Making Sexually Explicit Materials Available to Child (s. 171.1) Charges in Canada: Offences, Defences, Punishments

What is “making sexually explicit materials available to a child”?

As indicated by its name, a s. 171.1 Criminal Code offence occurs when one makes some kind of pornographic or sexually explicit material available to a minor. This must be done for the purposes of facilitating another sexual offence as legislated under Part V of the Criminal Code.

There are three subsections under s. 171.1 of the Criminal Code. One commits making sexually explicit materials available to a child when they either:

(a) transmit, make available, distribute or sell sexually explicit material to a person who the accused believes is under 18 years of age for the purposes of facilitating a:

• section 153(1) offence(sexual exploitation);
• section 155 offence (incest);
• section 1 offence(child pornography);
• section 170 offence(parent or guardian procuring sexual activity);
• section 171 offence(householder permitting prohibited sexual activity);
• section 011 offence(trafficking in persons, under 18);
• section02(2) offence(material benefit from trafficking, under 18);
• section 03(2) offence(withholding or destroying docs, under 18);
• section 1(2) offence(commodification to obtain sexual services for consideration – person under 18);
• section 2(2) offence(material benefit from sexual services provided — person under 18); or
• section 3(2) offence(procuring — person under 18)

(b) transmit, make available, distribute or sell sexually explicit material to a person who the accused believes is under 16 years of age for the purposes of facilitating a:

• section 151 offence (sexual interference);
• section 152 offence (invitation to sexual touching);
• section 160(3) offence (bestiality in presence of or by child);
• section 173(2) offence (exposure to person under 16);
• section 271 offence (sexual assault);
• section 272 offence(sexual assault with a weapon or causing bodily harm);
• section 273 offence (aggravated sexual assault); or
• section 280 offence (abduction of a person under 16)

OR

• transmit, make available, distribute or sell sexually explicit material to a person who the accused believes is under 14 years of age for the purposes of facilitating a:
• section 281 offence (abduction of a person under 14).

Examples

There are many different scenarios or incidences which could constitute a s. 171.1(1) offence, however, some examples might include:

• Direct messaging a minor sexually explicit material in order to lure them
• Making pornography available to a minor through any medium (online, paper, video, photos, etc.) before sexually assaulting that minor
• Selling or offering pornographic material through any medium (online, paper, video, photos, etc.) before abducting a minor
• Leaving out sexually explicit material for a minor to find to groom them before committing a sexual offence as enlisted above.

Defences

A strong defence to a s. 171.1 charge will depend on the circumstances of one’s case. Defences against making sexually explicit material available to a child offences will often be specific to the facts of one’s case.

While these offences are taken very seriously by the courts, some defences which might be available include:  

• You took reasonable steps to ascertain the young person’s age
• Lack of mens rea
• Applicable Charter defences

Punishment

Section 171.1 offences are hybrid. This means that based on the specific facts and circumstances surrounding your case, the Crown can elect to proceed via indictment (more serious category of criminal offences) or summarily (less serious category of criminal offences). The prospective sentence depends on the Crown’s election. This type of offence is considered to be quite serious and therefore, carries with it a minimum 30-day term of imprisonment.

• If the offender is charged summarily, they are subject to a minimum sentence of 30 days imprisonment but to a term of imprisonment not exceeding 6 months.
• If the offender is charged via indictment, they are subject to a minimum sentence of 90 days imprisonment but to a term of imprisonment not exceeding 2 years.

This is outlined in s. 171.1(2) of the Criminal Code.

Overview of the Offence 

Section 171.1 of the Criminal Code reads:

Subsection (1) of section 171.1 of the Criminal Code outlines the actual offence; subsection (2) of the section provides the minimum and maximum penalties upon conviction of the offence (i.e., the punishment); subsection (3) sets up a presumption that unless rebutted by the defendant, the victim was represented to the accused as being underage (i.e., the burden to prove that the accused took all reasonable steps to learn the age of the victim rests on the accused); subsection (4) forbids any defence which claims that the accused did not know the youth’s age (unless the accused took reasonable steps to ascertain the age of the young person); and subsection (5) defines sexually explicit material.

To convict, the Crown must prove both the mens rea (that the accused had the requisite mental intent to commit the offence) and the actus reus (that the physical act of the offence actually occurred). When both are proven beyond a reasonable doubt, a conviction is entered. These elements are discussed in more detail below.

The Guilty Act (Actus Reus)

The actus reus for a s. 171.1 offence is essentially broken up into two parts. To convict, the Crown must show that:

• The accused either transmitted, made available, distributed or sold sexually explicit material to a minor (e.g., posting pornographic content on the internet); and
• the material was sexually explicit as defined under 171.1(5) of the Criminal Code (in short, this is generally pornographic materials whether conveyed through film, video, photos, electronically, mechanically, etc.).

The courts have considered an array of different acts and whether they constitute “transmitting”, “making available”, “distributing”, or “selling” materials. For example, making a file available or accessible through a file-sharing software makes out this part of the offence (see: R v Benson, 2010 SKQB 459 (CanLII)). Files available publicly for download even though at face value they are not viewable or available until downloaded, still make out this aspect of the offence (see: R v Benson, 2010 SKQB 459 (CanLII)). Even storing such files on a hard drive which is accessible to a minor could meet the actus reus requirements for this offence (see: R v Mollon, 2019 BCSC 423 (CanLII)). Sending files or images directly to a minor (see: R v Mootoo, 2021 ONSC 2596 (CanLII)), leaving them in the open for discovery, posting them online, etc. (see: R v Harris, 2017 ONSC 940 (CanLII)) can all constitute this element of the offence.

The Crown must prove these two elements beyond a reasonable doubt.

The Guilty Mind (Mens Rea) 

The mens rea generally speaks to the mental intent of the accused (i.e., did the accused have the requisite mental intent for committing the crime for which they’ve been accused of?). This is often confused with the accused’s ‘motive’ for committing the offence, however, this is not what the court is considering here.

Intent in the context of this offence is established when two items are shown:

• The accused believed or knew the victim was a minor; and
• the transmission, making available, distribution, etc. of the materials intended to groom or reduce the sexual inhibitions of the target and facilitate one of the enumerated offences listed within s. 171.1(1)(a)-(c) depending on the victim’s age.

As mentioned above, the presumption is that the accused believed the victim was a minor and is only rebutted when the defence brings evidence to show otherwise. This presumption was deemed constitutional in R v Morrison, 2019 SCC 15 (CanLII). Where the person truly believed the victim was over the relevant age (14, 16, or 18 years old depending on the subsection the accused is charged under), and can produce evidence which demonstrates that they took ALL reasonable steps to ascertain the age of the victim, the mens rea of the offence is not met (see: R v Levigne, 2010 SCC 25 (CanLII), [2010]2 SCR 3). Negligence or recklessness in ascertaining the victim’s age is insufficient (see: R v Morrison, 2019 SCC 15 (CanLII), [2019] 2 SCR 3). Deciding whether someone took all reasonable steps to ascertain the victim’s age asks whether the reasonable person would have taken further steps if faced with the same scenario (see: R v Duran, 2013 ONCA 343 (CanLII)).

The court in these situations is welcome to consider indicators within the victim’s conduct that might present the victim’s age to the accused such as:

1. the complainant’s physical appearance;
2. the complainant’s behaviour;
3. the ages and appearances of those in whose company the complainant has been found;
4. the relevant activities; and/or
5. the times, places and other circumstances in which the accused observed the complainant and the complainant’s conduct (see: R v Osborne, 1992 CanLII 7117 (NLCA)).

Furthermore, as established in a case called R v Nguyen, 2017 SKCA 30 (CanLII) the court may inquire where there is evidence that the accused knew such facts as would raise the concern that the complainant was too young to consent, whether the accused blinded himself to the obvious and purposely made no inquiry as to the complainant’s age (i.e., wilful blindness).

Typically, the Crown will be able to show that the making available of the sexually explicit material was for the purposes of committing one of the enumerated offences because the accused in many instances is also charged in addition to a 171.1 offence with one of the enumerated offences and this additional offence will have come out of the same transaction. Should this not be the case, the Crown must produce evidence which demonstrates to the court that the accused intended to commit one of the enumerated offences.

Defences

Because of the seriousness in nature of this type of offence and a statutorily embedded prohibition on the defence of a claim that the accused believed the minor was of age (i.e., the law says that claiming you believed the minor was of age is not a defence), defences can be limited (see: s. 171.1(4) of the Criminal Code). Our firm will always take a holistic approach to understanding your case and construct and tailor a defence that fits the specific facts and circumstances of your case to bring forward the best possible defence. Defences that may be available in the context of this offence include:

You took reasonable steps to ascertain the young person’s age

While section 171.1(4) of the Criminal Code limits a defence where the accused claims to have believed the victim was of age, the caveat or exception to this is that this may be rebutted where the accused shows that they took reasonable steps to ascertain the victim’s age and after doing so, was still misrepresented as to the victim’s age. It won’t always be that the accused must ask the victim’s age if there are other indicators which suggest to the accused that the person is of age and the reasonable person would have inferred this (see: R v Tannas, 2015 SKCA 61 (CanLII) and R v RAK, 1996 CanLII 7277 (NBCA)). It is important to note that it is not sufficient to say that the accused believed the victim was of age when they presented themselves online to be older than they actually were and the accused did nothing to corroborate this claim (see: R v W.G., 2021 ONCA 578 (CanLII)). 

Lack of mens rea

A section 171.1(1) offence cannot be asserted where only half of the offence is made out. In other words, simply transmitting, making available, distributing or selling sexually explicit material is not a section 171.1(1) offence on its own (however, as a disclaimer this type of activity could be captured under another Criminal Code offence). This act must be combined with the intention to commit one of the other enumerated crimes enlisted in the subsections of s. 171.1(1) of the Criminal Code. For example, leaving a pornographic magazine out accidentally and your child finds it, is not an offence whereas leaving the magazine out was not meant to lure or groom the youth for the purpose of committing another offence captured within s. 171.1.

Applicable Charter defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Punishments

Making sexually explicit materials available to a child is one of the few offences within the Criminal Code which carries with it a minimum mandatory sentence. The minimum mandatory sentence which may be imposed depends on whether you are convicted via indictment (more serious category of criminal offences) or summarily (less serious category of criminal offences).

In other words, s. 171.1 is a hybrid offence. If the Crown elects to proceed with an indictable charge, the minimum sentence is 90 days imprisonment, and the maximum penalty is 2 years imprisonment. Alternatively, if the Crown elects to proceed summarily, the accused could be liable to a minimum of 30 days imprisonment, and a maximum sentence of six months imprisonment. This is all outlined in s. 171.1(2) of the Criminal Code. Essentially, if convicted of a s. 171.1 you will serve a custodial sentence.

In imposing a custodial sentence, the courts are also free to make ancillary orders.

Some of these additional orders could include:

• Victim protection orders (ss. 21, 732.1(3)(a.1), 732.1(3)(h), 742.3(2)(a.3), 742.3(2)(f) of the Criminal Code).
• Restitution (ss. 738 and 1(3)(h) of the Criminal Code).
• DNA order ( 487.04 of the Criminal Code).
• SOIRA (Sexual Offender Information Registry Act) Orders (ss. 011(1)(a), 490.012(3)), 490.015 of the Criminal Code)
• Victim surcharge fine ( 737 of the Criminal Code).

Frequently Asked Questions

Can you go to jail for Making Sexually Explicit Materials Available to a Child?

If you are convicted of Making Sexually Explicit Materials Available to a Child, you will serve a custodial sentence. Parliament has legislated for a mandatory minimum custodial sentence of either 30 days imprisonment if charged summarily (less serious category of criminal offences) or a mandatory minimum sentence of 90 days imprisonment if charged via indictment (more serious category of criminal offences). This is outlined under s. 171.1(2) of the Criminal Code.

With that being said, sometimes there is an opportunity to plead guilty to an alternative offence which doesn’t carry a mandatory minimum custodial term but is still related to s. 171.1 crimes. A strong defence lawyer will always consider this as an option and will assess the Crown’s flexibility in amending the charges. For more on punishments related to this offence, click here.

Is Making Sexually Explicit Materials Available to Child a serious offence?

Provided that the legislature has attached a mandatory minimum sentence of at least 30 days imprisonment (upon summary conviction), this type of action implies that Parliament and the criminal justice system take these types of offences very seriously. With only minor exceptions, mandatory minimums have been said to be unconstitutional. Seriousness is insinuated whereas s. 171.1 offences still attach a mandatory minimum custodial sentence to it.

Is Making Sexually Explicit Materials Available to a Child a summary or indictable Offence?

Making Sexually Explicit Materials Available to a Child is a hybrid offence. This means that the Crown may elect to proceed either via indictment (more serious category of criminal offences) or summarily (less serious category of criminal offences). The Crown’s election depends on many factors, however, they may consider the accused’s criminal history, the circumstances of the offender, the seriousness of the offence, etc.

Published Decisions

R v DARK, 2018 MBCA 133 (CanLII)

The accused was a live-in boyfriend who consistently sexually abused his girlfriend’s children while she was away at work. The children were between the ages of seven and nine and amongst other acts, he would force the children to watch pornographic material with him. Ultimately, he was charged with three counts of invitation to sexual touching, and two counts of making sexually explicit material available to a person under 18 years of age and sentenced to 11 years imprisonment. The sentencing judge found that the accused abused a position of trust and determined that his moral blameworthiness was very high. Furthermore, the judge found that the accused was unable to control his impulses and behaviour, and therefore, public protection was an important consideration at sentencing. All in all, the judge found that there was little to mitigate against a lengthy period of incarceration. You can read the full decision here.

R v Chicoine, 2019 SKCA 104 (CanLII)

The accused pleaded guilty to making, possessing, accessing, and distributing child porn, luring, making sexually explicit material available to children, arranging to commit sexual offences against children, conspiring to make child porn, and conspiring to sexually assault a child. Between 2011 and 2017, the accused paid women in Romania and in the Philippines $20,000 to sexually abuse their own children and stream it online, in real-time, so he could direct abuse and turn it into child pornography. The accused was sentenced to 12 years imprisonment. The Crown appealed the sentence on the basis that in the context of these types of cases, the principle of proportionality should be placed in higher regard than the principle of rehabilitation – a notion that the sentencing judge seemingly did not apply, as argued by the Crown. The appeal was allowed in part and the accused’s sentence was varied to 15 years imprisonment. While the accused’s personal circumstances should hold some weight at sentencing, the court determined that those circumstances played a lesser role in determining his ultimate sentence and the Court of Appeal noted that the overarching consideration in determining a sentence was the principle of proportionality.

You can read the full decision here.

R v Munroe, 2017 BCCA 141 (CanLII)

In this case, while on parole for offences similar in nature, the accused introduced himself to a 10-year-old boy (the complainant) and the complainant’s mother. The accused ended up becoming the complainant’s tutor and during tutoring sessions the accused masturbated in front of the complainant, exposed the complainant to pornography on the Internet, and tried unsuccessfully, to persuade the complainant to masturbate in front of him. The accused pleaded guilty to invitation to sexual touching, making sexually explicit material available to a minor, and to violating his parole conditions. The accused was sentenced to a total of seven years and six months imprisonment. The term of the sentence comprised six and one-half years for the invitation offence, 18 months concurrent for the making sexually explicit material available… offence and six months consecutive for each prohibition violation. The court found that the aggravating factors included that the complainant was vulnerable, that the accused was in a position of trust, that there was a lengthy period of grooming, and that accused had a record of similar offences. The mitigating factors were that the accused entered guilty pleas at a relatively early opportunity, accepted responsibility, and expressed remorse and a desire to gain control over his pedophilia.

You can read the full decision here.