International Laws on Child Pornography:
Canadian Laws on Child Pornography
BILL C-15A
DEFINITION OF "CHILD PORNOGRAPHY"
163.1
(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; or
(b) any written material or visual representation that advocates or counsels 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 possesses for the purpose of publication any child pornography is guilty of
(a) an indictable offence and liable to
imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
(3) Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of
(a) an indictable offence and liable to
imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
(4) Every person who possesses any child pornography is guilty of
(a) an indictable offence and liable to
imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
(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 representation 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) Where the accused is charged with an offence under subsection (2), (3), or (4), the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.
(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3) or (4). [1993, c.46, s.2.]
The strength of the protocol is that it prescribes consistent law to deal with child pornography across borders. This is especially important where the internet is concerned, and international boundaries become blurred.
Internet Luring: Research shows that predators are using the Internet, masking their identity and pretending to be children or young adults, to lure children into situations where they could be sexually abused. The new luring offence makes it illegal to communicate with a child for the purpose of committing a sexual offence against that child and carries a maximum penalty of five years imprisonment.
While these amendments are an important step to better protect children, it is not the only answer to this growing problem. Parents, teachers and Internet service providers also have an important role to play in being vigilant and protecting children from dangers on the Internet.
Child Pornography on the Internet: These new offences each have a maximum penalty of 10 years imprisonment and make it a crime to:
"transmit" child pornography from one person to another;
"make available" child pornography. This law applies when someone posts child pornography material on a web site or offers information on where to find it, for example, by providing a web site address;
"export" child pornography. This provision fulfils Canada's international obligations under the Optional Protocol to the United Nations Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography; and
"possess child pornography for the purposes of" transmitting, making available or exporting.
Another new provision prohibits anyone from accessing child pornography on the Internet. This offence is punishable by up to five years imprisonment. The accessing offence does not criminalize someone who inadvertently views child pornography on the Internet since the amendment requires the person to have knowledge that there is child pornography on the site and a specific intention to access this material.
Deleting Child Pornography from a Web Site: Under the new law, courts can order a custodian of a computer system, such as an Internet Service Provider (ISP), to remove from its server any child pornography material, or a link to such material. The person who posted the material would be given the opportunity to be heard by the court. If the person cannot be located or identified or resides outside Canada, the court may proceed ex parte. If, after the hearing, the court does not find the material to be child pornography, the material could be re-posted. If, however, the court found the material to be child pornography, it could order the deletion of the material.
Forfeiture: The new provisions allow a judge to order the forfeiture of any materials or equipment used in the commission of a child pornography offence. This sanction could be imposed on any person convicted of a child pornography offence who is the owner of the materials or equipment, and would be in addition to any other punishment. A procedure is provided to allow innocent third parties to have their property interests recognized.
Strengthening Sentencing Provisions: The Government of Canada is also building on existing preventative measures by creating new provisions to further limit opportunity for known or suspected child abusers to re-offend.
In 1993, the Criminal Code was amended to create a new prohibition order, lasting up to a lifetime, to ban convicted child sex offenders from frequenting day-care centres, school grounds, playgrounds, public parks or bathing areas where children are likely to be found. The order also prohibits convicted child sex offenders from seeking or maintaining paid or volunteer positions of trust or authority over children. Another provision was created to allow a person to obtain a peace bond (a protective order lasting up to one year) if he or she fears that another person will commit a sexual offence against a child.
Today's amendments address the reality of new technologies by adding the use of the Internet to communicate with children for sexual purposes to the list of possible banned activities. These amendments also include crimes related to child pornography and Internet luring as offences for which an offender would be subject to either a prohibition order that could last up to a lifetime or a one-year peace bond. The changes also mean that child pornography and luring offences are added as triggering offences for bringing an application for a designation of "long-term offender." An individual who is designated as a long-term offender can be made subject to community supervision lasting up to 10 years.