Type of document: Prosecution Directive
Effective date: November 14, 2017

Internet child exploitation covers a number of offences including child pornography, voyeurism, luring a child, agreeing or arranging to commit a sexual offence against a child and making sexually explicit material available to a child. This may include the non-consensual distribution of intimate images. Child pornography exists in a variety of forms including written material, audio recordings, photographic, film, video or other visual representations. Like all crimes against children, offences relating to Internet child exploitation pose a serious threat of harm to children, the family and the community and must be prosecuted vigorously.

Prosecutions of Internet child exploitation offences raise a number of unique concerns in relation to victims, disclosure of sensitive or illegal materials, management of the courtroom and exhibits at trial, and ancillary orders at sentencing and wellness of those exposed to this evidence.

Sensitivity to the perspective of the child victims, their privacy interests, and their need to be protected from re-victimization must be considered at every stage of the prosecution. This is true even in cases where the specific identity or whereabouts of the child victims are unknown.

If the identity of victims is known, the Prosecutor should ensure that efforts are made to advise victims and/or where appropriate their parents or legal guardians of significant steps in the proceedings in advance of the case being heard in court, as appropriate. This includes meeting with victims in advance of the preliminary hearing and trial. Prosecutors should also ensure that efforts are made to inform the victims and/or where appropriate their parents or legal guardians of available specialized victims’ services as facilitated by the Victim/Witness Assistance Program (V/WAP) or similar victims’ support services.

Prosecutors dealing with cases involving Internet child exploitation should also consider the directions set out in the Offences against Children and the Victims Directives.

Prosecution

Charge screening

The Prosecutor should decide, at the charge screening stage, whether hybrid offences should be prosecuted by indictment or summary conviction. The Prosecutor should consider the directions set out in the Offences against Children Directive when determining whether to proceed summarily or by indictment. In addition, it is generally in the public interest to proceed by indictment where the offence involves making permanent recordings or distributing them on the Internet.

The Prosecutor should also consider the High Risk Offender National Flagging System and Dangerous/Long-term Offenders Directives when prosecuting offences involving Internet child exploitation.

Disclosure

Prosecutions of child pornography offences raise unique disclosure concerns because access to child pornography is a criminal offence, there is potential trauma that may be caused by viewing such materials and the strong public interest in protecting the privacy and dignity of the children depicted in child sexual abuse materials.

In these unique circumstances, disclosure may be provided in two ways:

  • by providing defence counsel with an opportunity to view the child pornography in a secure, private location
  • by providing copies of the material pursuant to a court order with conditions sufficient to satisfy concerns that the material will be used for a legitimate purpose connected to the administration of justice, disclosure does not pose an undue risk of harm to children and the privacy interests of the children depicted in the child pornography will be adequately protected.

Reference should be made to the Disclosure Directive.

Protecting the privacy of child victims

Publication bans

The Prosecutor must employ the relevant statutory provisions to ensure that the privacy interests of the child victim, and that of other witnesses, are protected. The Prosecutor should have regard to the direction provided in the Publication Bans and Sealing Orders Directive.

In cases involving a child pornography offence, the Criminal Code directs that the judge impose a publication ban, even in the absence of a request by the prosecution. The Prosecutor must remind the court of its obligation to make the order.

Tendering child pornography evidence

In prosecutions related to Internet child exploitation, exhibits are often filed that contain material alleged to be child pornography. Prosecutors must seek to protect the privacy and dignity of those children who may be depicted in child sexual abuse materials, as well as others who may be impacted by inadvertent exposure to such materials.

Given these concerns, all precautions must be taken to ensure that child pornography evidence is presented to the Court in such a manner that only those who are required to view the material are able to do so. Ultimately, the manner in which this material may be accessed will be determined by the Court.

Sealing orders

Prosecutors must apply for a sealing order in respect of any exhibit containing material alleged to be child pornography. On appeal, Prosecutors must seek an order sealing any Appeal Books or exhibits containing child pornography and seek restrictive terms respecting the use and eventual destruction of the Appeal Books.

Resolution discussions and sentence

Prosecutors should consider the specific directions set out in the Offences Against Children Directive when entering into resolution discussions. As soon as feasible, the Prosecutor must take reasonable steps to ensure that the victims and/or where appropriate their parents or legal guardians are informed of a proposed resolution (e.g. a guilty plea or proposed sentence) or that the charges will be withdrawn.

Absent exceptional circumstances, and then only with the prior approval of the Crown Attorney or designate, the Prosecutor must not:

  • reduce or withdraw a charge relating to Internet child exploitation
  • accept a plea to a different offence, solely to avoid a mandatory minimum sentence
  • accept a plea to a different offence, solely for the purpose of avoiding a DNA order or an order under the Sex Offender Information Registration Act (SOIRA).

Victim impact statements

The Criminal Code directs the court to ask the Prosecutor if reasonable steps were taken to provide the victim with an opportunity to prepare a victim impact statement. As soon as feasible after a finding of guilt, the Prosecutor must take reasonable steps to provide the victim and/or where appropriate their parents or legal guardians with the opportunity to prepare a Victim Impact Statement, and inform the victim of their right to present it to the court and their other options.

Ancillary orders

All Internet child exploitation offences are “primary designated offences”, with the exception of voyeurism. The Prosecutor must remind the court that the DNA order is mandatory and must seek a DNA order regardless of whether the offender’s profile is already included in the DNA Data Bank. See DNA Data Bank Orders Directive.

All child exploitation offences are designated offences for which a SOIRA order is mandatory, with the exception of voyeurism. The Prosecutor must remind the court of this mandatory order and of the appropriate duration of the order.

In cases of voyeurism, the Prosecutor should make an application for both DNA and SOIRA orders where the Prosecutor is of the view that the voyeurism offence was committed with the intent of committing a designated sexual offence (such as making child pornography) or there is evidence supporting a legitimate concern that the offender’s behavior may be escalating or that the offender has a history of antisocial behavior.

Where appropriate, Prosecutors should apply for a prohibition order restricting the offender’s ability to interact with children under the age of 16, either in person or over the Internet.

In all cases where an offender has been convicted of an offence involving Internet child exploitation, Prosecutors should apply for forfeiture of things used in child pornography or Internet luring, including computers. Prosecutors must seek forfeiture of any child pornography, the possession of which is illegal and all offence related property.