Making available or Distributing child pornography | Toronto Criminal Lawyers
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Charged with Making Available or Distributing Child Pornography

If you’ve been charged with making available or distributing child pornography, you should speak with a child pornography criminal lawyer as soon as possible. Our law firm has worked with many individuals facing these charges. It is a serious offence with serious consequences.  However, all is not lost.  There are numerous defences available and the Crown must establish proof beyond reasonable doubt.  Call our team of child pornography criminal lawyers.  The initial consultation is free.  We can help you get the best results.

Child Pornography - Definition and Offences 163.1, Makes Available or Distributing Child Pornography s. 163.1(3)

Definition of “Child Pornography”/ Making child pornography/ Distribution, etc. of child pornography/ Possession of Child Pornography/ Accessing Child Pornography/ Interpretation/ Aggravating Factor/ Defence/ Question of law

161. (1) In this section, “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 in 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.

(2) Every person who makes, prints, publishes or possess for the purpose of publication any child pornoigraphy is guilty of
(a) an indictable offense 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 is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.
(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission,making available, distribution, sale, and advertising or exportation and child pornogarphy is guilty of
(a) an indictable offense and liable to improsment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offense punishable on summary conviction and is liable to imrpsionement for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.

(4) Every person who possess any child pornography is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more then five years and to a minimum punishment or imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

(4.1) Every person who accesses any child pornography is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

(4.2) For the purpose of subsection (4.1), a person accesses chlild pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.

(4.3) If a person is convicted of an offence under this 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.

(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the presentation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless 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.

(6) 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 the science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.

(7) For greater certainty, for the purpose of this section, it is a question of law whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this act.

The consequences of being charged with "Makes available or Distribution of Child Pornography"

There are dire consequences if you are charged with “Make available or Distribution of Child Pornography.”

  • if Crown proceeds by indictment a minimum of 1 year in jail to a maximum of 10 years in jail;
  • If crown proceeds by way of summary conviction a minimum term of imprisonment of 6 months to a maximum jail term of  2 years less a day
  • mandatory  registration on SOIRA (Sexual Offender Information Registry Act)
  • mandatory registration on OSOR (Ontario Sex Offender Registry; also known as, Christopher’s Law)
  • s. 161 order restricting attendance at public parks or public swimming areas where persons under the age of 16 are present or can reasonably be expected to be present
  • s. 161 order restricting or prohibiting use of the internet or other digital network
  • lengthy term of probation

Note: at the present state of the law,  a conditional sentence (house arrest) is not available

Impact of Registration on a Sex Registry

If convicted the Court must impose a SOIRA order for a period of 10 years, 20 years or life.

SOIRA (National Sex Offender Registry) is a database accessible to  all Canadian police services. SOIRA provides identification and information regarding persons convicted of sex related offences including:

  • the person’s name
  •  date of birth and gender
  • all current addresses (primary and secondary)
  • employer’s address
  • address of place of education
  • all current telephone numbers
  • licence plate and model of motor vehicle normally used
  • height, weight, description and identifying marks
  • a current photograph
  • the person’s modus operandi
  • the sex offences the offender was convicted of.

The accused must:

  • report in person within 7 days after release from custody, or after the SOIRA order is made, or after being granted a conditional discharge or an absolute discharge by the Ontario Review Board if the person was found not criminally responsible on account of mental disorder, as the case may be, to the police service in the jurisdiction where the person resides at the place and during the times determined by the police service
  • report annually
  • notify SOIRA of any change of address,  change of name, and before the person’s departure from the person’s residence if the person will be absent for 7 consecutive days or more.

Possible Defences

There are a number of possible defences to this charge.  The Crown must establish that the images fall with the definition of “child pornography” as set out in the Criminal Code.  Search warrants are often susceptible to attack.   Who used a computer, and proof of exclusive use of a computer can be difficult for the Crown to establish. On your case our team, including our computer experts, will search out and examine each and every possible weakness in the Crown’s case.

Our child pornography criminal lawyers’ recommendation:

Talk to us. All is not lost. Together we will work together to determine your the best course of action and your best criminal defence.

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