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TORONTO CHILD PORNOGRAPHY LAWYER

Possession or distribution of child pornography is a serious sex offence allegation. In the Criminal Law Group’s R. v. E.G. [2014], it handled one of Toronto’s largest Child Pornography busts, with over 500,000 images and 600 videos of child sexual abuse content seized by Police. Files were being exchanged through what the user thought was encrypted file-sharing communication. The Criminal Law Group critically analyzed the Production Orders from the file sharing domains, Search Warrant and other invasive police search tactics used to compromise the encrypted file-sharing program. The Firm works with a network of forensic computer experts, specializing in file sharing software. Jordan Donich has even personally attended Police Internet Crime Headquarters and directly handled their automated file sorting software used for categorizing various child pornography images and videos. The Firm has been involved in some Toronto’s largest child pornography busts and throughout Ontario.

Jordan Donich CityNewsThese types of offences are aggressively prosecuted. Beyond the potential for severe penal sanctions, a conviction hosts a myriad of profound social, relationship, employment and travel consequences. We handle a number of child pornography offences, including situations where the solicitation of a minor on the internet or luring is involved.

The Criminal Law Group deals with situations where child pornography and solicitation charges are alleged against law abiding citizens with clean criminal records. These individuals come from families, are professionals and may not have even been aware that the behavior was criminal or was committed without intent.

We work with a network of computer experts, conducting forensic analysis on hard drives and computer systems. These offences are very technical, and difficult to defend. In strategizing your defence, we critically scrutinize police investigative techniques and search warrant protocol, as complex internet surveillance is used by the police during these types of investigations.

The police draw from a large arsenal of sophisticated investigative tools when pursing these types of charges. We dissect and critically analyze each of these techniques used by police in formulating your defence.

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Frequently Asked Questions

What is Child Pornography?
Can Child Pornography be Written Material?
What is Making, Printing and Publishing Child Pornography?
What is Transmitting, Distributing or Making Available Child Pornography?
What is Accessing Child Pornography?
What Penalties are Associated with a Conviction for Accessing Child Pornography?
What is Possession of Child Pornography?
What Penalties are Associated with a Conviction for Possessing Child Pornography?
Are Sexually Explicit Drawings or Anime of Children Child Pornography?
What about Audio Recordings?
What are some Other Offences that my be laid during Child Pornography Investigations?
What is Luring a Child?
What are the Penalties for Luring a Child?
What is Making Sexually Explicit Material Available to a Child?
What is a Warrant of Seizure?
What are the Penalties Associated with a Conviction for the various Child Pornography Offences?
What Penalties are Associated with a Conviction for Making, Printing and Publishing Child Pornography?
What Penalties are Associated with a Conviction for Transmitting, Distributing or Making Available Child Pornography?
Is the Quantity or Nature of the Content Relevant?
What if the Content was Purchased?
How to Defend a Child Pornography Allegation?

What is Child Pornography?

There is often considerable misunderstanding as to the scope of content which falls within the statutory definition of child pornography. Section 163.1 of the Criminal Code defines child pornography as 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.

Can Child Pornography be Written Material?

Any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under the Criminal Code. Any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would also be an offence.

What is Making, Printing and Publishing Child Pornography?

Jordan Donich SketchMaking, printing and publishing or possessing child pornography for the purposes of publication is a criminal offence under Section 163.1(2) of the Criminal Code. Making child pornography includes taking videos or photos on any device. To prove the offence of making, printing and publishing child pornography the Crown must prove that the accused committed the guilty act and that he or she intended to. Specifically, the Crown must prove the following elements:

  1. The accused did the act of making, printing, publishing or possessing for the purpose of publishing materials;
  2. The materials were child pornography, meaning they involved someone under the age of 18 engaging in sexual activity;
  3. The accused intended to perform the act or making, printing or publishing;
  4. The accused knew or was willfully blind to the materials being child pornography.

What is Transmitting, Distributing or Making Available Child Pornography?

Transmitting, making available or distributing child pornography is a criminal offence under Section 163.1(3) of the Criminal Code. A person can be charged with distribution, transmitting or making available child pornography anytime they assist another person in accessing child pornography, whether by sharing a link or image, selling or exporting.  To prove the offence of transmitting, making available or distributing child pornography the Crown must prove that the accused committed the guilty act and that he or she intended to. Specifically, the Crown must prove the following elements:

  1. The material in question was child pornography;
  2. The child pornography was made available, distributed, sold, advertised, imported, exported or possessed for the purpose of transmission by the accused;
  3. The accused had the intent to make the child pornography available to others.

What is Accessing Child Pornography?

Accessing child pornography is a criminal offence under Section 163.1(4.1) of the Criminal Code. It is possible to be charged with an offence of accessing child pornography without actually possessing it. For example, an individual can be charged for knowingly opening a file or a link to a web-site to view child pornography. A person accesses child pornography when he or she knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.

To prove the offence of accessing child pornography the Crown must prove that the accused committed the guilty act and that he or she intended to. Specifically, the Crown must prove the following elements:

  1. The accused obtained access to materials;
  2. The materials accessed were child pornography;
  3. The accused knew or was willfully blind to the nature of the materials.

What Penalties are Associated with a Conviction for Accessing Child Pornography?

Project-SpadeCriminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.

One of the most important factors when a sentence is being determined is whether the Crown decided to proceed summarily or by indictment. Summarily offences attract significantly lesser penalties than offences prosecuted by indictment. Accessing child pornography is an offence that can be prosecuted either summarily or by indictment. Depending on the mode of election, both prosecutions attract a minimum sentence of imprisonment. There is also a maximum sentence outlined in the Criminal Code.

Section 163.1(4.1) of the Criminal Code sets out the minimum and maximum penalties upon a conviction for accessing child pornography:

  • Indictment
    • Maximum Sentence: 10 years
    • Minimum Sentence: 1 year
  • Summarily
    • Maximum Sentence: 2 years less a day
    • Minimum Sentence: 6 months

What is Possession of Child Pornography?

Possession of child pornography is a criminal offence under Section 163(4) of the Criminal Code. Possession requires you to have the materials under your control. To prove the offence of possessing child pornography the Crown must prove the accused committed the guilty act and that he or she intended to. Specifically, the Crown must prove the following elements:

  1. The accused possessed images, videos or texts;
  2. The accused intended to possess the media;
  3. The images, videos or texts were child pornographic.

The Crown does not need to prove that the accused had knowledge of the contents of the images, videos or texts. Possession does not require that an accused view the materials. However, it is possibly to innocently possess something if you have it for the sole purpose of destroying it or reporting it to the police.

What Penalties are Associated with a Conviction for Possessing Child Pornography?

Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.

One of the most important factors when a sentence is being determined is whether the Crown decided to proceed summarily or by indictment. Summarily offences attract significantly lesser penalties than offences prosecuted by indictment. Possessing child pornography is an offence that can be prosecuted either summarily or by indictment. Depending on the mode of election, both prosecutions attract a minimum sentence of imprisonment. There is also a maximum sentence outlined in the Criminal Code.

Section 163.1(4) of the Criminal Code sets out the minimum and maximum penalties upon a conviction for possessing child pornography:

  • Indictment
    • Maximum Sentence: 10 years
    • Minimum Sentence: 1 year
  • Summarily
    • Maximum Sentence: 2 years less a day
    • Minimum Sentence: 6 months

Are Sexually Explicit Drawings or Anime of Children Child Pornography?

Yes, sexually explicit drawings or anime of children constitute child pornography. The Criminal Code makes no differentiation between drawings or anime and real photos. Furthermore, the purpose of the photos is the same. Therefore, it is possible that sexually explicit drawings or anime of children could attract the same charges as possessing, accessing, distributing or making real photos would.

What about Audio Recordings?

Even an audio recording that has as its dominant characteristic, description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years would be an offence.

What are some Other Offences that my be laid during Child Pornography Investigations?

There are other criminal offences that deal with underage victims and can often arise in situations where child pornography charges are laid.

Offences that may also arise in criminal investigations of potential offenders with child pornography include:

  • Luring a Child – Section 172.1
  • Making Sexually Explicit Material Available to a Child – Section 171.1

What is Luring a Child?

Luring a child is a criminal offence under Section 172.1 of the Criminal Code. Every person commits the offence of luring a child who, by a means of telecommunications, communicates with:

  1. A person who is, or who the accused believes is, under the age of 18 for the purpose of facilitating the commission of sexual exploitation, incest, child pornography, parent or guardian procuring sexual activity, invitation to sexual touching, or a prostitution-related offence, with respect to that person; or
  2. Any person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of sexual interference, invitation to sexual touching, bestiality in presence of or by a child, indecent acts – exposure to a person under the age of 16, sexual assault, sexual assault with a weapon or causing bodily harm, aggravated sexual assault or abduction of a person under sixteen, with respect to that person; or
  3. Any person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of abduction of a person under fourteen, with respect to that person.

Basically, an individual can be charged if they use telecommunications to communicate with a person under the age of eighteen for the purposes of committing one of the above named offences against that person. For example, if an accused speaks in an Internet chat room with a 16-year old, he or she can be charged with any of the offences under Section 172.1(a) or (b) if he or she commits the guilty act of communicating with an underage person and intends to do so.

Under Section 172.1(3) there is a presumption about age that if evidence was represented to the accused that the person was under the age of eighteen, sixteen or fourteen, he or she believed that person was under that age unless there is evidence to the contrary. It is not a defence to a charge under Section 172.1 to say the accused believed the person was at least eighteen, sixteen or fourteen unless the accused took reasonable steps to ascertain the age of the person.

What are the Penalties for Luring a Child?

Penalties for luring a child will vary depending on the specific circumstances of the offence, the characteristics of the offender and the presence of other aggravating and mitigating factors.

Section 172.1(2) of the Criminal Code sets out that a conviction of luring a child can result in a penalty of up to ten years imprisonment when the Crown proceeds by indictment. There is a mandatory minimum penalty of one-year imprisonment for a conviction when the Crown proceeds by indictment. If the Crown proceeds by summary election, the offence is punishable by up to eighteen months imprisonment. There is also a mandatory minimum penalty of ninety days imprisonment for a conviction when the Crown proceeds summarily.

Section 172.1(2) of the Criminal Code sets out the minimum and maximum penalties upon a conviction for luring a child:

  • Indictment
    • Maximum Sentence: 10 years
    • Minimum Sentence: 1 year
  • Summarily
    • Maximum Sentence: 18 months
    • Minimum Sentence: 90 days

What is Making Sexually Explicit Material Available to a Child?

Making sexually explicit material available to a child is a criminal offence under Section 171.1 of the Criminal Code. Every person commits the offence of making sexually explicit material available to a child who transmits, makes available, distributes or sells sexually explicit material to:

  1. A person who is, or who the accused believes is, under the age of 18 for the purpose of facilitating the commission of an offence of sexual exploitation, incest, child pornography, parent or guardian procuring sexual activity, invitation to sexual touching, or a prostitution-related offence, with respect to that person; or
  2. Any 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 of sexual interference, invitation to sexual touching, bestiality in presence of or by a child, indecent acts – exposure to a person under the age of 16, sexual assault, sexual assault with a weapon or causing bodily harm, aggravated sexual assault or abduction of a person under sixteen, with respect to that person; or
  3. Any person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of abduction of a person under fourteen, with respect to that person.

Basically, an individual can be charged if they make sexually explicit materials available to a person under the age of eighteen for the purposes of facilitating the commission of one of the above named offences against that person. For example, if an accused makes available a video of familial sexual intercourse to a sixteen-year old, he or she can be charged under Section 172.1 if he or she intends to do so.

What is a Warrant of Seizure?

A judge who is satisfied by information on oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene or a crime comic, within the meaning of section 163 of the Criminal Code, any representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is child pornography within the meaning of section 163.1, or any recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is a voyeuristic recording, may issue a warrant authorizing seizure of the copies.

What are the Penalties Associated with a Conviction for the various Child Pornography Offences?

Penalties for a conviction of various child pornography offences will vary depending on the specific circumstances of the offence, the characteristics of the offender and the presence of other aggravating and mitigating factors. Section 163.1(4.3) sets out that it will be an aggravating factor if a person committed an offence under Section 163 with intent to make a profit.

Section 163.1(2) of the Criminal Code sets out that a conviction of making, printing or publishing child pornography can result in a penalty of up to fourteen years imprisonment There is a mandatory minimum penalty of one-year imprisonment. This offence is a straight indictable offence, giving the Crown no discretion to elect summarily.

Section 163.1(3) of the Criminal Code sets out that a conviction of transmitting, making available or distributing child pornography can result in a penalty of up to fourteen years imprisonment There is a mandatory minimum penalty of one-year imprisonment. This offence is a straight indictable offence, giving the Crown no discretion to elect summarily.

Section 163.1(4) of the Criminal Code sets out that a conviction of possessing child pornography can result in a penalty of up to ten years imprisonment when the Crown proceeds by indictment. There is a mandatory minimum penalty of one year imprisonment for a conviction when the Crown proceeds by indictment. If the Crown proceeds by summary election, the offence is punishable by up to two years imprisonment. There is also a mandatory minimum penalty of six months imprisonment for a conviction when the Crown proceeds summarily.

Section 163.1(4.1) of the Criminal Code sets out that a conviction of accessing child pornography can result in a penalty of up to ten years imprisonment when the Crown proceeds by indictment. There is a mandatory minimum penalty of one year imprisonment for a conviction when the Crown proceeds by indictment. If the Crown proceeds by summary election, the offence is punishable by up to two years imprisonment. There is also a mandatory minimum penalty of six months imprisonment for a conviction when the Crown proceeds summarily.

Convictions for any of the above offences will also likely result in a SOIRA order, meaning the accused person will be registered as a sex offender, pursuant to the Sex Offender Information Registration Act.

What Penalties are Associated with a Conviction for Making, Printing and Publishing Child Pornography?

Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.

Section 163.1(2) of the Criminal Code sets out the penalties upon a conviction for making, printing or publishing child pornography and indicates it is a straight indictable offence, meaning the Crown has no discretion to elect summarily with these charges:

  • Maximum Sentence: 14 years
  • Minimum Sentence: 1 year

What Penalties are Associated with a Conviction for Transmitting, Distributing or Making Available Child Pornography?

Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.

Section 163.1(3) of the Criminal Code sets out the penalties upon a conviction for transmitting, distributing or making available child pornography and indicates it is a straight indictable offence, meaning the Crown has no discretion to elect summarily with these charges:

  • Maximum Sentence: 14 years
  • Minimum Sentence: 1 year

Is the Quantity or Nature of the Content Relevant?

Yes, the quantity or nature of the content of child pornography are both relevant considerations at the sentencing stage. The nature of child pornography related to a criminal conviction is relevant at sentencing because the more the nature of the content depicts violence or harm towards children, the more aggravating it will be for sentencing. More disturbing or violent content will be considered an aggravating factor and will indicate that a harsher sentence is appropriate.

The quantity of child pornography is also relevant at sentencing because the larger the collection is, the more aggravating this will be at sentencing. A large collection implies a lengthy period of accumulating the prohibited material. Therefore, larger collections tend to indicate that a harsher sentence is appropriate.

What if the Content was Purchased?

It is relevant if the content was purchased because Section 163.1(4.3) states that it is an aggravating factor for a person convicted of an offence under Section 163 to have committed the offence with an intent to make a profit.

How to Defend a Child Pornography Allegation?

There are a number of avenues to defend these complex allegations. Generally, no person shall be convicted of an offence under section 163.1 of the Criminal Code if the act that is alleged to constitute the offence has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and does not pose an undue risk of harm to persons under the age of eighteen years.

There is considerable litigation surrounding the interpretation of these defences. For child pornography allegations, we canvass all avenues for success. The police draw from an arsenal of sophisticated investigative techniques, many which require prior judicial authorization. In developing a strategy for your defence, we critically analyze police investigative protocol and search warrant procedure, often with the assistance of forensic computer analysts.

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