Canadian Criminal Sentencing/Offences/Child Pornography

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Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 90 days jail (poss'n/access)
6 months jail (make/distrib.)
Maximum 18 months jail
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 6 months days jail (poss'n/access)
1 year jail (make/distrib.)
Maximum 5 years jail (poss'n/access)
10 years jail (make/distrib.)
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence


Overview[edit]

There are four forms of child pornography offences. They relate to the possession, access, distribution/making available, and making of child pornography.

All child pornography offences are treated seriously and are given jail sentences. On the lower end range of offence, there are the simple possession or accessing cases where typically the materials are discovered inadvertently on a computer by a third party. A more serious form of the offence is where the materials are discovered by way of an investigation into peer-to-peer file sharing activities. This usually involves both possession and making available charge. This is considered troubling since peer-to-peer software is one of the most popular form of distributing child pornography globally. Both of these cases will largely turn on the size of the collection as a measure of their interest in the materials. Child luring charges will often involve distribution charges as the offender will often send these materials to the targeted victim as a method of grooming. On the high end of the range of child pornography offences, there are the offenders who produce child pornography. This usually involves offender who manipulate children into participating in sexual posing or sexual activity which was filmed. It can be particularly serious where the child is subject of major and repeated sexual activity, perpetrated by a person in authority such as a family member.

Legislation[edit]

163.1
...
Making child pornography
(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.

Distribution, etc. of child pornography
(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.

Possession of child pornography
(4) 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.


Accessing child pornography
(4.1) Every person who accesses 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.

...
Aggravating factor
(4.3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit.
...
Question of law
(7) For greater certainty, for the purposes of this section, it is a question of law whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17.


CCC

Principles[edit]

For general principles on sentence for sexual offences, see Sexual Offences

The prohibition and criminalization of child pornography arises out of society’s interest to protect children. [1] The material exploits and dehumanizes children. The children are re-victimized with each viewing of the materials.

Child pornography presents a "profound and present danger to children around the world".[2]

The pornography "hinders children’s own self-fulfilment and autonomous development by eroticising their inferior social, economic and sexual status".[3]

There is a judicially recognized "link between images of child pornography and inhibitions about the sexual abuse of children." [4]


  1. Sharpe at 28
  2. TLB, 2007 ABCA 61 at para. 27
  3. Sharpe at 185
  4. R. v. Strohmeier, [2007] O.J. No. 1250 (Ont. C.J.) ("... there is a link between images of child pornography and inhibitions about the sexual abuse of children.")

Possession[edit]

The primary principles for possession offences are denunciation and general deterrence.[1]

Possession of child pornography contributes to the market for child pornography which drives the production of the materials.[2] Possession also breaks down inhibitions, and creates cognitive distortions that abuse is not harmful. In certain individuals, it will fuel fantasies and incite them to commit offences.[3]

The sentence for possession of child pornography recognizes the link between possession of the materials and the sexual abuse of children beyond the images themselves.[4]

In Alberta, the range for possession of child pornography starts at around 12 months. [5] However, it will vary significantly with the size of the collection.

Across all provinces, sentences for possession is between the minimum and 2 years jail, even where accompanied by other charges.

  1. R v Missions 2005 NSCA 82
  2. Sharpe at 28
    R. v. Fisher, [2007] N.B.J. No. 129 at para 16
    R. v. Stroempl 1995 CanLII 2283 (ON CA), (1995), 105 C.C.C. (3d) 187 at page 191
  3. Sharpe at 85 to 94
    R. v. Steadman, [2001] A.J. No. 1563 at paras 21 and 22
  4. e.g. R. v. Durnford, 2006 CanLII 34694 (NL PC) at 77
  5. R v Hilderman 2010 ABC 183 at 15

Accessing[edit]

The primary objective for sentencing in possession of child pornography is denunciation and deterrence. [1]

Making[edit]

Charge of making can apply the same principles as sexual assault or interference offences against children where the accused is effectively a party to the sexual acts committed against the child.

Distribution[edit]

The primary principles for distribution offences are denunciation and deterrence.[2]

In Alberta, there is typically a general range of sentence between 3 and 18 months followed by one to three years probation for distribution of child pornography. [3]

  1. R. v. Stroemple 105 C.C.C. (3d) 187 (ONCA)1995 CanLII 2283 p.191
    R. v. Hewlett, (2002).167 C.C.C. (3d) 425,p. 432 (ABCA)
    R. v. Hunt [2002] A.J. No. 831, 2002 ABCA 155 para 41
  2. R v B(TL) , 2007 ABCA 61, (2007) 218 CCC (3d) 11 (ABCA) leave to SCC refused
  3. R. v. Shelton 2006 ABCA 190, (2006), 391 A.R. 177 (Alta. C.A.), per Justice Fruman at para 12

Factors[edit]

Aggravating factors include: [1]

  1. Where the images were shown or distributed to a child.
  2. the amount of images or videos collected[2]
  3. the level of sophistication of the collection. This is determined by way of how it was organized on a computer. It will sometimes indicate the level of trading or level of personal interest in the material. On the low end would include images viewed but not stored on the computer.
  4. Whether images or videos were posted on public areas of the internet, “or distributed in a way making it more likely they will be found accidentally by computer users not looking for pornographic material”
  5. where the offender is responsible for the original production of the images, in particular where the victims were members of the offender’s family, or drawn from particularly vulnerable groups, or if the offender has abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader.
  6. The age of the children depicted. The younger the child, the greater the psychological harm, including fear and distress, and the greater likelihood of physical injury.
  7. the degree of intrusion and repulsivity of any sexual acts depicted. This is in part captured by the categories in Missions 2005 NSCA 82.
  8. the manner in which the images were obtained : simple downloading through file-sharing programs, other non-commerical means versus purchases on websites or international connections.
  9. signs on potential distribution or production.
  10. related criminal record;
  11. evidence that the offender has pedophilic tendencies or diagnosis of paedophilia.

Mitigating factors considered:[3]

  1. the youthful age of the offender;
  2. the otherwise good character of the offender;
  3. the extent to which the offender has shown insight into his problem;
  4. whether he has demonstrated genuine remorse;
  5. whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;
  6. the existence of a guilty plea; and
  7. the extent to which the offender has already suffered for his crime.

The lack of a profit motive is not a mitigating factor. Most traders are not doing it for money.[4]

Classification of Materials[edit]

Depictions of child pornography can be categorized into one of five categories, from least serious to most serious: [5]

  1. images depicting erotic posing with no sexual activity;
  2. sexual activity between children, or solo masturbation by a child;
  3. non-penetrative sexual activity between adults and children;
  4. penetrative sexual activity between children and adults; and
  5. sadism or bestiality.
  1. R. v. Saddler, 2009 NSWCCA 83 also referred to Regina v Oliver, Hartrey and Baldwin [2004] UKHL 43; [2003] 1 Cr App R 28; R. v. Durnford, 2006 CanLII 34694 (NL PC) at 77
  2. R. v. Donnelly, 2010 BCSC 1523 at 36 Donnelly discusses the importance of the number of images to the range of sentence
  3. R. v. Kwok, 2007 CanLII 2942 (ONSC)
    R. v. Parise, [2002] O.J. No. 2513 (ONCJ)
    R. v. Mallett, [2005] O.T.C. 792 at paras. 15-16 (ONSC)
  4. R. v. T.L.B. at para 28
  5. R. v. Missions, 2005 NSCA 82 at para 14

Other Issues[edit]

Procedure
Judges are required to accept into evidence and review images of child pornography submitted by the Crown as part of sentencing where the usual exclusionary principles do not apply.[1]


Misc
Probationary terms added as part of sentences for child pornography will often include conditions prohibiting or limiting use of "Computer Systems" as defined in s. 342.1

  1. R. v. Hunt, 2002 ABCA 155
    R. v. P.M., 2012 ONCA 162

Ancillary Orders[edit]

Offence-related Probation Terms[edit]

  • No contact with persons under age of 18
  • Treatment/Counselling
  • No alcohol or drugs (if alcohol had connection to alcohol)
  • no use or access to computers
    • not to possess or use a digital device or computer system that is capable of connecting with the internet except for the purpose of employment or an educational program.
  • not possess or access child or adult pornography;
  • not possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner;
  • Not own or possess a computer or any similar electronic device capable of accessing the internet except for a purpose necessary for registered academic studies or for the purposes of employment and in such circumstances as are approved beforehand in writing by the court or the supervisor
  • provide computer service billing information to the authorities[1]

History[edit]

On August 9, 2012, this section was amended to increase the penalties as follows:

  • Making: Summary 90 days increased to 6 months
  • Distribution: Summary 90 days increased to 6 months
  • Possession: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  • Accessing: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days


  1. e.g. in R. v. Ingvaldson, 2012 BCPC 437 (CanLII)