Child Sexual Abuse and Exploitation Material

According to s.163.1 of the Criminal Code, child sexual abuse and exploitation material (a term that replaced the former legal label "child pornography" in 2024) can be:

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

any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under 18 that would be an offence under the Criminal Code;

any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under 18 that would be an offence under the Criminal Code; and

any audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of sexual activity with a person under 18 that would be an offence under the Criminal Code.

There are various offences to prosecute those who make, distribute and view child sexual abuse and exploitation material (commonly called child pornography), all of which fall under s.163.1 of the Criminal Code. If you are convicted of any of the following offences, the court will consider it an aggravating factor at sentencing if the offence was committed with intent to make a profit.

Making Child Sexual Abuse and Exploitation Material

It is an offence to make, print, publish or possess for the purpose of publication any child sexual abuse and exploitation material. This is an indictable offenceA more serious type of Canadian criminal offence. with a maximum penalty of 14 years in prison and a minimum penalty of one year.

Distribution of Child Sexual Abuse and Exploitation Material

It is an offence to transmit, make available, distribute, sell, advertise, import, export or possess child sexual abuse and exploitation material for the purpose of transmission, making available, distribution, sale, advertising or exportation. This is an indictable offence with a maximum penalty of 14 years in prison and a minimum penalty of one year.

PossessionHaving knowledge and control of something — not only physically holding it, but also an item kept somewhere else that you know about and control. of Child Sexual Abuse and Exploitation Material

It is an offence to be in possession of child sexual abuse and exploitation material. If the charge is treated as an indictable offence, the maximum penalty is 10 years in prison with a minimum of one year. If the charge is treated as a summary convictionUsed for lesser offences offence, the maximum is two years less a day with a minimum of six months.

Accessing Child Sexual Abuse and Exploitation Material

It is an offence to access child sexual abuse and exploitation material. If the charge is treated as an indictable offence, the maximum penalty is 10 years in prison with a minimum of one year. If the charge is treated as a summary conviction offence, the maximum is two years less a day with a minimum of six months.

The verdict in every case depends on the evidence. The Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you committed the offence and that the person shown, described or depicted was under the age of 18, or was depicted as being under 18.

Section 163.1(6) of the Criminal Code provides a defence where you can show that your conduct (a) had a legitimate purpose related to the administration of justice or to science, medicine, education or art, AND (b) did not pose an undue risk of harm to persons under 18. Both conditions must be satisfied.

Section 163.1(7) also confirms that it is a question of law, decided by the judge rather than the jury, whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under 18.

Keep in mind also that under s.8 of the Canadian Charter of Rights and Freedoms, you have the right to be free from unreasonable search and seizure. If evidence against you was obtained in a way that violated that right, it may be challenged.

For a charge of making child sexual abuse and exploitation material involving a visual representation under s.163.1(2), it is not a defence to say that you believed the person depicted was 18 or older, unless you took all reasonable steps to find out their actual age, and, where they were 18 or older, took all reasonable steps to ensure the material did not depict them as being younger than 18.

The Criminal Code now uses the term 'child sexual abuse and exploitation material.' Older sources and some people may still refer to this as 'child pornography.'