Table of contents:
- What Are Child Pornography Offences in Canada?
- What Are the Types of Child Pornography Offences?
- High Court Mandated Exceptions
- What is Needed to Convict
- Punishment for Child Pornography in Canada
- Making and Distributing Child Pornography
- Possessing Child Pornography
- Accessing Child Pornography
- Child Pornography Defences
- Secure the Services of a Skilled Criminal Defence Lawyer
What Are Child Pornography Offences in Canada?
Section 163.1 of Canada’s Criminal Code considers it a criminal offence to access, possess, distribute, or make child pornography. According to the Code, child pornography comprises of representations of children under 18 engaged in sexual acts in videos, photographs, written material, audio recordings, and illustrations. It includes depictions of sexual organs or the anal region of anyone under 18 when used for a sexual purpose and any written material, visual representations, or audio recordings that advocate or counsel sexual activity with a person under 18.
Written materials and audio recordings that describe sexual activity with a person under 18 may also be considered child porn. According to the Code’s language, simple nudity does not automatically count as child pornography, as the materials must have a sexual purpose.
What Are the Types of Child Pornography Offences?
As detailed in the Criminal Code, there are four possible charges connected to child porn:
Accessing Child Pornography
Accessing child pornography is defined under Section 163.1 (4.2) as knowingly causing child porn to be viewed or transmitted. Legislators specifically developed this language to catch those not possessing child pornography but successfully seeking it online.
Possession of Child Pornography
This offence requires that you have the child porn materials in your possession or control. An offender doesn’t have to view the child pornography – only knowingly have the child porn in their possession.
Distribution of Child Porn
The Code defines the distribution of child porn as anyone who “transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography.” This includes assisting anyone else in gaining access to child pornography, whether via sending them a link online or by offering them child porn content directly.
Making Child Pornography
The Code simply defines this offence as making, printing, publishing, or possessing for the purpose of publication any child pornography.
High Court Mandated Exceptions
In its landmark decision R v. Sharpe, 2001 SCC 2, the Supreme Court of Canada carved out two narrowly defined exceptions to the criminal prohibition against child pornography, aiming to balance the Criminal Code with the right to freedom of expression under Section 2(b) of the Canadian Charter of Rights and Freedoms. The Court held that the following types of material do not fall within the prohibition:
- Self-created expressive material – Written or visual content created and possessed solely by the accused, strictly for personal use and not intended for distribution.
- Private recordings of lawful sexual activity – Visual recordings made by or involving the accused that depict legal sexual activity and are retained exclusively for private use.
However, the Court also affirmed that the definition of child pornography under Section 163.1 of the Criminal Code may include purely fictional or virtual depictions—whether written or visual—even if no real children were involved in the creation of the material.
What is Needed to Convict
To secure a conviction in child pornography cases, Crown prosecutors must prove that the alleged offender accessed, possessed, distributed, or made pornographic materials and that the materials are genuinely child pornography. As with any criminal offence, the Crown will present evidence, witness testimony, and a narrative of how the alleged offender committed the act. To secure a conviction, the Crown also must prove “beyond a reasonable doubt” two primary factors needed to establish guilt in Canadian criminal cases:
The Guilty Act (Actus Reus)
“Actus reus” is the Latin term for “guilty act,” and in Canadian law, refers to proving that the offender was truly responsible for the criminal conduct. If there is any reasonable doubt that the offender was not responsible, the court cannot convict.
The Guilty Mind (Mens Rea)
“Mens rea” is Latin for “guilty mind,” a factor that means the Crown must prove that the offender intentionally and/or knowingly committed the offence. As with actus reus, any reasonable doubt about the offender’s intent can nullify a conviction.
Punishment for Child Pornography in Canada
The penalties for child pornography offences in Canada are severe and vary depending on the nature of the offence. Under Section 163.1 of the Criminal Code, offences such as possession, access, distribution, and production are all criminally punishable, with some carrying mandatory minimum sentences.
⚖️ Sentencing Guidelines
| Offence Type | Classification | Minimum Sentence | Maximum Sentence |
|---|---|---|---|
| Possession of child pornography | Summary or Indictable | 6 months (Indictable) | 5 years (Indictable) |
| Accessing child pornography | Summary or Indictable | 6 months (Indictable) | 5 years (Indictable) |
| Distributing, transmitting, or selling | Indictable only | 1 year | 14 years |
| Producing or making child pornography | Indictable only | 1 year | 14 years |
| Importing/exporting child pornography | Indictable only | 1 year | 14 years |
Note: Summary convictions typically result in lower penalties, but the Crown may proceed by indictment depending on the severity of the offence and the accused’s criminal history.
Aggravating Factors Considered in Sentencing
Under Section 718.2(a)(ii.1) of the Criminal Code, an “intent to profit” from child pornography is a codified aggravating factor. However, courts also regularly consider several non-codified factors when determining harsher sentences:
- Large volume of child pornography materials.
- The children depicted are very young.
- A repeat offence or criminal record related to child pornography.
- Involvement in the production or creation process.
- Evidence that children were directly abused during creation.
These factors can significantly increase the severity of the sentence imposed.
Additional Consequences of a Conviction
A conviction for a child pornography offence carries long-lasting consequences beyond imprisonment:
- Mandatory inclusion in the National DNA Data Bank.
- Registration in the National Sex Offender Registry.
- Restrictions on being in places frequented by children, such as parks, schools, and recreational facilities.
- Prohibition on working or volunteering in roles involving children.
- Travel restrictions and difficulties obtaining visas or entering other countries.
Making and Distributing Child Pornography
Both making and distributing child pornography are indictable offences with severe penalties:
| Offence | Classification | Mandatory Minimum Sentence | Maximum Sentence |
|---|---|---|---|
| Making / Producing | Indictable only | 1 year imprisonment | 14 years |
| Distributing / Selling | Indictable only | 1 year imprisonment | 14 years |
Conviction for these offences results in mandatory minimum imprisonment of one year, reflecting the gravity with which Canadian law views the creation and dissemination of child pornography.
Possessing Child Pornography
Possession of child pornography includes physical possession or having the materials under your direct or indirect control. It does not matter whether you have viewed the materials — the mere act of possession is against the law.
Possession can be charged as either a summary conviction offence or an indictable offence, with different sentencing ranges:
| Classification | Mandatory Minimum Sentence | Maximum Sentence |
|---|---|---|
| Indictable offence | 1 year imprisonment | Up to 10 years |
| Summary conviction | 6 months imprisonment | Up to 2 years |
The severity of the sentence depends on the circumstances of the offence and the classification of the charge.
Accessing Child Pornography
Accessing child pornography, such as seeking or viewing illegal materials online, carries penalties similar to possession:
| Classification | Mandatory Minimum Sentence | Maximum Sentence |
|---|---|---|
| Indictable offence | 1 year imprisonment | 10 years |
| Summary conviction | 6 months imprisonment | 2 years |
Child Pornography Defences
A skilled criminal defence lawyer will defend alleged child porn offenders similarly to how they would strategize other defences. This entails raising reasonable doubts about the Crown’s evidence and narrative describing the offence, along with challenging the actus reus and mens rea needed for conviction.
How to Beat a Child Pornography Charge
Defence lawyers have the edge over the Crown in criminal cases—including those involving child porn—because the lawyer does not have to prove their client innocent. Instead, the Crown must prove that the alleged offender is guilty beyond all reasonable doubt and that they committed the offence with intent and/or knowledge.
Naturally, the strength of the Crown’s case is significantly dependent upon the evidence. A skilled defence lawyer can unravel the Crown’s case if the evidence is weak – along with raising reasonable doubt, a criminal defence child pornography lawyer has several distinct defence stratagems they may be able to use.
“In child pornography cases, every word and every digital trace matters. False accusations can ruin lives, which is why building a precise and professional defence that protects the rights of the accused is absolutely critical.”
Legitimate Purpose & No Risk of Undue Harm
Section 163.1 (6) of the Criminal Code provides defendants with two legally viable defences to child porn charges. Defendants cannot be convicted if the act constituting the offence “has a legitimate purpose relating to the administration of justice or to science, medicine, education or art.” They also cannot be convicted if the act does not pose an undue risk of physical or psychological harm to persons under 18. To the most possible extent, criminal defence lawyers will assess whether or not their client’s case details fall under either of these parameters.
Lack of Knowledge Regarding Age
While the Code’s Section 163.1 (5) asserts that believing that a person depicted in visual representations of child porn was 18 or older is not a defence, defendants may get around this by proving that they took “all reasonable steps to ascertain the age.” This roundabout defence will fail if the defendant did not take reasonable steps to ensure that the visual representation did not depict the person as being under 18.
Lack of Control
This defence argues that the defendant lacked control over the child porn materials, and is most effective in cases where physical possession or access may not be direct. As the adage notes, “possession is nine-tenths the law,” but with child porn, the Crown must prove it beyond a reasonable doubt.
Innocent Possession
As a “public duty defence,” this seeks to justify innocent possession or access of child porn based on the defendant’s plan to turn it over to authorities or to destroy it immediately. Timelines regarding the defendant’s possession or access to the materials generally play a significant role in whether this defence is viable.
Private Use
This defence emerged from the Canadian Supreme Court’s R. v. Sharpe decision, allowing for a class of materials for private use. This class involves self-created expressive material and personal recordings of lawful sexual activities; when this defence is raised, the Crown must disprove the defendant’s claim beyond a reasonable doubt. This defence cannot be raised if the expressive material poses more than a nominal risk to children, and where there is limited potential for its harmful use by others.
Violation of Constitutional Rights
Skilled criminal defence lawyers carefully examine all elements of the Crown’s case to determine whether or not the police violated the defendant’s Charter Rights during the investigation, arrest, and processing. Any procedural mistakes or failure to honour a defendant’s Charter Rights can lead to evidence suppression or raise other challenges to the Crown’s case.
Secure the Services of a Skilled Criminal Defence Lawyer
Due to the complexities of the law and likely unfamiliarity with criminal court procedures, anyone facing child porn charges should not try to defend themselves. Instead, a competent criminal defence lawyer with working practice on child pornography cases offers you the best option for securing a favourable outcome.
If you’ve been charged with a child porn offence in the Greater Toronto Area, contact our team of knowledgeable child pornography lawyers to secure your best defence today.
Frequently Asked Questions (FAQs)
1. Is it illegal to possess fictional or cartoon child pornography in Canada?
Yes. According to the Supreme Court of Canada’s decision in R v. Sharpe, 2001 SCC 2, fictional, written, or animated material that depicts children in a sexual manner can be considered child pornography, even if no real children were involved.
2. What is the minimum sentence for possessing child pornography in Canada?
The mandatory minimum sentence is six months of imprisonment if convicted by summary conviction, and one year if convicted by indictment.
See: Criminal Code, Section 163.1(4), (4.1)
3. Can I be charged if I didn’t share or distribute the material, only possessed it?
Yes. Mere possession — even without sharing, distributing, or viewing — is illegal.
See: Criminal Code, Section 163.1(4)
4. Is there any situation where child pornography is legally allowed in Canada?
Only in extremely narrow exceptions recognized in R v. Sharpe, 2001 SCC 2, such as self-created materials kept strictly for personal use and not distributed. These are highly limited and legally risky.
5. What are the consequences beyond prison if I’m convicted?
In addition to imprisonment, you may face:
- Mandatory registration in the National Sex Offender Registry
- Prohibitions under the Criminal Code, Section 161, from being near children or working with them
- Inclusion in the National DNA Data Bank
- Lifetime damage to your employment, travel privileges, and reputation
6. How is “accessing” child pornography different from “possessing” it?
Accessing child pornography — such as intentionally searching for it online — can be charged separately under Criminal Code, Section 163.1(4.1), even if no files are stored. It carries the same penalties as possession.
7. Can I be charged if I didn’t know the material was illegal?
Lack of knowledge may not protect you. If you knowingly accessed or stored content that meets the legal definition of child pornography, you can still be charged. See Section 163.1(1) for definitions.
8. Can police monitor my online activity for child pornography?
Yes. Canadian law enforcement, including the RCMP’s National Child Exploitation Crime Centre (NCECC), actively investigates and monitors online child exploitation with national and international tools.
9. Will I go to jail if convicted of making or distributing child pornography?
Yes. Both offences are always prosecuted as indictable and carry mandatory minimum prison sentences of one year. The maximum sentence is 14 years.
See:
Section 163.1(2): Making child pornography
Section 163.1(3): Distribution, selling, or making available
