Frequently Asked Questions
What are the Different Child Pornography Offences?
-Making Child Pornography
-Distributing Child Pornography
-Possession of Child Pornography
-Accessing Child Pornography
What if the Child Pornography has been Deleted?
Can Written Material be Considered Child Pornography?
Assaulting a Peace Officer
Child Pornography Forensics
Children’s Aid Society
Sexual Assault Law in Canada
Sex Offender Prohibition Orders
Consequences of a Criminal Record
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
What are the Different Child Pornography Offences?
Making Child Pornography – s. 163.1(2)
The offence of making child pornography applies to any individual who publishes, prints, makes, or possess child pornography for the purpose of publishing it. To be charged with this offence, the individual must create child pornography that differs from other existing instances of child pornography. The maker of child pornography is the individual who controls or directs the instance of child pornography that is unique from other instances of child pornography.
If an individual is found guilty of making child pornography under section 163.1(2) of the Criminal Code, they may be found guilty of an indicatable offence and liable to a term of imprisonment that does not exceed ten years and a minimum term of imprisonment of one year. Alternatively, the individual may be found guilty of an offence punishable by summary conviction and liable to a term of imprisonment that does not exceed two years less a day or a minimum term of imprisonment of six months.
Distributing Child Pornography – s. 163.1(3)
The offence of distributing child pornography applies to any individual who distributes, advertises, possesses, makes available, sells, transmits, exports, or imports child pornography for the purpose of distribution, sale, importation, transmission, advertisement or exportation. The London Crown will be required to prove that the individual had actual knowledge or intent to share the child pornographic files containing child pornography. Or, the London Crown must be able to prove that the accused was willfully blind to the content of the child pornography files shared and that the accused had suspicion that the files were child pornographic in nature but they took no steps to determine if their suspicion was true.
If an individual is found guilty of distributing child pornography under section 163.1(3) of the Criminal Code, they may be found guilty of an indictable offence and resultingly liable to imprisonment for a term not exceeding ten years and a term not shorter than one year. Or, the London Crown may elect to proceed by summary conviction, which would result in the individual being liable to a term of imprisonment not exceeding two years less a day and no less than six months.
Possession of Child Pornography – s. 163.1(4)
The offence of possession applies to any individual who possesses texts, images, or videos that are child pornographic in nature. Viewing a text, image, or video online is not sufficient to prove possession. The London Crown must prove that the accused had control and knowledge of the text, video, or image depicted. As well, the act of possession begins when the accused initiates the downloading of the child pornography file.
If an individual is found guilty of possession of child pornography, the London Crown can elect to proceed by either indictment or summary conviction. If the Crown chooses to proceed by indictment, the accused will be liable to imprisonment for a term that does not exceed gives years and to a term that is not less than six months. If the London Crown elects to proceed by summary conviction, the accused will be liable for a term of imprisonment that is no longer than 18 months and to a minimum term of imprisonment of 90 days.
Accessing Child Pornography – s. 163.1(4.1)
Section 163.1(4.2) explains that a person who access child pornography is an individual who knowingly transmits or views child pornography. The accused must know that nature of the materials are child pornography or be wilfully blind to the nature of the materials. This offence is separate from the offence of possession since the material is not possessed but is viewed instead.
Every individual who accesses child pornography may be guilty of an indictable offence and will be liable to a term of imprisonment not longer than five years and to a term of imprisonment of at least six months. If the London Crown chooses to instead proceed by summary conviction, the accused will be liable to imprisonment for a term no longer than 18 months and no shorter than 90 days.
What if the Child Pornography Materials are Deleted?
The fact that a child pornography file has been deleted does not nullify or alter the initial possession of the files. However, if an individual quickly deletes child pornography files, this may suggest to the judge that there was an intention by the accused to prevent sharing of the files. If the child pornography file has been deleted but it is not overwritten and can still be recovered, a Crown attorney seeking to prove possession will likely have to establish that the individual knew that the child pornography materials were still accessible and that the individual knew how to access them.
Can Written Materials be Considered Child Pornography?
Yes, written materials may be considered child pornography. Sections 163.1(1)(b) and 163.1(1)(c) explain that written materials are included in some definitions of child pornography. If a written material advocates or counsels sexual activity with an individual between the ages of zero and seventeen, it is considered child pornography. As well, a written material which has a dominant characteristic of describing sexual activity with a person aged zero to seventeen for a sexual purpose is also considered child pornography.