Criminal Code of Canada - section 171.1(1) - Making Sexually Explicit Material Available to Child

section 171.1(1)

INTRODUCTION AND BRIEF DESCRIPTION

It is an offence to transmit, distribute or sell sexually explicit material to minors for the purpose of facilitating the commission of certain offences.

SECTION WORDING

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.

EXPLANATION

Section 171.1(1) of the Criminal Code of Canada is a provision that criminalizes the distribution, sale, or transmission of sexually explicit material to minors for the purpose of facilitating the commission of specific criminal offenses. This provision is designed to protect children from sexual exploitation and abuse, by criminalizing acts that may contribute to or facilitate these offenses. Under the provision, it is an offense to transmit, make available, distribute, or sell sexually explicit material to persons who are believed to be under the age of 18, 16, or 14, depending on the specific offense that is being facilitated. For example, if a person were to send sexually explicit material to a minor for the purpose of facilitating an offense under section 151 or 152 (sexual touching), they would be committing an offense under this provision. The purpose of this provision is to prevent adults from exploiting children for sexual purposes, and to provide a legal framework for prosecuting those who engage in such behavior. By criminalizing the distribution of sexually explicit material to minors, this provision acts as a deterrent to those who may be tempted to exploit children in this way, and helps to ensure that those who do engage in this behavior are held accountable for their actions.

COMMENTARY

Section 171.1(1) of the Criminal Code of Canada deals with the transmission, distribution, sale or availability of sexually explicit material to individuals who are under the age of 18, 16, and 14 years old respectively, with the intention of facilitating the commission of specific criminal offences. This section is essential in the protection of minors from sexual exploitation and the prevention of child abuse, which are significant concerns for societies worldwide. The opening words of this section, 'Every person commits an offence,' reveals that this is a criminal offence, and every individual who participates in it is guilty of an offence. The three categories stated in subsections (a), (b), and (c) denote the different age limits for individuals meant to be protected. For instance, subsection (a) explains that if a person knowingly transmits sexually explicit material to an individual under 18 years of age, intending to facilitate an offence under sections 153(1), 155, 163.1, 170, or 171 or subsection 212(1), (2), (2.1), or (4), they are committing a criminal offence. The possible offences involving minors, particularly with respect to child pornography or luring minors online for sexual purposes, involve serious threats to the emotional and physical well-being of children. Protecting minors from these crimes is paramount, and it is vital that the law be firm in punishing offenders who may try to exploit them. This section of the Criminal Code recognizes that minors are still developing their understanding of sexuality and are not well-equipped to make decisions related to sexual matters. Young people who experience exploitation and abuse face lifelong psychological and emotional damage that can otherwise be prevented. As a result, the law considers it a serious offence to provide minors with sexually explicit material. Such material can be drawn from a wide variety of sources, including online or in physical media. As technology advances, criminals can reach young people through different platforms. It is therefore crucial that the legal provisions be updated to reflect modern reality. The clause that specifies the 'intention to facilitate the commission of an offence' requires that the prosecution demonstrate that the recipient was targeted with the precise intent to use the material for criminal activity. It must be proven that the accused knew that the recipient was a minor and that they intended to facilitate or incite criminal activity. The legal burden of proof ensures that this section of the law is enforced only when there is enough evidence that an offence is being committed. In conclusion, Section 171.1(1) of the Criminal Code of Canada is essential in safeguarding vulnerable minors from exploitation. This provision recognizes that young people depend on adults for guidance and are not yet entirely equipped to make decisions related to sexuality. Those who provide minors with sexually explicit material are, therefore, rightly held to account if their actions are proven to have the intention of facilitating sexual offences. This provision reassures society that the law will not tolerate sexual exploitation of minors and that serious penalties await those who commit such heinous acts.

STRATEGY

Section 171.1(1) of the Criminal Code of Canada criminalizes the transmission, distribution, or sale of sexually explicit material to minors for the purpose of facilitating the commission of any of a number of sexual offences. This section of the Code is designed to protect minors from exploitation and abuse but can pose some challenges when dealing with complex cases of alleged violations of the law. Some of the key strategic considerations when dealing with Section 171.1 of the Criminal Code of Canada include careful investigation and evidence gathering, consideration of alternative charges, and weighing the best interests of the child and public interest. Careful Investigation and Evidence Gathering One of the key strategic considerations when dealing with allegations of offences under Section 171.1 is the need for thorough and careful investigation. In order to secure a conviction under this section of the Code, it is necessary to prove that the individual knowingly transmitted or made available sexually explicit material to a person they believed to be under the age of 18, 16 or 14, with the intention of facilitating the commission of a specified sexual offence. This requires gathering sufficient evidence to prove the requisite knowledge and intention on the part of the accused. Investigations must be guided by the principles of fairness and legality, and must abide by rules and regulations contained in the Canadian Charter of Rights and Freedoms. Evidence may be gathered through various means, including undercover stings, surveillance, examination of electronic devices and forensic evidence, and witness statements. Given the complex technical and legal considerations involved, it is crucial to work with experienced legal and investigative teams to ensure a fair and thorough investigation. Consideration of Alternative Charges Another strategic consideration when dealing with cases under Section 171.1 is the need to consider alternative charges that may be more appropriate in certain circumstances. For example, offences of a sexual nature that do not involve the transmission of sexually explicit material may be punishable under different sections of the Criminal Code, which may carry lower sentencing requirements. Depending on the specific facts of a case and the nature of the evidence that has been gathered, it may be more prudent to proceed with different charges. Weighing Best Interests and Public Interest A third strategic consideration when dealing with section 171.1 is the need to weigh the best interests of the child and public interest in pursuing charges. While there is a need to protect minors from exploitation and abuse related to online sexual activity, a conviction under Section 171.1 may have serious consequences that could affect the accused person for the rest of their life. Given the severe nature of such penalties, it may be necessary to carefully weigh the evidence and the best course of action in the interest of achieving justice while minimizing potential harm. Some strategies that could be employed in this context include pursuing alternative charges if appropriate, assessing the scope of the evidence and its strength, engaging in plea bargaining where appropriate, and discussing potential sentencing options with the court. Additionally, it may be important to consider the accused's prior criminal record, impact on their livelihood, and the potential effectiveness of educational and rehabilitation programs. By balancing these and other factors, prosecutors can ensure that justice is served while minimizing harm to the accused and protecting the interests of minors.