Severe sentences imposed for child pornography convictions
By Vince Semenuk
People convicted of child pornography offences face significant custodial sentences. Sexual offences involving children are taken seriously by our judicial system and those under investigation need to seek legal counsel immediately.
The Criminal Code defines child pornography as any photo, video or other visual representation that shows someone under 18 either engaged in a sexual activity or where their sexual organs are visible. It also includes any written material, visual representation or audio recording that advocates or encourages sexual activity with a person under the age of 18.
14-year sentences are possible
Various charges can be laid against those involved with child pornography. If you make, print, publish or possess for the purpose of publication such as images or video, you can be charged with making child pornography. This is an indictable offence that carries a maximum sentence of 14 years in prison.
People who make child pornography are often also charged with other crimes. For example, a former pastor in Vegreville, Alta., was given a five-year prison sentence after being convicted of sexual exploitation and making child pornography. According to a news report, he had a relationship with a teenage member of the congregation that included exchanging intimate photos and videos of themselves.
The same maximum penalty can be given to those who distribute child pornography. Keep in mind that if you are using a peer-to-peer network such as BitTorrent to view and share pornographic images, that program will also upload your files to others, which means you can be charged with distributing child porn.
It is NOT a defence to say that you did not know that the files on your computer were being uploaded and shared by the torrent program without your consent or knowledge. It is also not a defence to say that you downloaded the images or videos out of curiosity and did not mean to make them available to others. If the material can be traced back to you, police can lay charges.
10-year sentences for possessing, viewing
If you are found in possession of child pornography, the maximum prison sentence is 10 years if the charge is treated as an indictable offence and two years in jail if prosecuted as a summary conviction.
Even viewing child pornography online or in another format can lead to a maximum 10-year prison sentence, even though more lenient sentences are often given for this crime.
For example, a resident of Grande Prairie, Alta., was sentenced to one year in jail after pleading guilty to possession of child pornography in 2023. According to a news report, he was one of 24 people charged in connection to a 2021 province-wide investigation by the Alberta Law Enforcement Response Teams Internet Child Exploitation Unit.
The story adds that another man was sentenced to two years in jail after pleading guilty to possession of child pornography stemming from the same investigation.
Anyone can be charged
Child pornography offenders come from all walks of life. For example, a peace officer in Grande Prairie, Alta., was charged with various child sexual exploitation offences including accessing and distributing child pornography, according to a news report.
The report states that a man allegedly shared child exploitation materials through social media, “with a number of computers and electronic devices seized as part of [his] arrest.”
Seven Calgarians and one person from Coalhurst, Alta., were arrested last June following an investigation into online child exploitation that saw the seizure of dozens of computers, according to a news report.
”Investigators focused on ‘high-level targets’ who were suspected to be sharing and distributing vast collections of child sexual abuse material through peer-to-peer file-sharing networks,” the story states.
In Edmonton, a captain with the city’s Fire Rescue Service is accused of possessing, accessing and making available child pornography, according to a news report.
It states that police began investigating a man after receiving tips about "a suspect sharing high volumes of child sexual exploitation materials online."
Mixed success with police investigations
According to the Statistics Canada report, Online Child Sexual Exploitation and Abuse in Canada, “only a fraction of sexual offences come to the attention of police and, subsequently, the courts. Further, when a sexual offence involves a child victim, the incident is even more likely to be underreported for a number of reasons.”
Those include that children may fear reporting such incidents or may not know how to report or seek help.
“As technology becomes more advanced, so too do the tactics used by offenders … and with improved anonymity capabilities they can better hide their activities,” StatsCan states.
According to another StatsCan report that looked at the period between 2014 and 2020, police reported 10,739 incidents of online sexual offences against children (where the victim had been identified by police) and 29,028 incidents of online child pornography (where the victim had not been identified).
“More than two-thirds (68 per cent) of child pornography incidents involved making or distributing child pornography and about one-third (32 per cent) were possessing or accessing child pornography,” the report notes.
When it comes to police investigations, it states that 44 per cent of police-reported incidents of online sexual offences against children were cleared (or solved).
“In contrast, the large majority (85 per cent) of child pornography incidents were not cleared,” according to Statistics Canada.
Defences against child porn charges
The evidence police gather when investigating online child pornography suspects typically consists of tracing where the images originated. While peer-to-peer networks make it easy for people to trade files, these networks also make it easy for the police to track users.
Investigators will search for file names such as lolita, preteen or underage. After the initial keyword search, investigators can examine the IP addresses and find those in their jurisdiction. Police can then contact the user's internet service provider (ISP) to obtain the name/contact information of the customer. If the ISP refuses, officers can apply for a court order to force the release of the customer's information.
Once they know the residence where the child porn originated, police must determine who in the household to charge. That can be difficult, as many homes contain apartments with multiple tenants or families sharing a single internet account. Internet account access may also be unknowingly shared across an open wireless router.
A defence lawyer can present these explanations and show there is reasonable doubt when it comes to identifying who posted, distributed or accessed the child pornography.
After identifying a suspect, investigators will seize all computers, hard drives, CDs/DVDs and other material that could be used to support their case. They cannot do that without a warrant and your lawyer can argue the evidence should be thrown out if one is not properly obtained. The Canadian Charter of Rights and Freedoms offers protection against unreasonable search and seizure.
Contact us for assistance
Electronic data accessed or shared online leaves a trail, and police continue to upgrade methods used to detect those who have created, disseminated or accessed child pornography. If you are facing a child pornography charge you need the advice of an experienced criminal lawyer. Contact us for a free consultation.