What is child pornography?
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What is child pornography?
Child pornography is defined by section 163.1(1) of the Criminal Code as:
- Any visual representation, such as a film or video showing a person under the age of 18 (or depicted as being under 18) engaged in explicit sexual activity, or their sexual organ or anal region for a sexual purpose.
- Any written, visual, or audio material advocating or counselling sexual activity with a person under the age of 18 years.
- Any written material predominantly about, or describing for a sexual purpose, illegal sexual activity with a person under 18.
- Any audio recording that predominantly describes, presents, or represents illegal sexual activity with a person under 18.
For someone to be convicted of a child pornography crime, the crown prosecutor must prove beyond a reasonable doubt that the material in question is child pornography, based on the definition above. A judge decides whether material is child pornography by objectively applying this test to the material based on all the evidence and context. The question is often whether a reasonable person who knows the law would consider the material to meet the definition of child pornography. The judge will not care if you do not think that the material was predominantly for a sexual purpose. The judge cares about whether it is objectively reasonable to see the material that way.
This is a case-by-case assessment, but courts have decided that:
- Drawings, paintings, and comic books are visual representations that can meet the definition of child pornography.
- Family photos of naked children, such as a child in a bathtub, are typically not child pornography unless there is evidence of a sexual purpose. Adding a sexual caption to the photo or placing it in an album of sexual photos can be evidence of a sexual purpose.
- Advocating or counselling illegal sexual activity with children means actively encouraging or inducing it, not just describing it. Material promoting the idea that children can and should be pursued for sexual activity is child pornography.
Even though it is the crown prosecutor’s job to prove beyond a doubt that the material meets the definition of child pornography, you may be in a situation where your best chance of not being convicted requires you to give an innocent explanation for why you have material that looks like child pornography. Every case is different, and judges consider all relevant evidence.
Committing any of the four offences under section 163.1 of the Criminal Code constitutes a child pornography crime.
- Accessing child pornography.
- Possession of child pornography.
- Distribution of child pornography.
- Making child pornography.