Distribution of Child Pornography

Distribution of Child Pornography

The offence of making available or distributing child pornography is outlined in section 163.1(3) of the Criminal Code. It states that person is guilty of distributing child pornography if they make it available to other people, such as file sharing or posting on social media.

Child pornography material is any film, photo, video, or other visual representation, whether created electronically or by hand that shows a child engaged in sexual activity or where the dominant characteristic of the depiction is sexual in nature, or where the depiction focuses on the sexual organs or anus of a child.

Child pornography material can also be written descriptions, drawings, or audio recordings that counsel or advocate for sexual contact with children or that describes sexual activity of any kind with a child.

Examples

Person A sends child pornography material to another individual over the internet.

Person A makes child pornography available for other internet users to download using file sharing software.

Cases

R. v. Inksetter, [2018] ONCA 474

In R. v Inksetter, the offender was found in possession of more 1.2 million images of child pornography. Law enforcement officials deemed it to be one of the worst collections of child pornography ever discovered in Ontario. The offender was convicted of possession of child pornography as well as make available child pornography for distributing the material to other individuals.

R. v. J.S., 2018 ONCA 675  

In R. v. J.S., the offender was sentenced to 4.5 years in prison for making child pornography available after sharing the videos of child pornography he had created. He was convicted of making child pornography available as well as several other serious sexual offences involving multiple children. He was sentenced to additional prison time for the other offences.  

Offence Specific Defences

Material does not meet the Definition of Child Pornography

An individual charged with child pornography may argue that the material in question does not meet the definition of child pornography.

For example, an individual takes a photo of their naked child taking a bath. The photo does not focus on the child’s genitals or anus and was innocently taken by the child’s parent. This may not meet the definition of child pornography.

Additionally, if the individual(s) depicted in the images are not under the age of 18, the material will not meet the definition of child pornography.

Public Good

An individual charged with child pornography may argue that they possessed or accessed the material for a legitimate purpose related to the administration of justice.

For example, a lawyer legitimately in possession of child pornography material seized from a client in a child pornography investigation may use this defence.

Innocent Possession

The defence of innocent possession can be used where an individual possesses child pornography material for the sole purpose of destroying it or surrendering it to law enforcement.