Child pornography offences are extremely serious. A conviction for possession, accessing, distributing, or making child pornography can attract a significant jail sentence. In addition to a jail sentence, ancillary orders that accompany a child pornography conviction will require registration with the Federal and provincial sex offender registries. Moreover, upon conviction, the Court will order restrictions upon contact with individuals under the age of 16. Internet access may similarly be restricted or prohibited for a significant period of time.
Definition of child pornography
163.1 (1) In this section, child pornography means
Child pornography is an image, video, or visual representation that depicts someone under the age of eighteen engaged in sexual activity or where the main characteristic is the depiction, for a sexual purpose, the anal region or a sexual organ. There is some case law that indicates that the breasts of a teenage girl under the age of eighteen can be considered child pornography.
Every person who possesses any child pornography is guilty of
(a) An indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) An offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
You will be guilty of the offence of making child pornography available if you knowingly made any materials that fall within the definition of child pornography available to others. In order to be found guilty of this offence, it is not even necessary that you took positive steps to provide others with the material. Rather, it is enough if you passively disseminated the pornography. For example, in the context of a file sharing program, it is enough if you upload pornography to a file sharing program with the knowledge that the program makes files available to other users.
Making, printing, publishing or possessing for the purpose of publication any child pornography. (Though these MMS apply to some cases today, some of it are deemed unconstitutional. Considering the date of the incident is also relevant. Older versions of the law had different numbers and thus would be applicable depending on the dates of allegations)
Every person who accesses any child pornography is guilty of
Allowing another person to physically copy child pornography images or movies constitutes distribution of pornography under the law. So does giving away or selling such images or movies. For example, a person who prints a copy of an explicit image of a child and gives that image to someone else has distributed pornography. Likewise, a person who gives to another person a CD that contains video clips depicting children engaged in sexual conduct has also distributed pornography. Finally, a person who sells sexually explicit images of children has distributed child pornography.
Making child pornography available includes sharing it with others using a file-sharing program. Where the accused person is willfully blind to the file-sharing program’s capabilities (i.e. this pertains to suspecting something might go wrong but still choosing not to make any inquiries into whether others can gain access to the material), the accused has still committed the offence of making child pornography available.
Many people understand the significant consequences of a conviction of child pornography and other sexual offences involving a minor, which could include incarceration and sex offender registration. However, conviction could also result in the restricted use of computers and contact with children, including your own. When the stakes are this high, it is important to engage an experienced criminal defence lawyer to protect your rights.
If you are accused of or charged with any offense relating to child pornography, you should talk to a criminal defense attorney. An experienced local attorney can determine whether you have any grounds for dismissal or are in a good position to negotiate a plea. An attorney can help you navigate the criminal justice system and protect your rights.
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