The prevalence of child pornography in Canada is evidenced by frequent media reporting of police arresting suspects for related offences. Last month, Toronto Police arrested a city paramedic for possessing and accessing child pornography. At about the same time, Peel Regional Police charged a Mississauga camp counsellor with numerous sexual assault and child pornography charges.
Late last year, Ontario Provincial Police arrested 107 people on over 400 child pornography possession and related charges after a month-long investigation. Among those arrested was a Northern Ontario man police say was planning to kidnap and abuse young children.
Those arrested in this operation account for almost 50% of total 2022 provincial arrests for possessing and/or accessing child pornography, according to Statistics Canada’s “Incident-based crime statistics by detailed violations.” Stat Can data also shows that 191 people were arrested in Ontario for child pornography possession in 2022, accounting for almost 50% of the year’s national arrest total for the charge. Ontario Police also charged 115 people that year with making and distributing child pornography.
Child Pornography as Defined by Canada’s Criminal Code
Section 163.1 of Canada’s Criminal Code broadly defines child pornography to include photographs, film, video, or “other visual representation, whether or not it was made by electronic or mechanical means.” Such imagery constitutes “child” pornography if it:
- “Shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity.”
- Has a “dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years.”
Furthermore, the definition covers:
- “Any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.”
- “Any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.”
- “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 eighteen years that would be an offence under this Act.”
In considering the Code’s broad definition, note first its inclusion of “other visual representation, as well as the three points covering written materials and audio recordings.” As written, this can incorporate drawings, cartoons, other visual artwork, stories, books, other written works, and assorted audio recordings.
In addition, Canadian law enforcement agencies have charged people for possessing art-based, written, and audio renditions of alleged child porn. However, the Code’s language on these points can conflict with the issue of artistic freedom of expression as provided under Section 2 of the Canadian Charter of Rights and Freedoms.
Supreme Court of Canada Weighs In
Canada’s Supreme Court strived to balance societal interest in combatting child pornography with the Charter’s freedom of expression right in R v Sharpe  SCC 2. In its decision, the high court exempted specific materials from the Code’s child pornography definition based on their limited risk of harming children. These exemptions exclude:
- “[D]eeply private expressions” depicted in writing or visually that were solely created and held by the accused and made exclusively for their own personal use.”
- “Private visual recordings of sexual activity created or depicting the accused that do not depict unlawful sexual activity and is held exclusively for the accused’s private use.”
However, in its 2001 decision, the court also ruled that child pornography can include depictions of fictional people, ensuring that art-based child pornography remains illegal.
To further enhance the protection of children in Canada’s child pornography laws, the Supreme Court, in 2015’s R v Barabash  SCC 29 case, held that any exemptions to the law were only valid if no factual exploitation or abuse of children was involved in creating the materials.
Lawful Search and Seizure of Child Pornography Materials
Section 164.1 of the Criminal Code expressly details the search and seizure of child pornography materials. Under this section, a judge may issue a warrant authorizing the seizure of visual, written, or audio materials if “satisfied by information on oath that there are reasonable grounds to believe” it constitutes child pornography.
Section 164.1 (1) contains the same provisions in relation to alleged child pornography stored or made available through a computer system. It also gives the judge the authority to order the removal of the materials from the computer system and order computer system operators to identify persons responsible for posting or storing the materials.
Absent a warrant, the right to search for child porn (or other evidence relating to a crime) on your cell phone or other computerized device is limited due to a Supreme Court ruling in R v Fearon  SCC 77. This ruling held that a warrantless search must be directly connected to the reasons for a suspect’s arrest, and serve a valid law enforcement purpose, such as protecting public safety or preserving evidence.
Penalties for Possessing Child Pornography in Canada
The minimum penalty for possessing child pornography charges in Canada is six months’ imprisonment if charged as a summary conviction offence, which carries a maximum two-year sentence. When charged with an indictable offence, conviction carries a minimum sentence of one year and a maximum prison term of 10 years.
Accessing child pornography has the same penalties, while making or distributing child pornography is solely an indictable offence that carries a respective one-year minimum and 14-year maximum prison sentence. The sole aggravating factor named by the Criminal Code in considering sentencing is whether or not the defendant committed the offence with the intent to make a profit.
Longer-Term Repercussions of a Child Porn Conviction
As with most other sexual offences, the penalties for conviction go beyond imprisonment to include life-long impacts. These impacts include:
- Inclusion on the National Sex Offender Registry, with mandatory compliance and reporting terms.
- Mandatory submission of a DNA sample to the national DNA databank.
- Firearms/weapons prohibitions.
- Prohibitions on visiting places where those under age 16 may be present.
Defending Against Child Pornography Charges
If you’re facing possession of child pornography possession or related charges, it’s important to seek out the services of an experienced criminal defence lawyer. Given the complexities of the law and the severe penalties that come with a conviction, you cannot afford to defend yourself against such charges on your own.
At Vilkhov Law, we understand the severity of these types of charges, and the need to have access to the services of a lawyer you can trust. Reach out to a member of our team today to schedule your consultation.