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The definition of child pornography is extremely broad and can create some situations that would not typically be considered by the public to be criminal.

Very generally speaking, the definition of child pornography in Canada is any material (and that can include digital or paper or art) that depicts a person who is under 18, or who is depicted to be under 18, involved in sexual activity or depicting the sexual organ of that person for a dominantly sexual purpose. Depicting children in sexual poses or involved in sexual acts or in clear situations of child abuse is child pornography. The definition also stretches to cover adults over the age 18 who are made to appear as if they’re children involved in sexual acts.

Some unique scenarios come out of this definition. When we see a 21-year-old in film or television depicting a 16- or 17-year-old involved in sexual act, that could arguably be child pornography under Canadian law. Similarly we have had some situations in which young people, 15, 16, 17, or even younger, send relatively harmless nude pictures of themselves to each other. There’s nudity involved, but it’s consensual. It’s not somebody taking a picture without that person’s consent but rather boyfriends and girlfriends sending each other nude photos of themselves. That is not only possession of child pornography, but it becomes transmission of child pornography and making child pornography if they took the photos themselves. Those are very serious offenses that carry mandatory minimum jail sentences. The young people certainly don’t think that they’re committing a serious criminal act; they think they’re just learning about their own sexuality and having their own relationship. But if that relationship becomes apparent to law enforcement, it can really result in some very disproportionate charges being pursued against them.

If you need BSB Toronto Criminal Lawyers, call us at 416.365.3151.

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About the author

I am one of the senior partners at Bytensky Shikhman, a criminal litigation firm in Toronto, Ontario, Canada. In my 25+ year career, I have conducted numerous trials and appeals before all levels of Court in Ontario, defending just about every type of charge in our criminal law. I am also an Adjunct Professor of Trial Advocacy at Osgoode Hall Law School and currently the Treasurer of the Criminal Lawyers' Association of Ontario. I am also an Adjunct Professor for Trial Advocacy at Osgoode Hall Law School, York University and a regular lecturer and placement supervisor for Osgoode's Intensive Programme in Criminal Law.

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