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Child Pornography, according to s.163.1 of the Criminal Code, encompasses any visual, written, or audio material displaying or depicting a person under 18 engaged in sexual activity or showing their genitals. It also covers content advocating or portraying sexual activity with someone under 18. Criminal offences include making, distributing, possessing, or accessing child pornography. Convictions rely on proof beyond a reasonable doubt of the underage person's involvement and the lack of legitimate purpose for the material. A claim of ignorance about the person's age is not a valid defence unless all reasonable steps to verify age were taken. The Canadian Charter of Rights and Freedoms offers protection against unreasonable search and seizure. Penalties for these offences range from a minimum of six months to a maximum of 14 years in prison.
Table of Contents:
What is Child Pornography?
According to s.163.1 of the Criminal Code, child pornography can be:
- a photo, video or other visual representation that shows a person who is or is depicted as being under the age of 18 engaged in explicit sexual activity, or if their sexual organs are being shown;
- any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under 18;
- any written material that describes sexual activity with a person under 18; and
- any audio recording that captures sexual activity with a person under 18.
Charges used to Prosecute Child Pornography
There are various offences to prosecute those who make, distribute and view child pornography that all fall under s.163 of Code. If you are convicted of any of the following offences, the court will consider it an aggravating factor when it comes to sentencing if the offence was committed with the intent to make a profit.
Making Child Pornography
It is an offence to make, print, publish or possess for the purpose of publication any child pornography. This charge is an indictable offenceIndictable offences are more-serious criminal offences with a maximum punishment of 14 years in prison upon conviction and a minimum punishment of one year in jail.
Distribution of Child Pornography
It is an offence to transmit, distribute, sell or make available child pornography. This charge is an indictable offence with a maximum punishment upon conviction of a 14-year prison term and a minimum punishment of one year in jail.
Possession of Child Pornography
It is an offence to be in possession of child pornography. If the charge is treated as an indictable offence you will face a maximum of 10 years in prison upon conviction, with the minimum penalty of one year in jail. If the charge is treated as a summary convictionUsed for lesser offences, the maximum punishment upon conviction is imprisonment for two years less a day with the minimum punishment of six months in jail.
Accessing Child Pornography
It is an offence to access child pornography. If the charge is treated as an indictable offence you will face a maximum prison sentence of 10 years upon conviction, with the minimum penalty of one year in jail. If the charge is treated as a summary conviction, the maximum punishment is imprisonment for two years less a day with the minimum punishment of six months in jail.
What is Needed to Convict
The verdict in every case depends on the evidence. The Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you committed the offence and that the person involved in the pornography was under 18, or that you believed they were under 18.
Section 163.1 (6) of the Code states you cannot be convicted if you had a "legitimate purpose" for the child pornography, related to the administration of justice or to science, medicine, education or art. A conviction should also not be handed down in cases where there is not an "an undue risk of harm to persons" under 18. The subsection adds that it is a "question of law" 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 should be free from unreasonable search and seizure, which could be a factor if the evidence against you was unlawfully obtained.
It is also not a defence to say that you believed the person being depicted was 18 years old or more, unless you "took all reasonable steps to ascertain the age of that person."
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Lamb & O’Brien
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Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
