Can You Be Charged with Watching Animated Child Pornography?

Farid Zamani
Farid Zamani
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Being accused of a child pornography-related offence is extremely distressing. Not only do you have to deal with the police and the criminal justice system, but you also face an uncertain future of potential reputational damage, social ostracism, and job loss. If convicted, you may have to serve time, and you will be added to the Sexual Offender Information Registry and the Ontario Sex Offender Registry, leading to further restrictions on your freedom.

But what if the accusations against you don’t involve real children? Does animated child pornography fall into the same category? Are the penalties the same? What if the sex acts in the pornography are implied but not depicted in the material in question?

In this article, we will answer your questions about the crime of accessing child pornography in Canada and how you can defend yourself against these accusations.

What is Animated Child Pornography?

Animated child pornography is a form of child pornography that involves creating computer-generated or hand-drawn images or videos depicting children engaged in sexual activities.

Child pornography is defined in the Criminal Code of Canada (the “Code”) in section 163.1 as follows:

A photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

    • 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
    • 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.

The Code goes on to include written material and audio recordings “whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen….” Possessing, accessing, distributing, and making child pornography are all illegal under the Code.

Is Animated Child Pornography Illegal in Canada?

The definition of child pornography under Canadian law does include animated child pornography. However, the law is more difficult to apply when it comes to animated child pornography because the child’s age is not always clear, nor is it always clear that the dominant characteristic of the material is sexual. For example, the recent controversy about an illustration of teenaged climate activist Greta Thunberg led to a vigorous debate about whether the illustration qualified as child pornography in Canada.2

What to Do If You Are Charged with Viewing Animated Child Pornography

If you are charged with accessing animated child pornography, you will want to declare your innocence immediately. In the confusion and upset of your initial contact with the police, you are likely to say almost anything to avoid further involvement with the criminal justice system. However, the Crown can easily use the things you think are innocent declarations to argue for your guilt. For instance, if you say that you stumbled across the material on your roommate’s computer, but you thought it was just a cartoon, you are, in fact, admitting that you viewed the pornography. Contact a call a qualified child pornography defence lawyer and consult with them before saying anything at all.

How Will a Lawyer Defend Me Against Animated Child Pornography Charges?

Your criminal defence attorney has several defences that they can rely on.

  1. Your right to protection from unreasonable search and seizure was violated.

The Canadian Charter of Rights and Freedoms (the “Charter”) protects you from unreasonable search and seizure. Your lawyer will investigate the legality of the search that led to the discovery of the pornography. They will look closely at the procedures the police used to see if there is anything improper about the way the search warrant was obtained or how the search itself was conducted. If there was any impropriety, your lawyer will use this to have the warrants invalidated, meaning that the evidence would not be admissible in court. Without this evidence, the Crown has a much lower chance of conviction and may even decide to drop the case.

  1. You were not allowed to speak to a lawyer while in custody.

The police will likely attempt to extract a confession from you to make the prosecution process faster and easier. Keep in mind that police in Canada are allowed to use deception during their investigations, meaning that they can lie, misrepresent the truth, or create a false sense of security to get information from you. Under the Charter, you have the right, upon detention, to consult with a lawyer. If the police didn’t allow you to do that before speaking to them, your criminal defence lawyer could have anything you said when you were arrested excluded from evidence.

  1. This is a case of mistaken identity.

The burden is on the Crown to prove, beyond a reasonable doubt, that you are the only one who could have accessed the material in question. Your lawyer will attempt to show that someone other than you could have accessed the animated pornography. If, for example, you have roommates and you regularly leave your laptop or phone lying around, your lawyer may attempt to argue that any of them could have accessed the pornography.

  1. The material in question is not child pornography.

The Crown must show that the material you accessed is indeed child pornography. Past cases have shown that this is not always straightforward. For example, in 1993, the Canadian artist Eli Langer was arrested following the seizure of several of his artworks from a gallery where they were on display.3

Langer’s lawyers cited an exception in the Code that if someone has a “legitimate purpose related to the administration of justice or to science, medicine, education or art” and the materials don’t pose a risk or harm to a minor, it is not considered child pornography. Langer’s lawyers were successful, and the art was returned to him.

These are the key defences that a criminal defence attorney would use. However, there are others that might apply to your case, and your lawyer would continue to verify the facts of your case and bring other defences to the Crown’s attention.

A Defence Against Charges of Watching Animated Child Pornography

Child pornography is considered an extremely serious crime in Canada, and the Crown will work very hard to prosecute suspects; defending yourself vigorously against these charges is crucial, as the penalties, both legal and otherwise, can be devastating.

The criminal defence experts at Zamani Law have mounted many successful defences for people charged with child pornography-related offences. We will use all the resources at our disposal to investigate the procedures the police used in your arrest, detention, and questioning, leaving no stone unturned and no evidence unscrutinized. With the expertise and insights we have on our team, you can be confident that you have the best defence possible for your animated child pornography case. Call us today for a free consultation. Let us get started on ensuring your freedom from unfair prosecution. Bottom of Form

References:

  1. Criminal Code of Canada: https://laws-lois.justice.gc.ca/eng/acts/c-46/section-163.1.html
  2. Why the Greta sticker didn’t meet Canada’s broad child pornography definition. https://www.cbc.ca/news/canada/edmonton/detective-explains-greta-sticker-canadian-child-pornography-laws-1.5491596

3. Today in 1993: artist Eli Langer arrested for paintings deemed “child pornography.” https://www.cbc.ca/arts/today-in-1993-artist-eli-langer-arrested-for-paintings-deemed-child-pornography-1.3374663

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