What the Canadian Law Says About Child Pornography

What is the legal definition of “child pornography”?

“Child pornography” is defined in s.163.1 of the Criminal Code of Canada. In order for something to be considered child pornography, the law says that it must meet one of the following definitions:

1. A photographic, film, video or other visual representation
   1.  that shows a person who is under 18 years old or a person who is depicted as being under 18 years old, who is engaged in or is depicted as engaging in explicit sexual activity, or
   2. where the dominant characteristic is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years old.

OR

1. Any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of 18 years old i.e. it sends that message that sexual activity with children could and should be pursued.

OR

1. Any written material that has as its dominant characteristic the description, for a sexual purpose, of sexual activity with a person under the age of 18 years old.

OR

1. Any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of 18 years old.

When the law refers to a “person”, this includes both actual and imaginary human beings. In other words, an imaginary story about sexual activity involving children would meet the legal definition of child pornography. If the alleged child pornography is a visual drawing or depiction, it need not show a real person – drawings and computer animations could suffice. Where the alleged child pornography is written, the person described does not need to be an actual, living person.

What are the criminal offences related to child pornography and what are the penalties?

There are four different Criminal Code offences that relate to child pornography:

1. Making, printing, publishing or possessing for the purpose of publication any child pornography. (Though these MMS applies to some cases today, some of it are deemed unconstitutional. Considering the date of the incident is also relevant. Older versions of the law had different numbers and thus would be applicable depending on the dates of allegations)
   1. 1. Minimum penalty: 1-year imprisonment
      2. Maximum penalty: 14 years imprisonment 
2. Transmitting, making available, distributing, selling, advertising, importing, exporting, or possessing for any of the aforementioned purposes any child pornography. 
3. Making child pornography available includes sharing it with others using a file-sharing program. Where the accused person is willfully blind to the file-sharing program’s capabilities (i.e. this pertains to suspecting something might go wrong but still choosing not to make any inquiries into whether others can gain access to the material), the accused has still committed the offence of making child pornography available.
   1. 1. Minimum penalty: 1-year imprisonment
      2. Maximum penalty: 14 years imprisonment
4. Possessing child pornography (These applies to the newer version of the law. The date of the offence may change the minimums and maximums in one case)
   1. 1. Minimum penalty if prosecuted by indictment: 1-year imprisonment
      2. Maximum penalty if prosecuted by indictment: 10 years imprisonment
      3. Minimum penalty if prosecuted by summary conviction: 6 months imprisonment
      4. Maximum penalty if prosecuted by indictment: 2 years less a day imprisonment 
5. 4.     Accessing child pornography
   1. 1. Minimum penalty if prosecuted by indictment: 1-year imprisonment
      2. Maximum penalty if prosecuted by indictment: 10 years imprisonment
      3. Minimum penalty if prosecuted by summary conviction: 6 months imprisonment
      4. Maximum penalty if prosecuted by indictment: 2 years less a day imprisonment

A person convicted with any of these offences would be placed on Provincial and Federal Sex Offender Registries, and possibly face a life sentence. As an accused person is prosecuted, restrictions would apply under section 161 of the Code relating to contact with minors, internet use, attendance at parks and other public locations where minors may be found and will also often face significant computer use restrictions, potentially for life.

What will the Court consider when imposing sentence?

If an accused person is found guilty after a trial or pleads guilty before a trial, the Court will consider all relevant factors, including those that are mitigating and those that are aggravating, when imposing sentence.

Generally speaking, any of the following are considered to be aggravating factors:

1.  a criminal record for similar or related offences;
2. whether there was also production or distribution of the pornography;
3. the size of the pornography collection;
4. the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);
5. the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and
6. whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.

Generally recognized mitigating factors include:

1. the youthful age of the offender;
2. the otherwise good character of the offender;
3. the extent to which the offender has shown insight into his problem;
4. whether the offender has demonstrated genuine remorse;
5. whether the offender is willing to submit to treatment and counselling or has already undertaken such treatment;
6. the existence of a guilty plea; and
7. the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

What constitutes “possession” of child pornography?

Possession requires knowledge of the criminal character of the items in the issue. In order for the accused to be found guilty, the Crown must prove that:

1. The accused had knowledge of the contents of the item in issue. The contents are all that matters, it does not matter whether the accused person knows that legally, the contents qualify as child pornography; and
2. The accused had control over the item in issue or in other words, had power and authority over the item, whether or not that power and authority was exercised. This does not include taking control of an item in issue with the intention of immediately destroying it or divesting oneself of control over it.

It is important to note that downloading child pornography is enough to satisfy the control component of possession. Opening and viewing the material is not actually necessary. 

What defences are available to the accused?

The “I thought he/she was over 18” defence

It is not a defence that the accused believed that a person was or was depicted as being over the age of 18 unless the accused took all reasonable steps to ascertain the age of that person. Where the person was in fact 18 years of age or older, the accused must have taken all reasonable steps to ensure that the person was not depicted as being under the age of 18.

The “all reasonable steps” standard is more than a casual requirement. (This standard varies from case to case and depends on certain circumstances.) There must be an earnest enquiry or some other compelling factor that obviates the need for an enquiry. An accused person can only discharge the requirement by showing what steps he took and that those steps were all that could be reasonably required of him in the circumstances. It is not sufficient to state that further enquiries were not made because they would open the accused to ridicule, embarrassment or rejection. (This article does not aim to determine what does or does not satisfy this requirement in any particular case. It would be best to seek the advice from a properly qualified lawyer on any such situation.)

The legitimate purpose defence

If the prohibited written material, visual representation, photographic image etc. has a legitimate purpose related to the administration of justice or to science, medicine, education, or art and does not pose an undue risk of harm to persons under the age of 18, the accused person shall not be convicted of the child pornography-related offence. Undue risk of harm does not include offending the moral views of the community but rather, “a significant risk of objectively ascertainable harm”.

The artistic merit defence includes any expression that might reasonably be viewed as art and that has artistic value, however small.

The legitimate purpose defence does not apply where the accused person possesses or accesses child pornography for both a legitimate and illegitimate purpose. If there is an illegitimate purpose whatsoever that can be attributed to the material, the defence will not be successful. 

The private use defence

The private use exception applies to the offences of possessing child pornography and making child pornography available. To satisfy the private use defence, the following are required:

1. The recording must depict lawful sexual activity
2. The persons depicted must consent to the recording
3. The recording must be held for private use.

There are two distinct exceptions according to the case law (see the 2001 Supreme Court of Canada case of R v Sharpe):

1. Self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and
2. Private recordings of lawful sexual activity: i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.

The first category protects written or visual expressions of thought, created by one person, and held by that person for his or her eyes only. An example would be materials found in a teenager’s private diary.

The second category would protect photographs or recordings that are taken by a child or adolescent of him or herself only, which were kept in strict privacy and intended for personal use only. 

1. The person possessing the recording must have personally recorded or participated in the sexual activity in question.
2. The sexual activity must be lawful, and all parties must have consented to the creation of the recording.
3. The recording must be kept in strict privacy by the person in possession of it. 

For example, a teenage couple could create and keep sexually explicit pictures featuring each other alone, or together, while engaged in lawful sexual activity, provided that these pictures were created together and shared only with one another.

In Conclusion

Child pornography-related charges are serious, with the very real potential for sentences of imprisonment. If you, or someone you know, are charged with any of the offences discussed above, we recommend you contact one of the experienced counsel at our office to discuss your options.

Related Articles

What Is Defined As Child Pornography

Charter Rights and Defense Of Child Pornography Charges

How a Criminal Lawyer Approaches A Child Pornography Charge