If you have been charged in the Cobourg area or anywhere in Canada, with any of the child pornography offences listed in the Criminal Code, you are facing some extremely serious consequences.
What is Child Pornography?
The various and many child pornography offences are grouped together under s. 163.1 of the Criminal Code. Possessing child pornography is illegal; even just accessing it is illegal. And it goes without saying that making child pornography and distributing child pornography are also offences.
What constitutes child pornography? In s. 163.1(1) of the Criminal Code it is defined as:
(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 or is depicted as being under the age of eighteen years and 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 sexual organ or the anal region of a person under the age of eighteen years;
(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
In other words, any visual, written or audio representation depicting children in sexual activities or depicting for sexual purposes the sexual organs or anus of a minor, is considered to be child pornography. Notice that the person being shown in the pornography does not actually have to be a child under the age of 18. It is enough that the person is being depicted as being under 18. And further, anything (including an audio recording with no visuals) advocating or counseling sex with a minor, is illegal. And, any written or audio material that has as its dominant characteristic, the description for a sexual purpose of sex with a minor, is also illegal.
The penalties upon conviction of any of the child pornography offences are harsh.
The making and distribution etc. of child pornography are indictable offences (i.e., offences considered to be particularly serious) and carry a maximum sentence of 14 years of imprisonment and a minimum sentence of one year of imprisonment.
Possession of child pornography and the accessing of child pornography are both hybrid offences, which means that the Crown has the option of proceeding either by indictment for more serious cases and summarily for less serious cases. If the Crown proceeds by indictment, the penalty range is a maximum sentence of 10 years of imprisonment to a minimum sentence of one year of imprisonment. If the Crown elects to proceed summarily, the penalty range is a maximum sentence of imprisonment for a term of not more than two years less a day and to a minimum sentence of six months imprisonment.
If a person is convicted of a child pornography offence, the court that imposes the sentence must consider as an aggravating factor the fact that the person committed the offence with intent to make a profit. Aggravating factors weigh towards a more severe sentence.
Sex Offender Registries
A person convicted of any of the child pornography offences will have to register with both the National Sex Offender Registry and if resident in Ontario, with the Ontario registry as well.
The National Sex Offender Registry is often referred to as SOIRA in reference to the Sex Offender Information Registration Act (SC 2004, c 10) which established this national database; it contains information on convicted sex offenders. All convicted sex offenders are now automatically included in the Registry which is administered by the Royal Canadian Mounted Police (RCMP).
It gives police the power to access the sex offender database and query for a list of all known sex offenders within a geographic area. Anybody who is on the Registry and who lives, works, volunteers, goes to school or is visiting in that geographical area will be identified. The database provides police with the convicted sex offender’s personal information, including recent photos and descriptions of identifying marks and features (e.g. tattoos).
SOIRA requires that those registered to report to the registry after conviction and whenever they move and to provide a great deal of information, including:
(a) their given name and surname, and every alias that they use;
(b) their date of birth and gender;
(c) the address of their main residence and every secondary residence or, if there is no such address, the location of that place;
(d) the address of every place at which they are employed or retained or are engaged on a volunteer basis — or, if there is no address, the location of that place — the name of their employer or the person who engages them on a volunteer basis or retains them and the type of work that they do there;
(d.1) if applicable, their status as an officer or a non-commissioned member of the Canadian Forces within the meaning of subsection 2(1) of the National Defence Act and the address and telephone number of their unit within the meaning of that subsection;
(e) the address of every educational institution at which they are enrolled or, if there is no such address, the location of that place;
(f) a telephone number at which they may be reached, if any, for every place referred to in paragraphs (c) and (d), and the number of every mobile telephone or pager in their possession;
(g) their height and weight and a description of every physical distinguishing mark that they have;
(h) the licence plate number, make, model, body type, year of manufacture and colour of the motor vehicles that are registered in their name or that they use regularly;
(i) the licence number and the name of the issuing jurisdiction of every driver’s licence that they hold; and
(j) the passport number and the name of the issuing jurisdiction of every passport that they hold.
A SOIRA reporting obligation can last for 10 years, 20 years or for life.
The Ontario Sex Offender Registry (OSOR) is sometimes referred to as Christopher’s Law in reference to the legislation by that name which created the registry. It applies to convicted sex offenders who reside in Ontario, regardless of whether or not they were convicted in Ontario.
Like SOIRA, the OSOR requires that those registered to report to the registry after conviction and whenever they move and to provide a great deal of information, including:
- name – including current, former and any aliases
- valid proof of identity
- main and secondary addresses – of any residence, place of employment, education institution attended and volunteer organization attended
- physical description – including height, weight, build, gender, race, scars/tattoos/birthmarks
- current and historical photographs of the offender and their scars, marks and tattoos
- sex offences(s) for which the offender has been convicted
- any vehicle owned, leased, registered to or regularly driven by the offender.
The reporting period for the Christopher’s Law obligation can last for 10 years or for life.
Possessing such material for any purpose is an offence, with the narrow exceptions of an act that:
(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.
It is not a defence to the offence of making, printing, publishing or possessing for the purpose of publication any child pornography, in respect to a visual representation to argue that you believed that the person depicted was 18 or over or that you believed that the person was being depicted as 18 or over.
You only have a defence if you can show that you took all reasonable steps to ascertain the age of the person, and if having ascertained that the person was 18 or over, the representation did not depict the person as being under the age of 18. In other words, even if you took all the reasonable steps to find out the age of the person depicted and you found out that the person was in fact not under 18, your defence would fail if the depiction was of a person under 18.
There is a possible defence – sometimes called the doctrine of innocent possession – to the possession of child pornography, if you took control of the child pornography for the purposes of immediately destroying it or putting it permanently beyond your ability to exercise any control over it, or you took control of it for the purpose of delivering it to the authorities (this latter example also sometimes referred to as a public duty defence).
Child pornography charges are among the most difficult to defend against. If you have been charged in the Cobourg area with an offence involving child pornography, self-representation is probably not a good idea. You should talk to a criminal lawyer. Aitken Robertson is an established law firm with offices throughout Ontario and with lawyers who appear regularly in Cobourg court. As well, Aitken Robertson will give you a free half-hour consultation.