Anyone who intentionally produces, publishes, possesses, accesses, distributes, circulates or trades any child pornography can be convicted of a child pornography related offence.
Depending on the specific offence, a person charged with a child pornography related offence faces a maximum sentence of ten years in prison. There are different penalties for different types of a child pornography offences.
The minimum sentence for making and distributing child pornography is 6 months in jail with a maximum sentence of 10 years in jail.
A person charged with possessing or possessing and accessing child pornography faces a mandatory minimum sentence of 90 days in jail and a maximum jail sentence of five years in jail.
A person convicted of this offence is also subject to an order under the sex offender registry information act (SOIRA).
In order for a person to be convicted of an offence under this section, the prosecution must prove (among other things) that the subject matter is actually child pornography and that the person charged with possession knew that it was. If a person is charged with accessing, production and distribution, the prosecutor must prove that the accused person did this intentionally.
What is “Child Pornography”?
According to the Criminal Code, any visual depiction of a person under the age of 18 engaging in sexual activity is child pornography or any depiction of a person under the age of 18 years old where the dominant characteristic is the depiction of the anal or genital region or breasts for a sexual purpose.
According to the law, mere nudity does not automatically count.
Written or audio material where the dominant characteristic encourages, or represents sexual activity with a person under the age of 18 is also considered criminal under this section.
What is the legal definition of Possession?
For more on possession see here. The law states that in order for a person to have possession of something, they must have knowledge and control. Because child pornography is almost always found on computers, and home computers are often shared between multiple people, a prosecutor may have more difficulty proving knowledge of child pornography on a shared computer.
What about sexting?
In Canada the law creates a “private use” exception to child pornography. This means that a person can possess sexually explicit depictions of him or herself that may otherwise qualify as child pornography. A person is also permitted to distribute the depictions to any person who is in the depictions as long as the depictions were made with the consent of everyone shown in them and the activity depicted is legal and does not show exploitation.
How do I fight the child pornography charges?
There are several defences are available to a person charged under section 163 of the Criminal Code. Here are a few of them:
Not child pornography – A person can make the argument that the material in question is not pornography because it does not fit the legal definition. This is sometimes because of the age of the people depicted or simply because the material is not for a sexual purpose.
Lack of knowledge – A person is not liable for this offence if he or she does not have knowledge of the illegal material.
Private use – There are some very limited exceptions where a person is legally permitted to possess child images that would otherwise be illegal in a limited number of circumstances.
Legitimate purpose exception – A person is not liable for this offence when they have a legitimate purpose related to administration of justice, science, medicine, education or art and does not cause damage to the person under 18 years old.
Take the Next Step
Lakin Afolabi is a criminal defence lawyer in London, Ontario who has successfully represented individuals charged with various types of sex offences. If you or someone you know is facing sex offence related charges, he can be reached at 519-645-6969 24 hrs a day. Call him now for a consultation.