If you own a copy of the novel “Hansel and Gretel” by Quebec author Yvan Godbout, you could face criminal charges for committing a child pornography offence in Canada. Plot-relevant passages in the book that detail the sexual abuse of two children apparently run afoul of Canada’s porn laws. The author and his publisher found this out in 2017 when they were arrested respectively for producing and distributing child porn. They were acquitted in 2020 after the judge ruled that our child pornography laws “cast too wide a net, targeting works of literature that don’t endorse or promote pedophilia.” The judge also ruled that some portions of the Criminal Code’s child porn section violate the Charter Right guaranteeing freedom of expression.
However, Canada’s Supreme Court rejected an appeal of the acquittal that could have provided clarity on the intersection between child pornography charges and freedom of expression. Unless legislators take up the issue, other Canadians will undoubtedly find themselves facing child porn charges based on an overbearing legal definition that violates Charter Rights.
Despite the acquittals, Godbout and his publisher suffered grievous harm due to their arrests. The legal presumption of innocence until proven guilty carried no weight as both experienced extensive social stigmatization, loss of friends, stress, anxiety, and lost income. The publisher was financially ruined and forced to close his 30-plus-decade-old publishing house and fire 40 employees.
To help you better understand Canadian child pornography laws, Ontario criminal defence lawyers at Vilkhov Law have put together this short primer on what to do if you are accused of child pornography. Developing effective defence strategies starts with availing yourself of distinct legal rights upon arrest and securing the best legal representation.
What is Child Porn According to the Criminal Code?
Section 163.1 (1) of Canada’s Criminal Code defines child pornography as:
- Photos, film, videos, or other visual representations of persons under or depicted as being under the age of 18 who are engaged in explicit sexual activity.
- Photos, film, videos, or other visual representations of sex organs or the anal region of those under 18 when viewed for a sexual purpose.
- Written materials, visual representations or audio recordings that advocate or counsel sexual activity with anyone under 18.
- Any written material that describes for a sexual purpose the sexual activity of anyone under 18.
- Any audio recording that describes, presents, or represents for a sexual purpose the sexual activity of those under 18.
Along with Canadian child pornography possession laws, making, accessing, and distributing child porn is a criminal offence under the law. While the above-mentioned author and publisher were arrested for making and distributing child pornography, owning a copy of the book would constitute possession of child porn under the existing law. As made clear by their experience, visual depictions of child nudes aren’t required to make such porn illegal.
The possible penalties for child pornography are especially harsh, no matter what the offence. Maximum sentences for making or distributing child pornography are 14 years imprisonment, and the minimum penalty is one year. Accessing or possessing child porn carries a 10-year maximum sentence as an indictable offence and a two-year maximum as a summary conviction offence. The minimum sentences are six months in jail when charged as a summary conviction offence and one one-year as an indictable offence.
Those convicted of any child pornography offence may also be subject to:
- Mandatory enrollment and compliance with the National Sex Offender Registry.
- Prohibitions on being in areas where children may be present.
- Mandatory inclusion in the National DNA databank.
- Limitations on working with youth or engaging in volunteer work involving children.
Know Your Rights — Your Protections Under Canadian Law
If you’re charged with child pornography in Canada, you have specific rights that the police and Crown must abide by and that you should avail yourself of as warranted. These rights include:
- The right to be arrested or detained without the police use of unreasonable force.
- The right to remain silent during police questioning (though you should identify yourself).
- The right to be promptly told of the reason for your arrest or detention.
- The right to be informed that you can hire and consult with a lawyer.
- The right to privately speak to a lawyer as soon as possible.
- If you don’t have a lawyer, the right to be informed about duty counsel services and legal aid.
- The right to be presumed innocent until proven guilty by the Crown.
- The right to face judgment in court within a reasonable time frame.
- The right to be released on bail unless the Crown has a valid reason for keeping you in custody.
Steps to Take if You’re Accused of a Child Pornography Offence
If you are arrested for a child pornography offence or find out that police are investigating you for the offence, the most important step you should take is to secure the services of a highly skilled criminal lawyer. The sooner your lawyer can begin investigating the details of your case, the easier it is for them to uncover potential exonerating evidence. In addition to hiring a lawyer, avail yourself of all the other legal rights under the law. In particular, it’s crucial to maintain your right to remain silent. As you’ve undoubtedly heard on TV or film dramas, “anything you say can and will be used against you” in a court of law.
Defence Strategies in Child Pornography Cases
Anyone charged with pornography offences involving children can turn to any number of defence strategies depending on the evidence and the Crown’s narrative describing how the offence occurred. Raising doubts about the evidence and narrative is crucial because the onus is on the Crown to prove “beyond a reasonable doubt” that the offender intentionally or knowingly committed the act. Apart from raising enough reasonable doubts to scuttle the Crown’s case, effective defence lawyers frequently use the following defence strategies:
- Legitimate Purpose and No Risk of Undue Harm — as codified in Section 163.1 (6) of the Criminal Code, the offender cannot be convicted if the alleged act had a legitimate purpose or if it did not “pose an undue risk of harm to persons” under age 18.
- Lack of Control — asserting that the defendant lacked control over the child pornography materials.
- Lack of Knowledge About Age — if a defendant took “all reasonable steps to ascertain the age” of a child included in pornography, believing that a person depicted in such porn was over age 18 may be used as a defence.
- Public Duty Defence — asserting that the defendant had planned to turn the pornographic materials over to authorities or destroy it. The viability of this defence is highly dependent on timelines.
- Private Use — a viable defence can be raised if the defendant can prove that the materials were self-created and personal renditions of lawful sexual activities made for private use. The defence is invalid if the materials pose a risk to children or the potential for harmful use by others.
- Charter Rights Violations — successfully raising such violations can suppress evidence and otherwise help derail the Crown’s case. As evidenced by the author and publisher’s case, the law itself may violate rights.
Professional Representation Crucial for Your Defence
If you’re facing child pornography charges in the Greater Toronto Area, securing legal support from a skilled child pornography lawyer is crucial. With a client-focused collaborative approach, Vilkhov Law is committed to developing effective defence strategies that deliver the best possible legal outcomes possible. For your free consultation, contact Vilkhov Law today.
