What the Law Prohibits
According to ss. 163.1(2-4.1) of the Criminal Code of Canada, it is illegal to make, distribute, possess, and access child sexual abuse and exploitation material (CSAEM).[1] Per s. 163.1(1)(a), CSAEM includes any visual representation:
- depicting persons who are or appear under 18 in a sexual activity; or
- for a sexual purpose, focuses on the sexual organs or anal region of someone under 18. [2]
Subsection (i) captures deepfake material because it applies to persons that may appear under 18. The test is objective: would a reasonable person consider the individual depicted to be under 18?[3] However, a strict reading of subsection (ii) does not capture deepfake material where no actual minor is depicted. Courts have addressed this discrepancy by extending the objective test to both subsections (i) and (ii), regardless of whether the visual representation is artificially generated.[4] Therefore, under Canadian law, child deepfake pornography is illegal where a reasonable person would conclude that the depiction involves persons under 18 in a sexual context.
The Private Use Defence
The Supreme Court of Canada has recognized that an absolute prohibition on CSAEM raises Charter concerns, particularly regarding freedom of expression. In R v Sharpe, the Court read a private use exception into s. 163.1(1)(a) for material solely created and possessed by the accused for personal use.[5] That exception has created uncertainty regarding its application to deepfake material, specifically where exclusive creation and possession may be in question.
In December 2024, the Toronto Police investigated a high school student who used a deepfake service to impose the faces of female classmates onto nude bodies.[6] The images were discovered on his phone, but the investigation found no evidence that he had shared or distributed them.[7] Since the images were self-created and kept strictly on the accused’s phone for personal use, there wasno reasonable prospect of conviction, and the charges were not pursued.[8]
A Legal Grey Area
While the investigation suggests that privately created and privately stored child deepfake pornography may fall within the private use exception, legal scholars, such as Professor Suzie Dunn, note its application to deepfake material remains uncertain.[9] By using an AI tool, a cloud-based server, or a web application, users may be giving up the exclusive possession required to claim the private use defence.[10] Professor Robert Diab, however, argues that these concerns are not necessarily fatal to the defence. Relying on R v Dabrowski, he contends that the mere fact an image is stored on a third-party server should not, on its own, preclude reliance on the private use exception.[11] Instead, the question is whether the storage arrangement created a risk that someone other than the accused could access the material.[12] To date, Canadian courts have not determined the boundaries of the private use exception as it applies to child deepfake pornography.[13]
Parliament has recently enacted reforms addressing AI-generated sexual imagery through Bill C-16, including expanding Criminal Code protections related to non-consensual sexual deepfakes of identifiable persons.[14] However, the legislation does not expressly amend the child sexual abuse and exploitation material provisions in s. 163.1 or resolve the uncertainty surrounding the application of the private use exception to child deepfake pornography.
Know Your Rights as Canada Updates AI and Deepfake Laws
Are you concerned about the legal implications of deepfake content? If you have questions about potential criminal liability, do not hesitate to contact Collett Read LLP for guidance. Call us anytime at (905) 541-2228.
[1] Criminal Code, RSC 1985, c C-46, at ss 163.1(2)-(4.1) [CC].
[2] CC at s 163.1(1) (a).
[3] R v Gurr, 2007 BCSC 982 at para 21 [Gurr].
[4] R v Garbett, 2008 ONCJ 97 at paras 76-83; R v T.W., 2014 ONSC 4532 at paras 14-16 [Garbett].
[5] R v Sharpe, 2001 SCC 2 at para 115 [Sharpe].
[6] C. Leon, “A boy created AI-generated porn with the faces of girls he knew. Why Toronto police said he didn’t break the law” Toronto Star (28 December 2024) https://www.thestar.com/news/gta/a-boy-created-ai-generated-porn-with-the-faces-of-girls-he-knew-why-toronto/article_27155b82-ada1-11ef-b898-0f1b3247fa65.html [“Deepfake victims”].
[7] “Deepfake victims”
[8] “Deepfake victims”
[9] S. Dunn, “Synthetic Media, GenAI, Gender and the Law in Canada” (9 February 2026) https://www.youtube.com/watch?v=ux5mjj47NDI at 00:36:07
[10] “Deepfake victims”
[11] R. Diab, “Are Sexual Deepfakes a Crime in Canada?” (2025) 74:1 Forthcoming in Criminal Law Quarterly at p 6 [“Sexual Deepfakes”]; R v Dabrowski, 2007 ONCA 619, at para 29 [Dabrowski].
[12] “Sexual Deepfakes” at p 6.
[13] “Deepfake Victims”
[14] K. Hounsell, “Canada’s new law criminalizing sexualized AI deepfakes ‘too little, too late,’ woman says” CBC News (26 June 2026) https://www.cbc.ca/news/canada/nova-scotia/ai-deepfakes-new-canadian-law-intimate-images-criminal-code-9.7249071
