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What Is Child Pornography & The Criminal Charges?

Posted on January 8, 2021

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Child pornography is an extremely severe charge, which can result in substantial legal and societal consequences. Being charged with possession or production of child porn is life changing. Many people do not understand what child pornography charges entail, and it isn’t often as black and white as being the person producing or possessing child pornography.

What Is Child Pornography?

Child pornography is defined as any material depicting someone under the age of 18 nude or engaging in explicit sexual activity. This includes videos, films, and audio recordings, whether mechanically or electronically created. The Criminal Code also specifies that written, visual, or audio material counselling an individual to engage in sexual activity with a minor is child pornography. Lastly, any written or audio material that primarily serves to describe explicit sexual acts involving a minor is also child pornography under the law.

Charges for child porn can range from accessing, distributing, possession, and production of child porn.

Accessing Child Pornography

Anyone that accesses child pornography is subject to either an indictable offence or an offence punishable on summary conviction. It is a criminal offence to knowingly view or transmit child pornography. It is illegal to view child pornography even without downloading or saving the material in any manner. Once the Crown makes the election (summary or indictable), we will assist you in making your election. Your election will either be in Provincial Court or the Court of Queen’s Bench. The potential sentences for accessing child pornography will range from a minimum of six months to ten years of imprisonment.

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Production of Child Pornography

If you are facing charges of making, printing, or possessing child pornography for the purposes of publishing, you could be facing an indictable offence. This offence is more serious than accessing or distributing child pornography. Charges for producing child pornography include a minimum of one year of imprisonment. These charges can include a maximum of 14 years, if the Crown proceeds by indictment. If the Crown proceeds summarily, the minimum is six months in jail. The length of your sentence will depend on the severity of the crime. The sentence after a conviction following a trial are usually higher than the minimum as prescribed in the Criminal Code.

Distribution of Child Pornography

Distribution of child pornography includes transmitting, distributing, importing, exporting, possession for distribution, to make it available, or to sell child pornography. The charges for distributing child porn start at a minimum of one year of imprisonment, to a maximum of 14 years, if the Crown proceeds by indictment. The sentence for summary conviction is set at a minimum of six months.

Charges For Possession Of Child Porn

If you have child pornography in your possession, you can face a summary conviction or an indictable offence. The sentences vary for this type of conviction. These sentences are usually much higher than the minimums as prescribed pursuant to the Criminal Code. Charges for possession of child pornography can come with severe social consequences.

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Can A Minor Create & Possess Child Porn?

Child pornography charges against minors are not as common in Canada. However, in the United States, there are many cases where a minor will get charged for creating and possessing child pornography during the act of ‘sexting.’ Sexting describes the act of sending or receiving sexually explicit photographs online or using a mobile device. By sending intimate photos as a minor, by definition, the individual is creating, possessing, and distributing child pornography.

For example, a case in Minnesota saw a 14-year-old girl facing charges for distribution of child pornography. She used Snapchat, a photo sending platform, to take and send an explicit picture of herself to a boy in her school. Afterwards he copied and distributed the picture she sent him, non-consensually. She was facing a felony charge for distributing child pornography. It is clearly non-sensical to think of this girl as both the victim of this offence and the perpetrator. The matter is still before the courts.

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However, in Canada, due to a ruling in R. v. Sharpe in 2001, self-created material for private use and privately recorded material for personal use is not considered child pornography. All parties present in the material must have fully consented to the sexual act and the recording. This would apply to teenagers that were over the age of consent but under the age of 18.

Child pornography cases against minors in Canada typically deal with the malicious spreading or nonconsensual release of these intimate photos.

What If I Didn't Know They Were A Minor?

Regardless of whether you knew the age of the person in the photos/videos, or if somebody misled you to believe they were an adult, you can still face charges. If the person in the picture is now an adult, if they were a minor in the picture, it is child pornography.

What To Do When Charged?

If you are currently facing charges for child pornography, you need to immediately contact a criminal lawyer. There are many defences available, but this is a complex area of the law. Child pornography charges hold grave consequences and are life changing. These charges come with stigma and can have long-lasting effects on your life. You may find that it is not easy to find future employment or housing. This in turn will affect your close relationships. 

As soon as you are aware of your charges, you need to contact an experienced criminal defence lawyer.

Our team at Ross Lutz Barristers has much experience defending child pornography cases. We can help you find the best possible defence. With charges as serious as child pornography, you need to contact us immediately.