Obscene materials overview
Canadian criminal law possesses a very comprehensive legislative framework for evaluating obscenity, in part due to post-Charter case law which challenged the laws on constitutional grounds. Pornography offences are the possession, production or distribution of obscene sexual materials as defined by the Criminal Code of Canada. Canadian obscenity and pornography laws may prohibit anyone who intentionally searches for, or possesses, illegal pornography such as bestiality and child pornography.
For a pornographic picture, video or any other material to be illegal, it must be deemed to be obscene. Section 163(8) of the Criminal Code defines an obscene material as any publication which is characteristic of “the undue exploitation of sex,” and one or more of “crime, horror, cruelty and violence.” Section 163 regulates pornographic material which features two or more consenting adults, despite not explicitly using the term “pornography.”
In order to assess whether there is undue exploitation, the court will use the community standards test, which the Supreme Court of Canada in R. v. Butler  explained as the standard of subject matter that they would not tolerate other Canadians being exposed to.
The community standards test is flexible in nature in that it adapts to what is considered to be acceptable, as well as providing leeway to publications which are not widely accessible by the public, and is therefore stricter towards platforms such as television which are more accessible by the general public.
Section 163.1 of the Criminal Code of Canada defines child pornography as a photograph, film or video that “shows a person who is or is depicted as being under the age of eighteen years and is engaged or is depicted as engaged in explicit sexual activity,” or where the dominant characteristic of the material is “for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years.” The same, dominant characteristic principle applies to written material, audio recordings that advocate sexual activity with a person who is under eighteen years of age, or any material that serves a sexual purpose in describing sexual activity with an underage person.
Child pornography offences occur under four main categories: making child pornography, distribution of child pornography, possession of child pornography and accessing child pornography. The category of offences for child pornography are comparable to laws relating to illegal drugs, in that both are inherently illegal to possess and are followed with a similar set of escalating factors which apply to those producing or making this illegal material available to others, and will consider it an aggravating factor where the person committed the offence with the intention of making a profit (Criminal Code, s. 163(1), ss. 4(3). Possession and accessing child pornography offences require that the accused either knew that they were in possession of, or were willfully blind as to the subject matter of the materials. If the accused is charged under subsection (2), for making child pornography, then they must prove that they took “all reasonable steps to ascertain the age of that person,” in addition to ensuring that they did not depict that person as being underage (Criminal Code, s. 163(1)(5)).
Recent legislation in Canada known as the Child Pornography Reporting Act has imposed a duty upon any person who comes across child pornography in any form, to report it to authorities. The duty to report under section 3 of the Act, requires that an informant promptly report any information whether or not it is considered to be “confidential or privileged,” so long as they are not falsely reporting or doing so with malicious intent (Child Pornography Reporting Act, 2008, c. 35, s. 3). Anyone who does not report child pornography is guilty of a summary offence and is liable to a fine of not more than two thousand dollars and to imprisonment for a maximum of six months (Child Pornography Reporting Act, 2008, c. 35, s. 7(1).
Voyeurism is the visual recording of any person who is in “circumstances that give rise to a reasonable expectation of privacy,” if the person is in a place where they can “reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity” (Criminal Code, s. 162, ss. 1). It is an offence to possess any illegal visual recording for the purpose of sharing or otherwise making it available to others, such as publishing it or circulating it on the internet.
Obscenity offences under section 163 of the Criminal Code of Canada are hybrid in nature. Where the Crown elects to proceed by indictment, the accused faces a maximum of two years imprisonment. The sentence directly relates to the degree of harm to society that prosecution can prove. Voyeurism or possessing for the purpose of sharing illegal visual recordings is also a hybrid offence which carries a maximum penalty of five years imprisonment if the Crown proceeds by indictment.
Each of the categories of child pornography offences are considered to be hybrid offences. Therefore, prosecution can elect to proceed either by indictment or summarily. In addition, each category is accompanied by a mandatory minimum sentence which corresponds to the seriousness of the offence (Criminal Code, s. 163(1), ss.2-4). Mandatory minimum sentences range between three and six months, depending on the offence, with maximum penalties ranging from 18 months up to ten years.
Handling your charge
Sentencing for pornography offences is highly nuanced. By far the most serious offence is making child pornography, and that is reflected in the sentences imposed. Moreover, the stigma attached to a conviction for child pornography can be equally as damaging. Anyone facing a charge of this severity, especially one which imposes a mandatory minimum sentence should seek experienced counsel and consider the possibility of going to trial.
In addition to the custodial sentence, a person charged with these offences could face mandatory sex offender registration and prohibitions on attending various places where young people are ordinarily found.
Sentences become more severe depending upon the quantity and quality (depth of depravity) of images and videos discovered and how many of these are original images.