Making Sexually Explicit Materials Available to Child (Offence)

• < Criminal Law/Sentencing
• < Offences

Making Sexually Explicit Materials Available to Child
s. 171.1 of the Crim. Code
Election / Plea
Crown Election	Hybrid 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	90 days incarceration
Maximum	2 years less a day incarceration
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	6 months incarceration
Maximum	14 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Offences relating to making sexually explicit materials available to child are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

The offence prohibits anyone form making "sexually explicit materials" available to a young person for an illegal purpose regardless of whether it is in person or over an electronic device.

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 171.1 [making sexually explicit materials available to child]	Hybrid Offence(s)		Yes, if Crown proceeds by Indictment	(14 years max)

Offences under s. 171.1 [making sexually explicit materials available to child] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 171.1 [making sexually explicit materials available to child]

When charged under s. 171.1 [making sexually explicit materials available to child], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

• while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
• "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
• where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
• where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 171.1 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

Section s. 171.1 [making sexually explicit materials available to child] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 171.1 [making sexually explicit materials available to child]

Offences under s. 171.1 [making sexually explicit materials available to child] are designated offences eligible for wiretap under s. 183.

Offences under s. 171.1 [making sexually explicit materials available to child] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Making sexually explicit material available to child

171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1) [sexual exploitation], section 155 [incest], 163.1 [child pornography], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity] or 279.011 [trafficking in persons, under 18] or subsection 279.02(2) [material benefit from trafficking, under 18], 279.03(2) [withholding or destroying docs, under 18], 286.1(2) [comm. to obtain sexual services for consideration – person under 18], 286.2(2) [material benefit from sexual services provided — person under 18] or 286.3(2) [procuring — person under 18];

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16] or section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault] or 280 [abduction of a person under 16] with respect to that person; or

(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 [abduction of a person under 14] with respect to that person.

Punishment

(2) Every person who commits an offence under subsection (1) [making sexually explicit material available to child – forms of offence]

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of six months; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

[omitted (3), (4) and (5)]
2012, c. 1, s. 21; 2014, c. 25, s. 8; 2015, c. 23, s. 10.
[annotation(s) added]

– CCC

---

Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
171.1		"..., contrary to section 171.1 of the Criminal Code.

Proof of the Offence

Proving making sexually explicit materials available to a child under s. 171.1 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "transmits, makes available, distributes or sells" materials ☐ the materials are "sexually explicit" ☐ the culprit believes the recipient is under 18 ☐ the prohibited act intends to groom or reduce the sexual inhibitions of the target (i.e. "facilitate") ☐ the purpose of reducing inhibitions was to commit an enumerated offence: ☐ under s. 171.1(1)(a), relating to a person under 18 years: ☐ sexual exploitation (153(1)); ☐ incest (155); ☐ child pornography (163.1); ☐ parent or guardian procuring sexual activity (170); ☐ householder permitting sexual activity (171); ☐ trafficking of a person under the age of eighteen years (279.011); ☐ material benefit — trafficking of person under 18 years (279.02(2)); ☐ withholding or destroying documents — trafficking of person under 18 years (279.03(2)); ☐ Obtaining sexual services for consideration from person under 18 years (286.1(2)); ☐ Material benefit from sexual services provided by person under 18 years (286.2(2)); ☐ Procuring — person under 18 years (286.3(2)); ☐ under s. 171.1(1)((b), relating to person under 16 years: ☐ sexual interference (151); ☐ invitation to sexual touching (152); ☐ Bestiality in presence of or by child (160(3)); ☐ Exposure (173(2)); ☐ sexual assault (271); ☐ sexual assault with a weapon or causing bodily harm (272); ☐ aggravated assault (273); or ☐ Abduction of person under sixteen (280); ☐ under s. 171.1(1)(c), relating to person under 14 years: ☐ Abduction of person under fourteen (281).

Interpretation of the Offence

This offence amounts to a form of grooming of a child similar to conduct that makes up the offence of child luring.

Presumptions

171.1
[omitted (1) and (2)]

Presumption

(3) Evidence that the person referred to in paragraph (1)(a) [making sexually explicit material available to child – under 18 years], (b) [making sexually explicit material available to child – under 16 years] or (c) [making sexually explicit material available to child – under 14 years] was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

[omitted (4) and (5)]
2012, c. 1, s. 21.
[annotation(s) added]

– CCC

---

Defences

171.1
...

No defence

(4) It is not a defence to a charge under paragraph (1)(a) [making sexually explicit material available to child – under 18 years], (b) [making sexually explicit material available to child – under 16 years] or (c) [making sexually explicit material available to child – under 14 years] that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
[omitted (5)]
2012, c. 1, s. 21.
[annotation(s) added]

– CCC

---

"Intimate Images"

171.1
...

Definition of “sexually explicit material”

(5) In subsection (1) [making sexually explicit material available to child – forms of offence], “sexually explicit material” means material that is not child pornography, as defined in subsection 163.1(1) [definition of child pornography], and that is

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts;

(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or

(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

2012, c. 1, s. 21.
[annotation(s) added]

– CCC

---

"transmits, makes available, distributes or sells"

See Definition of Terms Relating to Transactions and Transferences

Evidence

Modification of Rules of Evidence

For offences under this section (s. 172):

• corroboration is not required for conviction and the judge cannot instruct on need for corroboration: see Corroboration under s. 274.
• common law rules relating to "recent complaint" do not apply: see Credibility under s. 275.

Limitations on Admissibility of Evidence

For offences under this section (s. 172):

• prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
• any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.

Holdback of Disclosure

For offences under this section (s. 172), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 171.1 [x]

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

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

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 171.1 [making sexually explicit materials available to child] From July 16, 2015	summary election	6 months custody
s. 171.1 [making sexually explicit materials available to child] From July 16, 2015	indictable election	2 years incarceration
s. 171.1 [making sexually explicit materials available to child] June 22, 2007 to July 15, 2015	summary election	18 months custody
s. 171.1 [making sexually explicit materials available to child] June 22, 2007 to Until July 15, 2015	indictable election	10 years incarceration

Offences under s. 171.1 are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 6 months incarceration.

Minimum Penalties

Offence(s)	Crown Election	Minimum Penalty First Offence	Minimum Penalty Subsequent Offence
s. 171.1 [making sexually explicit materials available to child] From July 16, 2015	summary election	90 days custody	Same
s. 171.1 [making sexually explicit materials available to child] From July 16, 2015	indictable election	6 months custody	Same
s. 171.1 [making sexually explicit materials available to child] August 9, 2012 to July 15, 2015	summary election	30 days custody	Same
s. 171.1 [making sexually explicit materials available to child] August 9, 2012 to July 15, 2015	indictable election	90 days custody	Same
s. 171.1 [making sexually explicit materials available to child] Until August 8, 2012	Any	None	Same

Offences under s. 171.1 [making sexually explicit materials available to child] have a mandatory minimum penalty of 90 days incarceration when prosecuted by indictment and 30 days jail when prosecuted by summary conviction.

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. 171.1 [making sexually explicit materials available to child]	any

Offences under s. 171.1 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]

Principles

Young Victim

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).

Ranges

see also: Making Sexually Explicit Materials Available to Child (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 171.1 [making sexually explicit materials available to child]	For convictions under s. 171.1, 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. 171.1(a), (b), or (c)	On conviction under s. 171.1(a), (b), or (c), 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 as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years". There is an option for early termination under s. 490.015 available after 5 years (if 10 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

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. 171.1(1)(a) [making sexually explicit material available to child under 18 for purposes of listed offences], 171.1(1)(b) [making sexually explicit material available to child under 16 for purposes of listed offences], and 171.1(1)(c) [making sexually explicit material available to child under 14 for purposes of listed offences] 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.

History

• History of Making Sexually Explicit Materials Available to Child