Criminal Code

Marginal note:Making sexually explicit material available to child

• 171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

  • (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person;

  • (b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or

  • (c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

• Marginal note:Punishment

  (2) Every person who commits an offence under subsection (1)

  • (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or

  • (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

• Marginal note:Presumption

  (3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

• Marginal note:No defence

  (4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

• Definition of sexually explicit material

  (5) In subsection (1), sexually explicit material means material that is not child pornography, as defined in subsection 163.1(1), and that is

  • (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 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 person’s genital organs or anal region or, if the person is female, her breasts;

  • (b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or

  • (c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.