Making Sexually Explicit Material Available to a Child
The offence of making sexually explicit material available to a child is outlined in section 171.1(1) of the Criminal Code.
A person commits the offence of making sexually explicit material available to a child when they give, distribute, make available, or sell sexually explicit material to someone under the age of 18 to facilitate the commission of specific sexual, abduction, or trafficking offences with respect to that child. The specific offences depend on the child’s age, and more offences are included if the child is under 16 or 14.
Examples
Person A, who is 35, gives person B, who is 17, photographs of person A naked and engaged in explicit sexual activity to entice person B into sending naked pictures to and having sex with person A.
Person C believes that person D, an undercover police officer, is 16 years old, and person C sends person D videos of sexual activity to try and convince person D to meet up with and engage in sexual activity with person C.
Person E writes letters to person G, who is 13, that detail explicit sexual activity between person E and person G to convince person G to run away from home and live with person E.
Cases
R. v. Mootoo, 2021 ONSC 5984
In R. v. Mootoo, the accused was charged with making sexually explicit material available to a child when he sent a 15-year-old girl photographs of sexually explicit activity to convince her to send the accused sexually explicit images of herself and to prostitute herself for him.
R. v. Burch, 2021 ONSC 484
In R. v. Burch, the accused was charged when he showed his stepdaughter pornographic videos to normalize the sexual behaviour and to convince her to have sex with him.
Offence Specific Defence(s)
Non-criminal purpose
Where the person does not provide the child with sexually explicit materials to facilitate the commission of a specific sexual, abduction, or trafficking offence, they may not have completed the offence of making sexually explicit material available to a child. For example, if a parent shows their child the homepage of a website of sexually explicit material to teach them not to open links from strangers, they may not have completed the offence of making sexually explicit material available to a child.
Genuine Belief in Age
Where the person has taken steps to ascertain the child’s age and genuinely believes the child is over the age of 18, they have not completed the offence of making sexually explicit material available to a child where they give them sexually explicit material.
Not Sexually Explicit
Where the material sent to the child does not meet the definition of sexually explicit material, the person making it available will not have completed the offence of making sexually explicit material available to a child. For example, if a high school teacher distributes an image of a woman’s genital region to their students to teach them about female reproductive and sexual health, the high school teacher will not have completed the offence of making sexually explicit material available to a child.