Child pornography

Child pornography means:

(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.

Four crimes:

Making child pornography	(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of ninety days.
Distribution of child pornography	(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of ninety days.
Possession of child pornography	(4) Every person who possesses any child pornography is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.
Accessing child pornography a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself. AR: view or transmit to yourself MR: (intentionally and/or knowingly)	(4.1) Every person who accesses any child pornography is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days

No crime (so called defenses):

No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence:

(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.

The Supreme Court read in exceptions for personal writings and visual depictions intended for private use, including diaries, self-photography and drawings. There was a concern that both private expression would be caught by the provisions, and also depiction of lawful activity (consensual sex between married 18 year olds, for example) would be caught.

The accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.

Public Policy issues:

Two conflicting principles:

Protection of children vs. protection of free speech

Policy arguments against the criminalization of child pornography

• It is like killing a fly with a sledgehamme.
• It constitutes thought control. People could get prison time for possessing works similar to Romeo and Juliet or Lolita.
• The production of simulated child pornography does not involve real children. Some argue that child abuse and/or sexual abuse laws should be the standard and basis for prosecution.
• There is no scientific evidence linking child pornography and child sexual abuse.
• These materials potentially give pedophiles a sexual outlet, thereby lowering sexual frustration and the risk of committing abuse.
• Simple possession is a victimless crime.
• It is a thought crime: Common sense would suggest that committing rape is much more serious than looking at a picture. But it seems that the law is beginning to equate criminal responsibility for the two. The logical consequence of this situation is 'thought crime', where a person is penalised for what he may have been thinking when viewing an image, regardless of whether he has caused actual harm to a child.

Policy arguments in favor of criminalizaing child pornography

• The protection of children from sexual exploitation is more important than protections afforded by the Charter.
• The production of child pornography may involve child sexual abuse.
• Pohibition of distribution may serve to protect the subjects of the material, who cannot give informed consent, and may suffer additional trauma from the knowledge that these images are being distributed.
• Commercial trade in child porn with the producers motivates them to produce further pornography for monetary reasons,
• The consumption (possession) of child pornography encourages sexual interest in children and lowers the threshold of a person's willingness to engage in sex with a child.
• Pornographic material can be used to persuade the child to engage in sexual activity with an adult.

Other related crimes:

Luring of Children on the Internet

In 2002, Section 172.1 was added to the Code to criminalize electronic communication with a person believed to be a child for the purpose of facilitating the commission of sexual offences. Depending on the offence, the requisite age (real or believed) of the intended victim varies from 14 to 18.

Internet luring of children is punishable on summary of conviction. The maximum penalty is a fine of $2000, and/or imprisonment for up to six months. For an indictment, imprisonment is up to five years.

Deleting Child Pornography from Internet Sites
If there is reasonable grounds, a judge can issue a warrant of seizure on any material from a computer system presumed to constitute child pornography. The ISP or custodian of the system may be ordered to remove the material, provide the court with electronic copies of it, and/or provide information on the identity and location of the person who posted it. If the material is proven to be child pornography, the custodian may be ordered to delete the material.