Child Pornography Sentencing

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General Principles

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

Sentencing Profile

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

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".

General Principles

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

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".

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

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

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.

Purpose of Section 163.1 Generally

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

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

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".

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

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

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

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.

Effect on Victims

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

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

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. It is for this reason that courts must focus on protecting children. As with all sexual offences, it has been recognized by courts that child victims of sexual offences suffer from long lasting damage. 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."

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

Prevalence

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

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

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

Danger of Offenders

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

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.

An offender will often have a great insight into his interests and their inappropriateness but will still endulge in them. 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.

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."

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

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

Amount of Materials

While the number of illegal files is important to sentence, the amount of files should be not lead to “tariff sentencing”. The difference between file counts are less important as the overall magnitude. 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.

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.

Classification of Materials

The nature of the materials is an important factor to sentencing. 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."

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

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.

Non-CP Materials

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

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.

Possession and Accessing Sentencing Principles

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

Purpose

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

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

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

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. In certain individuals, it will fuel fantasies and incite them to commit offences.

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

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.

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

Constitutionality

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

Ranges

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

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

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". While all are forms of abuse, "surreptitious recording" of change rooms is on the lower end of the scale.

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

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

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.

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.

Factors

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

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.

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

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".

Distribution and Making Available Sentencing Principles

The primary principles for distribution offences are denunciation and deterrence.

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

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.

Factors

Aggravating factors include:

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

Mitigating factors considered:

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.

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

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

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

Range

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.

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.

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.

Kienapple

Possession and making can be the subject of the Kienapple Principle.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 163.1	For convictions under s. 163.1, as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
SOIRA Orders	s. 163.1	On conviction under s. 163.1(2) or (3), a "primary offence" listed as under s. 490.011(1)(a), a SOIRA Order is presumed mandatory unless "there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring [registration]" or "the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by [registration]". If the offender was previously convicted of a "primary offence" the duration is life (s. 490.012(2)) 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), a "primary offence" listed as under s. 490.011(1)(a), a SOIRA Order is presumed mandatory unless "there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring [registration]" or "the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by [registration]". If the offender was previously convicted of a "primary offence" the duration is life (s. 490.012(2)) 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

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. An exception can be 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 between victim and offender is less than 5 years.