Child Pornography refers to pornographic film, video or other visual representation that depicts a person under the age of eighteen engaged in explicit sexual activity, or an image or video focused on the sexual organ of a person under the age of eighteen. Criminal charges for child pornography under Canadian law include: possession, distribution and sale, accessing, and making child pornography. Further details on these elements are outlined below.
A person can be charged with possession of child pornography if they have knowledge of, and control over, some form of child pornography, or if they knowingly put the media in a particular place for their benefit or for the benefit or another person. The charge includes storing media on your computer, on a website or on a compact disc. A person can be convicted of the charge if the Crown proves that the accused intended to have possession of the media and knowingly stored and retained the media.
An individual need not be in possession of child pornography to attract a criminal charge. Simply accessing child pornography on the internet is enough to warrant a charge under the child pornography section of the criminal code. If an individual knowingly opens a file or links to a website or uses social media to view any form of child pornography, that individual could be charged with accessing child pornography.
Distribution and Sale
Distribution can include transmission, selling, importing or exporting child pornography for the purposes of distribution or advertising the material. A person can be charged with distribution or sale of child pornography by making it available to others on the internet or showing it to others on their own computer, or linking others to child pornography sites. Distribution requires that the individual was aware that they were distributing or providing access to the pornography. A distribution charge can also be laid if an individual is found to have imported or exported pornography into or out of Canada. Distribution can also include videos or images posted to social media sites such as Snapchat, Vine, Facebook or YouTube.
Making Child Pornography
Making child pornography includes taking photographs or video on any device. To be convicted of an offence of making child pornography the Crown must prove that the accused made videos or produced photographs involving individual(s) under the age of 18 engaging in sexual activity. An individual can attract a charge of making child pornography even if they made videos on web cameras, cell phones and digital cameras or through video telecommunication services such as Skype or Windows Live Messenger.
Defending Against a Child Pornography Charge
Having physical custody of child pornography or accidentally accessing child pornography on your computer does not immediately mean that you have committed a child pornography offence. If you are charged with possession of child pornography, it falls on the Crown to prove that you intended to access the pornography and were aware that you were in possession of the pornography. An accused person could try to argue the defences of private use or the defence of possession of pornography for a legitimate purpose. To mount such defence may requires the assistance of a good criminal defence lawyer.
For other child pornography charges, an accused person could also argue that the gathering of evidence by police constituted an unreasonable search and was a breach of a reasonable expectation of privacy or may require the accused to prove that their computer was accessed by someone else. There may be other defences available to you depending on the circumstances of your case.
If you have been charged with a child pornography related offence you will need the assistance of a defence lawyer who knows this particular area of the law. Each case is different and will require personalized attention. A child pornography conviction of any kind can severely affect your life. If convicted, you are sure to face a jail sentence (as all child pornography offences include minimum sentences of imprisonment) and be required to register as a sex offender, which can prevent you from travelling outside Canadian boarders and from getting a job in various industries. Depending on what you are convicted of, you may be required to be on the sex offender registry for life. Tyler MacDonald is experienced in defending against even the most serious charges related to child pornography. Call Mr. MacDonald today for a free initial consultation and receive a comprehensive assessment of your options.