Section 163.1(2) of the Criminal Code encompasses the offence of Making Child Pornography;
Making child pornography
(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
The definition of child pornography is found in s. 163.1 of the Criminal Code.
Making Child pornography is obviously a serious criminal offence that carries a mandatory minimum sentence of one year. A conditional sentence (otherwise known as house arrest) is not available whenever the Criminal Code imposes a minimum sentence and is therefore not an available option in these cases. One should note however that there has been recent decisions declaring minimum sentences in other areas of the Criminal Code as being unconsitutional. (charges relating to guns and drugs).
There are a number of possible issues that arise in the defence of these charges. A few are listed below:
- Is the search valid.
- Can the subject matter be connected solely to the accused person.
- If a computer is involved, is the accused person the only individual with access to the computer.
- If an inculpatory statement was provided by the accused person, was it taken lawfully, without inducement, threat or coercion? Was theaccused person provided rights to counsel?
- Does the subject matter meet the definition of “child pornography” as contained in s. 163.1 of the Criminal Code.
Any individual charged or under investigation for the charge of making child pornography should contact counsel as soon as possible. A thorough and complete analysis of the case is required in order to provide advice and develop strategy for the defence.