Internet Child Exploitation Offences

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 223-295



Internet Child

Exploitation

Ofences

7

I. Introduction.............................................. 

II. Child Pornography Offences................................. 

III. Voyeurism Offences ....................................... 

IV. Publishing an Intimate Image Without Consent ................. 

V. Luring a Child ............................................ 

VI. Agree or Arrange to Commit a Sexual Offence Against a Child ..... 

VII. Making Sexually Explicit Material Available to a Child............. 

VIII. Cyberbullying............................................. 

IX. Entrapment .............................................. 

© [2023] Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Oences Against Children

I. Introduction

The sexual exploitation of children is not a new phenomenon, but advances in

technology have provided new ways and means for contacting and grooming chil-

dren, memorializing their abuse, and finding other like-minded persons with whom

to communicate and share. Internet child exploitation is a pervasive social problem

that affects the global community and its children.1 Crimes involving Internet child

exploitation can cause enduring, even lifelong, psychological harm, trauma, and suf-

fering.2 Children are victimized not only by being sexually exploited or abused; those

depicted in pornographic images are revictimized each time the images are viewed,

made available, and collected.

Parliament and the courts have been “on a learning curve” to comprehend and

address the increasing prevalence of Internet child exploitation offences.3 Mean-

while, Internet child exploitation cases continue to grow in number each year.

A recent Statistics Canada report notes that while many police-reported crimes

declined during the COVID-19 pandemic, the rate of police-reported child pornog-

raphy offences increased 31percent from 2019 to 2021 as children (and offenders)

were spending even more time online. This follows on the heels of a prior 47 percent

increase in the rate of offending, which has generally been trending upward at an

alarming pace since 2008.4

Child sexual exploitation offences involving telecommunications are among the

newest in the Criminal Code. When it comes to most other Criminal Code offence

provisions, the meaning of the language contained therein is well settled, and litigation

focuses instead on how the particular facts of a case fit into the settled law. By contrast,

the “oldest” Internet child exploitation offence (possession of child pornography) was

proclaimed in force in 1993 and has been amended numerous times in the interven-

ing years to expand the material that is covered and add new manners of offending in

respect to it, not to mention imposing and repeatedly raising both the maximum and

mandatory minimum sentences. The other Internet child exploitation offences were

proclaimed in 2002, 2006, 2012, and 2015. As a result, litigation is constantly address-

ing the meaning of the words and thus the definition of the offences. It is both frustrat-

ing and fascinating to deal with an area of law that is rapidly evolving, but this chapter

establishes a starting point. It is crucial to “note up” the cases mentioned herein to

keep track of the latest decisions marking evolutions or changes in the law.

1 R v Inksetter, 2018 ONCA 474 at para 22.

2 R v JS, 2018 ONCA 675 at para 121; R v Sharpe, 2001 SCC 2; R v Friesen, 2020 SCC 9.

3 R v DGF, 2010 ONCA 27 at para 21, cited with approval in R v Inksetter, supra note 1.

4 Statistics Canada, Online Child Sexual Exploitation and Abuse in Canada: A Statistical Profile of

Police-Reported Incidents and Court Charges, 2014 to 2020, by Dyna Ibrahim, Juristat, Catalogue

No85-002-X (Ottawa: Statistics Canada, 12 May 2022), online: <https://www150.statcan.gc

.ca/n1/pub/85-002-x/2022001/article/00008-eng.htm>.

© [2023] Emond Montgomery Publications. All Rights Reserved.

Chapter  Internet Child Exploitation Offences 

Internet child exploitation offences essentially break down into two groups:

1. offences in respect of material that involves the sexual exploitation of children:

• possessing, accessing, making, and distributing child pornography,

• voyeurism, and

• non-consensual distribution of intimate images; and

2. offences aimed at halting the sexual exploitation of children, by criminalizing

the grooming process:

• child luring,

• agreement or arrangement to commit a sexual offence against a child, and

• making sexually explicit material available to a child.

While it is important to understand the legal boundaries of the offences, the com-

position of the material discovered, and the content of communications sent, those

issues are often not in dispute. The nature of computer-based offences is such that

while there is often a plethora of evidence of the offence, there is often no direct evi-

dence of the identity of the perpetrator. As a result, the triable issues tend to involve

proof of knowledge and control, or the legality of the investigation and search that led

to the discovery of the material.

This chapter explains each of the Internet child exploitation offences contained

in the Criminal Code, as well as common defences arising out of the prosecution of

these offences.

II. Child Pornography Oences

In 1993, Parliament enacted a number of offences relating to child pornography, which

are set out in section 163.1 of the Criminal Code. As the Supreme Court of Canada

observed in R v Sharpe,5 the section contains a comprehensive scheme to attack child

pornography at every stage—production, publication, importation, distribution, sale,

and possession.6 Section 163.1 contains the most frequently prosecuted Internet child

exploitation offences in the Criminal Code.

A. Dening Child Pornography

Section 163.1(1) of the Criminal Code states:

Definition ofchild pornography

163(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,

5 Supra note 2.

6 Ibid at para 6.

© [2023] Emond Montgomery Publications. All Rights Reserved.