include drawings, etc. The Ontario Court of Appeal confirmed that validity of the prohibition of fictional written material (and by extension, fictional drawings, etc.) on the grounds that the active inducement or encouragement of sexual activity with persons under the age of 18 may come from a message in the stories/drawings themselves. (R. v. Beattie)

This might seem like a bit of a stretch, but I think that it is clear that Parliament enacted the child pornography regime in order to protect a very vulnerable group (children) and that the Courts recognize this as a valid legislative purpose that justifies a minimal infringement on our freedom of expression (especially considering the very low societal value that child pornography "expression".)

I would note too that, in an effort to make that infringement as minimal as possible, s. 163.1 limits the definition of child pornography to "any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under 18 years. This is clearly intended to exclude works of artistic merit (such as Nabokov's Lolita, for instance) or legal, psychological, social science works regarding child sexuality or child pornography, etc.

Originally Posted by photon

Or took a picture of someone who consented to the photo, then photoshopped someone else's head on it without their knowledge, and used that privately?

Without doing any research on this issue, my gut feeling is that this would not constitute any criminal offence. Perhaps the victim might have some civil remedies? They would likely have to prove that they suffered some actual damages however (beyond just embarrassment). Alternatively, most (all?) provinces have enacted legislation creating a new statutory tort of "breach of privacy". Generally, this cause of action does not require proof of damages and which might capture this sort of photoshopping situation (I have no idea; I'm not very familiar with the breach of privacy tort.)

Originally Posted by photon

It just seems to be so very close to thought crime, and I think harm (direct or in general to society) has to be a factor, we can't just prosecute someone because they're different. Even a pedophile (who didn't choose to be one) shouldn't be prosecuted just because they are attracted to a child they see while walking down the street.

But all of the criminal offences that we have discussed require more than just thought crime. No one can be convicted of an offence for simply daydreaming about children having sex, or for being sexually attracted to children, or for considering accessing child pornography. Every criminal offence requires the offender to intentionally take some action, some step (we call this the actus reus). For example, the actus reus of possession of child pornography requires that the offender actively save a data file to his or her computer (so, for example, just viewing an image, or even the automatic caching of an image onto a person's hard drive, is insufficient to make out the offence.)

Simply put, although all of these offences require some sort of "criminal thought", they are not "thought crimes".

Originally Posted by photon

That makes sense, and I think I'd agree with that as well, but I think the lawmakers would bear a great responsibility to ensure that the conduct they are criminalizing does in fact a) lead to harm and b) criminalizing it results in the desired avoidance.

Where Parliament (or the Legislature) enacts legislation which infringes on someone's Charter rights, the infringement must be "demonstrably justified in a free and democratic society" (see s. 1 of the Charter). The SCC set out a (now famous) test for determining whether the infringement is justified in a decision called R. v. Oakes.

There are two parts to the test. First, the objective of the infringing legislation must relate to societal concerns that are pressing and substantial in a free and democratic society. Second, the infringing measures must be reasonable and demonstrably justified, in proportion to the importance of the objective. This proportionality test has three components: (1) the measures must be fair and not arbitrary and must be carefully designed to achieve the objective in question (we call this the rational connection test) (I would note however that this does not require that the measures actually be effective in practice as you suggest in your proposed test); (2) the means should impair the Charter right as minimally as possible; and (3) there must be proportionality between the effects of the limiting measure and the objective (again, note that the focus is on the actual effect on the right, not on the actual effect in terms of achieving the objective.)

Originally Posted by photon

I'm just not convinced that those are the case in this case. Gore sites are a great example, it seems to me that they should be almost identical to child porn in every respect I can think of.

Firstly, I think that Parliament has chosen to enact stricter criminal legislation regarding child pornography because it recognizes that children are a particularly vulnerable group in our society.

Secondly, s. 163 of the Criminal Code does indeed make it an offence to distribute or publish (or intend to do so) obscene material (note that this does not include simple possession). Material which is sexually explicit and either includes violence or is degrading and dehumanizing is usually considered obscene.