Distribution, Making Available, and Making Child Pornography

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Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
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 6 months incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 10 years incarceration (poss'n/access)
14 years incarceration (make/distr.)
Reference
Offence Elements
Sentence Digests

Overview

See also: Child Pornography (Offence)

Offence Wording

s. 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 an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
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 an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.


CCC

Proof of the Offence

Proving making child pornography under s. 249.1(3) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit did the act of making, printing, publishing or possessing for the purpose of publishing materials
  5. the culprit specifically intended to perform the impugned act
  6. the materials were child pornography
  7. the culprit knew or was wilfully blind to the materials being child pornographic

Proving making available or distribution of child pornography under s. 249.1(3) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that the material in question constituted child pornography;
  5. that the child pornography was actually made available by the accused (make available) or actually distributed by the accused (distribute); and
  6. that the accused had the intent to make child pornography available to others.[1]
  1. R v Johannson, 2008 SKQB 451 (CanLII) at para 34
    R v Spencer, 2011 SKCA 144 (CanLII) at para 87 (mens rea)

Distribution and Making Available

Actus Reus

There are two ways that there can be a conviction under s. 163.1(3) for distribution. A person will either (1) transmit, make available or export child pornography; or (2) possess for the purpose of transmission, making available or exportation of child pornography.[1]

  1. R v Giuseppe Michienzi, 2013 ONSC 1025 (CanLII) at para 22

Distribution, Making Available, etc

Mens Rea

The mens rea requires one of the following:[1]

  1. proof of actual intent on the part of the accused to make computer files containing child pornography available to others using a file sharing program;
  2. actual knowledge on the part of the accused that file sharing programs make files available to others; or
  3. proof of wilful blindness. Wilful blindness can be satisfied with proof the accused’s file sharing program had actually made child pornographic files available to others coupled with a suspicion on his part that it had done so but where no steps were taken to determine if his suspicion was true.

The accused must have a subjective knowledge of the character of the images, video or text that is child pornographic.[2] Recklessness is not sufficient.[3]

Awareness of the ability of a peer-to-peer client to share files downloaded onto a computer can constitute “making available”.[4] However, this conclusion can be rebutted where steps were taken to delete or remove the contents of the shared file folder.[5] The mens rea can be proven an actual intention to make the materials available.[6] Familiarity with how peer-to-peer software works on its own is not sufficient to establish actual intent.[7]

The mens rea is made out if the crown proves wilful blindness "by proving the accused’s file sharing program had actually made child pornography files available to others and the accused had actual suspicion that it had done so, but had made a conscious decision not to determine whether his suspicion was in fact an actuality."[8]

Recklessness has been used as a basis to prove mens rea.[9]

The mens rea does not require actual knowledge. It merely requires "the accused's awareness that the downloaded child pornography could be made available to others by his use of a file sharing program." [10]

The court can consider the evidence visible to the user indicating file sharing, such as:[11]

  • evidence in a statement to police acknowledging that the program is a file-sharing program;
  • evidence in a statement to police that he had changed at least one default setting in LimeWire;
  • that when program is first installed on a computer, it displays information notifying the user that it is a file-sharing program;
  • that at the start of each session, LimeWire notifies the user that it is a file-sharing program and warns of the ramifications of file-sharing;
  • that the program contains built-in visual indicators that show the progress of the uploading of files by others from the user’s computer
  • evidence of the accused's knowledge of using the software and computers more generally[12]

Knowledge can be inferred that any message or notification from the software when the user starts the program was read by the user.[13]

The court can also consider the accused's experience and familiarity with computers generally.[14]

Evidence that some files were moved from the shared folder to another folder will suggest an intent to share the remaining files in the folder.[15]

  1. R v Lorenz, 2012 SKQB 293 (CanLII)
    R v Spencer, 2014 SCC 43 (CanLII)
  2. R v Giuseppe Michienzi, 2013 ONSC 1025 (CanLII) at para 25, 29
  3. Michienzi at para 29
  4. R v Johannson, 2008 SKQB 451 (CanLII)
    c.f. Pressacco at para 30 (judge refused to infer intention "from his knowledge of the operation of file-sharing")
    R v Giuseppe Michienzi, at para 28
  5. Pressacco at para 33
  6. R v Lamb 2010 BCSC 1911 (CanLII) at para 74,75 - suggests that actual knowledge is necessary ("the mens rea required for the offence of making child pornography available under s. 163.1(3) of the Criminal Code is an actual intention to make the material available")
  7. R v Pelich, 2012 ONSC 3611 (CanLII) at para 102
  8. R v Spencer, 2011 SKCA 144 (CanLII) at para 87 ("the Crown could also satisfy the knowledge requirement of the mens rea element of the s. 163.1(3) “makes available” offence on the basis of wilful blindness by proving the accused’s file sharing program had actually made child pornography files available to others and the accused had actual suspicion that it had done so, but had made a conscious decision not to determine whether his suspicion was in fact an actuality.")
  9. R v Rivet, 2011 ONCA 122(*no link) -- offender was sophisticated computer user and understood the file sharing system. he failed to change the settings until after the police were able to download CP from his machine
  10. R v Spencer at para 87 aff'd by SCC
  11. e.g. R v Jeffrey, 2012 SKPC 12 (CanLII) at para 74
    see also R v Johannson
    Spencer (SCC) at para 85 - in context of est. wilfull blindness
  12. e.g. see R v Spencer 2015 SKQB 62
  13. R v Johnannson, 2008 SKQB 451 (CanLII) at para 45-46
  14. R v Jeffrey, 2012 SKPC 12 (CanLII) at para 76 to
  15. See R v Lamb at para 74
    R v Smith, 2011 BCSC 1826 (CanLII) at para 182

Deleted files

Evidence of the quick removal of the child pornographic materials from the "shared folder" suggests an intention to prevent sharing.[1]

  1. R v Pelich, 2012 ONSC 3611 (CanLII) at para 104

Making

The "making" of child pornography requires the "creation of novel child pornography, that is, an instance of child pornography that is different from existing instances."[1]

By contrast, some older decisions have stated that downloading and then transmitting child pornography to disks amounts to making.[2]No cases post-2008 have agreed with this proposition however.

The "maker" is the person who “directs or controls production of novel child pornography”[3]

  1. R v Keough, 2011 ABQB 48 (CanLII) at 232
    R v Pelich, 2012 ONSC 3611 (CanLII) at para 132
    R v Davies, 2012 ONSC 3631 (CanLII) - rejects copying files as "making"
  2. See R v Mohanto, [2002] O.J. No. 5840 (C.J.)(*no link)
    R v B.W., [2002] O.J. No. 5727 (C.J.)(*no link)
    R v Horvat, [2006] O.J. No. 1673 (S.C.), 2006 CanLII 13426, aff’d on other grounds, 2008 ONCA 75
    R v Dittrich, [2008] O.J. No. 1617 (S.C.), 2008 CanLII 19217 (ON SC)
  3. R v Barabash 2012 ABQB 99 (CanLII) at para 114
    R v Hewlett, 2002 ABCA 179 (CanLII)

See Also