Table of contents:
- What Are the Types of Child Pornography Offences?
- High Court Mandated Exceptions
- What is Needed to Convict
- Punishment for Child Pornography in Canada
- Mandatory Minimum and Maximum Prison Terms
- Making Child Pornography
- Distributing Child Pornography
- Possessing Child Pornography
- Accessing Child Pornography
- Child Pornography Defences
- Secure the Services of a Skilled Criminal Defence Lawyer
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 2001, Canada’s Supreme Court delineated two exceptions to what constitutes child porn in its precedent-setting R v. Sharpe 2001 SCC 2 decision. To balance the societal interest in regulating child pornography against the Charter Right to freedom of expression, the high court defined two exceptions to the Criminal Code’s definition of child porn:
- “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
- 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.”
However, in its decision, the high court also ruled that Canada’s child porn laws cover purely fictional characters—visual or written—even if no actual children were involved in its production.
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
Punishment for child porn charges in Canada ranges from a minimum of six months in jail to a maximum of 14 years imprisonment. Possession and access offences can be charged by summary conviction or indictment, while making or distributing child porn is solely an indictable offence.
Aggravating Factors Considered in Sentencing
In weighing sentences, the Criminal Code only defines “intent to make a profit” as an aggravating factor that judges should consider. Non-codified aggravating factors that can lead to a harsher penalty include:
- Large amounts of child porn materials.
- The children were significantly underage.
- A history of child porn offences.
- High-level participation in child porn production efforts.
- The involved children were abused.
Other Repercussions of a Child Porn Conviction
In addition to court-ordered imprisonment, those convicted of child porn charges face other repercussions, including:
- Mandatory enrollment and compliance with the National Sex Offender Registry.
- Prohibitions on being in areas where children may be present.
- Mandatory DNA inclusion in the National DNA databank.
- Limits on working with youth or doing volunteer work that involves children.
Mandatory Minimum and Maximum Prison Terms
The mandatory minimum and maximum prison terms convicted child porn offenders can be sentenced to are highlighted in the below table:
| Offence | Criminal Code Section | Minimum Sentence | Maximum Sentence |
| Making Child Pornography | S. 163.1 (2) | One Year | 14 Years |
| Distribution of Child Pornography | S. 163.1 (3) | One Year | 14 Years |
| Possession of Child Pornography | S. 163.1 (4) | One Year as Indictable Offence. Six Months as Summary Conviction. | 10 Years as Indictable Offence. Two Years as Summary Conviction. |
| Accessing Child Pornography | S. 163.1 (4.1) | One Year as Indictable Offence. Six Months as Summary Conviction. | 10 Years as Indictable Offence. Two Years as Summary Conviction. |
Making Child Pornography
If you are convicted of making, printing, publishing, or possessing with the intent to publish any form of child pornography, you will face severe punishment.
Indictment
Charged solely as an indictable offence, the mandatory minimum penalty is one-year imprisonment. The maximum sentence the courts can hand down for this offence is 14 years imprisonment.
Distributing Child Pornography
Considered equally as egregious as making child pornography, if you transmit, distribute, sell, import, export, possess with the intent of transmission, or otherwise make child porn available, you face harsh punishment if convicted.
Indictment
Distribution is charged solely as an indictable offence and carries a mandatory minimum penalty of one-year imprisonment. The maximum sentence for this offence is 14 years imprisonment.
Possessing Child Pornography
Possession of child pornography can be physical, or if you have the porn under your direct or indirect control. It does not matter whether you have viewed the materials, as the mere act of possession is against the law.
Indictment
When charged as an indictable offence, a conviction carries a mandatory minimum one-year prison term, and the judge can set penalties of up to 10 years in prison.
Summary Conviction
As a summary conviction offence, child porn possession carries a mandatory minimum six-month jail sentence, with a maximum of two years.
Accessing Child Pornography
Similar to possession and with the same penalties, accessing child porn accounts for offenders seeking child porn on the Internet.
Indictment
As an indictable offence, these charges carry a mandatory minimum one-year prison term, with a maximum of up to 10 years.
Summary Conviction
For summary convictions, accessing child porn carries a mandatory minimum six-month jail sentence, with a maximum of two 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.
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.
If you need legal support, contact Vilkhov Law for a free consultation:
Toronto Criminal Lawyers
Etobicoke Criminal Lawyers
Scarborough Criminal Lawyers
Newmarket Criminal Lawyers
Brampton Criminal Lawyers
Mississauga Criminal Lawyers
