Distribution, Making Available, and Making Child Pornography

From Criminal Law Notebook
This page was last substantively updated or reviewed December 2022. (Rev. # 96019)
Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 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.
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
[omitted (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.

[omitted (4), (4.1), (4.2), (4.3), (5), (6) and (7)]
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 (CanLII), (DOJ)

Note up: 163.1(2) and (3)

Proof of the Offence

Proving making child pornography under s. 163.1(3) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the 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. 163.1(3) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the 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), 335 Sask R 22, per Gabrielson J, at para 34
    R v Spencer, 2011 SKCA 144 (CanLII), 283 CCC (3d) 384, per Caldwell JA, 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), per Bryant J, 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.

It is not necessary for the Crown to prove the accused “had knowledge of an overt act of dissemination, namely that images of child pornography were being transferred to other computers.” It was only required that the accused “knew, or was willfully blind to the fact, that [the program] makes files available to others.”[2]

Recklessness has been used as a basis to prove mens rea.[3]

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."[4]

Knowledge of Character of Materials

The accused must have a subjective knowledge of the character of the images, video or text that is child pornographic.[5] Recklessness is not sufficient.[6]

Mens Rea for Transmission or Distribution

The mens rea for transmission of text-based child pornography by text only requires that the Crown prove that the accused meant to type the words and meant to click the "send" button. [7]

Knowledge of File-sharing

Awareness of the ability of a peer-to-peer client to share files downloaded onto a computer can constitute “making available”.[8] However, this conclusion can be rebutted where steps were taken to delete or remove the contents of the shared file folder.[9] The mens rea can be proven an actual intention to make the materials available.[10] Familiarity with how peer-to-peer software works on its own is not sufficient to establish actual intent.[11]

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."[12]


The court can consider the evidence visible to the user indicating file sharing, such as:[13]

  • 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[14]

Knowledge can be inferred that any message or notification from the software when the user starts the program was read by the user.[15]

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.[16]

Inferences From Computer Skills

The court can also consider the accused's experience and familiarity with computers generally.[17]

  1. ↑ R v Lorenz, 2012 SKQB 293 (CanLII), 402 Sask R 38, per Schwann J
    R v Spencer, 2014 SCC 43 (CanLII), [2014] 2 SCR 212, per Cromwell J
  2. ↑ R v Capancioni, 2018 ONCA 173 (CanLII), 405 CRR (2d) 1, per Hoy ACJ
  3. ↑ R v Rivet, 2011 ONCA 122(*no CanLII links) -- 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
  4. ↑ Spencer, supra, at para 87 aff'd by SCC
  5. ↑ R v Giuseppe Michienzi, 2013 ONSC 1025 (CanLII), per Bryant J, per Bryant J, at paras 25, 29
  6. ↑ Michienzi, supra, at para 29
  7. ↑ R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 92
    R v Tomasik, 2016 ONSC 3719 (CanLII), per Hennessy J
  8. ↑ R v Johannson, 2008 SKQB 451 (CanLII), 335 Sask R 22, per Gabrielson J
    cf. R v Pressacco, 2010 SKQB 114 (CanLII), 352 Sask R 276, at para 30 (judge refused to infer intention "from his knowledge of the operation of file-sharing")
    Michienzi, supra, at para 28
  9. ↑ Pressacco, supra, at para 33
  10. ↑ R v Lamb, 2010 BCSC 1911 (CanLII), BCJ No 2701, per Ehrcke J, at paras 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")
  11. ↑ R v Pelich, 2012 ONSC 3611 (CanLII), 103 WCB (2d) 295, per Dunnet J, at para 102
  12. ↑ R v Spencer, 2011 SKCA 144 (CanLII), 283 CCC (3d) 384, per Caldwell JA, 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.") appealed at 2014 SCC 43 (CanLII), per Cromwell J
  13. ↑ e.g. R v Jeffrey, 2012 SKPC 12 (CanLII), 383 Sask R 287, per Agnew J, at para 74
    see also Johannson, supra
    Spencer, supra (SCC), at para 85 - in context of est. wilfull blindness
  14. ↑ e.g. see R v Spencer, 2015 SKQB 62 (CanLII), 469 Sask R 64, per RS Smith J
  15. ↑ R v Johnannson, 2008 SKQB 451 (CanLII), 335 Sask R 22, per Gabrielson J, at paras 45 to 46
  16. ↑ See Lamb, supra, at para 74
    R v Smith, 2011 BCSC 1826 (CanLII), 282 CCC (3d) 494, per Brown J, at para 182
  17. ↑ Jeffrey, supra, at paras 76 to ?

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), 103 WCB (2d) 295, per Dunnet J, at para 104

Making

What is "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.

An accused directing a child to take and send nude photos of hreself can constitute "making" of child pornography.[3]

Who is the "Maker"

The "maker" is the person who “directs or controls production of novel child pornography”[4]

  1. ↑ R v Keough, 2011 ABQB 48 (CanLII), 267 CCC (3d) 193, per Manderscheid J, at para 232
    R v Pelich, 2012 ONSC 3611 (CanLII), 103 WCB (2d) 295, per Dunnet J, at para 132
    R v Davies, 2012 ONSC 3631 (CanLII), per Spies J - rejects copying files as "making"
  2. ↑ See R v Mohanto, [2002] OJ No 5840 (C.J.)(*no CanLII links)
    R v BW, [2002] OJ No 5727 (C.J.)(*no CanLII links)
    R v Horvat, 2006 CanLII 13426, [2006] OJ No 1673 (S.C.), per Lack J, aff’d on other grounds, 2008 ONCA 75 (CanLII), per curiam
    R v Dittrich, 2008 CanLII 19217 (ON SC), [2008] OJ No 1617 (S.C.), per Jenkins J
  3. ↑ R v Bowers, 2022 ONCA 852 (CanLII), per curiam, at para 24 ("[A]n adult directing a child online to take sexual photos or videos of themselves – that is, to make new sexual images – and send them to the adult would satisfy the element of “making” child pornography.")
  4. ↑ R v Barabash, 2012 ABQB 99 (CanLII), 284 CCC (3d) 62, per Thomas J, at para 114 appealed to 2015 SCC 29 (CanLII), per Karakatsanis J
    R v Hewlett, 2002 ABCA 179 (CanLII), 167 CCC (3d) 425, per Fraser CJ

Sentencing Principles and Ranges

See Also

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