Difference between revisions of "Child Pornography Sentencing"

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Convictions for making child pornography should be treated as a "distinct offence which stands on its own, which addresses a separate and distinct harm to the victim and to society, and which is deserving of a consecutive sentence".<ref>
 
Convictions for making child pornography should be treated as a "distinct offence which stands on its own, which addresses a separate and distinct harm to the victim and to society, and which is deserving of a consecutive sentence".<ref>
''R v DC'', [http://canlii.ca/t/grrdn 2016 MBCA 49] (CanLII){{perMBCA|Burnett JA}}{{at|44}} - relating to offences of sexual touching and making child porn in relation to same victim<br>
+
''R v DC'', [http://canlii.ca/t/grrdn 2016 MBCA 49] (CanLII){{perMBCA|Burnett JA}}{{atL|44|http://canlii.ca/t/grrdn}} - relating to offences of sexual touching and making child porn in relation to same victim<br>
 
</ref>
 
</ref>
  
Line 89: Line 89:
 
==General Principles==
 
==General Principles==
 
Offences related to child pornography are a form of sex offence.<ref>
 
Offences related to child pornography are a form of sex offence.<ref>
''R v Dyck'', [http://canlii.ca/t/1wpdg 2008 ONCA 309] (CanLII){{perONCA|Blair JA}}{{at|19}}</ref>
+
''R v Dyck'', [http://canlii.ca/t/1wpdg 2008 ONCA 309] (CanLII){{perONCA|Blair JA}}{{atL|19|http://canlii.ca/t/1wpdg}}</ref>
 
They are abhorent and cause extreme harm to its victims.<ref>
 
They are abhorent and cause extreme harm to its victims.<ref>
''R v Nisbet'', [http://canlii.ca/t/2f868 2011 ONCA 26] (CanLII){{TheCourtONCA}}{{at|1}}<br>
+
''R v Nisbet'', [http://canlii.ca/t/2f868 2011 ONCA 26] (CanLII){{TheCourtONCA}}{{atL|1|http://canlii.ca/t/2f868}}<br>
''R v Sharpe'', [http://canlii.ca/t/523f 2001 SCC 2] (CanLII), [2001] 1 SCR 45{{perSCC|L’Heureux-Dubé, Gonthier and Bastarache JJA}}{{at|158}} (concurring)<br>
+
''R v Sharpe'', [http://canlii.ca/t/523f 2001 SCC 2] (CanLII), [2001] 1 SCR 45{{perSCC|L’Heureux-Dubé, Gonthier and Bastarache JJA}}{{atL|158|http://canlii.ca/t/523f}} (concurring)<br>
''R v Lynch-Staunton'', [http://canlii.ca/t/fps1m 2011 ONSC 218] (CanLII){{perONSC|Ratushny J}}{{at|49}}<br>
+
''R v Lynch-Staunton'', [http://canlii.ca/t/fps1m 2011 ONSC 218] (CanLII){{perONSC|Ratushny J}}{{atL|49|http://canlii.ca/t/fps1m}}<br>
''R v Schultz'', [http://canlii.ca/t/hsrsh 2018 ONCA 598] (CanLII){{perONCA|Brown JA}}{{at|53}}<br>
+
''R v Schultz'', [http://canlii.ca/t/hsrsh 2018 ONCA 598] (CanLII){{perONCA|Brown JA}}{{atL|53|http://canlii.ca/t/hsrsh}}<br>
 
</ref>
 
</ref>
  
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All offences involving child pornography have a greater emphasis on general deterrence and denunciation.<ref>
 
All offences involving child pornography have a greater emphasis on general deterrence and denunciation.<ref>
''R v EO'', [http://canlii.ca/t/1bxm3 2003 CanLII 2017] (ON CA){{perONCA|Cronk JA}}{{at|7}}</ref>
+
''R v EO'', [http://canlii.ca/t/1bxm3 2003 CanLII 2017] (ON CA){{perONCA|Cronk JA}}{{atL|7|http://canlii.ca/t/1bxm3}}</ref>
  
 
The initial sentencing response to child pornography offences have been acknowledged as being too lenient.<ref>
 
The initial sentencing response to child pornography offences have been acknowledged as being too lenient.<ref>
''R v PJB'', [http://canlii.ca/t/280cl 2010 ABCA 49] (CanLII){{perABCA|Watson JA}} (2:1){{at|10}}<br>
+
''R v PJB'', [http://canlii.ca/t/280cl 2010 ABCA 49] (CanLII){{perABCA|Watson JA}} (2:1){{atL|10|http://canlii.ca/t/280cl}}<br>
 
</ref>
 
</ref>
  
Line 116: Line 116:
 
(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.
 
(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.
 
<br>...<br>
 
<br>...<br>
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.
+
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; {{LegHistory|2015, c. 23, s. 7.}}
 
|
 
|
 
[{{CCCSec|163.1}} CCC]
 
[{{CCCSec|163.1}} CCC]
Line 129: Line 129:
  
 
===Purpose of Section 163.1 Generally===
 
===Purpose of Section 163.1 Generally===
The prohibition and criminalization of child pornography arises out of society’s interest to protect children. <ref>''R v Sharpe'', [http://canlii.ca/t/523f 2001 SCC 2] (CanLII){{perSCC|McLachlin CJ}}{{at|28}}</ref>  
+
The prohibition and criminalization of child pornography arises out of society’s interest to protect children. <ref>
 +
''R v Sharpe'', [http://canlii.ca/t/523f 2001 SCC 2] (CanLII){{perSCC|McLachlin CJ}}{{atL|28|http://canlii.ca/t/523f}}</ref>  
  
Child pornography presents a "profound and present danger to children around the world".<ref>TLB, [http://canlii.ca/t/1ql87 2007 ABCA 61] (CanLII){{perABCA|Fraser CJ}}{{at|27}}</ref> The pornography is of "enormous gravity" upon the victims public as a whole.<ref>
+
Child pornography presents a "profound and present danger to children around the world".<ref>
''R v EO'', [http://canlii.ca/t/1bxm3 2003 CanLII 2017] (ON CA), [2003] OJ No 563, 169 O.A.C. 110 (C.A.){{perONCA|Cronk JA}}{{at|7}}<br>
+
''R v TLB'', [http://canlii.ca/t/1ql87 2007 ABCA 61] (CanLII){{perABCA|Fraser CJ}}{{atL|27|http://canlii.ca/t/1ql87}}</ref>  
 +
The pornography is of "enormous gravity" upon the victims public as a whole.<ref>
 +
''R v EO'', [http://canlii.ca/t/1bxm3 2003 CanLII 2017] (ON CA), [2003] OJ No 563, 169 O.A.C. 110 (C.A.){{perONCA|Cronk JA}}{{atL|7|http://canlii.ca/t/1bxm3}}<br>
 
</ref>
 
</ref>
 
The "existence of child pornography ... is inherently harmful to children and society" irrespective of the risk of dissemination.<ref>
 
The "existence of child pornography ... is inherently harmful to children and society" irrespective of the risk of dissemination.<ref>
{{supra1|Sharpe}}{{at|158}}<br>
+
{{supra1|Sharpe}}{{atL|158|http://canlii.ca/t/523f}}<br>
 
''R v Pecchiarich'' [2001] OJ No 3940{{perONSC| Hill J}} {{NOCANLII}} ("Possession of child pornography increasingly menaces our young people and threatens our values as a society.")
 
''R v Pecchiarich'' [2001] OJ No 3940{{perONSC| Hill J}} {{NOCANLII}} ("Possession of child pornography increasingly menaces our young people and threatens our values as a society.")
 
</ref>
 
</ref>
 
The material exploits, degrades, objectifies and dehumanizes children, violates their dignity and equality rights.<ref>
 
The material exploits, degrades, objectifies and dehumanizes children, violates their dignity and equality rights.<ref>
{{supra1|Sharpe}}{{at|158}}<br>
+
{{supra1|Sharpe}}{{atL|158|http://canlii.ca/t/523f}}<br>
 
</ref>  
 
</ref>  
 
The pornography "hinders children’s own self-fulfilment and autonomous development by eroticising their inferior social, economic and sexual status".<ref>{{supra1|Sharpe}} at 185</ref>
 
The pornography "hinders children’s own self-fulfilment and autonomous development by eroticising their inferior social, economic and sexual status".<ref>{{supra1|Sharpe}} at 185</ref>
  
 
The exposure of child pornography "may reduce paedophiles' defences and inhibitions against sexual abuse of children" by making the "abnormal seem normal and the immoral seem acceptable".<ref>
 
The exposure of child pornography "may reduce paedophiles' defences and inhibitions against sexual abuse of children" by making the "abnormal seem normal and the immoral seem acceptable".<ref>
{{supra1|Sharpe}}{{at|88}}<br>
+
{{supra1|Sharpe}}{{atL|88|http://canlii.ca/t/523f}}<br>
''R v Miller'', [http://canlii.ca/t/h2x0t 2017 NLCA 22] (CanLII){{perNLCA|Hoegg JA}}{{at|14}}<br>
+
''R v Miller'', [http://canlii.ca/t/h2x0t 2017 NLCA 22] (CanLII){{perNLCA|Hoegg JA}}{{atL|14|http://canlii.ca/t/h2x0t}}<br>
 
</ref>
 
</ref>
  
 
The possession of this material "fuels fantasies", making an offender more likely to commit a hands-on offence.<ref>
 
The possession of this material "fuels fantasies", making an offender more likely to commit a hands-on offence.<ref>
{{supra1|Sharpe}}{{at|89}}<br>
+
{{supra1|Sharpe}}{{atL|89|http://canlii.ca/t/523f}}<br>
 
</ref>
 
</ref>
  
 
By criminalizing possession of child pornography, the legislature provides a "useful tool in detecting and prosecuting the production and distribution of child pornography".<ref>
 
By criminalizing possession of child pornography, the legislature provides a "useful tool in detecting and prosecuting the production and distribution of child pornography".<ref>
{{supra1|Miller}}{{at|14}}<br>
+
{{supra1|Miller}}{{atL|14|http://canlii.ca/t/h2x0t}}<br>
{{supra1|Sharpe}}{{at|90}}<br>
+
{{supra1|Sharpe}}{{atL|90|http://canlii.ca/t/523f}}<br>
 
</ref>
 
</ref>
  
 
These materials are tools that can be used by paedophiles to "groom" and seduce child victims.<ref>
 
These materials are tools that can be used by paedophiles to "groom" and seduce child victims.<ref>
{{supra1|Miller}}{{at|14}}<br>
+
{{supra1|Miller}}{{atL|14|http://canlii.ca/t/h2x0t}}<br>
{{supra1|Sharpe}}{{at|91}}<br>
+
{{supra1|Sharpe}}{{atL|91|http://canlii.ca/t/523f}}<br>
 
</ref>
 
</ref>
  
 
The creation of child pornography, in most cases, requires the use and abuse of children by fuelling the market of those who seek to possess the materials.<ref>
 
The creation of child pornography, in most cases, requires the use and abuse of children by fuelling the market of those who seek to possess the materials.<ref>
{{supra1|Sharpe}}{{at|92}}<br>
+
{{supra1|Sharpe}}{{atL|92|http://canlii.ca/t/523f}}<br>
{{supra1|Miller}}{{at|14}}<br>
+
{{supra1|Miller}}{{atL|14|http://canlii.ca/t/h2x0t}}<br>
 
</ref>
 
</ref>
  
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===Effect on Victims===
 
===Effect on Victims===
 
Child pornography contributes to the abuse of children who are photographed or filmed by exploiting their vulnerability.<ref>
 
Child pornography contributes to the abuse of children who are photographed or filmed by exploiting their vulnerability.<ref>
''R v Sharpe'',  [http://canlii.ca/t/523f 2001 SCC 2] (CanLII){{perSCC|McLachlin CJ}}{{at|169}} ("...Child pornography plays a role in the abuse of children, exploiting the extreme vulnerability of children.")<br>
+
''R v Sharpe'',  [http://canlii.ca/t/523f 2001 SCC 2] (CanLII){{perSCC|McLachlin CJ}}{{atL|169|http://canlii.ca/t/523f}} ("...Child pornography plays a role in the abuse of children, exploiting the extreme vulnerability of children.")<br>
''R v Garcia'', [http://canlii.ca/t/22wzf 2009 BCSC 407] (CanLII), [2009] BCJ No. 581(S.C.){{perBCSC|Griffin J}}{{ats|14 and 15}}
+
''R v Garcia'', [http://canlii.ca/t/22wzf 2009 BCSC 407] (CanLII), [2009] BCJ No. 581(S.C.){{perBCSC|Griffin J}}{{atsL|14 and 15|http://canlii.ca/t/22wzf#par14}}
 
</ref>   
 
</ref>   
  
 
The child is sexually exploited even where they are unaware of their role in the making of child pornography.
 
The child is sexually exploited even where they are unaware of their role in the making of child pornography.
 
<ref>
 
<ref>
{{ibid1|Garcia}}{{ats|14 and 15}}
+
{{ibid1|Garcia}}{{atsL|14 and 15|http://canlii.ca/t/22wzf#par14}}
 
</ref>
 
</ref>
  
Children are recognized as one of the "most valued and most vulnerable assets." They are generally incapable of defending themselves and so are easily targeted.<ref>{{supra1|DD}}{{At|35}}</ref> It is for this reason that courts must focus on protecting children.<ref>
+
Children are recognized as one of the "most valued and most vulnerable assets." They are generally incapable of defending themselves and so are easily targeted.<ref>
 +
''R v D(D)'', [http://canlii.ca/t/1db6b 2002 CanLII 44915] (ON CA){{perONCA|Moldaver JA}}{{AtL|35|http://canlii.ca/t/1db6b}}</ref>  
 +
It is for this reason that courts must focus on protecting children.<ref>
 
''R v Nisbet'', [http://canlii.ca/t/2f868 2011 ONCA 26] (CanLII){{TheCourtONCA}} (Child pornography is "an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.")</ref>
 
''R v Nisbet'', [http://canlii.ca/t/2f868 2011 ONCA 26] (CanLII){{TheCourtONCA}} (Child pornography is "an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.")</ref>
As with all sexual offences, it has been recognized by courts that child victims of sexual offences suffer from long lasting damage.<ref>{{supra1|DD}}{{at|36}}</ref> They suffer from emotional trauma that is often permanent. As adults they "may become incapable of forming loving relationship, always fearful of re-victimization by sexual partners. Further, the matured victim may become a sexual predator himself. It is often that an offender will report being victimized by other sexual predators as a child."<ref>{{supra1|DD}}{{Ats|37-38}}</ref>
+
As with all sexual offences, it has been recognized by courts that child victims of sexual offences suffer from long lasting damage.<ref>
 +
{{supra1|D(D)}}{{atL|36|http://canlii.ca/t/1db6b}}</ref>  
 +
They suffer from emotional trauma that is often permanent. As adults, they "may become incapable of forming loving relationship, always fearful of re-victimization by sexual partners. Further, the matured victim may become a sexual predator himself. It is often that an offender will report being victimized by other sexual predators as a child."<ref>
 +
{{supra1|D(D)}}{{AtsL|37-38|http://canlii.ca/t/1db6b#par37}}</ref>
  
 
Live images of children are particularly serious since it creates a permanent record of abuse.<ref>
 
Live images of children are particularly serious since it creates a permanent record of abuse.<ref>
{{supra1|Sharpe}}{{at|169}} ("Pornography that depicts real children is particularly noxious because it creates a permanent record of abuse and exploitation.")</ref>
+
{{supra1|Sharpe}}{{atL|169|http://canlii.ca/t/523f}} ("Pornography that depicts real children is particularly noxious because it creates a permanent record of abuse and exploitation.")</ref>
 
Once an image or video is taken and distributed on the internet it will generally propagate indefinitely.<ref>
 
Once an image or video is taken and distributed on the internet it will generally propagate indefinitely.<ref>
 
Standing Senate Committee on Human Rights{{atp|23}}</ref>
 
Standing Senate Committee on Human Rights{{atp|23}}</ref>
Line 191: Line 199:
 
''R v Smith'', [http://canlii.ca/t/21k23 2008 CanLII 59107] (ON SC){{perONSC|Clark J}}<br>
 
''R v Smith'', [http://canlii.ca/t/21k23 2008 CanLII 59107] (ON SC){{perONSC|Clark J}}<br>
 
{{supra1|Garcia}}{{ats|14 and 15}}<br>
 
{{supra1|Garcia}}{{ats|14 and 15}}<br>
''R v WAE'', [http://canlii.ca/t/256c3 2009 CanLII 42861] (NL PC){{perNLPC|Gorman J}} {{at|30}}
+
''R v WAE'', [http://canlii.ca/t/256c3 2009 CanLII 42861] (NL PC){{perNLPC|Gorman J}} {{atL|30|http://canlii.ca/t/256c3}}
 
</ref>
 
</ref>
  
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===Prevalence===
 
===Prevalence===
 
The frequency of these offences has been expanding with technology becoming more sophisticated.<ref>
 
The frequency of these offences has been expanding with technology becoming more sophisticated.<ref>
''R v DGF'', [http://canlii.ca/t/27hgx 2010 ONCA 27] (CanLII){{perONCA|Feldman JA}} {{at|22}}
+
''R v DGF'', [http://canlii.ca/t/27hgx 2010 ONCA 27] (CanLII){{perONCA|Feldman JA}} {{atL|22|http://canlii.ca/t/27hgx}}
 
("the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution.")</ref>
 
("the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution.")</ref>
  
Line 205: Line 213:
  
 
Those who access and possess child pornography encourage others to sexually abuse children and record it.<ref>
 
Those who access and possess child pornography encourage others to sexually abuse children and record it.<ref>
''R v Bock'', [http://canlii.ca/t/29z85 2010 ONSC 3117] (CanLII), [2010] OJ No 2277 (S.C.J.){{perONSC|Henderson J}}{{at|31}}<br>
+
''R v Bock'', [http://canlii.ca/t/29z85 2010 ONSC 3117] (CanLII), [2010] OJ No 2277 (S.C.J.){{perONSC|Henderson J}}{{atL|31|http://canlii.ca/t/29z85}}<br>
 
</ref> Thus by deterring possession and access will reduce the abuse of children.<ref>
 
</ref> Thus by deterring possession and access will reduce the abuse of children.<ref>
{{ibid1|Bock}}{{at|31}}</ref>
+
{{ibid1|Bock}}{{atL|31|http://canlii.ca/t/29z85}}</ref>
 
   
 
   
 
{{reflist|2}}
 
{{reflist|2}}
Line 213: Line 221:
 
===Danger of Offenders===
 
===Danger of Offenders===
 
Some psychiatric experts suggest that collecting child pornography is an addiction.<ref>
 
Some psychiatric experts suggest that collecting child pornography is an addiction.<ref>
''R v Labre'', [http://canlii.ca/t/fwhp0 2013 ONCJ 116] (CanLII){{perONCJ|Lalande J}} {{at|18}}
+
''R v Labre'', [http://canlii.ca/t/fwhp0 2013 ONCJ 116] (CanLII){{perONCJ|Lalande J}} {{atL|18|http://canlii.ca/t/fwhp0}}
 
</ref> It may result in the offender to becomes desensitized to the harm caused to children.<ref>
 
</ref> It may result in the offender to becomes desensitized to the harm caused to children.<ref>
{{ibid1|Labre}}{{at|18}}</ref>
+
{{ibid1|Labre}}{{atL|18|http://canlii.ca/t/fwhp0}}</ref>
  
 
An offender with a prior record of actual abuse of children, an accumulation of violent materials involving children, image access history will permit the judge to conclude the offender is a danger to the community.<ref>
 
An offender with a prior record of actual abuse of children, an accumulation of violent materials involving children, image access history will permit the judge to conclude the offender is a danger to the community.<ref>
''R v EO'', [http://canlii.ca/t/1bxm3 2003 CanLII 2017] (ON CA){{perONCA|Cronk JA}}{{at|7}}
+
''R v EO'', [http://canlii.ca/t/1bxm3 2003 CanLII 2017] (ON CA){{perONCA|Cronk JA}}{{atL|7|http://canlii.ca/t/1bxm3}}
 
</ref>
 
</ref>
  
 
An offender will often have a great insight into his interests and their inappropriateness but will still endulge in them.<ref>
 
An offender will often have a great insight into his interests and their inappropriateness but will still endulge in them.<ref>
e.g. see ''R v Saddlemire'', [http://canlii.ca/t/1q9jg 2007 ONCA 36] (CanLII){{perONCA|MacFarland JA}} {{at|53}}
+
e.g. see ''R v Saddlemire'', [http://canlii.ca/t/1q9jg 2007 ONCA 36] (CanLII){{perONCA|MacFarland JA}} {{atL|53|http://canlii.ca/t/1q9jg}}
 
</ref>  
 
</ref>  
 
When the offender has issues with substance abuse he is more likely to be a risk for future offences as the substances will reduce their inhibitions.<ref>
 
When the offender has issues with substance abuse he is more likely to be a risk for future offences as the substances will reduce their inhibitions.<ref>
{{ibid1|Saddlemire}}{{at|54}}</ref>
+
{{ibid1|Saddlemire}}{{atL|54|http://canlii.ca/t/1q9jg}}</ref>
  
 
The circulation of images and videos "can create a kind of pedophile-peergroup mentality where social inhibitions against sexualization of children are lowered, potentially encouraging child sexual abuse."<ref>
 
The circulation of images and videos "can create a kind of pedophile-peergroup mentality where social inhibitions against sexualization of children are lowered, potentially encouraging child sexual abuse."<ref>
Line 236: Line 244:
  
 
Convictions for child pornography carry with it “stigma, public humiliation, and revulsion.”<ref>
 
Convictions for child pornography carry with it “stigma, public humiliation, and revulsion.”<ref>
''R v Schneider'', [http://canlii.ca/t/1x1k2 2008 ONCJ 250] (CanLII){{perONCJ| Wong J}}{{at|43}}
+
''R v Schneider'', [http://canlii.ca/t/1x1k2 2008 ONCJ 250] (CanLII){{perONCJ| Wong J}}{{atL|43|http://canlii.ca/t/1x1k2}}
 
</ref>
 
</ref>
  
Line 243: Line 251:
 
===Amount of Materials===
 
===Amount of Materials===
 
While the number of illegal files is important to sentence, the amount of files should be not lead to “tariff sentencing”.<ref>
 
While the number of illegal files is important to sentence, the amount of files should be not lead to “tariff sentencing”.<ref>
''R v Sputnikoff'', [http://canlii.ca/t/fwz48 2013 SKPC 57] (CanLII){{perSKPC|Agnew J}}{{ats|36 to 37}}
+
''R v Sputnikoff'', [http://canlii.ca/t/fwz48 2013 SKPC 57] (CanLII){{perSKPC|Agnew J}}{{atsL|36 to 37|http://canlii.ca/t/fwz48#par36}}
 
</ref>
 
</ref>
 
The difference between file counts are less important as the overall magnitude.<ref>  
 
The difference between file counts are less important as the overall magnitude.<ref>  
e.g. {{ibid1|Sputninoff}}{{at|37}}<br>
+
e.g. {{ibid1|Sputninoff}}{{atL|37|http://canlii.ca/t/fwz48}}<br>
 
</ref>
 
</ref>
 
The amount of files should not be considered the "most aggravating" factor since it is possible to download hundreds or even thousands of files within 24 hours of internet use.<ref>
 
The amount of files should not be considered the "most aggravating" factor since it is possible to download hundreds or even thousands of files within 24 hours of internet use.<ref>
''R c Von Gunten'', [http://canlii.ca/t/1mq2g 2006 QCCA 286] (CanLII){{perQCCA|Pelletier JA}}{{at|19}}<br>
+
''R c Von Gunten'', [http://canlii.ca/t/1mq2g 2006 QCCA 286] (CanLII){{perQCCA|Pelletier JA}}{{atL|19|http://canlii.ca/t/1mq2g}}<br>
 
</ref>
 
</ref>
  
 
It is permissible to treat as aggravating the number of images found in association with a single count. There is no "bulk discount" of sentence for the quantity of images.<ref>
 
It is permissible to treat as aggravating the number of images found in association with a single count. There is no "bulk discount" of sentence for the quantity of images.<ref>
''R v Andrukonis'', [http://canlii.ca/t/frc71 2012 ABCA 148] (CanLII){{TheCourtABCA}}{{ats|24 to 26}}<br>
+
''R v Andrukonis'', [http://canlii.ca/t/frc71 2012 ABCA 148] (CanLII){{TheCourtABCA}}{{atsL|24 to 26|http://canlii.ca/t/frc71#par24}}<br>
 
</ref>
 
</ref>
  
Line 260: Line 268:
 
===Classification of Materials===
 
===Classification of Materials===
 
The nature of the materials is an important factor to sentencing.<ref>
 
The nature of the materials is an important factor to sentencing.<ref>
''R v LaGue'', [http://canlii.ca/t/fw3t9 2013 MBQB 32] (CanLII){{perMBQB|Perlmutter J}}{{at|19}}<br>
+
''R v LaGue'', [http://canlii.ca/t/fw3t9 2013 MBQB 32] (CanLII){{perMBQB|Perlmutter J}}{{atL|19|http://canlii.ca/t/fw3t9}}<br>
 
''R v Brooks'', [http://canlii.ca/t/2f62k 2010 MBPC 61] (CanLII){{perMBPC|Lerner J}}<br>
 
''R v Brooks'', [http://canlii.ca/t/2f62k 2010 MBPC 61] (CanLII){{perMBPC|Lerner J}}<br>
 
</ref> It is  evidence suggesting the types of fantasies engaged in by the offender. It could be argued that the more explicit the sexual activity depicted, the more fixated the offender is upon that type of behaviour.
 
</ref> It is  evidence suggesting the types of fantasies engaged in by the offender. It could be argued that the more explicit the sexual activity depicted, the more fixated the offender is upon that type of behaviour.
Line 268: Line 276:
 
</ref>
 
</ref>
  
Depictions of child pornography can be categorized into one of five categories, from least serious to most serious: <ref>''R v Missions'', [http://canlii.ca/t/1knrn 2005 NSCA 82] (CanLII){{perNSCA|Roscoe JA}}{{at|14}}<br>
+
Depictions of child pornography can be categorized into one of five categories, from least serious to most serious: <ref>
La{{supra1|Gue}}{{at|19}}<br>
+
''R v Missions'', [http://canlii.ca/t/1knrn 2005 NSCA 82] (CanLII){{perNSCA|Roscoe JA}}{{atL|14|http://canlii.ca/t/1knrn}}<br>
 +
{{supra1|LaGue}}{{atL|19|http://canlii.ca/t/fw3t9}}<br>
 
</ref>
 
</ref>
 
#images depicting erotic posing with no sexual activity;
 
#images depicting erotic posing with no sexual activity;
Line 278: Line 287:
  
 
The types of content of the files becomes less relevant for larger collection.<ref>
 
The types of content of the files becomes less relevant for larger collection.<ref>
''R v Stupnikoff'', [http://canlii.ca/t/fwz48 2013 SKPC 57] (CanLII){{perSKPC|Agnew J}} {{at|35}}
+
''R v Stupnikoff'', [http://canlii.ca/t/fwz48 2013 SKPC 57] (CanLII){{perSKPC|Agnew J}} {{atL|35|http://canlii.ca/t/fwz48}}
 
</ref>
 
</ref>
  
Line 290: Line 299:
 
===Intersection With Other Sex Offences===
 
===Intersection With Other Sex Offences===
 
There is a close relationship between child pornography offences and those involving hands-on abuse of children. The court must consider each offence in light of its connections with the others.<ref>
 
There is a close relationship between child pornography offences and those involving hands-on abuse of children. The court must consider each offence in light of its connections with the others.<ref>
''R v LM'', [http://canlii.ca/t/1x21j 2008 SCC 31] (CanLII), [2008] 2 SCR 163{{perSCC|LeBel J}}{{at|31}}</ref>
+
''R v LM'', [http://canlii.ca/t/1x21j 2008 SCC 31] (CanLII), [2008] 2 SCR 163{{perSCC|LeBel J}}{{atL|31|http://canlii.ca/t/1x21j}}</ref>
  
 
{{reflist|2}}
 
{{reflist|2}}
Line 297: Line 306:
  
 
The distinction between a charge of accessing or possessing appears to make little difference in the duration of penalty.<ref>
 
The distinction between a charge of accessing or possessing appears to make little difference in the duration of penalty.<ref>
''R v Bejasa'', [http://canlii.ca/t/2c48z 2010 ABPC 249] (CanLII){{perABPC|Fradsham J}}{{ats|33 to 34}}<br>
+
''R v Bejasa'', [http://canlii.ca/t/2c48z 2010 ABPC 249] (CanLII){{perABPC|Fradsham J}}{{atsL|33 to 34|http://canlii.ca/t/2c48z#par33}}<br>
 
</ref>
 
</ref>
  
Line 304: Line 313:
 
''R v Stroemple'', [http://canlii.ca/t/6jn6 1995 CanLII 2283] (ONCA), 105 CCC (3d) 187{{perONCA|Morden ACJ}}{{atp|191}}<br>  
 
''R v Stroemple'', [http://canlii.ca/t/6jn6 1995 CanLII 2283] (ONCA), 105 CCC (3d) 187{{perONCA|Morden ACJ}}{{atp|191}}<br>  
 
''R v Hewlett'', [http://canlii.ca/t/5kz5 2002 ABCA 179] (CanLII), (2002) 167 CCC (3d) 425{{perABCA|Fraser CJ}}{{atp|432}} (ABCA)<br>  
 
''R v Hewlett'', [http://canlii.ca/t/5kz5 2002 ABCA 179] (CanLII), (2002) 167 CCC (3d) 425{{perABCA|Fraser CJ}}{{atp|432}} (ABCA)<br>  
''R v Hunt'', [2002] AJ No 831, [http://canlii.ca/t/1tfxh 2002 ABCA 155] (CanLII){{TheCourtABCA}}{{at|41}}<br>
+
''R v Hunt'', [2002] AJ No 831, [http://canlii.ca/t/1tfxh 2002 ABCA 155] (CanLII){{TheCourtABCA}}{{atL|41|http://canlii.ca/t/1tfxh}}<br>
 
''R v Missions'', [http://canlii.ca/t/1knrn 2005 NSCA 82] (CanLII){{perNSCA|Roscoe JA}}<br>
 
''R v Missions'', [http://canlii.ca/t/1knrn 2005 NSCA 82] (CanLII){{perNSCA|Roscoe JA}}<br>
 
''R v Cohen'', [http://canlii.ca/t/1fbrt 2001 CanLII 3862] (ON CA){{TheCourtONCA}}<br>
 
''R v Cohen'', [http://canlii.ca/t/1fbrt 2001 CanLII 3862] (ON CA){{TheCourtONCA}}<br>
Line 310: Line 319:
  
 
Possession of child pornography contributes to the market for child pornography which drives the production of the materials.<ref>
 
Possession of child pornography contributes to the market for child pornography which drives the production of the materials.<ref>
''R v Sharpe'', [http://canlii.ca/t/523f 2001 SCC 2] (CanLII){{perSCC|McLachlin CJ}} at 28<br>
+
''R v Sharpe'', [http://canlii.ca/t/523f 2001 SCC 2] (CanLII){{perSCC|McLachlin CJ}}{{atL|28|http://canlii.ca/t/523f}}<br>
''R v Fisher'', [2007] NBJ No. 129, [http://canlii.ca/t/1r84m 2007 NBPC 15] (CanLII){{perNBPC|Cumming J}}{{at|16}}<br>
+
''R v Fisher'', [2007] NBJ No. 129, [http://canlii.ca/t/1r84m 2007 NBPC 15] (CanLII){{perNBPC|Cumming J}}{{atL|16|http://canlii.ca/t/1r84m}}<br>
 
{{supra1|Stroempl}}{{atp|191}}
 
{{supra1|Stroempl}}{{atp|191}}
 
</ref>  
 
</ref>  
Line 321: Line 330:
 
{{ibid1|WC}}{{ats|20-26}}<br>
 
{{ibid1|WC}}{{ats|20-26}}<br>
 
{{supra1|Stroempl}}{{atp|191}}<br>
 
{{supra1|Stroempl}}{{atp|191}}<br>
''R v Lisk'', [http://canlii.ca/t/6gvs 1998 CanLII 4737] (ON CA), [1998] OJ No 1456 (C.A.){{TheCourtONCA}}{{at|1}}<br>
+
''R v Lisk'', [http://canlii.ca/t/6gvs 1998 CanLII 4737] (ON CA), [1998] OJ No 1456 (C.A.){{TheCourtONCA}}{{atL|1|http://canlii.ca/t/6gvs}}<br>
 
</ref>
 
</ref>
  
 
Possession also breaks down inhibitions, and creates cognitive distortions that abuse is not harmful. It normalizes the material, numbing the offender's conscience, and making the immoralities acceptable.<ref>
 
Possession also breaks down inhibitions, and creates cognitive distortions that abuse is not harmful. It normalizes the material, numbing the offender's conscience, and making the immoralities acceptable.<ref>
{{supra1|Sharpe}}{{ats|85 to 94}}</ref>  
+
{{supra1|Sharpe}}{{ats|85 to 94|http://canlii.ca/t/523f#par85}}</ref>  
 
In certain individuals, it will fuel fantasies and incite them to commit offences.<ref>
 
In certain individuals, it will fuel fantasies and incite them to commit offences.<ref>
{{supra1|Sharpe}} at 85 to 94<br>  
+
{{supra1|Sharpe}}{{atsL|85 to 94|http://canlii.ca/t/523f#par85}}<br>  
 
''R v Steadman'', [http://canlii.ca/t/h2rb5 2001 ABQB 1004] (CanLII), [2001] AJ No 1563{{perABQB|Gallant J}}{{ats|21 and 22}}<br>
 
''R v Steadman'', [http://canlii.ca/t/h2rb5 2001 ABQB 1004] (CanLII), [2001] AJ No 1563{{perABQB|Gallant J}}{{ats|21 and 22}}<br>
 
</ref>
 
</ref>
  
 
The materials encourage potential offenders to groom and seduce children for the purpose of making child pornography.<ref>  
 
The materials encourage potential offenders to groom and seduce children for the purpose of making child pornography.<ref>  
{{supra1|Sharpe}}{{at|93}} ("The ability to possess child pornography makes it available for the grooming and seduction of children by the possessor and others.  Mr. Sharpe does not deny that some child pornography can play an important role in the seduction of children.  Criminalizing the possession of child pornography is likely to help reduce the grooming and seduction of children.")</ref>
+
{{supra1|Sharpe}}{{atL|93|http://canlii.ca/t/523f}} ("The ability to possess child pornography makes it available for the grooming and seduction of children by the possessor and others.  Mr. Sharpe does not deny that some child pornography can play an important role in the seduction of children.  Criminalizing the possession of child pornography is likely to help reduce the grooming and seduction of children.")</ref>
  
 
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.<ref>
 
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.<ref>
e.g. ''R v Durnford'', [http://canlii.ca/t/1pscf 2006 CanLII 34694] (NL PC){{perNLPC|Gorman J}}{{at|77}}</ref>
+
e.g. ''R v Durnford'', [http://canlii.ca/t/1pscf 2006 CanLII 34694] (NL PC){{perNLPC|Gorman J}}{{atL|77|http://canlii.ca/t/1pscf}}</ref>
  
 
The offence of accessing should not be considered any less serious an offence as possession.<ref>
 
The offence of accessing should not be considered any less serious an offence as possession.<ref>
''R v Hammond'', [http://canlii.ca/t/270hl 2009 ABCA 415] (CanLII){{perABCA|Watson JA}}{{at|6}}
+
''R v Hammond'', [http://canlii.ca/t/270hl 2009 ABCA 415] (CanLII){{perABCA|Watson JA}}{{atL|6|http://canlii.ca/t/270hl}}
 
</ref>
 
</ref>
  
Line 349: Line 358:
 
===Ranges===
 
===Ranges===
 
In Alberta, the range for possession of child pornography is around 12 months. <ref>
 
In Alberta, the range for possession of child pornography is around 12 months. <ref>
''R v Hilderman'', [http://canlii.ca/t/2b7gp 2010 ABPC 183] (CanLII){{perABPC|Fraser J}}{{at|15}}</ref>
+
''R v Hilderman'', [http://canlii.ca/t/2b7gp 2010 ABPC 183] (CanLII){{perABPC|Fraser J}}{{atL|15|http://canlii.ca/t/2b7gp}}</ref>
  
 
In Saskatchewan, it has been suggested that for a first time offender for possession should receive anywhere from the minimum to 2 years incarceration.<ref>
 
In Saskatchewan, it has been suggested that for a first time offender for possession should receive anywhere from the minimum to 2 years incarceration.<ref>
''R v Kroeker'', [http://canlii.ca/t/g739w 2014 SKQB 137] (CanLII){{perSKQB|Keene J}}{{at|51}}<br>
+
''R v Kroeker'', [http://canlii.ca/t/g739w 2014 SKQB 137] (CanLII){{perSKQB|Keene J}}{{atL|51|http://canlii.ca/t/g739w}}<br>
 
</ref>
 
</ref>
  
Line 362: Line 371:
 
; Gravity
 
; Gravity
 
The offence can range from "recording reprehensible non-consensual sexual acts to pure voyeurism".<ref>
 
The offence can range from "recording reprehensible non-consensual sexual acts to pure voyeurism".<ref>
''R v Gryba'', [http://canlii.ca/t/gr50j 2016 SKQB 123] (CanLII){{perSKQB|Popescul CJ}}{{at|63}}<br>
+
''R v Gryba'', [http://canlii.ca/t/gr50j 2016 SKQB 123] (CanLII){{perSKQB|Popescul CJ}}{{atL|63|http://canlii.ca/t/gr50j}}<br>
 
</ref> While all are forms of abuse, "surreptitious recording" of change rooms is on the lower end of the scale.<ref>
 
</ref> While all are forms of abuse, "surreptitious recording" of change rooms is on the lower end of the scale.<ref>
 
{{ibid1|Gryba}}{{atp|63}}<br>
 
{{ibid1|Gryba}}{{atp|63}}<br>
Line 368: Line 377:
  
 
The gravity of the making of child pornography is different from the possession and access, as making usually involves the direct abuse of children.<ref>
 
The gravity of the making of child pornography is different from the possession and access, as making usually involves the direct abuse of children.<ref>
''R v Rhode'', [http://canlii.ca/t/hxb9c 2019 SKCA 17] (CanLII){{perSKCA|Caldwell JA}}{{at|89}} ("...the gravamen of conduct giving rise to the objective offence of making child pornography differs from the gravamen of the offences of accessing and possessing child pornography. It differs because it usually involves the direct abuse of a child as opposed to the promotion of the abuse of a child. ")
+
''R v Rhode'', [http://canlii.ca/t/hxb9c 2019 SKCA 17] (CanLII){{perSKCA|Caldwell JA}}{{atL|89|http://canlii.ca/t/hxb9c}} ("...the gravamen of conduct giving rise to the objective offence of making child pornography differs from the gravamen of the offences of accessing and possessing child pornography. It differs because it usually involves the direct abuse of a child as opposed to the promotion of the abuse of a child. ")
 
</ref>
 
</ref>
  
  
 
Consideration of how many images are made is secondary for the purpose of sentencing to the question of "how" the material was made.<ref>
 
Consideration of how many images are made is secondary for the purpose of sentencing to the question of "how" the material was made.<ref>
''R v Rhode'', [http://canlii.ca/t/hxb9c 2019 SKCA 17] (CanLII){{perSKCA|Caldwell JA}}{{at|89}}
+
''R v Rhode'', [http://canlii.ca/t/hxb9c 2019 SKCA 17] (CanLII){{perSKCA|Caldwell JA}}{{atL|89|http://canlii.ca/t/hxb9c}}
 
</ref>
 
</ref>
  
 
There is a "very strong" link between production and harm. There is a "devastating impact" where the child is "traumatized by being used as a sexual object" which lasts with them for their whole life.<ref>
 
There is a "very strong" link between production and harm. There is a "devastating impact" where the child is "traumatized by being used as a sexual object" which lasts with them for their whole life.<ref>
''R v Sharpe'', [http://canlii.ca/t/523f 2001 SCC 2] (CanLII){{perSCC|McLachlin CJ}}{{at|92}} ("The link between the production of child pornography and harm to children is very strong.  The abuse is broad in extent and devastating in impact.  The child is traumatized by being used as a sexual object in the course of making the pornography.  The child may be sexually abused and degraded.  The trauma and violation of dignity may stay with the child as long as he or she lives.")
+
''R v Sharpe'', [http://canlii.ca/t/523f 2001 SCC 2] (CanLII){{perSCC|McLachlin CJ}}{{atL|92|http://canlii.ca/t/523f}} ("The link between the production of child pornography and harm to children is very strong.  The abuse is broad in extent and devastating in impact.  The child is traumatized by being used as a sexual object in the course of making the pornography.  The child may be sexually abused and degraded.  The trauma and violation of dignity may stay with the child as long as he or she lives.")
 
</ref>
 
</ref>
  
 
Victims are harmed "not only by the initial production of child pornography but also perpetually if the materials is made available or distributed." The internet makes it impossible to ever remove the material in circulation.<ref>
 
Victims are harmed "not only by the initial production of child pornography but also perpetually if the materials is made available or distributed." The internet makes it impossible to ever remove the material in circulation.<ref>
''R v GJM'', [http://canlii.ca/t/glx87 2015 MBCA 103] (CanLII){{perMBCA|Mainella JA}}{{at|14}}<br>
+
''R v GJM'', [http://canlii.ca/t/glx87 2015 MBCA 103] (CanLII){{perMBCA|Mainella JA}}{{atL|14|http://canlii.ca/t/glx87}}<br>
 
</ref>
 
</ref>
  
Line 387: Line 396:
 
===Factors===
 
===Factors===
 
It is aggravating if the accused was in a position of trust to the subject of the created child pornography.<ref>
 
It is aggravating if the accused was in a position of trust to the subject of the created child pornography.<ref>
''R v Gryba'', [http://canlii.ca/t/gr50j 2016 SKQB 123] (CanLII){{perSKQB|Popescul CJ}}{{at|64}}, also citing s. 718.01 and 718.2(a)(ii.1) and (iii)<br>
+
''R v Gryba'', [http://canlii.ca/t/gr50j 2016 SKQB 123] (CanLII){{perSKQB|Popescul CJ}}{{atL|64|http://canlii.ca/t/gr50j}}, also citing s. 718.01 and 718.2(a)(ii.1) and (iii)<br>
 
</ref>
 
</ref>
  
 
It is ''not'' a mitigating factor that the materials were not made available online for sharing. It simply suggests that creation was for personal use.<ref>
 
It is ''not'' a mitigating factor that the materials were not made available online for sharing. It simply suggests that creation was for personal use.<ref>
''R v GJM'', [http://canlii.ca/t/glx87 2015 MBCA 103] (CanLII){{perMBCA|Mainella JA}}{{at|15}}<br>
+
''R v GJM'', [http://canlii.ca/t/glx87 2015 MBCA 103] (CanLII){{perMBCA|Mainella JA}}{{atL|15|http://canlii.ca/t/glx87}}<br>
 
</ref>
 
</ref>
  
 
The creation of child pornography through pasting faces on previously downloaded images of child pornography is not a lesser form of creation.<ref>
 
The creation of child pornography through pasting faces on previously downloaded images of child pornography is not a lesser form of creation.<ref>
''R v Rhode'', [http://canlii.ca/t/hxb9c 2019 SKCA 17] (CanLII){{perSKCA|Caldwell JA}}{{at|89}}
+
''R v Rhode'', [http://canlii.ca/t/hxb9c 2019 SKCA 17] (CanLII){{perSKCA|Caldwell JA}}{{atL|89|http://canlii.ca/t/hxb9c}}
 
</ref>
 
</ref>
  
Line 403: Line 412:
  
 
In Manitoba, the making of child pornography where there is evidence of sharing or making available will result in a sentence in the range of "mid to upper single digits".<ref>
 
In Manitoba, the making of child pornography where there is evidence of sharing or making available will result in a sentence in the range of "mid to upper single digits".<ref>
''R v GJM'', [http://canlii.ca/t/glx87 2015 MBCA 103] (CanLII){{perMBCA|Mainella JA}}{{at|15}}<br>
+
''R v GJM'', [http://canlii.ca/t/glx87 2015 MBCA 103] (CanLII){{perMBCA|Mainella JA}}{{atL|15|http://canlii.ca/t/glx87}}<br>
 
</ref>
 
</ref>
  
Line 413: Line 422:
  
 
Distribution through the internet is particularly despicable as "it is unbounded once the materials are sent out to one person."<ref>
 
Distribution through the internet is particularly despicable as "it is unbounded once the materials are sent out to one person."<ref>
''R v Weber'', [http://canlii.ca/t/604t 2003 CanLII 28579] (ON CA), [2003] OJ No 3306 (C.A.){{perONCA|Feldman JA}}{{at|16}}<br>
+
''R v Weber'', [http://canlii.ca/t/604t 2003 CanLII 28579] (ON CA), [2003] OJ No 3306 (C.A.){{perONCA|Feldman JA}}{{atL|16|http://canlii.ca/t/604t}}<br>
 
</ref>
 
</ref>
 
Files made available online for circulation will allow the "virtual abuse" to "go on forever".<ref>
 
Files made available online for circulation will allow the "virtual abuse" to "go on forever".<ref>
''R v Kwok'', [http://canlii.ca/t/1qgkd 2007 CanLII 2942] (ON SC){{perONSC|Molloy J}}{{at|51}}<br>
+
''R v Kwok'', [http://canlii.ca/t/1qgkd 2007 CanLII 2942] (ON SC){{perONSC|Molloy J}}{{atL|51|http://canlii.ca/t/1qgkd}}<br>
 
</ref>
 
</ref>
  
 
Even the possibility that distribution "might occur” create harm as to the victim's "have ongoing fear and uncertainty" that the files will remain accessible on the Internet and will revicitimize them. <ref>
 
Even the possibility that distribution "might occur” create harm as to the victim's "have ongoing fear and uncertainty" that the files will remain accessible on the Internet and will revicitimize them. <ref>
''R v DGF'', [http://canlii.ca/t/27hgx 2010 ONCA 27] (CanLII){{perONCA|Feldman JA}}{{at|25}}
+
''R v DGF'', [http://canlii.ca/t/27hgx 2010 ONCA 27] (CanLII){{perONCA|Feldman JA}}{{atL|25|http://canlii.ca/t/27hgx}}
 
</ref>
 
</ref>
  
 
{{reflist|2}}
 
{{reflist|2}}
 
===Factors===
 
===Factors===
Aggravating factors include: <ref>''R v Saddler'', [http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2009/83.html 2009 NSWCCA 83] (AustLII) also referred to ''Regina v Oliver'', Hartrey and Baldwin [2004] UKHL 43; [2003] 1 Cr App R 28<br>   
+
Aggravating factors include: <ref>
''R v WAE'', [http://canlii.ca/t/256c3 2009 CanLII 42861] (NL PC){{perNLPC|Gorman J}}{{at|76}}<br>
+
''R v Saddler'', [http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2009/83.html 2009 NSWCCA 83] (AustLII) also referred to ''Regina v Oliver'', Hartrey and Baldwin [2004] UKHL 43; [2003] 1 Cr App R 28<br>   
 +
''R v WAE'', [http://canlii.ca/t/256c3 2009 CanLII 42861] (NL PC){{perNLPC|Gorman J}}{{atL|76|http://canlii.ca/t/256c3}}<br>
 
''R v Smith'', [http://canlii.ca/t/21k23 2008 CanLII 59107] (ON SC){{perONSC|Clark J}}<br>
 
''R v Smith'', [http://canlii.ca/t/21k23 2008 CanLII 59107] (ON SC){{perONSC|Clark J}}<br>
 
''R v Kwok'', [http://canlii.ca/t/1qgkd 2007 CanLII 2942] (ONSC){{perONSC|Molloy J}}<br>  
 
''R v Kwok'', [http://canlii.ca/t/1qgkd 2007 CanLII 2942] (ONSC){{perONSC|Molloy J}}<br>  
Line 432: Line 442:
 
</ref>
 
</ref>
 
#Where the images were shown or distributed to a child.
 
#Where the images were shown or distributed to a child.
#the amount of images or videos collected<ref>''R v Donnelly'', [http://canlii.ca/t/2d48r 2010 BCSC 1523] (CanLII){{perBCSC|Schultes J}}{{at|36}} Judge discusses the importance of the number of images to the range of sentence</ref>
+
#the amount of images or videos collected<ref>''R v Donnelly'', [http://canlii.ca/t/2d48r 2010 BCSC 1523] (CanLII){{perBCSC|Schultes J}}{{atL|36|http://canlii.ca/t/2d48r}} Judge discusses the importance of the number of images to the range of sentence</ref>
 
#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.  
 
#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.  
 
#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”
 
#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”
 
#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.
 
#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.
#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. <ref>{{supra1|Mallett}}{{at|15}}<br></ref>
+
#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. <ref>
# the degree of intrusion and repulsivity of any sexual acts depicted. This is in part captured by the categories in Missions<ref>[http://canlii.ca/t/1knrn 2005 NSCA 82] (CanLII){{perNSCA| Roscoe JA}}<br>
+
{{supra1|Mallett}}{{atL|15|http://canlii.ca/t/1llxt}}<br></ref>
see also {{supra1|Mallett}}{{at|15}}<br></ref>
+
# the degree of intrusion and repulsivity of any sexual acts depicted. This is in part captured by the categories in Missions<ref>
# 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.<ref>{{supra1|Mallett}}{{At|15}}<br></ref>
+
''R v Missions'', [http://canlii.ca/t/1knrn 2005 NSCA 82] (CanLII){{perNSCA| Roscoe JA}}<br>
 +
see also {{supra1|Mallett}}{{atL|15|http://canlii.ca/t/1llxt}}<br></ref>
 +
# 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.<ref>
 +
{{supra1|Mallett}}{{AtL|15|http://canlii.ca/t/1llxt}}<br></ref>
 
# signs on potential distribution or production.
 
# signs on potential distribution or production.
 
# related criminal record;
 
# related criminal record;
 
#evidence that the offender has pedophilic tendencies or diagnosis of paedophilia;
 
#evidence that the offender has pedophilic tendencies or diagnosis of paedophilia;
# the predatory nature of the offence;<ref>''R v Innes'', [http://canlii.ca/t/1wfbt 2008 ABCA 129] (CanLII){{TheCourtABCA}}{{at|12}}</ref>
+
# the predatory nature of the offence;<ref>
 +
''R v Innes'', [http://canlii.ca/t/1wfbt 2008 ABCA 129] (CanLII){{TheCourtABCA}}{{atL|12|http://canlii.ca/t/1wfbt}}</ref>
  
 
Mitigating factors considered:<ref>
 
Mitigating factors considered:<ref>
Line 459: Line 473:
 
#the extent to which the offender has already suffered for his crime.
 
#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.<ref>{{supra1|TLB}}{{at|28}}</ref>
+
The lack of a profit motive is not a mitigating factor. Most traders are not doing it for money.<ref>
 +
{{supra1|TLB}}{{at|28}}</ref>
  
 
In sentencing for making available, there is only minor mitigation if the speed of the connection is set at the lowest setting.<ref>
 
In sentencing for making available, there is only minor mitigation if the speed of the connection is set at the lowest setting.<ref>
{{supra1|Stupnikoff}}{{at|27}}<br>
+
''R v Stupnikoff'', [http://canlii.ca/t/fwz48 2013 SKPC 57] (CanLII){{perSKPC|Agnew J}} {{atL|27|http://canlii.ca/t/fwz48}}<br>
 
</ref>
 
</ref>
  
 
A previous conviction for a child pornography related offence is the "most aggravating" of factors.<ref>
 
A previous conviction for a child pornography related offence is the "most aggravating" of factors.<ref>
''R v Schneider'', [http://canlii.ca/t/1x1k2 2008 ONCJ 250] (CanLII){{perONCJ|Wong J}}{{at|43}}<br>
+
''R v Schneider'', [http://canlii.ca/t/1x1k2 2008 ONCJ 250] (CanLII){{perONCJ|Wong J}}{{atL|43|http://canlii.ca/t/1x1k2}}<br>
 
</ref>
 
</ref>
  
 
Aggravating to sentence would include evidence of any precautions to avoid detection by police.<ref>
 
Aggravating to sentence would include evidence of any precautions to avoid detection by police.<ref>
''R c Bertrand'', [http://canlii.ca/t/g7vgt 2014 QCCQ 5233] (CanLII){{perQCCQ|Boyer J}}{{at|39}}<br>
+
''R c Bertrand'', [http://canlii.ca/t/g7vgt 2014 QCCQ 5233] (CanLII){{perQCCQ|Boyer J}}{{atL|39|http://canlii.ca/t/g7vgt}}<br>
 
R c Von Gunten, [http://canlii.ca/t/1mq2g 2006 QCCA 286] (CanLII){{perQCCA|Gendreau J}}<br>
 
R c Von Gunten, [http://canlii.ca/t/1mq2g 2006 QCCA 286] (CanLII){{perQCCA|Gendreau J}}<br>
 
</ref>
 
</ref>
 
However, the presence of hardware "wiping" software alone may not sufficient by itself to suggest that there was more child pornography than discovered.<ref>
 
However, the presence of hardware "wiping" software alone may not sufficient by itself to suggest that there was more child pornography than discovered.<ref>
''R v Bejasa'', [http://canlii.ca/t/2c48z 2010 ABPC 249] (CanLII){{perABPC|Fradsham J}}{{ats|16 and 17}}
+
''R v Bejasa'', [http://canlii.ca/t/2c48z 2010 ABPC 249] (CanLII){{perABPC|Fradsham J}}{{atsL|16 and 17|http://canlii.ca/t/2c48z#par16}}
 
</ref>
 
</ref>
  
Line 482: Line 497:
 
{{Seealso|Child Pornography (Sentencing Cases)}}
 
{{Seealso|Child Pornography (Sentencing Cases)}}
 
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. <ref>
 
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. <ref>
''R v Shelton'', [http://canlii.ca/t/1nlqc 2006 ABCA 190] (CanLII), (2006), 391 A.R. 177 (Alta. C.A.){{perABCA| Fruman JA}} {{at|12}}
+
''R v Shelton'', [http://canlii.ca/t/1nlqc 2006 ABCA 190] (CanLII), (2006), 391 A.R. 177 (Alta. C.A.){{perABCA| Fruman JA}} {{atL|12|http://canlii.ca/t/1nlqc}}
 
</ref>
 
</ref>
  
Line 498: Line 513:
  
 
Some courts have found that the mandatory minimum child pornography under s. 163.1 is unconstitutional for being cruel and unusual contrary to s. 12 of the Charter.<ref>
 
Some courts have found that the mandatory minimum child pornography under s. 163.1 is unconstitutional for being cruel and unusual contrary to s. 12 of the Charter.<ref>
''R v Joseph'', [http://canlii.ca/t/hthfs 2018 ONSC 4646] (CanLII){{perONSC|McKinnon J}}{{at|94}}<br>
+
''R v Joseph'', [http://canlii.ca/t/hthfs 2018 ONSC 4646] (CanLII){{perONSC|McKinnon J}}{{atL|94|http://canlii.ca/t/hthfs}}<br>
 
''R v Swaby'', [http://canlii.ca/t/hw0kh 2018 BCCA 416] (CanLII){{perBCCA|Bennett JA}}
 
''R v Swaby'', [http://canlii.ca/t/hw0kh 2018 BCCA 416] (CanLII){{perBCCA|Bennett JA}}
 
</ref>
 
</ref>
Line 507: Line 522:
 
Possession and making can be the subject of the [[Kienapple Principle]].
 
Possession and making can be the subject of the [[Kienapple Principle]].
 
<ref>
 
<ref>
''R v Brunton'', [http://canlii.ca/t/g64bd 2014 ONCJ 120] (CanLII){{perONCJ|Harris J}}{{at|28}}
+
''R v Brunton'', [http://canlii.ca/t/g64bd 2014 ONCJ 120] (CanLII){{perONCJ|Harris J}}{{atL|28|http://canlii.ca/t/g64bd}}
 
</ref>
 
</ref>
  

Revision as of 10:31, 14 August 2019

General Principles

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences

Sentencing Profile

See also: History of Child Pornography Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 163.1(2) and (3) [making, distributing]
From July 17, 2015
N/A 14 years custody
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
Summary Election 2 years less a day custody
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
Indictment Election 10 years custody
s. 163.1(2) and (3) [making, distributing]
August 9, 2012 to July 16, 2015
Summary Election 2 years less a day custody
s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to July 16, 2015
Indictment Election 10 years custody
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to July 16, 2015
Summary Election 18 months custody
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to July 16, 2015
Indictment Election 5 years custody
s. s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to August 8, 2012
Summary Election 18 months custody

Offences under s. 163.1(2) and (3) [making, distributing] are straight indictable. The maximum penalty is 14 years incarceration.

Offences under s. 163.1(4) and (4.1) [poss'n, access] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day.

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 163.1(2) and (3) [making, distributing]
From July 17, 2015
N/A 1 year custody Same
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
Summary Election 6 months custody Same
s. 163.1(4) and (4.1) [poss'n, access]
From July 17, 2015
Indictment Election 1 year custody Same
s. 163.1(2) and (3) [making, distributing]
August 9, 2012 to July 16, 2015
Summary Election 6 months custody Same
s. 163.1(2) and (3) [making, distributing]
August 9, 2012 to July 16, 2015
Indictment Election 1 year custody Same
s. 163.1(4) and (4.1) [poss'n, access]
August 9, 2012 to July 16, 2015
Summary Election 90 days custody Same
s. 163.1(4) and (4.1) [poss'n, access]
August 9, 2012 to July 16, 2015
Indictment Election 6 months custody Same
s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to August 8, 2012
Summary Election 90 days custody Same
s. 163.1(2) and (3) [making, distributing]
November 1, 2005 to August 8, 2012
Indictment Election 1 year custody Same
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to August 8, 2012
Summary Election 14 days custody Same
s. 163.1(4) and (4.1) [poss'n, access]
November 1, 2005 to August 8, 2012
Indictment Election 45 days custody Same
s. 163.1(2), (3), (4) and (4.1)
Prior to Nov. 1, 2005
any None Same

For offences under s. 163.1(2) and (3) there is a mandatory minimum penalty of 12 months incarceration.

Offences under s. 163.1(4) and (4.1) have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 6 months incarceration when prosecuted by summary conviction.

Penalty Amendments

Prior to November 1, 2005 there were no mandatory minimum penalties.

On August 9, 2012, s. 163.1 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
  • Possession: Maximum 18 months increased to 2 years less a day
  • Accessing: Maximum 18 months increased to 2 years less a day

On July 17, 2015 penalties were increased. For making child pornography under s. 163.1(2) and distributing under s. 163.1(3), the maximum penalty by indictment increased from 10 years to 14 years. Both offences were hybrid and are now straight indictable. For possession under s. 163.1(4) and accessing under s. 163.1(4.1) the minimum for summary conviction increased from 90 days to 6 months and for indictable offences increased from 6 months to 1 year. The maximum for summary conviction increased from 18 months to 2 years less a day and for indictable offences increased from 5 years to 10 years.

Available dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 163.1(2), (3), (4), (4.1) any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png


Offences under s. 163.1 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Convictions for making child pornography should be treated as a "distinct offence which stands on its own, which addresses a separate and distinct harm to the victim and to society, and which is deserving of a consecutive sentence".[1]

  1. R v DC, 2016 MBCA 49 (CanLII), per Burnett JA, at para http://canlii.ca/t/grrdn - relating to offences of sexual touching and making child porn in relation to same victim

General Principles

Offences related to child pornography are a form of sex offence.[1] They are abhorent and cause extreme harm to its victims.[2]

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Parliament's intent in s. 163.1 was the "prevention of sexual exploitation of young persons under the age of 18 years".[3]

All offences involving child pornography have a greater emphasis on general deterrence and denunciation.[4]

The initial sentencing response to child pornography offences have been acknowledged as being too lenient.[5]

Section 163.1(4.3) adds an aggravating factor:

163.1
...

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.
...
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

Consequence of Unconstitutional Minimums

Despite the abolition of mandatory minimums, the courts should take their existence as a signal from Parliament that the offences were not being taken as seriously in the past as they should be.[6]

  1. R v Dyck, 2008 ONCA 309 (CanLII), per Blair JA, at para http://canlii.ca/t/1wpdg
  2. R v Nisbet, 2011 ONCA 26 (CanLII), per curiam, at para http://canlii.ca/t/2f868
    R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per L’Heureux-Dubé, Gonthier and Bastarache JJA, at para http://canlii.ca/t/523f (concurring)
    R v Lynch-Staunton, 2011 ONSC 218 (CanLII), per Ratushny J, at para http://canlii.ca/t/fps1m
    R v Schultz, 2018 ONCA 598 (CanLII), per Brown JA, at para http://canlii.ca/t/hsrsh
  3. R v Rowe, 2011 ONCA 48 (CanLII), per curiam
  4. R v EO, 2003 CanLII 2017 (ON CA), per Cronk JA, at para http://canlii.ca/t/1bxm3
  5. R v PJB, 2010 ABCA 49 (CanLII), per Watson JA (2:1), at para http://canlii.ca/t/280cl
  6. R v Inksetter, [2018] O.J. No. 2702 (C.A.)(complete citation pending)

Purpose of Section 163.1 Generally

The prohibition and criminalization of child pornography arises out of society’s interest to protect children. [1]

Child pornography presents a "profound and present danger to children around the world".[2] The pornography is of "enormous gravity" upon the victims public as a whole.[3] The "existence of child pornography ... is inherently harmful to children and society" irrespective of the risk of dissemination.[4] The material exploits, degrades, objectifies and dehumanizes children, violates their dignity and equality rights.[5] The pornography "hinders children’s own self-fulfilment and autonomous development by eroticising their inferior social, economic and sexual status".[6]

The exposure of child pornography "may reduce paedophiles' defences and inhibitions against sexual abuse of children" by making the "abnormal seem normal and the immoral seem acceptable".[7]

The possession of this material "fuels fantasies", making an offender more likely to commit a hands-on offence.[8]

By criminalizing possession of child pornography, the legislature provides a "useful tool in detecting and prosecuting the production and distribution of child pornography".[9]

These materials are tools that can be used by paedophiles to "groom" and seduce child victims.[10]

The creation of child pornography, in most cases, requires the use and abuse of children by fuelling the market of those who seek to possess the materials.[11]

  1. R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ, at para http://canlii.ca/t/523f
  2. R v TLB, 2007 ABCA 61 (CanLII), per Fraser CJ, at para http://canlii.ca/t/1ql87
  3. R v EO, 2003 CanLII 2017 (ON CA), [2003] OJ No 563, 169 O.A.C. 110 (C.A.), per Cronk JA, at para http://canlii.ca/t/1bxm3
  4. Sharpe, supra, at para http://canlii.ca/t/523f
    R v Pecchiarich [2001] OJ No 3940, per Hill J (*no CanLII links) ("Possession of child pornography increasingly menaces our young people and threatens our values as a society.")
  5. Sharpe, supra, at para http://canlii.ca/t/523f
  6. Sharpe, supra at 185
  7. Sharpe, supra, at para http://canlii.ca/t/523f
    R v Miller, 2017 NLCA 22 (CanLII), per Hoegg JA, at para http://canlii.ca/t/h2x0t
  8. Sharpe, supra, at para http://canlii.ca/t/523f
  9. Miller, supra, at para http://canlii.ca/t/h2x0t
    Sharpe, supra, at para http://canlii.ca/t/523f
  10. Miller, supra, at para http://canlii.ca/t/h2x0t
    Sharpe, supra, at para http://canlii.ca/t/523f
  11. Sharpe, supra, at para http://canlii.ca/t/523f
    Miller, supra, at para http://canlii.ca/t/h2x0t

Effect on Victims

Child pornography contributes to the abuse of children who are photographed or filmed by exploiting their vulnerability.[1]

The child is sexually exploited even where they are unaware of their role in the making of child pornography. [2]

Children are recognized as one of the "most valued and most vulnerable assets." They are generally incapable of defending themselves and so are easily targeted.[3] It is for this reason that courts must focus on protecting children.[4] As with all sexual offences, it has been recognized by courts that child victims of sexual offences suffer from long lasting damage.[5] They suffer from emotional trauma that is often permanent. As adults, they "may become incapable of forming loving relationship, always fearful of re-victimization by sexual partners. Further, the matured victim may become a sexual predator himself. It is often that an offender will report being victimized by other sexual predators as a child."[6]

Live images of children are particularly serious since it creates a permanent record of abuse.[7] Once an image or video is taken and distributed on the internet it will generally propagate indefinitely.[8] The children are re-victimized with each viewing of the materials.[9]

  1. R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ, at para http://canlii.ca/t/523f ("...Child pornography plays a role in the abuse of children, exploiting the extreme vulnerability of children.")
    R v Garcia, 2009 BCSC 407 (CanLII), [2009] BCJ No. 581(S.C.), per Griffin J, at and 15#parhttp://canlii.ca/t/22wzf#par14 paras http://canlii.ca/t/22wzf#par14{{{3}}}
  2. Garcia, ibid., at and 15#parhttp://canlii.ca/t/22wzf#par14 paras http://canlii.ca/t/22wzf#par14{{{3}}}
  3. R v D(D), 2002 CanLII 44915 (ON CA), per Moldaver JA, at para http://canlii.ca/t/1db6b
  4. R v Nisbet, 2011 ONCA 26 (CanLII), per curiam (Child pornography is "an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.")
  5. D(D), supra, at para http://canlii.ca/t/1db6b
  6. D(D), supra, at paras http://canlii.ca/t/1db6b#par37{{{3}}}
  7. Sharpe, supra, at para http://canlii.ca/t/523f ("Pornography that depicts real children is particularly noxious because it creates a permanent record of abuse and exploitation.")
  8. Standing Senate Committee on Human Rights, at p. 23
  9. R v Smith, 2008 CanLII 59107 (ON SC), per Clark J
    Garcia, supra, at paras 14 and 15
    R v WAE, 2009 CanLII 42861 (NL PC), per Gorman J , at para http://canlii.ca/t/256c3

Prevalence

The frequency of these offences has been expanding with technology becoming more sophisticated.[1]

Perpetrators who make child pornography tend to be people known to the child, including family members and people close to the family.[2]

Those who access and possess child pornography encourage others to sexually abuse children and record it.[3] Thus by deterring possession and access will reduce the abuse of children.[4]

  1. R v DGF, 2010 ONCA 27 (CanLII), per Feldman JA , at para http://canlii.ca/t/27hgx ("the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution.")
  2. The Sexual Exploitation of Children in Canada, Standing Senate Committee on Human Rights (November 2011), at p. 23
  3. R v Bock, 2010 ONSC 3117 (CanLII), [2010] OJ No 2277 (S.C.J.), per Henderson J, at para http://canlii.ca/t/29z85
  4. Bock, ibid., at para http://canlii.ca/t/29z85

Danger of Offenders

Some psychiatric experts suggest that collecting child pornography is an addiction.[1] It may result in the offender to becomes desensitized to the harm caused to children.[2]

An offender with a prior record of actual abuse of children, an accumulation of violent materials involving children, image access history will permit the judge to conclude the offender is a danger to the community.[3]

An offender will often have a great insight into his interests and their inappropriateness but will still endulge in them.[4] When the offender has issues with substance abuse he is more likely to be a risk for future offences as the substances will reduce their inhibitions.[5]

The circulation of images and videos "can create a kind of pedophile-peergroup mentality where social inhibitions against sexualization of children are lowered, potentially encouraging child sexual abuse."[6]

Conviction for child pornography related offences is a strong indicator for pedophilia.[7]

Convictions for child pornography carry with it “stigma, public humiliation, and revulsion.”[8]

Amount of Materials

While the number of illegal files is important to sentence, the amount of files should be not lead to “tariff sentencing”.[1] The difference between file counts are less important as the overall magnitude.[2] The amount of files should not be considered the "most aggravating" factor since it is possible to download hundreds or even thousands of files within 24 hours of internet use.[3]

It is permissible to treat as aggravating the number of images found in association with a single count. There is no "bulk discount" of sentence for the quantity of images.[4]

Classification of Materials

The nature of the materials is an important factor to sentencing.[1] It is evidence suggesting the types of fantasies engaged in by the offender. It could be argued that the more explicit the sexual activity depicted, the more fixated the offender is upon that type of behaviour.

The comparison of nature of the materials found in each case is necessary but should not minimize the "great concern that all child pornography justifiably attracts."[2]

Depictions of child pornography can be categorized into one of five categories, from least serious to most serious: [3]

  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.

The types of content of the files becomes less relevant for larger collection.[4]

Non-CP Materials

Courts will often take into account the amount of child exploitative materials are found on the computer as well.[5]

  1. R v LaGue, 2013 MBQB 32 (CanLII), per Perlmutter J, at para http://canlii.ca/t/fw3t9
    R v Brooks, 2010 MBPC 61 (CanLII), per Lerner J
  2. R v Yau, 2011 ONSC 1009 (CanLII), per MacDonnell J
  3. R v Missions, 2005 NSCA 82 (CanLII), per Roscoe JA, at para http://canlii.ca/t/1knrn
    LaGue, supra, at para http://canlii.ca/t/fw3t9
  4. R v Stupnikoff, 2013 SKPC 57 (CanLII), per Agnew J , at para http://canlii.ca/t/fwz48
  5. e.g. R v CGL, 2013 ABCA 140 (CanLII), per curiam -- concerning collection of child modelling images

Intersection With Other Sex Offences

There is a close relationship between child pornography offences and those involving hands-on abuse of children. The court must consider each offence in light of its connections with the others.[1]

  1. R v LM, 2008 SCC 31 (CanLII), [2008] 2 SCR 163, per LeBel J, at para http://canlii.ca/t/1x21j

Possession and Accessing Sentencing Principles

The distinction between a charge of accessing or possessing appears to make little difference in the duration of penalty.[1]

Purpose

The primary objective for sentencing in possession of child pornography is denunciation and general deterrence. [2]

Possession of child pornography contributes to the market for child pornography which drives the production of the materials.[3]

Possession is a "very important contributing element in the general problem of child pornography."[4] It is a "short step" away from being a distributor.[5]

Possession also breaks down inhibitions, and creates cognitive distortions that abuse is not harmful. It normalizes the material, numbing the offender's conscience, and making the immoralities acceptable.[6] In certain individuals, it will fuel fantasies and incite them to commit offences.[7]

The materials encourage potential offenders to groom and seduce children for the purpose of making child pornography.[8]

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.[9]

The offence of accessing should not be considered any less serious an offence as possession.[10]

Constitutionality

There is appellate authority that the 90-day minimum sentence for possessing child pornography is unconstitutional as it is cruel and unusual punishment.[11]

  1. R v Bejasa, 2010 ABPC 249 (CanLII), per Fradsham J, at to 34#parhttp://canlii.ca/t/2c48z#par33 paras http://canlii.ca/t/2c48z#par33{{{3}}}
  2. R v Stroemple, 1995 CanLII 2283 (ONCA), 105 CCC (3d) 187, per Morden ACJ, at p. 191
    R v Hewlett, 2002 ABCA 179 (CanLII), (2002) 167 CCC (3d) 425, per Fraser CJ, at p. 432 (ABCA)
    R v Hunt, [2002] AJ No 831, 2002 ABCA 155 (CanLII), per curiam, at para http://canlii.ca/t/1tfxh
    R v Missions, 2005 NSCA 82 (CanLII), per Roscoe JA
    R v Cohen, 2001 CanLII 3862 (ON CA), per curiam
  3. R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ, at para http://canlii.ca/t/523f
    R v Fisher, [2007] NBJ No. 129, 2007 NBPC 15 (CanLII), per Cumming J, at para http://canlii.ca/t/1r84m
    Stroempl, supra, at p. 191
  4. Stroempl, supra
    R v WC, [2004] OJ No 5985 (S.C.J.)(*no CanLII links) , at paras 20-22
  5. WC, ibid., at paras 20-26
    Stroempl, supra, at p. 191
    R v Lisk, 1998 CanLII 4737 (ON CA), [1998] OJ No 1456 (C.A.), per curiam, at para http://canlii.ca/t/6gvs
  6. Sharpe, supra, at paras 85 to 94
  7. Sharpe, supra, at to 94#parhttp://canlii.ca/t/523f#par85 paras http://canlii.ca/t/523f#par85{{{3}}}
    R v Steadman, 2001 ABQB 1004 (CanLII), [2001] AJ No 1563, per Gallant J, at paras 21 and 22
  8. Sharpe, supra, at para http://canlii.ca/t/523f ("The ability to possess child pornography makes it available for the grooming and seduction of children by the possessor and others. Mr. Sharpe does not deny that some child pornography can play an important role in the seduction of children. Criminalizing the possession of child pornography is likely to help reduce the grooming and seduction of children.")
  9. e.g. R v Durnford, 2006 CanLII 34694 (NL PC), per Gorman J, at para http://canlii.ca/t/1pscf
  10. R v Hammond, 2009 ABCA 415 (CanLII), per Watson JA, at para http://canlii.ca/t/270hl
  11. R v Swaby, 2018 BCCA 416 (CanLII), per Bennett JA

Ranges

In Alberta, the range for possession of child pornography is around 12 months. [1]

In Saskatchewan, it has been suggested that for a first time offender for possession should receive anywhere from the minimum to 2 years incarceration.[2]

  1. R v Hilderman, 2010 ABPC 183 (CanLII), per Fraser J, at para http://canlii.ca/t/2b7gp
  2. R v Kroeker, 2014 SKQB 137 (CanLII), per Keene J, at para http://canlii.ca/t/g739w

Making Child Pornography Principles

The 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.

Gravity

The offence can range from "recording reprehensible non-consensual sexual acts to pure voyeurism".[1] While all are forms of abuse, "surreptitious recording" of change rooms is on the lower end of the scale.[2]

The gravity of the making of child pornography is different from the possession and access, as making usually involves the direct abuse of children.[3]


Consideration of how many images are made is secondary for the purpose of sentencing to the question of "how" the material was made.[4]

There is a "very strong" link between production and harm. There is a "devastating impact" where the child is "traumatized by being used as a sexual object" which lasts with them for their whole life.[5]

Victims are harmed "not only by the initial production of child pornography but also perpetually if the materials is made available or distributed." The internet makes it impossible to ever remove the material in circulation.[6]

  1. R v Gryba, 2016 SKQB 123 (CanLII), per Popescul CJ, at para http://canlii.ca/t/gr50j
  2. Gryba, ibid., at p. 63
  3. R v Rhode, 2019 SKCA 17 (CanLII), per Caldwell JA, at para http://canlii.ca/t/hxb9c ("...the gravamen of conduct giving rise to the objective offence of making child pornography differs from the gravamen of the offences of accessing and possessing child pornography. It differs because it usually involves the direct abuse of a child as opposed to the promotion of the abuse of a child. ")
  4. R v Rhode, 2019 SKCA 17 (CanLII), per Caldwell JA, at para http://canlii.ca/t/hxb9c
  5. R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ, at para http://canlii.ca/t/523f ("The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives.")
  6. R v GJM, 2015 MBCA 103 (CanLII), per Mainella JA, at para http://canlii.ca/t/glx87

Factors

It is aggravating if the accused was in a position of trust to the subject of the created child pornography.[1]

It is not a mitigating factor that the materials were not made available online for sharing. It simply suggests that creation was for personal use.[2]

The creation of child pornography through pasting faces on previously downloaded images of child pornography is not a lesser form of creation.[3]

  1. R v Gryba, 2016 SKQB 123 (CanLII), per Popescul CJ, at para http://canlii.ca/t/gr50j, also citing s. 718.01 and 718.2(a)(ii.1) and (iii)
  2. R v GJM, 2015 MBCA 103 (CanLII), per Mainella JA, at para http://canlii.ca/t/glx87
  3. R v Rhode, 2019 SKCA 17 (CanLII), per Caldwell JA, at para http://canlii.ca/t/hxb9c

Ranges

In Manitoba, the making of child pornography where there is evidence of sharing or making available will result in a sentence in the range of "mid to upper single digits".[1]

Distribution and Making Available Sentencing Principles

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

Distribution through the internet is particularly despicable as "it is unbounded once the materials are sent out to one person."[2] Files made available online for circulation will allow the "virtual abuse" to "go on forever".[3]

Even the possibility that distribution "might occur” create harm as to the victim's "have ongoing fear and uncertainty" that the files will remain accessible on the Internet and will revicitimize them. [4]

  1. R v B(TL), 2007 ABCA 61 (CanLII), (2007) 218 CCC (3d) 11 (ABCA), per Fraser CJ leave to SCC refused
  2. R v Weber, 2003 CanLII 28579 (ON CA), [2003] OJ No 3306 (C.A.), per Feldman JA, at para http://canlii.ca/t/604t
  3. R v Kwok, 2007 CanLII 2942 (ON SC), per Molloy J, at para http://canlii.ca/t/1qgkd
  4. R v DGF, 2010 ONCA 27 (CanLII), per Feldman JA, at para http://canlii.ca/t/27hgx

Factors

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. [3]
  7. the degree of intrusion and repulsivity of any sexual acts depicted. This is in part captured by the categories in Missions[4]
  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.[5]
  9. signs on potential distribution or production.
  10. related criminal record;
  11. evidence that the offender has pedophilic tendencies or diagnosis of paedophilia;
  12. the predatory nature of the offence;[6]

Mitigating factors considered:[7]

  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.[8]

In sentencing for making available, there is only minor mitigation if the speed of the connection is set at the lowest setting.[9]

A previous conviction for a child pornography related offence is the "most aggravating" of factors.[10]

Aggravating to sentence would include evidence of any precautions to avoid detection by police.[11] However, the presence of hardware "wiping" software alone may not sufficient by itself to suggest that there was more child pornography than discovered.[12]

  1. R v Saddler, 2009 NSWCCA 83 (AustLII) also referred to Regina v Oliver, Hartrey and Baldwin [2004] UKHL 43; [2003] 1 Cr App R 28
    R v WAE, 2009 CanLII 42861 (NL PC), per Gorman J, at para http://canlii.ca/t/256c3
    R v Smith, 2008 CanLII 59107 (ON SC), per Clark J
    R v Kwok, 2007 CanLII 2942 (ONSC), per Molloy J
    See also: R v Mallett, 2005 CanLII 32927 (ON SC), [2005] OJ No 3868, per Hill J
  2. R v Donnelly, 2010 BCSC 1523 (CanLII), per Schultes J, at para http://canlii.ca/t/2d48r Judge discusses the importance of the number of images to the range of sentence
  3. Mallett, supra, at para http://canlii.ca/t/1llxt
  4. R v Missions, 2005 NSCA 82 (CanLII), per Roscoe JA
    see also Mallett, supra, at para http://canlii.ca/t/1llxt
  5. Mallett, supra, at para http://canlii.ca/t/1llxt
  6. R v Innes, 2008 ABCA 129 (CanLII), per curiam, at para http://canlii.ca/t/1wfbt
  7. Kwok, supra
    R v Parise, [2002] OJ No 2513 (ONCJ) (*no CanLII links)
    Mallett, supra, at paras 15-16 (ONSC)
    R v Smith, 2008 CanLII 59107 (ON SC), per Clark J
  8. TLB, supra, at para 28
  9. R v Stupnikoff, 2013 SKPC 57 (CanLII), per Agnew J , at para http://canlii.ca/t/fwz48
  10. R v Schneider, 2008 ONCJ 250 (CanLII), per Wong J, at para http://canlii.ca/t/1x1k2
  11. R c Bertrand, 2014 QCCQ 5233 (CanLII), per Boyer J, at para http://canlii.ca/t/g7vgt
    R c Von Gunten, 2006 QCCA 286 (CanLII), per Gendreau J
  12. R v Bejasa, 2010 ABPC 249 (CanLII), per Fradsham J, at and 17#parhttp://canlii.ca/t/2c48z#par16 paras http://canlii.ca/t/2c48z#par16{{{3}}}

Range

See also: Child Pornography (Sentencing Cases)

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. [1]

  1. R v Shelton, 2006 ABCA 190 (CanLII), (2006), 391 A.R. 177 (Alta. C.A.), per Fruman JA , at para http://canlii.ca/t/1nlqc

Other Issues

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

See Real Evidence#Child Pornographic Images and Video

Constitutionality

The mandatory minimum sentence of 1 year for distribution of child pornography does not violate s. 12 of the Charter for being cruel and unusual punishment.[1]

Some courts have found that the mandatory minimum child pornography under s. 163.1 is unconstitutional for being cruel and unusual contrary to s. 12 of the Charter.[2]

  1. R v Schultz, 2008 ABQB 679 (CanLII), per Topolniski J
  2. R v Joseph, 2018 ONSC 4646 (CanLII), per McKinnon J, at para http://canlii.ca/t/hthfs
    R v Swaby, 2018 BCCA 416 (CanLII), per Bennett JA

Kienapple

Possession and making can be the subject of the Kienapple Principle. [1]

  1. R v Brunton, 2014 ONCJ 120 (CanLII), per Harris J, at para http://canlii.ca/t/g64bd

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 163.1
SOIRA Orders s. 163.1
  • On conviction under s. 163.1(2) or (3), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 20 years as the offence has "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b))).
      • There is an option for early termination under s. 490.015 available after 10 years (if 20 year order) or 20 years (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 163.1(4) or (4.1), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 163.1
  • If convicted under s. 163.1, the judge may make discretionary 161 Order.
Delayed Parole Order s. 163.1
  • Periods of imprisonment of 2 years or more for convictions under s. 163.1 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
Forfeiture Order (s.164.2) s. 163.1

Must be "used" or "owned" by the offender in relation to a conviction of child pornography, child luring or arrange sex offence against a child.

General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 163.1 [child pornography] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. Exception is made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference is less than 5 years.

See Also