What is cyber child pornography?

Cyber child pornography is any picture or video of anyone under the age of 18 that is intimate or shows their genitalia. It also includes anything that encourages sexual activity with those under 18, some child nudity and any material that is computer-doctored to look like child porn.

Four offences related to child pornography are found in s. 163 of the Criminal Code. The court will consider it an aggravating factor in sentencing if the person convicted of any of these offences – summed up as making, distributing, possessing and accessing child porn – did it for monetary gain.

Are cyber child-porn crimes increasing?

During the lockdowns brought on by COVID-19, the number of Canadians charged with these offences shot up. According to information from Statistics Canada, police reported 10,739 incidents of online sexual offences against children (where the victim had been identified by police) and 29,028 incidents of online child pornography (where the victim had not been identified) between 2014 and 2020. Almost three times as many people were arrested in 2020 than in 2014. More than two-thirds of child pornography charges were for making or distributing child pornography and about one-third were for possessing or accessing child pornography.

Who is involved in these offences?

According to the StatsCan report:

• Seven in 10 victims identified in online sexual offences against children were girls aged 12 to 17 and 13 per cent were girls under age 12. Boys aged 12 to 17 accounted for 11 per cent of victims and the remaining three per cent were boys under age 12.
• Approximately two out of three victims of online child sexual offences were victimized by a stranger (39 per cent) or a casual acquaintance (25 per cent), and nearly one in four were victimized by a friend (eight per cent), a family member (seven per cent) or an intimate partner (seven per cent).
• The vast majority (91 per cent) of people accused of online child sexual exploitation and abuse (including sexual violations against children and child pornography) were males who were generally much older than victims.
• Non-consensual distribution of intimate images online involved victims and accused persons with a median age of 15.

What are the penalties for cyber child porn?

The Code states that anyone who “makes, prints, publishes or possesses for the purpose of publication any child pornography” is guilty of an indictable offence and will face a maximum 14-year prison term. There is also a minimum punishment of one year in jail for this offence. The same maximum and minimum sentences are given to those convicted of distributing child porn.

The separate charges of possessing and accessing child pornography are treated as either indictable or summary offences. Those convicted of an indictable charge can face up to 10 years in prison and a minimum of one year in jail. If the charge is treated as a summary conviction, the maximum sentence is two years less a day in jail to a minimum punishment of six months in custody.

According to a Statistics Canada, 45 per cent of charges related to non-consensual distribution of intimate images resulted in a guilty decision, with eight in 10 adults convicted of a child-sexual offence committed online sentenced to custody.

What if I come across cyber child porn?

The Ottawa Police Service recommends that if you have received an email, text, photos, videos or other documents containing child pornography, report it online to Cybertip.ca. Then “delete it from your inbox - it is illegal to have it.”

If you are aware of a personal computer that contains child pornography, you are asked to report it to the Ottawa Police at 613-236-1222, ext. 7300. If the computer belongs to a family member, friend, acquaintance or co-worker, you can remain anonymous by visiting Cybertip.ca or calling Crime Stoppers at 1-800-222-8477.

What are my defences against child porn charges?

With every child pornography charge, the Crown prosecutor must prove beyond a reasonable doubt that the accused committed the offence and that the person involved in the pornography was under 18, or the person charged believed they were under 18. Below are some defences that can be mounted.

Were your Charter rights violated?

When carrying out investigations in the production, distribution and viewing of child porn, police cannot violate your rights as granted under the Canadian Charter of Rights and Freedoms. These include being free from unreasonable search and seizure and to have a timely trial after a charge is laid. If I can show the court that one of these rights were violated, I can ask that related evidence should be excluded from consideration, which may lead to the case being thrown out.

Did the images serve a legitimate purpose?

You cannot be convicted of a child porn offence if the images or video had a “legitimate purpose” that involves the “administration of justice or to science, medicine, education or art,” according to s. 163.1 (6) of the Code.

This defence only works in specific circumstances. In 2020, the Ontario Appeal Court rejected a man’s argument that his collection of child porn was being used for research. According to court documents, he claimed he wanted to train others on how “to recognize signs of sexual abuse among victims, prevent perpetrators from joining [youth] organizations, and to locate perpetrators already in these organizations.”

Did you really possess the images?

“Possession” means that you had some level of control or knowledge over something and that you knew it was illegal. A 2017 Ontario Superior Court of Justice judgment discussed what constitutes control of online pornography. It stated: “To be properly found to be in ‘constructive possession’ of child pornography on their computer device, the Crown must establish that the person knowingly had images of child pornography on their computer, and intentionally stored the images there for their own use or benefit."

Why you need my help with child porn charges

When people are charged with a cyber child pornography offence, some may believe that saying they thought that the person depicted was of legal age is a good argument. But they would be wrong. According to s. 172.1 (4) of the Code, “it is not a defence to say you thought [the person shown] 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.”

If you have been charged with any of the four cyber child-porn offences you could be facing imprisonment, along with the social stigma a conviction brings. Contact me for a free consultation, in French or English, so I can discuss your case and advise you of your options.