Luring Defence Lawyers in Toronto

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TORONTO LURING LAWYER

The Firm regularly defends high-profile allegations of Child Luring, Sexual Interference and Child Pornography.  These offences are aggressively prosecuted. Beyond the potential for severe penal sanctions, a conviction hosts a myriad of profound social, relationship, employment and travel consequences. We handle a number of sex offences, including situations where the solicitation of a minor on the internet or luring is involved. These investigations often involve the use of sophisticated police technologies and the use of forensic internet tracing tools.

The Firm regularly defends complex and sophisticated Luring Stings such as Project Raphael presently being prosecuted in Newmarket. The police tactics used in these complex investigations are often borderline entrapment, where a series of messages are exchanged with an undercover operative initially posing as an adult. Responses elicited by the accused can then be construed and brought into evidence as an admission for seeking sexual services from a minor.

The Firm deals with situations where internet luring or child pornography charges are alleged against law abiding citizens or working professionals with no criminal records. These individuals come from families, are professionals and may not have even been aware that the behavior was criminal or was committed without intent. In November, 2016, the Firm secured a withdrawal of Nine (9) Sex Offence against a TTC Driver Charged with 9 sex offences, including Luring a child.

We work with a network of computer experts, conducting forensic analysis on hard drives and computer systems. These offences are very technical, and difficult to defend. We critically scrutinize police investigative techniques and search warrant protocol, as complex internet surveillance is used by the police during these types of investigations.

The police draw from a large arsenal of sophisticated investigative tools when pursing these types of charges. We have the tools and experience for your defence.

Frequently Asked Questions

What is Luring a Child?
What are some of the Penalties for Child Luring?
What are possible Defences to an Accusation of Luring a Child?
What is Child Pornography?
Can Child Pornography be Written Material?
Are Sexually Explicit Drawings or Anime of children Child Pornography?
Are Sexually Explicit Audio recordings Child Pornography?
What is Making, Printing and Publishing Child Pornography?
What is Transmitting, Distributing or Making Available Child Pornography?
What is Accessing Child Pornography?
What is Possession of Child Pornography?
What are the Penalties Associated with a Conviction for the various Child Pornography Offences?
What are the possible Defences to a Child Pornography-related allegation?
What is a Warrant of Seizure?
Is the Quantity or Nature of the Content Relevant?
What if the Content was Purchased?
What is Making Sexually Explicit Material Available to a Child?
What are some of the penalties for Making Sexually Explicit Material Available to a Child?

Additional Resources

Assault
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers

What is Luring a Child? 

Luring a Child is an offence under s.172.1 of the Criminal Code. It prohibits the use of a computer or other forms of telecommunication to communicate with an underage person for the purpose of facilitating the commission of one of the listed sexual offence. The sexual offences that are covered by this provision are listed under s.172.1, and are categorized according to the age of the victim.

A person cannot use telecommunication with a person under the age of 18, or if the accused believes the complainant is under the age of 18, for the purpose of facilitating the commission of the following offences:

  • 153 – Sexual Exploitation
  • 155 – Incest
  • 163.1 – Making, Accessing, Distributing or Possessing Child Pornography
  • 170 – Parent or Guarding Procuring Sexual Activity
  • 171- Householder Permitting Sexual Activity
  • 212(1) – Procuring (prostitution-related offences)
  • 212(2) – Living on the Avails of Prostitution of a Person Under the Age of Eighteen Years
  • 212(2.1) – Aggravated Offence in Relation to Living on the Avails of Prostitution of a Person Under the Age of Eighteen Years
  • 212(4) – Prostitution of a Person under Eighteen

In addition to the above list, a person cannot use telecommunication with a person under the age of 16, or if the accused believes the complainant is under the age of 16, for the purpose of facilitating the commission of the following offences:

  • 151 – Sexual Interference
  • 152 – Invitation to Sexual Touching
  • 160(3) – Bestiality in Presence of or by a Child
  • 173(2) – Exposure
  • 271 – Sexual Assault
  • 272 – Sexual Assault with a Weapon, Threats to a Third Party, or Causing Bodily Harm
  • 273 – Aggravated Sexual Assault
  • 280 – Abduction of a Person Under Sixteen

In addition to the above lists, a person cannot use telecommunication with a person under the age of 14, or if the accused believes the complainant is under the age of 14, for the purpose of facilitating the commission of the following offences:

  • 281 – Abduction of a Person under Fourteen

Under the offence of Luring a Child, “facilitating” means helping to bring about and making easier or more probable. “Facilitating” can include luring or grooming a young person to commit or participate in one of the offences; reducing the young person’s inhibitions; or encouraging sexual discourse that exploits the young person’s curiosity or immaturity.

The accused has to have intended through his or her communication to facilitate the commission of one of the listed offences, but does not actually have to commit one of those offences. However, the Crown has to show that there was a specific offence or offences within that list that the accused intended to facilitate through the electronic communication.

What are some of the Penalties for Child Luring? 

If the offence is prosecuted by indictment, the maximum penalty is 10 years’ imprisonment, and the minimum is 1 year’s imprisonment. If the offence is prosecuted on summary conviction, the maximum penalty is 18 months’ imprisonment, and the minimum is 90 days’ imprisonment.

What are possible Defences to an Accusation of Luring a Child?

The language of the provision dealing with Luring limits the possible defences. Unlike some other sexual offences, the defence of consent is not available. A person under the age of 16 is not capable of giving consent according to s.150.1. Furthermore, the offences listed for cases where the complainant is under the age of 18, such as Sexual Exploitation, to not require an absence of consent in order to be proven. As such, arguing that the complainant consented to the activity in question is not a defence to a charge of Luring.

Another defence that is limited by this section is mistaken belief in age. The accused cannot argue that he or she believed the young person to be at least 18, 16, or 14 depending on the charge, unless the accused took reasonable steps to ascertain the age of the person. Reasonable steps vary depending on the circumstances of each case. The question the court will ask itself is what steps a reasonable person in those circumstances would have taken in order to ascertain the other person’s age. Therefore, for the defence to be available the accused has to show that he or she took reasonable steps to ascertain the complainant’s age before proceeding with the conduct. In one case, the defence was not available where the accused was talking to an undercover police officer posing as a 13 year old boy. Even though the accused believed to be talking to a person over 18 years old, he did not take any steps to ascertain the person’s age. The court determined that since the accused took no steps to ascertain the age of the person he was communicating with, there was insufficient ground to support the claim that the accused believed that he was talking to an adult.

What is Child Pornography?

Child Pornography is defined under s.163.1(1) of the Criminal Code. The Code states that Child Pornography means:

  1. a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
    1. that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
    2. the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
  2. any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
  3. any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
  4. any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

In order to determine whether the material in question meets this definition, a judge will use an objective approach. What this means is that the court will consider whether a reasonable person would conclude that the material portrays explicit sexual activity; whether it has as its dominant characteristic the depiction, for a sexual purpose, of a sexual organ; or whether it “advocates or counsels” sexual offences with persons under 18.

Can Child Pornography be Written Material?

Child Pornography can be written material. According to s.163.1(1)(b), Child Pornography includes written material that “advocates or counsels” sexual activity with a person under 18 that would be an offence under the Criminal Code. “Advocates or counsels” means that the material actively induces or encourages that the described sexual offence with children should be pursued.  Written material includes things written in an Internet chat.

Under s.163.1(1)(c), Child Pornography can also include any written material whose dominant characteristic is the depiction, for a sexual purpose, of a sexual activity with a person under 18 years old that would be an offence under the Criminal Code. Under this section, there has to be a “sexual purpose” to the writing. A court determines this by asking whether a reasonable person, looking at the depiction and its context, would think that the depiction was intended to cause sexual stimulation to some viewers or readers. The answer to this depends on the particular facts of each case.

To illustrate the importance of the particular facts we can look at the example of a family photo of a naked child. The photo would not in itself indicate a sexual purpose. However, if the facts showed that the accused placed the photos in an album of sexual photos and placed a sexual caption, there would be a sexual purpose to the depiction. The same is true for written material – some material does not have a sexual purpose in some contexts and does in others.

In addition to the sexual purpose, the writing has to depict a sexual activity that is illegal under the Criminal Code. So for example, if it depicts sexual activity with a person under the age of 16, this would constitute Sexual Assault or Sexual Interference and would therefore be an activity that is illegal under the Code.

Are Sexually Explicit Drawings or Anime of children Child Pornography?

Child Pornography can include any kind of visual representation, whether it is made mechanically or electronically. A drawing or Anime can be Child Pornography in any of the following three ways.

(a)       If the drawing depicts a person as being under 18 years old and as engaged in explicit sexual activity [s.163.1(1)(a)(i)]. The depicted person does not have to be a real person, but can be an imaginary person. Explicit sexual activity refers to activities that a reasonable person would judge to be clearly sexual. This captures acts that are at the extreme end of the spectrum of sexual activity, but not ones of casual sexual activity. For example, it includes depictions of nudity and intimate sexual activity such as intercourse. On the other hand, it does not include depictions of hugging, kissing, or touching (although this depends on the context).

(b)       If the dominant characteristic of the drawing is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under 18 years old [s.163.1(1)(a)(ii)]. The court will determine this by asking itself if a reasonable observer would conclude that the dominant characteristic of the drawings was intended to cause sexual stimulation to some viewers. As such, this definition is meant to exclude visual representations of non-sexual nudity.

(c)        If the drawing advocates or counsels sexual activity with a person under 18 years old and that activity would be an offence under the Criminal Code. “Advocates or counsels” means that the material must be seen as actively inducing or encouraging the depicted offences with children. This can be done both implicitly as well as explicitly. For example, implicit advocating or counseling could include depictions that show sex with children as enjoyable, normal, beneficial, and children as willing.

Are Sexually Explicit Audio recordings Child Pornography?

Sexually explicit audio recordings can be Child Pornography in two ways:

(a)       If the audio recording advocates or counsels sexual activity with a person under 18 years old that would be an offence under the Criminal Code. [s.163.1(1)(b)]. “Advocates or counsels” means that the recording must be seen by the objective observer as actively inducing or encouraging the sexual offences with children. This can be done both implicitly as well as explicitly. For example, implicit advocating or counseling could include recordings that show sex with children as enjoyable, normal, beneficial, and children as willing. Furthermore, the sexual activity that is recorded has to be an offence under the Criminal Code. For example, advocating sexual activity with a 15 year old would be an offence as sexual activity with a person under 16 years old is an offense under Sexual Interference (s.151). However, advocating for consensual sexual touching of a 17 year old, for example, would likely not be an offense. Consensual sexual touching of a 17 year old is only an offence under the Criminal Code if the accused is in a position of trust or authority, under Sexual Exploitation (s.153). As such, an audio recording that advocates for consensual sexual touching of a 17 year old would only fall into the definition of Child Pornography if it advocates for sexual touching of a 17 year old by a person in a position of trust or authority, such as a teacher or coach.

(b)       If the audio recording has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under 18 years old that would be an offence under the Criminal Code [s.163.1(1)(d)]. The court will determine this by asking itself if a reasonable observer would conclude that the dominant characteristic of the recordings was sexual activity that was intended to cause sexual stimulation to some listeners. Furthermore, the sexual activity that is recorded has to be an offence under the Criminal Code.

What is Making, Printing and Publishing Child Pornography? 

Under s.163.1(2) of the Criminal Code, it is a criminal offence to make, print, publish or possess for the purpose of publication any Child Pornography.

“Making” child pornography occurs when the accused either creates novel Child Pornography, or the accused creates a copy of Child Pornography for the purpose of publishing or distribution. However, simply copying existing Child Pornography does not constitute “making”. For example, collecting images, sorting them and storing them on new media does not constitute making Child Pornography. Downloading and transferring Child Pornography onto discs does not constitute making Child Pornography. There has to be a novel

creation. Copying only counts as “making” if it is done for the purpose of publication or distribution.

What is Transmitting, Distributing or Making Available Child Pornography? 

Under s.163.1(3) of the Criminal Code, it is a criminal offence to transmit, make available, distribute, sell, advertise, import, export or possess for the purpose of transmission, making available, distribution, sale, advertising or exportation any Child Pornography.

This section, and in particular the offence of ‘making available’, often comes up in the context of online file sharing. For example, in cases involving the use of a file sharing program to download Child Pornography and storing the Child Pornography in a shared folder. The offense of ‘making available’ can be made out in one of three ways:

  • Actual intention to make Child Pornography available through that program;
  • Actual knowledge that such program makes such files available to others; or
  • Willful blindness that the program makes such files available to others.

While the accused has to actually intend, know, or be willfully blind to the effects of storing Child Pornography in a shared folder, the accused does not have to knowingly facilitate the availability of the material. So the accused does not have to know that he or she is actually making the Child Pornography available, it is enough that he or she stores it in a shared folder and that he or she knows the effects of storing it in a shared folder.

What is Accessing Child Pornography? 

Under s.163.1(4.1), it is a criminal offence to access Child Pornography. “Accessing” Child Pornography occurs when a person knowingly causes Child Pornography to be viewed by, or transmitted to, himself or herself. Therefore the accused must have knowingly accessed the Child Pornography.

What is Possession of Child Pornography? 

Under s.163.1(4), it is a criminal offense to possess Child Pornography. Possession can be made out in four different ways:

(a)       Personal possession – this form of possession requires having manual handling of the thing, along with knowledge of what the thing is and some act of control over it. It is enough for the actual possession to be only momentary if there is the requisite knowledge of what the thing is and intent to exercise control over it. Knowledge can be established with circumstantial evidence, and does not need direct evidence of what was in the accused’s mind at the time. This type of possession is likely to arise where the Child Pornography is on a physical medium, such as a drawing on paper, a disc with images, etc., and there is evidence of the accused actually holding the item.

(b)       Constructive Possession I – Knowingly having it in the actual possession or custody of another person. This type of possession requires three elements: (i) knowledge of the possession by another person; (ii) some measure of control or right of control over the thing; (iii) consent in that other person’s possession. Consent and control are tied together. If the accused can consent or withhold consent to the possession of the thing by the other person, he or she would therefore also have a degree of control over that thing. For example, if the accused gives the illegal material to a friend to hold on to, the accused would know that the friend has possession, he or she would be consenting to that possession by the friend, and would also have a degree of control over that thing since they willingly gave that thing away.

(c)        Constructive Possession II – Knowingly having it in any place, whether or not that place belongs to or is occupied by the person, for the benefit of himself or herself, or of another person. This type of possession is very similar to the previous one, as they are both forms of constructive possession (i.e. the person is deemed to have possession even though they are not actually holding the thing in question). Again, the same three elements are required as with the previous type: (i) knowledge that the thing is in the place in question; (ii) some measure of control or right of control over the thing; (iii) consent in storing the thing in the place in question.

This type of possession is often associated with possession of Child Pornography in the form of computer files. Possessing Child Pornography in this way means possession of the underlying computer files. So if the files are stored on the computer’s hard drive, and the accused knows they are there and has control over them, this is enough for possession. In one case, the court decided that the accused was in possession of Child Pornography when he began downloading the files onto his computer but aborted the process, as he fulfilled the three required elements for constructive possession (knowledge, control of the file and consent).

However, the mere fact that an image has been accessed by the accused or displayed in a web browser does not in itself constitute possession; it could constitute Accessing Child Pornography. Usually, accessing online content creates an automatic data cache, where the image may be stored. What is required for possession of Child Pornography in the form of computer files is possession of the underlying file of the image. An image stored in a data cache is not enough to constitute possession because there is no possession of the underlying file, and there is usually no knowledge that the file is stored on the computer.

(d)       Joint possession – where one of two or more persons has something in his possession, it is deemed to be in the possession of each of the people who had knowledge and consent to the possession. There must also be a measure of control over that object on the part of the person deemed to be in possession. So if there was a group of people, one of who had actual possession of the pornographic material, each person in the group who knew about the material, consented to it being there, and exercised some control over the thing, would be deemed to have possession of the material.

Aside from these forms of possession, there is also innocent possession, in which case the person is not guilty of criminal possession. This occurs when a person is in possession of an illegal thing (such as Child Pornography) with the sole intent of destroying it or turning it in to the police.

What are the Penalties Associated with a Conviction for the various Child Pornography Offences? 

The actual penalty for a conviction will vary depending on a number of factors. The Criminal Code only sets out the maximum and minimum possible penalties for each of the Child Pornography offences.

One of the most significant factors is whether the case is prosecuted on summary conviction or by indictment. The prosecution (the Crown) decides whether to prosecute the case on summary conviction or by indictment. In coming to its decision, the Crown will consider the various circumstances of the case such as the seriousness of the offence, the age of the accused, the accused’s previous criminal record, etc. The possible penalties on summary conviction are generally lower than on indictment, however the accused has more rights in a trial by indictment.

During sentencing, the judge will consider various mitigating and aggravating factors in deciding on the actual penalty that falls within the maximum and minimum penalties set out in the Code. One aggravating factor that is specific to Child Pornography offences is whether the accused committed the offence with intent to make a profit. If this is the case, then the sentence will be higher.

163.1(2) – Making Child Pornography? 

A conviction under s.163.1(2) of the Criminal Code for making, printing, publishing, or possessing for the purpose of publication any Child Pornography carries with it:

  • A maximum sentence of 10 years’ imprisonment and a minimum of 1 year imprisonment if prosecuted as an indictable offence.
  • A maximum sentence of 2 years’ imprisonment less a day and a minimum of 6 months’ imprisonment if prosecuted as a summary offence.

163.1(3) – Distribution of Child Pornography?

A conviction under s.163.1(3) of the Criminal Code for Distribution, etc. of  Child Pornography carries with it:

  • A maximum sentence of 10 years’ imprisonment and a minimum of 1 year imprisonment if prosecuted as an indictable offence.
  • A maximum sentence of 2 years’ imprisonment less a day and a minimum of 6 months’ imprisonment if prosecuted as a summary offence.

163.1(4) – Possession of Child Pornography?

A conviction under s.163.1(4) of the Criminal Code for Possession of  Child Pornography carries with it:

  • A maximum sentence of 5 years’ imprisonment and a minimum of 6 months’ imprisonment if prosecuted as an indictable offence.
  • A maximum sentence of 18 months’ imprisonment less a day and a minimum of 90 days’ imprisonment if prosecuted as a summary offence.

163.1(4.1) – Accessing Child Pornography?

A conviction under s.163.1(4.1) of the Criminal Code for Accessing Child Pornography carries with it:

  • A maximum sentence of 5 years’ imprisonment and a minimum of 6 months’ imprisonment if prosecuted as an indictable offence.
  • A maximum sentence of 18 months’ imprisonment less a day and a minimum of 90 days’ imprisonment if prosecuted as a summary offence.

What are the possible Defences to a Child Pornography-related allegation?

The Criminal Code explicitly refers to possible defences under s.163.1(5) and (6). Under s.163.1(5), the Code states that it is NOT a defence to a charge of Making Child Pornography in respect of a visual representation to state that the accused believed that the person shown in the representation was or was depicted as being 18 years or older. However, this can be a defence if the accused took all reasonable steps to ensure that the person was 18 years or older, or that the representation did not depict the person as being younger than 18. What constitutes “reasonable steps” depends on the facts of each case. The court will determine the reasonable steps based on what a reasonable person would do in the circumstances of the case.

Under s.163.1(6), the Code states that a person cannot be convicted of a Child Pornography offence if the alleged act has (a) a legitimate purpose related to the administration of justice, science, medicine, education or art, and (b) that it does not pose an undue risk of harm to persons under 18 years old.

First, the court will consider whether the accused committed the alleged acts in order to serve one of the grounds listed under the provision – i.e. administration of justice, science, medicine, education or art. This involves a two-part analysis. The court will determine whether the accused committed the act genuinely and in good faith for one of the listed grounds. Then, the court will analyze whether based on all the facts (1) there is an objective connection between the accused’s actions and his or her purpose; and (2) there is an objective relationship between his or her purpose and one of the protected activities (administration of justice, science, medicine, education, or art). In sum, the first part of the defence requires that the activity is objectively related to a listed ground and was undertaken genuinely and in good faith.

The second requirement is that the accused’s actions cannot “pose an undue risk of harm to persons under the age of eighteen years.” This requirement comes into play after the first one has been met. “Undue risk of harm” means significant risk of objectively ascertainable harm. As such the courts will ask themselves whether the risk is objectively ascertainable, and whether the level of harm poses a significant risk to children. The harm may be physical, psychological, or both.

One other defence that is not in the Criminal Code is the defence of Private Use. This defence arises out of the Charter guarantee of freedom of expression. It creates an exception for two types of situations for Making of Child Pornography under s.163.1(2) and Possession of Child Pornography under s.163.1(4). The first is where the explicit material was created by one person alone and was held by that person, exclusively for his or her own personal use. For example, if a person made a drawing that would constitute Child Pornography, but the person only kept that drawing for him or herself and the drawing was not made with an intention to show it or give it to others, the defence would apply. Another example would be a diary whose writing constitutes Child Pornography, assuming that writing in a diary is for private use and is not shared with others.

The second exception is possession of visual recordings created by or depicting that person alone, which does not depict unlawful sexual activity, held only for private use and created with the consent of the participants. For example, this would include pictures taken by a child or adolescent of him or herself alone, kept in strict privacy and intended for private use only. The person possessing the picture or video recording must have personally participated in the activity in question and the activity must not be unlawful. So for example, a teenage couple older than 16 that engages is consensual sexual activity would not be committing a crime. If they took pictures of themselves engaged in consensual sexual activity with each other, and shared those pictures only with each other, they would not be guilty of Making and Possessing Child Pornography.

What is a Warrant of Seizure?

A Warrant of Seizure, under s.164 and s.164.1, is a warrant given by a judge authorizing a peace officer to seize copies of Child Pornography thought to be in a certain premises. In order to issue a Warrant of Seizure, a judge has to be satisfied by information given on oath that there are reasonable grounds to believe that there is Child Pornography kept in premises within the jurisdiction of the court. Within seven days from when the Warrant of Seizure is issued, the judge will issue a summons to the occupier of the premises to appear in court to argue why the materials should not be forfeited to the state. At the same time, the owner and maker of the Child Pornography can appear to present their case as to why the materials should not be forfeited to the state. However, if the court is satisfied that the materials meet the definition of Child Pornography, it may make an order for the materials to be forfeited to the state. If the materials are forfeited, the Crown (Attorney General) will decide what to do with them and whether or not to pursue criminal charges against the possessor and maker of the material.

The same rules apply where the pornographic material in question is electronic, albeit with slightly modified rules. The Warrant of Seizure would direct the custodian of the computer system to give an electronic copy of the material to the court, to ensure that the material is no longer stored and made available on the computer, and to provide the information necessary to identify and locate the person who posted the material. Once the Warrant of Seizure is issued, and once the judge receives the aforementioned information, he will give notice to the person who posted the material and give that person an opportunity to appear before the court to argue why the material should not be deleted. If the person who posted the material cannot be identified, the judge can order the custodian of the computer system to appear before the court to argue why the material should not be deleted. However, if the court is satisfied that the material seized is Child Pornography, it can order the custodian of the computer system to delete it.

Is the Quantity or Nature of the Content Relevant? 

The quantity and nature of the content is relevant at the sentencing stage of the trial. If a person has been found guilty of one of the Child Pornography offences, the court will then decide on the person’s sentence. The court will consider aggravating and mitigating factors, and balance the two sides in coming to its decision on the sentence. Two of the factors considered are the quantity and nature of the content.

For example, a person found in possession of one pornographic image will get a lighter sentence than a person with hundreds of images. Furthermore, if the larger amount of content is indicative of a longer time spent accumulating the material, a stronger sentence will likely be given. If the nature of the content is something that is particularly repugnant, for example if the content is violent or especially disturbing, this is an aggravating factor that would lead to a harsher sentence.

What if the Content was Purchased? 

Whether or not the content was purchased is only relevant insofar as it relates to whether or not the offence was committed with intent to make a profit. The seller of the purchased content would be exposed to a higher penalty since whether there was intent to make a profit is an aggravating factor during sentencing.

What is Making Sexually Explicit Material Available to a Child?

Making Sexually Explicit Material Available to a Child is an offence under s.171.1 of the Criminal Code. It occurs where the accused transmits, makes available, distributes or sells sexually explicit material to:

  • A person who is, or who the accused believes is, under 18 years old, for the purpose of facilitating the commission of any of the following offences
    • 153(1) – Sexual Exploitation
    • 155 – Incest
    • 163.1 – Child Pornography
    • 170 – Parent or Guardian Procuring Sexual Activity
    • 171 – Householder Permitting Sexual Activity
    • 212(1) – Procuring (prostitution-related offences)
    • 212(2) – Living on the Avails of Prostitution of a Person Under the Age of Eighteen Years
    • 212(2.1) – Aggravated Offence in Relation to Living on the Avails of Prostitution of a Person Under the Age of Eighteen Years
    • 212(4) – Prostitution of a Person under Eighteen
  • A person who is, or who the accused believes is, under 16 years old, for the purpose of facilitating the commission of any of the following offences
    • 151 – Sexual Interference
    • 152 – Invitation to Sexual Touching
    • 160(3) – Bestiality in Presence of or by a Child
    • 173(2) – Exposure
    • 271 – Sexual Assault
    • 272 – Sexual Assault with a Weapon, Threats to a Third Party, or Causing Bodily Harm
    • 273 – Aggravated Sexual Assault
    • 280 – Abduction of a Person Under Sixteen
  • A person who is, or who the accused believes is, under 14 years old, for the purpose of facilitating the commission of s.281 – Abduction of a Person under 14.

“Sexually explicit material” under this offence means material that is not Child Pornography, and that is:

  • A photographic, film, video or other visual representation, whether or not made by electronic or mechanical means that either:
    • Shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or
    • Has as its dominant characteristic the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts.
  • Written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or
  • An audio recording whose dominant characteristic is the description, presentation, or representation, for a sexual purpose, of explicit sexual activity with a person.

What are some of the penalties for Making Sexually Explicit Material Available to a Child?

If prosecuted as an indictable offence, the maximum penalty for Making Sexually Explicit Material Available to a Child is 2 years’ imprisonment. The minimum penalty on indictment is 90 days’ imprisonment.

If prosecuted by summary conviction, the maximum penalty is 6 months’ imprisonment, and the minimum penalty is 30 days’ imprisonment.

416-DEFENCE | 416-333-3623

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