Mitigating Factors and Sentencing in Child Pornography Possession

March 5, 2021

In Canada, there are four types of child pornography offences that relate to the distribution, possession, access and its making. The sentencing for even a small amount of child pornography is taking very seriously with the objective being to protect children. While sentencing for more serious child pornography, such as making sexually explicit material could mean up to 14 years of imprisonment. In many cases its with the assistance of internet service providers that police learn of those making sexually explicit material and accesses child pornography. Also, homeland security agencies often enlist internet service providers to help search for child sexual abuse, sexual exploitation and any person committed to making available child pornography.

The sentencing guidelines are strict due to the sexually explicit nature of child pornography and the need to protect children both in Canada and from around the world from exploitation. Section 163.1 of the Canadian Criminal Code sets out the minimum mandatory sentences for child pornography possession:

  1. An indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
  2. An offence punishable on summary conviction and is liable to imprisonment for a term up to two years less a day and to a minimum punishment of imprisonment for a term of six months.

Of note, recently developments in child pornography case law have seen that the mandatory minimum punishments have been found to be unconstitutional and judges are sentencing offenders to less than the minimum sentences prescribed in the criminal code. Also recently court decisions have again made Conditional Sentence Orders available for some child pornography related offences.

All offenders are also added to the Sex Offender Registry.

I’m Being Added to the National Sex Offender Registry. Now What?

Even significant mitigating factors have traditionally not been able to achieve more lenient sentences, and offenders who are suffering from other trying life circumstances are subjected to jail time. William Jaksa and his colleague Nabeel Sheiban, however, recently set a new precedent when they defended a man who pleaded guilty to possession of child pornography and through a successful argument were able to overturn the mandatory minimum incarceration in favour of a 10-month Conditional Sentence Order (house arrest) and 3-year Probation Order. An aggravating factor in this case was the how sexually explicit the child pornography was.

If you’ve been accused of possessing child pornography, making child pornography, distributing child pornography or accessing children pornography, you need to have the most up-to-date and relevant information on sentencing and mitigating factors. Read on to learn more about the case William Jaksa tried and what it means for your sentencing.

What constitutes child pornography in Canada?

There are very clear guidelines in section 163.1 of the Canadian Criminal Code for what materials constitute child pornography. It is not just photography or film video, but also sexually explicit written or sexually explicit audio materials that can be considered child pornography:

  • (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.

Child Pornography Offences in the Criminal Code

The four main child pornography offence in the criminal code are:

  • Section 163.1(2) Making Child Pornography
  • Section 163.1(3) Distributing Child Pornography
  • Section 163.1(4) Possessing Child Pornography
  • Section 163.1(4.1) Accessing Child Pornography
breach undertaking 1

Exploited children at undue risk

How the mitigating factors influenced the sentencing decision

The courts agree that crimes of a sexual nature against children are serious and harmful, and the latest decision of the Supreme Court of Canada calls for harsher sentencing in sexual offences against children (R. v. Friesen, 2020).

In a recent case argued by Mr. Jaksa, the defence put forth that the accused was a victim of years of “hands-on” sexual abuse and argued that his life circumstances, including his drug addictions, are significant mitigating factors. His clean record since his arrest and recommendations from his doctors, family and partner that speak to his recovery and genuine remorse are also mitigating factors.

He also had no prior criminal record, and there was no evidence to suggest he was any danger to any children in the community or he was a person accesses child pornography.

The sentencing factors a judge will consider for sexual crimes against children as set out in R. v. Friesen are:

  1. Likelihood to Reoffend; 
  2. Abuse of a Position of Trust or Authority; 
  3. Duration and Frequency; 
  4. Age of the Victim; 
  5. Degree of Physical Interference; 
  6. Victim Participation.

Making a Case For More Appropriate Possession of Child Pornography Sentencing

If you have been arrested for publishing child pornography, or any other child pornography offence, your life circumstances may help mitigate sentencing. You should be prepared to speak to your experience criminal lawyer about your life circumstances and present mitigating factors that affect your case along with your plans for rehabilitation or treatment to address issues that may have led to your crime.

If you are looking for someone to properly defend the circumstances of your possessing child pornography charges, William Jaksa can help. He will help you understand these criminal sentencing considerations and can advise you on the best circumstances to present to a judge and how to present your case in the best light.

If you are facing possession of child pornography possession or accessing child pornography charges, contact William Jaksa for a legal consultation today.

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