Making Child Pornography

The offence of making child pornography is outlined in section 163.1(2) of the Criminal Code. It states that a person is guilty of making child pornography if they create child sexual abuse material which can be pictures, videos, or written descriptions.

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 photoshops themselves into an existing image that constitutes child pornography.

Person A films a child being sexually assaulted.

Cases

R. v. J.S., 2018 ONCA 675

In R. v. J.S., the offender was sentenced to ten years in prison for making child pornography after filming himself abusing young family members and sharing the videos with users online. He was convicted of making child pornography as well as several other serious sexual offences involving multiple children. He was sentenced to additional prison time for the other offences.

R. v. Levin, 2015 ONCJ 290

In R. v. Levin, the offender pled guilty to one count of making child pornography, among other offences, after speaking with an undercover police officer online posing as a young single mother sexually interested in children. The offender sent explicit messages and child pornography to the undercover officer before he was ultimately arrested and charged with several 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.

Private Use

The defence of private use can be used when an individual under the age of 18 has taken a photo of video of themselves that would otherwise be considered child pornography material. If the material remains in the possession of the person depicted in the photo and the photo does not depict illegal sexual activity, this defence can be used.

For example, a sixteen year old person takes a naked photo of themselves. The photo remains in their possession and does not depict illegal sexual activity. If charged, this young person could use the defence of innocent possession.

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