In the era of smartphones and social media, the line between private and public life sometimes becomes blurred. Young people may underestimate the legal implications of certain actions involving sending or sharing sexually explicit photos and videos. The Criminal Code (C.C.) strictly regulates these situations, particularly through offences related to child pornography and the non-consensual publication of intimate images.

Child pornography is a severely punished offence and carries long-term consequences. Thus, it is essential to understand these rules to avoid irreversible actions.

What is child pornography?

Section 163.1 of the Criminal Code defines child pornography as :

• Any depiction (photo, video, etc.) of a person under 18 years old, or portrayed as such, engaged in or appearing to engage in explicit sexual activity;
• Any written material or recording that describes, advises, or encourages sexual activity involving a minor.

Main offences under the Criminal Code

1. Production (s. 163.1(2) C.C.)

Anyone who produces, prints, publishes, or possesses child pornography for the purpose of publishing it commits an indictable offence punishable by a maximum sentence of 14 years’ imprisonment, with a minimum sentence of one year.

2. Distribution (s. 163.1(3) C.C.)

The transmission, sale, importation, exportation, or even the simple making available of child pornography also constitutes an indictable offence. No summary conviction is possible for this offence, meaning it carries a mandatory minimum sentence of one year and a maximum of 14 years.

3. Possession (s. 163.1(4) C.C.)

The mere possession of child pornography material constitutes an offence. Depending on the circumstances, the prosecutor may choose to proceed :

• By indictment (maximum sentence of 10 years, minimum of one year), or
• By summary conviction (maximum sentence of 2 years less a day, minimum of 6 months).

Possible defences

In production cases, it may be a valid defence that the accused reasonably believed the person depicted was an adult. However, they must have taken all reasonable steps to verify the person’s age and ensure they were not portrayed as a minor.

What about “nudes”? Intimate images under the Criminal Code

The Criminal Code distinguishes child pornography from what are commonly called “nudes.” Section 162.1 introduces the notion of an intimate image, defined as a photo, video, or any recording in which a person is nude, partially nude, or engaged in explicit sexual activity, in a context where they have a reasonable expectation of privacy.

Publishing, transmitting, or making such an image accessible without the consent of the person depicted constitutes a criminal offence. It is also prohibited to act without caring whether the person actually consented.

This offence may be prosecuted :

• By indictment (maximum of 5 years’ imprisonment), or
• By summary conviction (sentence at the judge’s discretion).

Youth and the criminal justice system

When a minor aged 12 to 17 is charged with an offence related to child pornography, the Youth Criminal Justice Act (YCJA) applies. This law also governs situations involving the sharing of intimate images among adolescents.

The YCJA prioritizes educational and rehabilitative measures rather than detention. Sentences may vary depending on the circumstances, ranging from a simple reprimand to probation. They may include community service, a fine, or an intensive support and supervision program. In the most serious cases, a youth may receive a custodial sentence of up to three years.

Sentencing : a balance to be struck

In criminal law, judges must respect several sentencing principles, including :

• Proportionality between the seriousness of the offence and the offender’s responsibility;
• Consideration of aggravating or mitigating circumstances;
• Respect for objectives such as deterrence, denunciation, rehabilitation, and public protection.

In summary

Sharing or possessing images involving a minor can lead to severe criminal consequences. A single lapse in judgment may affect a person’s entire life.

Before sharing a photo, video, or link, it is essential to understand the importance of consent and age. These elements determine whether the act is legal. Young people must be made aware of these realities. A mistake in judgment can lead to long-term legal repercussions.

If you have questions or are facing a concerning situation, our firm can help. To discuss your situation, contact our team.