It is a criminal offence to possess in any format or for any reason (with certain limited and stated exceptions) any images or recordings that:
(a) shows a person who is under the age of 18 or is depicted as being under the age of 18 engaged in explicit sexual activity, or
(b) shows for a sexual purpose the sexual organ or anal region of a person under the age of 18 years old, or
(c) which counsel or advocates sexual activity with a person under the age of 18 years old, or
(d) describes for a sexual purpose, sexual activity with a person under the age of 18 years old.
It is a defence to any of the above acts if the act which is the subject matter of the alleged offence has a legitimate purpose related to the administration of justice or to science, medicine, education or art, and does not pose an undue risk of harm to persons under the age of 18 years old. Other than this exception, there is no other reason which would act as a defence to the possession of materials deemed to be child pornography. Where the defence raises this exception, the Court is required to take a liberal view of the facts supporting the defence and base the determination on an objective view. Once the defence is able to point to facts that support this defence, the onus is on the Crown to disprove them beyond a reasonable doubt.
The penalty for possession of child pornography is significant, and in all cases, involves a minimum period of incarceration. The range of sentence to be imposed by the Court is based on whether the Crown is proceeding by summary conviction or by way of indictment, and on the level of involvement or manner of possession by the accused person.
Where the accused person is charged with accessing (viewing or transmitting to oneself) or possessing child pornography, the penalties are a custody sentence of between 90 days and 18 months if by summary conviction and between 6 months to 5 years if by indictment.
Where the accused person is charged with either making, printing, publishing or possessing for the purpose of publishing, or transmits, makes available, distributes, sells, advertises, imports, exports or possesses for one of these purposes, the term of custody is between 6 months and 2 years less 1 day if by summary conviction and between 1 and 10 years if by way of indictment.