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Toronto Child Pornography Lawyer

What images and videos are classified as illegal child porn in Canada?

How the definition of child porn in Canada remains highly subjective and open to interpretation by the police, judges, lawyers, and prosecutors.

It is sometimes difficult to define exactly what constitutes child pornography. Not only does the wording of the Criminal Code contain ambiguities, rulings of the Supreme Court of Canada have left some significant room for various interpretations.

While some material is clearly within the scope of the definition (such as explicit photos of prepubescent children (under 10) having sex), not all is so easily classified. Police will sometimes charge people based on child nudity and family nudism images that are later found to be legal in court.

Section 163.1(1) of the Criminal Code

The legislative definition of what pictures and videos constitute child porn is contained in Section 163.1(1) of the Criminal Code of Canada. The section clearly intends to capture material depicting both hardcore overt sexual behaviour, and softcore seductive poses. It reads:  

163.1 (1) In this section, “child pornography” means

      (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;

Even if the models are over 18 you can still be charged and convicted

Since s. 163.1(1)(i) states that the subject in the porn “is or is depicted” as being underage, the wording of the legislation means that porn containing only 18+ adults can still be classified as child porn if the models are depicted as being under 18.

How would an adult model be depicted as being under age 18?

The police and courts will look at the overall context, background, dress, and other circumstances of the image or video. Factors that may be used to justify a child porn conviction even if the subject is 18+ typically include:
  1. The model wearing braces
  2. Pigtails or other haircuts suggestive of childhood
  3. The material being filmed in a child's bedroom or playground
  4. The model wearing high school, junior high or other outfit suggestive of childhood
  5. Backgrounds and contexts that include teddy bears, toys, or other objects children normally play with
  6. Wording in or on the photo, or in the file name, that is suggestive of the subject being underage (ie. “15 year old virgin”)
The presence of these factors do not necessarily mean the photo would be found to meet the definition of child porn by the judge, but they could be used to justify a conviction. Police, when conducting an investigation, will look for these elements in as justification for applying for warrants or pressing charges. It is ultimately up to the Trier of Fact (the judge) to determine whether an image/video is illegal as per the Code (regardless of the police or Crown’s opinion).

Of course, even if you ultimately win at trial, just being charged with child porn is devastating and carries substantial consequences.

How do the police know a girl/guy in alleged child porn is underage?

There are several police databases (in Canada, the US, and elsewhere) that contain information regarding identified victims of child porn. The police will compare the recovered material to these databases look for matches to an identified victim. If the identity of the model is unknown, the police do not know exactly how old he or she is. The ages stated in the case disclosure is usually just guesswork on the part of the investigating officer.

While it is extremely easy to identify a 9 year as being under 18, it is extremely difficult to determine a 16 or 17 year old from an 18 year old. Police officers who specialize in child porn cases often come to believe they have a “special ability” to tell the ages of teenagers apart. In examining a “child” in an image or video, police are trained to consider specific physical development in supporting their opinion that a model is under 18. These factors include:
  1. Puffy nipples
  2. Lack of pubic hair
  3. Genitalia that lacks creases or definition
  4. Small bone structure
  5. Clothing, make up, background location and background objects. This includes examining the non developmental factors mentioned above (braces, pigtails, etc.).
The police will also use non-determinative/inconclusive reasoning to classify models as being over 18 as well. For example, the presence of tattoos is often judged to indicate the girl is of age. Obviously, just as there are many 18 year olds with puffy nipples, there are also many 17 year olds with tattoos. Without verifying the actual identity/birthday and the specific date the image or video was created, nobody, no matter how experienced or educated they are, can really say for certain whether a girl is 17 or 18. This can be a source of reasonable doubt in child porn cases.

Please note, even a the model is found to be of age, the accused can still be convicted if the judge feels the image/video “depicts” the model as under 18.

Is basic child nudity, or family nudism, child pornography?

While it is seemingly impossible to positively determine if some images show or depict an underage model, it is also extremely difficult for courts to determine whether an image displays a sexual organ as a “dominant characteristic” and “for a sexual purpose”.

It would seem the intent of Parliament and the Supreme Court of Canada is simple child nudism material should not be deemed child porn, but practically speaking the police still sometimes press charges if they find such images or videos during a search. While you may ultimately be acquitted at court, or be able to convince the Crown not to proceed, just being charged is in itself carries tremendous negative consequences.

The reason we see charges and prosecutions is that the “dominant characteristic” and “sexual purpose” test is subjective. The police, the Crown, the defence, and ultimately the Judge could all interpret an image differently. It is ultimately up to the court to examine the images (or videos), in light of the legislation and case law, and make a final decision as to what the dominant characteristic and purpose of an image is. The leading and binding case is the Supreme Court of Canada’s decision in R. v. Sharpe where the court states:

“The objective approach should also be applied to the term “dominant characteristic” in s. 163.1(1)(a)(ii), which targets possession of visual material whose “dominant characteristic” is “the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years”. The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region. The same applies to the phrase “for a sexual purpose”, which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers."

This description, which is binding across all courts in Canada, instructs the trial judge to put himself in the position of a “reasonable and objective viewer” which basically means to use his discretion and make a decision.

In Sharpe, the Court seemingly attempts to explicitly exclude most photos of simple child nudity (reinforcing the notion that nudity does not equal pornography), but leaves open the door to successful prosecutions in instances where the accused alters an image and appears to be using it sexually:

Family photos of naked children, viewed objectively, generally do not have as their “dominant characteristic” the depiction of a sexual organ or anal region “for a sexual purpose”. Placing a photo in an album of sexual photos and adding a sexual caption could change its meaning such that its dominant characteristic or purpose becomes unmistakably sexual in the view of a reasonable objective observer: see R. v. Hurtubise, [1997] B.C.J. No. 40 (QL) (S.C.), at paras. 16-17. Absent evidence indicating a dominant prurient purpose, a photo of a child in the bath will not be caught. To secure a conviction the Crown must prove beyond a reasonable doubt that the “dominant characteristic” of the picture is a depiction of the sexual organ or anal region “for a sexual purpose”. If there is a reasonable doubt, the accused must be acquitted."

The example provided by the Court in Sharpe states that including child nudity images with obvious porn could transform an image into child pornography, but their example describes a circumstance where the person also edits the image to make it sexual (ie. “and provide a [sexual] caption”). It is interesting to note that adding a sexual caption, in and of itself, would seemingly be enough meet the definition of child porn whether the image is placed alongside porn or not.

What if the accused did not alter the image, but still seems to be using it as pornography (or stores it with porn), does this also meet the definition? This is a question of both fact and law that can become an issue in child porn cases. Ultimately, it is up to the trial judge to make this decision.

It is our opinion that the intent of the Supreme Court of Canada in Sharpe, particularly when read as a whole, was that only images created for a sexual purpose as viewed by a reasonable/objective observer should satisfy the definition (regardless of how the accused was using them). This said, sometimes prosecutors interpret the case differently to include the intentions and sexual interests of the accused (focusing on alternative interpretations in paragraph 50 such as “in content”, “sexual .. to -some- viewers”, etc.)

The police/Crown will often still charge/prosecute you if they believe you possessed or accessed child nudity images/videos for a sexual purpose.

Sharpe seems to direct lower courts to interpret the reading of “for a sexual purpose” from an “objective” perspective, or that of a reasonable viewer (without regard to the intention of the accused). Despite this, we still see police agencies all across Canada pressing charges against individuals they believe are possessing child nudity images for sexual purposes. Many of these allegedly infringing images are far from “blatantly pornographic”.

Police and Crown Attorneys throughout Canada seem to use the purpose of the viewer as part of their justification for charging and prosecuting an accused. In fact, there was a recent case in Alberta where the Crown stated it was of the belief that images were child porn because the accused intended to use them for a sexual purpose despite the photographer seemingly taking them without sexual intent. In this case, the images were of family nudism that included naked children. Part of the prosecution’s case was that the accused did not have a history of being interested in nudism (he did not attend nudist resorts, events, etc.). The defence, rightly, argued the accused’s intention for possessing the images was irrelevant because an objective viewer would find them non sexual.

We caution readers that just because they may have grounds to win an acquittal at trial, there are tremendous consequences to just being charged with child porn, such as:
  1. Having to live with restrictive computer and other conditions while awaiting trial (which would likely take 1 to 2 years or more)
  2. Having your name reported in the media and being labelled a child sex predator for having been charged with child porn
  3. If denied bail, you may have had to wait in jail for a trial/disposition of your case
  4. Substantial financial costs associated with legal expenses to fight your case
  5. You may lose your job and future employability
  6. You may have your children taken away from you, or your access limited, by children’s aid
  7. The charge may be used against you in a family law custody or access case
  8. Police databases, such as cpic, store information regarding the charge and provide it to US customs and other law enforcement agencies (likely leading to being denied entry into the US)
Bottom line: Child porn cases often come down to a matter of opinion

While you may think the picture you took of your child naked in the bathtub is non sexual, all it takes is one police officer to say they “feel the look on the child’s face is seductive”, or that “the pose and angle of the camera seems to deliberately capture the genitals”, or “I think it’s dominantly showing genitals and being used sexually” and you too could be charged with accessing, possessing, making, and possibly distributing child pornography.

Given its vague and highly subjective definition and the enormous consequences of being charged (let alone convicted) of a child porn offence, Canadians must stay informed and be extremely careful to avoid accessing any material capable of supporting an illegal interpretation (including of 18+ models depicted as being underage).

Call us today for a free case review

You need lawyers who understand technology and have experience defending child pornography related charges. Child porn sentences (including for all guilty pleas) result in mandatory lengthy jail terms, sex offender registrations, and other employment, travel, and immigration related consequences that can ruin your life.

Winning acquittals and withdrawn charges often requires more than traditional defence methods. It may be possible to avoid a conviction by raising doubt in your case using highly sophisticated technological and constitutional defence strategies.

    call us: 647-228-5969


  call us: 647-228-5969


Your case will be defended by a fully licensed Practicing Lawyer of the Law Society of Ontario. For more information about our lawyer, click here.

We provide our clients with:
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Are you a lawyer? If you are defending a child pornography related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

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  More Information:

  We provide:
  • 2023 constitutional and technological child porn defences successfully used throughout Canada and the U.S.
  • Flat fee pricing
  • U.S. travel advice and information
  • Help with related immigration issues
  • Employment background check advice/services
  • Fingerprints and records destruction services
  • Lawyer/client privilege
  • Experienced, focused counsel