Child pornography offenses were created in 1993 with the enactment of section 163.1 of the Criminal Code. The objective of the legislator then was to prevent the harm caused to children by sexual exploitation. This provision was subsequently amended in 2002, then very recently in 2005 in order to broaden the definition of child pornography, to target the new reality of the accessibility of this material on the Internet, to crack down on the penalties applicable and to further circumscribe the application of the defences.
Production, distribution, possession and access offenses
While the possession and production offenses have not been modified since their adoption in 1993, this is not the case for the distribution and access offenses which were either modified or added by the 2002 and 2005 amendments. It was in wanting to regulate child pornography on the Internet that the legislator amended the Criminal Code in 2002, not only to add the offense prohibiting access to child pornography, but also to modify the offense of distributing so that it covers the transmission and accessibility of this material via the Internet.
Under current law, the production offense prohibits anyone from producing, printing or publishing child pornography. It also prohibits the fact of having it in one’s possession with a view to publishing it. In addition, the mere fact of having in one’s possession child pornography is also an offence. To be found guilty, proof that the accused knew that he possessed criminal property or that he was willfully blind to it and that he exercised some control over it is necessary. For example, the fact of classifying pornographic material by directory in a computer constitutes proof of control according to the Court of Appeal. The courts have interpreted the offense of possession broadly, finding that a person is guilty of a criminal offence, as soon as it was proven that she had intended to possess child pornography and the transmission of data by computer had begun. In other words, the interruption of the data transmission or the fact that the pornographic material was not viewed does not matter.
Furthermore, anyone who transmits, makes available, distributes, sells, imports, exports or advertises child pornography, or has it in his possession for the purpose of transmitting, making available, distributing, selling, to export it or advertise it, may be guilty of distribution. Finally, anyone who accesses child pornography, that is, knowingly acts to view it or causes it to be transmitted to him, commits the access offence.
The concept of child pornography
A filmed, video or other photographic representation of a person under the age of eighteen or presented as such and engaging or presented as engaging in an explicit sexual activity (article 163.1 al.1 a) i) C.cr .);
A filmed, video or other photographic representation, the dominant characteristic of which is the representation, for a sexual purpose, of the sexual organs or the anal region of a person under the age of eighteen (article 163.1 al.1 a ) ii) C.cr.);
A writing, representation or sound recording, which advocates or advises sexual activity with a person under the age of eighteen, which would constitute an offense under the Criminal Code (section 163.1 al.1 b) Cr.C.);
A writing or sound recording whose dominant characteristic is, as the case may be, the description, presentation or simulation for a sexual purpose, of sexual activity with a person under the age of eighteen that would constitute an offense under Criminal Code (article 163.1 al.1 c) and d) C.cr.).
The scope of this definition being very wide, it is necessary to make some clarifications. First, the word “person” used in paragraph a) of paragraph 1, includes both real and imaginary persons. The ban therefore not only targets the representation of real people, but also drawings, comics and compositions by computer. Moreover, it is not the actual age of the person that matters, but what a reasonable observer would attribute to him. We are interested in the message that is transmitted by the material and not in what the author wanted to represent. An image of an eighteen-year-old person engaging in explicit sexual activity, but who to a reasonable person would appear to be underage, is considered child pornography.
By using the expression “dominant characteristic” or “sexual goal”, the legislator excludes the representation, the writing or the sound recording which would have a scientific or educational goal. A reasonable person considering the material must conclude objectively that the purpose of the statement is primarily sexual stimulation through the exploitation of a minor. The photo of a naked child in a bathtub is therefore not covered by the prohibition, unless proof beyond a reasonable doubt demonstrates a sexual purpose.
Si les paragraphes c) et d) punissent la description, le paragraphe b) prohibe le fait de préconiser ou de conseiller une activité sexuelle avec une personne mineure constituant une infraction. On vise du matériel qui aux yeux d’une personne raisonnable fait la promotion d’infractions d’ordre sexuelle avec des enfants. Ici encore, l’intention de la personne n’est pas importante, puisque le critère est objectif.
Given the importance of preserving freedom of expression and the purpose for which the law was passed, the Supreme Court of Canada created two exceptions to the production and possession offences. Indeed, the writings or representations created by the accused and kept only for his personal use, as well as the visual recordings not representing any illegal sexual activity, created by the accused or in which he is represented, which he keeps only for its personal use and which were created with the consent of the persons appearing therein, do not constitute child pornography. However, distributing or accessing this type of material remains criminal.
It should be noted that whenever there is a question of child abuse, the judge is required to pay particular attention to the objectives of denunciation and deterrence of such behavior, in determining pain. He must also consider as an aggravating circumstance the fact that the offense was committed with the aim of making a profit.
The severity of the penalties, as well as the fact that the intention of the accused is not often an element considered in the determination of guilt, clearly demonstrates the intention of the legislator to denounce the sexual exploitation of children and to deter such behavior in our society, when he created the offenses of child pornography.
Since amendments to the law in 2005, the offenses of producing, possessing, distributing and accessing child pornography are now punishable by a minimum prison sentence. Therefore, not only are the sentences more severe, but discharge and community imprisonment are no longer sentences applicable to persons found guilty of child pornography. In all cases, therefore, a firm prison sentence will be ordered. A person guilty of producing or distributing child pornography therefore risks a prison sentence of at least one year and a maximum of ten years. For possession or access, the penalty is a minimum of 45 days imprisonment and a maximum of five years. In the event that the charge would have been made by summary conviction, the minimum penalty is also imprisonment, contrary to the general principle which provides for a fine. Child pornography in itself is not an offence, it is the act of producing or distributing it, possessing it or accessing it that is considered a criminal act.
Obviously, this text contains only a general description. It is important to note that there are exceptions and special cases that are not described above. In addition, sentencing by a court is done on a case-by-case basis.
In fact, nothing will ever replace a consultation with a criminal lawyer who will take cognizance of the elements of your file and who will be able to guide you through the charge so that your rights are respected. In addition, if necessary, our firm works in collaboration with computer experts, sexologist, psychologist and psychiatrist if necessary, etc.
Before making a decision on a whim and because you deserve the best defence, call a criminal lawyer, we will be able to help you and above all advise you wisely. (514) AVO-CATE = (514-286-2283)