“Child pornography” itself is not a crime, just like “drugs” is not a crime, it’s an element of crime. It’s the use, owning, selling and making of drugs, and likewise child pornography, that’s criminalized under the Criminal Code of Canada. Specifically, the four charges are:
- Accessing child pornography
- Possessing child pornography
- Distributing child pornography
- Making child pornography
Because each of these charges are for different actions, the potential outcomes vary in kind. You’ve probably seen a cop movie at some point where the chief of police tells their officer not to bother with drug users, that they need the “big fish,” they need to go after the dealer or the producer of the drug. The Criminal Code classifies accessing and possessing child pornography as ‘hybrid’ crime, because in some cases they can be considered severe crimes, and in some cases they can be considered lighter crimes. Hybrid offences allow the Crown to choose if they want to proceed with the charge as indictable (more severe) or summary (less severe). Inversely distribution and creation of child pornography are automatically considered indictable offences, and the Crown is forced to proceed with the charges as if they were more severe. Here we’ll explain what this means for you if you’ve been charged with any of the above four crimes and are unsuccessful in your defence.
Accessing and possessing child pornography are charges laid against those believed to have consumed media portraying child pornography. They’re hybrid offences, meaning the Crown attorney responsible for your case gets to decide, based on the evidence provided to them, if they’ll choose to try you for a summary or an indictable crime. If they have a strong case against you, irrefutable evidence, and information suggesting the actions you are accused of had aggravating factors (factors which force the Crown to seek increasingly strict penalties) you may be charged with an indictable offence. These proceedings are more complex, more expensive, and require more resources from both the Crown and the defence. You may be in this situation if, for example, the Crown has multiple witnesses supporting their case and you have a history of sexual crimes against children.
If the case is less severe, the Crown lacks strong evidence, or there are mitigating factors present (factors which push the Crown towards lighter penalties) they may choose to proceed summarily. This is less expensive for both the Crown and the defence but places a much stricter limit on the potential penalty that you can be given. You may be in this situation if, for example, it’s your first offence, the youth in the images you accessed weren’t being violently harmed, or the Crown has only a minor amount of evidence and few images collected against you making it harder for them to secure a conviction.
Those charged with distribution or making child pornography are automatically charged with indictable offences. The actions they’re believed to have taken is not only consuming media of child pornography but making it consumable by others. This is the “drug dealer” rather than the “drug user” from our previous comparison.
S.163.1(4.3) of the Criminal Code of Canada stipulates that it is an aggravating factor if anyone is believed to have been profiting from child pornography, either through distribution or making the product. If the Crown has strong evidence that you earned an income from child pornography your sentence is very likely to be more severe.
So, What are the Penalties and How Can I Stop Them?
The simplest way to explain the potential penalties of being found guilty of a charge for child pornography is through this table:
In order to avoid being sentenced to a term in prison, it’s important that you retain counsel for a legal defence as early in the process as possible. A defence lawyer can work with you to prepare to prevent conviction by finding errors in the Crown’s evidence, finding if your Charter rights were violated, and looking for prior cases with similar facts that ended favourably. If you’ve been charged with any of the above in Picton, contact either our Kingston or Belleville office (whichever is most convenient for you) to arrange for a free 30-minute consultation. If you can’t make it to one of our offices, we’d be more than happy to discuss your case with you over the phone.
We offer block rate fees, meaning the cost of your defence will be clear right from the beginning, and whether our lawyers have to drive from Kingston to Picton court once or ten times on your behalf, we won’t raise the rates on you. Let us help you fight the chargesTM so you can get your life back on track as quickly as possible.