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First Offender? Defend Child Pornography Charges. 416-DEFENCE.

Crime Statistics

Child pornography is an extremely serious offence. With the proliferation of the internet, child pornography has become an offence that most divisions deal with. In Brampton, the Peel Regional police has an Internet Child Exploitation Unit (ICE), which specializes in searching for child pornography. The ICE unit works with other organizations such as the charity Operation Underground Railroad (O.U.R.) to develop new investigative techniques. In 2018, the I.C.E. unit investigated almost 200 incidents of child exploitation and child sexual exploitative material.

Peel Police Global Law Enforcement Partners
Number of Children Rescued Locally in 2022
Peel Sexual Related Violations in 2022
Child Pornography Cases across Canada in 2021

Our Experience

Donich Law is one of the few Firms with experience defending child pornography charges for over 10 years and to have litigated and defeated international child pornography charges across Ontario. Or Firm also has a dedicated computer forensics practice with the same software used be law enforcement.

The Firm has successfully advanced technical defences related to the intention of the accused to possess or access child pornography. In some cases, such as with Kik Messenger, WhatsApp or peer-to-peer file sharing Torrent programs, unlawful pornography can be automatically downloaded and saved to the media library, such as on a smartphone. These defences have limits, however, as law enforcement will review meta data and circumstantial evidence to determine whether the accused was willfully blind or reckless to the possession of child pornography. If this is established, the offence will unlikely be defeated and a conviction will follow.

If you are charged with a child sex offence there will be specific prohibition orders restricting your contact with children. You could also consider the implications of a publication ban during your proceeding.

  • In 2022, the Firm represented a second-time offender charged with 7 child pornography offences including possessing, making and distributing child pornography in R. v. E.Z. [2022]. The accused was charged after being caught in an international sting targeting offenders sharing child pornography material online. The accused was found to be in communication with other offenders online. The Firm conducted a forensic analysis of the devices seized by law enforcement. The Firm launched a section 8 Charter challenge after uncovering an error in the information used to obtain the search warrant to seize the accused’s devices as well as a section 11(b) Charter challenge. This led to the Crown agreeing to significantly alter their position, ultimately withdrawing 5 of the worst child pornography offences.
  • In the 2022 case of R. v. P.S. [2022], Donich Law represented a youth offender charged with two counts of possession of child pornography. The young person was arrested after a popular social media website alerted law enforcement that a user had been downloading child pornography material. The Firm engaged in more than two years of negotiations before securing the withdrawal of one charge and a discharge on the other charge.

In 2021, Donich Law represented an individual charged with two counts of possession of child pornography in R. v. M.O. [2021]. The Firm ordered and analyzed the Form 1 Search Warrant and Form 5.004 Production Warrant used in the case. The Firm forensically analysed the material seized and challenged whether it constituted child pornography. After 18 months of negotiations, the charges were withdrawn.

In R. v. J.M. [2021], the Firm successfully defended a client charged with possession of child pornography after a search warrant was executed on his residence by the Internet Child Exploitation (ICE) Unit of the Peel Police. After the warrant was executed, ICE used metadata from the accused’s computer to confirm the presence of illegal material. The Firm spent 2 years reviewing and analyzing the forensic evidence seized from the accused’s electronic devices. The Firm was ultimately able to argue accidental download and secure a withdrawal of the charges. It is rare that child pornography charges are withdrawn at the request of the Crown as doing so requires Deputy Crown approval due to the strong public interest in prosecuting those charged with child pornography offences.

Internet Child Exploitation is a Global Problem

Donich Law - International Child Pornography Investigations we have Defended

In the Firm’s R. v. M.C. [2020], it secured a withdrawal of child pornography distribution in Brampton. The accused was alleged to have distributed illegal material to a user in Europe. The Firm has defended a number of High Profile Child Pornography allegations where Microsoft and Google have sent cyber tips to the National Child Exploitation Coordination Centre (NCECC)  located in the United States, which have ultimately been used as a basis for Production Orders from Rogers Communication and Bell by Toronto, Halton and Peel Police. In the Firm’s R. v. J.A. [2017], Ontario Police ICE Unit received a Cyber Tip from the National Child Exploitation Coordination Centre (NCECC) and the FBI, who received a complaint from the National Centre for Missing and Exploited Children (NCMEC), located in the United States. Ultimately the Firm secured a withdrawal of both Possession and Distribution of Child Pornography in Guelph. The Firm also defends a number of offenders caught on the Darknet, including where offenders attempt to use anonymous file sharing software, private networks or Tor Browser to avoid detection, such as its R. v. J.T. [2019].

Online Sex Offence are on the Rise in Canada

In R. v. T.T. [2022], Donich Law represented an accused person charged with three counts of distribution of child pornography, one count of making child pornography, four counts of possession of child pornography and one count of child luring. The charges were laid after the accused shared child pornography material with another user on Instagram. The content was flagged by Instagram and reported to law enforcement as possible child pornography. After further investigation, law enforcement received a production order for the user information, leading them to the accused. After getting a search warrant and searching the accused residence, it was discovered that the accused had been communicating with a minor online. Donich Law engaged in Crown negotiations for two years. As a result of significant Crown delay, Donich Law put the Crown on notice that they were violating the accused’s 11(b) Charter rights. The case was ultimately resolved with seven of nine charges being withdrawn.

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Frequently Asked Questions

Rights on Arrest for Child Pornography in Brampton

Once the police arrest a suspect in Brampton, the suspect has rights on arrest. These rights are conferred to the suspect by the Canadian Charter of Rights and Freedoms. Once arrested, sections 7, 9, 10, and 11 of the Charter apply to the detainee. Section 10 of the Charter is especially important, as it guarantees the person’s right to counsel.

During trial, the accused may argue for their section 8 right to be secure against unreasonable search and seizure. This defence only applies if the accused’s rights against unreasonable search and seizure was violated during the arrest. This may happen if the search warrant or the production order has errors, or if the police do not have reasonable suspicion of any criminal activity.

Child pornography is an extremely serious offence, liable to jail time. It is important for a suspect to be aware of their rights once arrested, and to not provide the police with further information. One of the most important rights a suspect can have is the right to remain silent.

Can Written Material Be Child Pornography?

Yes, written material can be considered child pornography. Section 163.1 of the Criminal Code defines child pornography, and subsection (b) further defines child pornography as “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 to this act.”

Subsection (c) also classifies “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” as child pornography. This means that any material, written or drawn, that promotes or describes sexual activity with a minor is considered child pornography. It does not matter if they are not of real people or if no children were harmed in the process. Written and drawn material can be considered child pornography.

Are Nude Photos of Children Always Child Pornography?

No, nude photos of children are not always child pornography. Everyone’s parents have childhood photos, some of which might be nude. Section 163.1 is very strict in its definition of child pornography. Under section 163.1(1)(a), the photo, film, video, or other visual representation (i) that depicts or shows someone who is a minor (or appears to be a minor) engaged in explicit sexual activity or (ii) the depiction of a sexual organ or anal region of a minor.

The main characteristic of child pornography may be a minor’s genitalia or intend to be arousing. The only exception is a medical setting, where photos of a minor’s genitalia may be necessary for the purposes of medical professionals. Nudity is not inherently sexual, however, it is a frequent feature of sexual or explicit activity. If the nudity is innocent or the purposes of the photo is innocent, the material is not defined as child pornography.

If A Minor Sends a Nude of Themselves to Another Person, is that Child Pornography?

Parliament does not wish to legislate against teenagers or minors who want to express themselves. As a result, the defence of private use is a constitutional exception derived from s. 2(b) and s. 7 of the CharterPrivate use is for the creation of materials that are classified as private use materials. This includes (1) self-created expressive material, that is any written material or visual representation created by the accused alone and held by the accused alone, exclusively for their own personal use; and (2) private recording of lawful sexual activity. As long as the material is only of nominal risk to children, the defence may apply.

In the Supreme Court of Canada case of R. v. Sharpe, the Court understood that the possession of child pornography can be a form of expression protected by s. 2(b) of the Canadian Charter of Rights and Freedoms. The right to possess expressive material allows for the development of thought, opinion, belief, and expression and falls under the constitutional expressive freedom protected by s. 2(b). In addition, the defences set by Parliament under s. 163.1(6) and s. 163.1(7) should be interpreted liberally. The Court found that the law is not proportionate in its effects, and that as long as the person does not harbour any additional intention other than private possession, the defence is allowed.

This defence is raised as an exception for teenagers and minors who may send nudes to each other. For example, someone below the age of eighteen has taken a nude photo of themselves, not doing any illegal sexual activity, and it remains in their possession. The important thing is the photo must be taken by the person in the photo and must remain in their possession. The person may be charged with distribution of child pornography or making available child pornography just by sharing it with a friend.

What if I Deleted the Content Already?

When arresting a suspect, the police will seize every electronic device. Even if the content was deleted, the police will have a copy of the hard drive and can still find the content. Deleted digital content may still have traces. The police work closely with international agencies such as the National Child Exploitation Coordination Centre (NCECC) and Our Underground Railroad (O.U.R.).

In the Ontario Court of Justice case of R. v. A.M., [2023] ONCJ 181, the accused had a habit of regularly erasing material he downloaded. There were 18 unique images and five videos of child pornography found on the computer. The collection of child pornography was deemed to be small, but a possible aggravating factor was the consistent deletion of the material which is indicative of a larger problem. The material he possessed was also of a shocking and abhorrent nature.

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Recent Cases

R. v King, 2023 ONSC 2305

In the Ontario Superior Court of Justice case of R. v. King, the accused was charged with 11 counts of various offences related to 45322 images of child pornography. He plead guilty to counts (2) making available child pornography, (3) possession of child pornography, (4) voyeurism, (7) exposing genitals to a minor under 16, (9) luring under 18 and (10) luring under 16. The Royal Canadian Mounted Police’s National Child Exploitation Coordination Centre collaborated with platforms such as KIK and Instagram to find the child pornographic material uploaded by the offender.

The offender was indigenous, and a Gladue report was required to determine a just and fit sentence. In R. v. Friesen, the Court determined that the sexual exploitation of children was a serious social harm and sentences should be harsher. Due to the extreme nature of the crimes and the children involved with the accused, the judge decided to focus more on deterrence and denunciation rather than rehabilitation. The defendant was sentenced to six years of incarceration.

R. v. A.H., 2023 ONSC 2005

In the Ontario Superior Court of Justice case of R. v. A.H., the accused pled not guilty to one count of making child pornography, one count of possession of child pornography, and one count of making an arrangement with a person to commit an offence. The complainant, the accused’s daughter, was eighteen years of age at the time of trial. The accused had been in an online intimate relationship with a man named “Ed.” Under his coercion, the accused took sexually explicit photographs of her daughter, eleven years old at the time.

In their analysis of the case, the Court examined the credibility and reliability of the witnesses. The Court also defined child pornography as it was pertained to in the Criminal Code and did find that the images obtained were of child pornography. The complainant was found to be credible and reliable, as the accused’s denial of understanding the purpose of the photographs was too implausible for the Court. The accused was found guilty on all three charges.

R. v. P., 2023 ONCJ 142

In the Ontario Court of Justice case of R. v. P., the accused pled guilty to 39 sexual offences relating to victims between the ages of 12 and 15. He also pled guilty to possessing and accessing child pornography. When arrested, the accused was found in possession of and accessing child pornography. Each victim’s case was unique, however, the accused had a modus operandi. The accused would use online social media and engage in communications with the children, before asking them to record themselves committing sexual acts. The accused was found with 5600 images and approximately 200 videos that would be defined as child pornography in the Criminal Code.

In their analysis, the Court considered the proportionate sentence that matches the gravity of the offence. The Court found the defendant’s offence to be very extreme, as he was engaged in sexual exploitation of children over the internet in a degrading and threatening manner. Victim impact statements filed by the eight victims clearly reflects the harm they have went through. The defendant was sentenced to twelve years, in addition to ancillary orders that required a DNA sample as well as registration in SOIRA.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is known as a leader in Canada’s legal tech sector and developer of Law Newbie. He has been featured in Forbes and is a member of DMZ Angels in Toronto.