The law on child pornography is extremely strict, criminalizing its creation, possession, access, and distribution to protect children from exploitation.

Child Pornography: Criminal Code Provisions (s. 163.1)

Criminal Code Provision: Definition of Child Pornography

163.1 (1) In this section, child pornography means

• A photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
  • 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
  • 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;
• 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;
• 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
• 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.

Understanding Child Pornography

The law on child pornography is extremely strict. It criminalizes not only the creation and distribution, but also the possession and access of such content.

Examples of Child Pornography include:

• Downloading and sharing explicit images of minors.
• Making a sexualized recording of children.
• Possessing or storing such material on phones, computers, or cloud accounts.
• Accessing online content without downloading (simply viewing intent is enough).

What the Crown Must Prove

To secure a conviction, the prosecution must demonstrate beyond a reasonable doubt:

1. The material meets the definition of child pornography.
2. The accused possessed, accessed, created, or distributed it.
3. The accused knew (or was willingly blind) that the material was child pornography.

Sentencing for Child Pornography

Child pornography offences are among the most severely punished crimes in Canada. They are also prosecuted very seriously because of the harm caused to children and the exploitation of children.

• Summary Conviction: The maximum sentence one can face is 2 years less a day in jail.
• Indictment: The maximum penalty is 10-14 years in prison, depending on the severity of the offence.
• Additional Consequences: While deciding the sentence, the court may also order a mandatory inclusion on the Sex Offender Registry, DNA orders and weapons prohibitions, possible prohibition from owning electronic devices, using the internet, or working in positions involving children.
• Factors courts consider: When determining the sentence, courts consider factors such as the nature of the content, the volume of material possessed, whether the accused was involved in the production of the material, if the material was distributed online, and any prior records or risk of reoffending by the accused.

Leading Case Law

In the case of R. v. Sharpe, 2001 SCC 2, the accused challenged that the child pornography sections were unconstitutional because they violated freedom of expression. The Supreme Court upheld the law that when it comes to the protection of children, the courts will make no exceptions.

This case demonstrates how courts practice a zero-tolerance approach when it comes to child pornography. Even private possession is considered criminal because it contributes to the exploitation and victimization of children.