What is Child Pornography

Child pornography offences carry extremely serious legal consequences and uniquely significant social stigma. It is illegal to make, possess, access, or distribute child pornography in Canada. The Criminal Code's's definition of Child Pornography is not necessarily intuitive. If you are facing Child Pornography charges it is within your interest to seek legal advice as soon as possible.

Definition of Child Pornography

It is illegal to make, possess, access, or distribute child pornography in Canada. The Criminal Code's definition of Child Pornography includes:

1. visual depictions of persons under 18 engaging in explicit sexual activity;
2. visual depictions where the dominant characteristic is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under 18;
3. visual representations, recordings, or written material that advocates or counsel sexual activity with a person under 18 that would be an offence under the Criminal Code;
4. 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
5. audio recordings that have as their dominant characteristic 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.

Child Pornography includes not only materials that relate to real children, but also depictions that stem from fiction or the creator's imagination (See e.g. R v Sharpe, [2001] 1 SCR 45 at para 38).

What are the Potential Sanctions for Child Pornography Offences

Under s. 163.1 (2) of the Criminal Code Making Child Pornography carries a maximum sentence of 14 years imprisonment. The mandatory minimum sentence provided in the Criminal Code has been found to be unconstitutional and of no force and effect (See e.g. R v Joseph, 2020 ONCA 733 at para 165).

Under s. 163.1 (3) of the Criminal Code Distributing Child Pornography (or Possession of Child Pornography with the Intent to Distribute, Make Available, etc.)  carries a maximum sentence of 14 years imprisonment. The mandatory minimum sentence provided in the Criminal Code has been found to be unconstitutional and of no force and effect (See e.g. R v Walker, 2021 ONSC 837 at para 85).

Under ss. 163.1(4) and 163.1(4.1) of the Criminal Code the offences of Accessing and Possessing Child Pornography can both be prosecuted as either summary conviction or indictable offences. If the Crown (Prosecution) prosecutes an individual by indictment, the maximum sentence is 10 years imprisonment. If the Crown proceeds summarily, the offence carries a maximum sentence of 2 years less a day imprisonment.  A number of decisions have found both the summary and indictable mandatory minimums to be unconstitutional and of no force and effect (See e.g. R v Walker, 2021 ONSC 837 at paras 35, 85).

What Defences are Available during a Child Pornography Case

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes some defences that may be available in an Child Pornography case:

Factual Innocence: If the Crown is unable to prove the following elements beyond a reasonable doubt, they will have failed to discharge their burden:

Possession of Child Pornography

• the identity of the offender;
• the date and time of the incident and jurisdiction;
• that the accused intentionally possessed videos, images, texts, audio, etc.;
• that those videos, images, texts, audio, etc. met the definition of child pornography; and
• that the accused knew or was willfully blind to whether materials were child pornography

Accessing Child Pornography

• the identity of the offender;
• the date and time of the incident and jurisdiction;
• that the accused intentionally accessed videos, images, texts, audio, etc.;
• that those videos, images, texts, audio, etc. met the definition of child pornography;  and
• that the accused knew or was willfully blind to whether materials were child pornography

Making Child Pornography

• the identity of the offender;
• the date and time of the incident and jurisdiction;
• that the accused intentionally made, printed, published, or possessed with the intent to publish, the materials in question;
• that the materials in question met the definition of child pornography; and
• that the accused knew or was willfully blind to whether materials were child pornography.

Distribution, etc. of Child Pornography

• the identity of the offender;
• the date and time of the incident and jurisdiction;
• that the materials in question were intentionally transmitted, made available, distributed, sold, advertised, imported, exported, or possessed for the purposes of doing any of the above;
• that the material in question met the definition of child pornography; and
• that the accused knew or was willfully blind to whether materials were child pornography.

Mistaken Belief in Age: The defence of mistaken belief in age may be used to rebut the inference that an accused charged with a child pornography offence was aware that the material was child pornography. However, under s. 163.1 (5) of the Criminal Code, this defence is limited when an accused is charged with making, printing, publishing, or possession with the intent to publish under s. s. 163.1 (2) of the Criminal Code. In these cases, an accused must also demonstrate that they took reasonable steps to ascertain that the person depicted was 1. over the age of 18, and 2. was being depicted as over 18.

Public Good: Under s. 163.1 (6) of the Criminal Code, a defendant may advance a public good defence to a child pornography charge where the act that is alleged to constitute the offence (a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (b) does not pose an undue risk of harm to persons under the age of eighteen years.

The Supreme Court has found that this defence has several elements: 1. an accused had a genuine, good faith, reason to commit the act related to protected activities (administration of justice; science, medicine, and education; and art); 2. that a reasonable person would see a connection between an accused's actions and their purpose; 3. that a reasonable person would see a connection between the accused's purpose and the protected activities; and 4. the activities do not create a significant and objectively ascertainable risk to children. [R v Katigbak, 2011 SCC 48, at paras 57 "“ 67.]

Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:

• the right against unreasonable search and seizure;
• the right to not be arbitrarily detained;
• the right to be informed promptly of the reasons for arrest;
• the right to retain and instruct counsel without delay; and
• the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

Withdrawal of Charge(s): The Crown may decide to withdraw a defendant's charge(s) where:

• The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
• It is not in the public interest to prosecute.

Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks. There are two types of stays of proceedings, a judicial stay and crown stay of proceedings. A judicial stay is a rarely granted remedy which permanently ends a prosecution (see e.g. Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para 83). The Crown may also choice to stay a proceeding. The difference between a Crown stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.

Diversion: Diversion (often referred to as "Direct Accountability" or "DAP" ) is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the defendant, including but not limited to:

• A written apology letter;
• Charitable donation(s);
• Community service/volunteer hours;
• Counselling and/or programming; and
• Restitution/compensation.

Next Steps

The information above provides a general overview of child pornography offences, as well as potential penalties and defences. However, no two cases are alike. Every child pornography case is fact-specific and ranges in complexity, depending on the issues at play.

Are you subject to charges relating to an alleged child pornography offence? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.