Child pornography Lawyers in Canada

Subsection 163.1(1) defines the material. Child sexual abuse and exploitation material includes a photographic, film, video or other visual representation that shows a person who is or is depicted as being under the age of 18 and engaged in or depicted as engaged in explicit sexual activity. It also includes a visual representation whose dominant characteristic is the depiction, for a sexual purpose, of a sexual organ of a person under the age of 18.

The definition goes further than images. It names any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of 18 that would be an offence under the Act. It names written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of 18 that would be an offence under the Act. It also names an audio recording with that kind of dominant characteristic.

The Crown is the prosecutor. Section 11 of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty according to law in a fair and public hearing. The Crown is the side that has to prove the charge.

The words of each offence show what the Crown has to prove. Under subsection 163.1(2), the offence is to make, print, publish, or possess for the purpose of publication, any child sexual abuse and exploitation material. Under subsection 163.1(3), it is to transmit, make available, distribute, sell, advertise, import or export the material, or to possess it for the purpose of transmission, making available, distribution, sale, advertising or exportation.

Subsection 163.1(4) makes it an offence to possess the material. Subsection 163.1(4.1) makes it an offence to access it. Subsection 163.1(4.2) explains what accessing means: a person accesses the material who knowingly causes it to be viewed by, or transmitted to, himself or herself. Subsection 163.1(4.21) covers a person who, with the intent to intimidate or to be taken seriously, knowingly threatens to publish, distribute, transmit, sell, make available or advertise the material.

In every case the material has to fit the definition in subsection 163.1(1).

Section 163.1 sets minimum punishments as well as maximums. A minimum is the lowest term of imprisonment the law allows for the offence. A maximum is the ceiling. Neither one says what sentence a court would give in a particular case.

Making, printing or publishing under subsection 163.1(2), and distributing under subsection 163.1(3), are indictable offences. Each carries imprisonment of not more than 14 years and a minimum punishment of imprisonment for one year.

Possession under subsection 163.1(4), accessing under subsection 163.1(4.1), and the threat offence under subsection 163.1(4.21) each have two versions. On indictment, the maximum is 10 years and the minimum is one year. On summary conviction, the maximum is two years less a day and the minimum is six months.

Subsection 163.1(4.3) adds a sentencing rule. If a person is convicted of an offence under the section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit.

A court may also make an order after a conviction. Under subsection 161(1), a court that sentences an offender for an offence listed in subsection 161(1.1) in respect of a person who is under the age of 18 shall consider making, and may make, an order prohibiting the offender from things such as having contact with a person under 18 or using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. Section 163.1 is one of the offences on that list.

Subsection 163.1(6) is a defence written into the section. No person shall be convicted of an offence under section 163.1 if the act that is alleged to constitute the offence has a legitimate purpose related to the administration of justice or to science, medicine, education or art, and does not pose an undue risk of harm to persons under the age of 18. Whether the subsection applies is for the court to decide on the evidence.

Subsection 163.1(5) limits one argument. On a charge under subsection 163.1(2) about a visual representation, a belief that the person shown was 18 or more is not a defence unless the accused took all reasonable steps to ascertain that person's age.

Charter rights apply from the start. Section 8 says everyone has the right to be secure against unreasonable search or seizure. Section 10 gives a person on arrest or detention the right to retain and instruct counsel without delay. Under section 24(2), evidence obtained in a manner that infringed a Charter right is excluded if admitting it would bring the administration of justice into disrepute. A lawyer can explain whether a Charter issue arises in a given case.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says the person making the decision gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances.

After a conviction on indictment, an appeal goes to the court of appeal. Under section 675, the person may appeal as of right on a ground that involves a question of law alone. An appeal on a question of fact or of mixed law and fact needs leave, and so does an appeal against sentence. A summary conviction appeal goes to the Superior Court of Justice sitting in the region, district or county where the case was decided, under sections 812 and 813.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, act at a bail hearing, help with a guilty plea and speak at sentencing, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. Nothing on this page ranks or recommends any lawyer.