In Canada, the Criminal Code specifies four different kinds of child pornography offences:
- Possession of child pornography
- Accessing child pornography
- Distribution and sale of child pornography,
- Making child pornography
- What constitutes ‘child pornography’ in Canada?
In Canada, child pornography can be more than just images or film In fact, we consider all of the following to be child pornography:
Photographs, films, or other visual representations made by electronic or other mechanical means that:
Shows a person under the age of 18 years (or who is depicted as being under the age of 18 years), engaged in or depicted as engaged in explicit sexual activity; or,
The primary characteristic of the photograph, film, or representation is the depiction of the sexual region of a person under the age of 18 years, and this is done for a sexual purpose.
Any sort of audio recording, written material, or visual representation that counsels another to engage in sexual activity with a person under 18 years old.
Any sort of written material created for the purpose of describing sexual activity with a person under 18 for a sexual purpose.
Any audio recording that was created primarily for the purpose of describing, presenting or representing sexual activity with a person under the age of 18.
Possession of child pornography
You commit the offence of possessing child pornography if you are caught in possession of anything that falls within the categories outlined above. You can be found guilty of possessing pornography if you have it directly in your personal possession, or if you knowingly placed it in the possession of another person or place for the use or benefit of yourself or another person.
Making child pornography available
You will be guilty of the offence of making child pornography available if you knowingly made any materials that fall within the definition of child pornography available to others. In order to be found guilty of this offence, it is not even necessary that you took positive steps to provide others with the material. Rather, it is enough if you passively disseminated the pornography. For example, in the context of a file sharing program, it is enough if you upload pornography to a file sharing program with the knowledge that the program makes files available to other users.
Accessing child pornography
You can be found guilty of accessing child pornography when you knowingly and willingly caused the pornography to be viewed, or transmitted to yourself. This offence was specifically created to catch those who are not in possession of child pornography, but who still seek it out to view it on the internet.
The punishment for child pornography offences in Canada
The punishment for a child pornography offence depends on which offence you have been convicted of. If you are found guilty of making or distributing child pornography, you are guilty of committing an indictable offence with a mandatory minimum of one year in jail and a maximum of 14 years.
If you are convicted of possessing or accessing child pornography, you will be guilty of a hybrid offence. If you are prosecuted on indictment, you will face a minimum of one year in prison and a maximum of 10 years. If you are prosecuted on summary conviction, you will face a minimum of 6 months in prison and a maximum of two years less a day.
If a number of aggravating factors are present in your case, you can expect that you will receive a more serious sentence. Some factors that will likely increase the amount of time that you spend in jail include: being caught in possession of a large volume of pornographic material, if the children depicted in the materials are very young, if you had a high level of involvement in the production of the material, and if you intended to profit from the material.
In addition to your sentence you will also likely receive a number of ancillary orders, such as an order to forfeit any property related to the offence, or an order that will restrict your ability to frequent places where you have a highly likelihood of interacting with individuals under the age of 16. If you have been convicted of making, possessing or distributing child pornography, you will also receive an order to register with the National Sex Offender Registry. As a registered sex offender, you will have to provide the police with your personal information, including where you live, what you drive and what you do for work. You will also be obligated to inform the police any time you move, change employment or volunteer, or any time you are going to travel internationally for more than 7 days.