Child Pornography (Offence)
| This page was last substantively updated or reviewed January 2020. (Rev. # 95293) |
| 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 (*) |
| Summary Dispositions | |
| Avail. Disp. |
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| 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
Offences relating to child pornography are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct". There are four types of child pornography offences. They relate to the possession, access, distribution/making available, and making of child pornography.
- Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
|---|---|---|---|---|
| s. 163.1(2) [making child pornography] and s. 163.1(3) [distributing child pornography] |
Indictable Offence(s) |  |
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(14 years max)
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| s. 163.1(4) [possessing child pornography] and s. 163.1(4.1) [accessing child pornography] |
Hybrid Offence(s) | |
(* only if Crown proceeds by Indictment) |
 (under 14 years max)
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Offences under s. 163.1(4), and (4.1) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury. Offences under s. 163.1(2) and (3) are straight indictable. 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 |
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| s. 163.1(4) [possessing child pornography] and s. 163.1(4.1) [accessing child pornography] |
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| s. 163.1(2) [making child pornography] and s. 163.1(3) [distributing child pornography] From July 17, 2015 |
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| s. 163.1(2) [making child pornography] and s. 163.1(3) [distributing child pornography] Until July 17, 2015 |
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When charged under s. 163.1(4) [possessing child pornography] and (4.1) [accessing child pornography], 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.
When charged under s. 163.1(2) [making child pornography] and (3) [distributing child pornography], the accused can be given a judicial summons without arrest. 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.[1]
- Fingerprints and Photos
A peace officer who charges a person under s. 163.1 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
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
Section s. 163.1 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).
Where the offence relates to charges under s. 163.1, a judge must order that "any information that could identify a witness who is under the age of eighteen years or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section" shall not be published, broadcast or transmitted pursuant to s. 486.4(3).
- 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. 163.1(2), (3), (4), (4.1) | |
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(varies) |
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Offences under s. 163.1 are designated offences eligible for wiretap under s. 183.
Offences under s. 163.1 are "designated" offences under s. 752 for dangerous offender applications.
Offences under s. 163.1 (2) [possibly (3), (4), or (4.1)] 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.
- ↑ Only for charges after July 17, 2015
Offence Wording
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.
- Possession of child pornography
(4) Every person who possesses any child pornography is guilty of
- (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
- (b) 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 six months.
- Accessing child pornography
(4.1) Every person who accesses any child pornography is guilty of
- (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
- (b) 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 six months.
- Interpretation
(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
[omitted (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.
Draft Form of Charges
| Pre-ambles | ||
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| "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 |
| 163.1(2) | making child pornography | "... knowingly, did make, publish, print or possess for the purpose of publication child pornography, to wit: [conduct], contrary to section 163.1(2) of the Criminal Code." |
| 163.1(3) | transmission or making available child pornography | "... did transmit, make available, distribute, sell, import, export or possess for the purpose of transmission, making available, distribution, sale, import or export child pornography, to wit: [conduct], contrary to section 163.1(3) of the Criminal Code." |
| 163.1(4) | possession of child pornography | "... did possess child pornography, to wit: [types of items] contrary to section 163.1(4) of the Criminal Code." |
| 163.1(4.1) | Accessing child pornography | "... accessed child prongraphy or knowingly ... contrary to section 163.1(4.1) of the Criminal Code." |
Interpretation of the Offence
The provisions of s.163.1 were found constitutional. [1]
- ↑ Ontario (Attorney General) v Langer, 1995 CanLII 7422 (ON SC), 97 CCC (3d) 290, per McCombs J
Child Pornography Defined
Distribution and Making Available
Possession
Procedure
For Viewing and Displaying Child Pornography in Court see Real Evidence#Child Pornographic Images and Videos
For Disclosing Child Pornography to Defence see Limitations_on_Access_to_Disclosure#Limiting_Child_Pornography
Defences
Case Digests
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
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
History
See Also
External links
- The consumption of Internet child pornography and violent and sex offending
- The criminal histories and later offending of child pornography offenders
- References
- Terms of Probation Based on Offence
- New York v Ferber, 458 U.S. 747 (1982)
- Model Examinations (Criminal Law)
- References