What is Child Pornography?
Child pornography can be more than just images. It includes any visual representation 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 being 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, done for a sexual purpose.
Child pornography also includes any sort of audio recording, written material, or visual representation that counsels someone to engage in criminal sexual activity with a person under 18 years old. Furthermore, any sort of written material created for the sexual purpose of describing criminal sexual activity with a person under 18 years old. Finally, it includes any audio recording that describes, presents or represents criminal sexual activity with a person under the age of 18 for a sexual purpose.
The Canadian Criminal Code specifies four different kinds of child pornography offences:
- Accessing child pornography,
- Possessing child pornography,
- Distributing child pornography, and
- Making child pornography.
Accessing Child Pornography
According to section 163.1(4.2) of the Code, accessing child porn entails knowingly causing child pornography to be viewed by, 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.
Possessing Child Pornography
To be convicted of possessing child porn, the Crown must prove beyond a reasonable doubt that you had knowledge and control of any material included in 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.
Distributing Child Pornography
Every person who transmits, makes available, distributes, sells, advertises, imports, exports, or possesses child pornography for the purpose of doing any of these things can be convicted of distributing child porn.
Making Child Pornography
This entails making, printing, publishing, or possessing for the purpose of publishing any material listed in the categories above.
Punishment for Child Pornography Offences in Canada
According to the Criminal Code, the punishment for a child pornography offence depends on which offence you have committed.
If you are found guilty of making or distributing child pornography, it is a straight indictable offence with a mandatory minimum sentence of 1-year imprisonment and a maximum of 14 years. Because it is a strictly indictable offence, the Crown and the Court take it very seriously.
Both possessing and accessing child pornography are hybrid offences, meaning that the Crown can choose to prosecute you by way of indictment or summarily, depending on the facts of your case. If you are prosecuted on indictment, you will face a minimum of 1-year imprisonment and a maximum of 10 years. If you are prosecuted summarily, you will face a minimum of 6 months in prison and a maximum of two years less a day.
Where certain aggravating factors are present, you can expect a more severe sentence. Some factors that will likely increase the amount of jail time you face are:
- Where you are caught in possession of a large volume of pornographic materials,
- Where the children depicted in the materials are very young,
- Where you have committed a child pornography offence before,
- Where you had a high level of involvement in the production of the material,
- Where you were in a position of trust or authority with the subject,
- Where you abused the subject,
- Where you intended to profit from the material, and more.
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, and/or an order to restrict your ability to frequent locations where you have a high 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 positions, or travel internationally for more than 7 days.