FIRST OFFENDER? DEFEND CHILD PORNOGRAPHY CHARGES IN BRAMPTON. 416-DEFENCE.
Statistics Canada has reported that in the last decade, there has been a 233% jump in total child pornography incidents. Statistics Canada also reported that from 2008 to 2016, there was a Canada-wide 41% increase in child pornography incidents, with a total of 6,245 incidents in 2016. A report from the Peel Police indicates an increase in child exploitation online. The 2017 report exhibited an increase in the number of people in Mississauga and Brampton who were charged with “online victimization of children.” In 2017, there were a total of 48 people in Mississauga and Brampton who were charged with child pornography offences. This is a slight increase from 2016, but a very large jump from 2009 where 25 individuals were charged. In 2010, there was a 16% increase in child pornography complaints in Mississauga and Brampton.
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.
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 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.
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.
Recently 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].
Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made. For more information on child pornography offences, click here. Our firm also conducts in-house child pornography forensics in Toronto to assist with your relevant defences.
Click here for more information on new changes to child sex offence sentencing and for more information on other consequences associated with a child pornography conviction. For more details on the laws about reporting child pornography and new changes to sex offence laws in 2021 click on the links above or here for details on defending child pornography charges.
CBC Radio: International Crime and Cyber Attacks.
Toronto Star: Pornhub and Revenge Porn.
Toronto Star: New Corporate Liability for Child Pornography in Canada.
Toronto Star: Police Power and Social Media Companies.
Global News: Can an airline tell you to stop recording and delete a cellphone video?
Métro Montréal: Avec le temps chaud, il n’y a pas que le mercure qui grimpe: le nombre de cas de voyeurisme aussi.
VICE News: An Image Site is Victimizing Women and Little Can be Done.
Legal Information
Frequently Asked Questions
What is Child Pornography?
What does “Distributing” Child Pornography Mean?
How can “Distributing” Child Pornography be Proved?
What does “Making Child Pornography Mean?
What does “Possession” of Child Pornography Mean?
How can “Possession” of Child Pornography be Proved?
What does “Accessing” Child Pornography Mean?
How can “Access” of Child Pornography be Proved?
Child Pornography Sentencing
What are the Best Defences Against a Child Pornography Charge in Brampton?
-Public Good
-Innocent Possession
-Personal Use
-Charter Violations
Additional Resources
Assault
Assaulting a Peace Officer
Child Pornography Forensics
Sex Offender Prohibition Orders
Children’s Aid Society
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights
What is Child Pornography?
Section 163.1 (1) of the Criminal Code defines what child pornography means. There are four categories which the Criminal Code explains are defined as child pornography:
Section 163.1(1)(a) explains child pornography can be either a photo, film, video, or other visual representation that shows a person who either is, or is depicted to be, under eighteen years old and is engaged in, or is depicted as, engaging in explicit sexual activity or either a photo, film, video, or other visual representation which has a dominant characteristic of depicting a sexual organ or the anal region of a person under the age of eighteen years for a sexual purpose.
Section 161.1(1)(b) describes how child pornography may be “any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years”.
Section 161.1(1)(c) explains how written materials which have a dominant characteristic which is the description, for a sexual purpose, of sexual activity with a minor (under eighteen years) would be an offence.
Finally, section 163.1(1)(d) explains that any audio recording that has a dominant characteristic of description, presentation, or representation of sexual activity with a person under the age of eighteen years for a sexual purpose is considered to be child pornography.
What does “Distributing” Child Pornography Mean?
There are two ways in which an individual can receive a conviction under section 163.1(3) for distribution of child pornography in Brampton. The accused must either (a) transmit, or make available child pornography, or (b) possess child pornography for the purpose of transmission, making available, distribution, sale, advertising, or exportation.
How can “Distributing” Child Pornography be Proved?
In order to prove that an individual distributed child pornography, the Brampton Crown must show that the accused had subjective knowledge of the child pornographic material contained in the video, film, photo, written material, audio recording, or other visual representation. It is not sufficient for the Brampton Crown to only prove recklessness. To prove distribution of child pornography in Brampton, one of the following must be established by the Crown:
(1) intent by the accused to make child pornography materials accessible to others through the use of a file sharing program or something similar,
(2) the accused had knowledge that they were making file sharing programs available to others, or
(3) wilful blindness by the accused. This can be established by proof that the accused’s made child pornographic files available to others through a file sharing program coupled with a suspicion by the accused that they had done so. However, the accused took no steps to determine if this suspicion was true.
What does “Making” Child Pornography Mean?
In order to be convicted for making child pornography, an individual must create novel child pornography. That is, an instance of child pornography that differs from existing instances of child pornography. No cases after 2008 have stated that downloading and then transmitting child pornography on to a disk amounts to making child pornography in Brampton. The “maker” of the child pornography is the individual who controls or directs the production of novel child pornography.
What does “Possession” of Child Pornography Mean?
Possession of child pornography in Brampton requires that the accused have possession of the underlying data files in some way. Solely viewing an image online is not sufficient to prove possession. The subject matter being “possessed” is simply the file itself, not the child pornography that is found within the file. For this reason, it is not necessary that the accused actually have viewed the content of the file. It is only necessary that the accused be aware of the underlying illegal nature of the file being stored on their computer. The possession of the file begins at the time the accused initiates the downloading of the file, not the time at which the downloading of the file is completed. Solely accessing a child pornography website or viewing a child pornography image onscreen is not enough to prove possession of child pornography in Brampton.
How can “Possession” of Child Pornography be Proved?
In order to prove possession of child pornography in Brampton under section 163.1(4) of the Criminal Code, the Brampton Crown Attorney should be able to prove:
(1) the identity of the accused as the culprit,
(2) the date and time of the incident of child pornography,
(3) the jurisdiction of the child pornography (including both region and province),
(4) the culprit possessed a photo, film, video, other visual representation, written material, or audio recording,
(5) the photo, film, video, other visual representation, written material, or audio recording were child pornography, and
(6) the culprit knew or was wilfully blind to the nature of the above materials.
With all forms of possession of child pornography, the Brampton Crown Attorney is required to prove that the accused had knowledge and control of the materials.
In order to prove personal possession of child pornography in Brampton, the Crown must prove that there was:
(1) physical contact with the file,
(2) knowledge of the criminal character of the file, and
(3) a degree of control over the file.
In order to prove constructive possession of child pornography in Brampton, the Crown must prove that the accused:
(1) had knowledge of the character of the object,
(2) knowingly put or kept the object in a particular place, and
(3) intended to have the object in the place for his/her “use of benefit” or that of another person.
What does “Accessing” Child Pornography Mean?
Accessing child pornography in Brampton is separate from the above-mentioned offence of possession of child pornography. This offence was created to capture individuals who are intentionally viewing child pornography on the internet, but do not meet the legal notion of possession. Accessing child pornography requires knowingly viewing or transmitting child pornography to oneself. Not included in this definition are instances of “inadvertent viewing”, where the individual opens a file containing child pornography but is unaware of the file’s criminal character.
Accessing child pornography can be differentiated from possessing child pornography based on how the file is stored. Storing a file in a cache (a temporary internet file) indicates that an individual is accessing the child pornography, while downloading the file to an individual’s hard drive is indicative of possession of child pornography. Solely storing a child pornography file as a temporary internet file does not equate to an offense of accessing child pornography, as this cannot be inferred to mean the accused knew of the presence of the file, viewed it, or intended to save it. Accessing child pornography in Brampton may include: evidence of browsing child pornographic sites, indicators of frequent downloading of child pornographic materials, and the saving of links to child pornographic sites.
How can “Access” of Child Pornography be Proved?
In order to prove access of child pornography under section 163.1(4.1) of the Criminal Code, the Brampton Crown Attorney should be able to prove:
(1) the identity of the accused as the culprit,
(2) the date and time of the incident of child pornography,
(3) the jurisdiction of the child pornography (including both region and province),
(4) the culprit obtained access to a photo, film, video, other visual representation, written material, or audio recording,
(5) the photo, film, video, other visual representation, written material, or audio recording were child pornography, and
(6) the culprit knew or was wilfully blind to the nature of the above materials.
Child Pornography Sentencing
Child pornography offences are sentenced based on the type of offence the accused is charged with. An accused may be charged with making, distributing, possessing, or accessing child pornography. Each offence carries with it different imprisonment terms.
When the offence involves the abuse of an individual aged zero to seventeen, s. 718.01 of the Criminal Code requires the sentencing judge to give consideration to the objectives of denunciation and deterrence. Abuse of an individual aged zero to seventeen will also be considered as an aggravating factor for the judge to consider when sentencing the accused. Additionally, if the offender holds a position of trust or authority over the victim (e.g., they are a teacher or coach of the accused) this will also be an aggravating factor that the judge considers during sentencing.
The offences of making and distributing child pornography (enumerated in sections 163.1(2) and (3) of the Criminal Code) are indictable offences. These offences carry a maximum penalty of 14 years incarceration.
The offences of possessing and accessing child pornography (enumerated in sections 163.1(4) and (4.1) of the Criminal Code) are hybrid offences. If the Brampton Crown choses to proceed by indictment, the maximum penalty is 10 years incarceration. If the Brampton Crown chooses to proceed by summary conviction, the maximum penalty is two years less a day.
What are the Best Defences Against a Child Pornography Charge in Brampton?
Child pornography offences are among the most difficult to defend for a number of reasons. Law enforcement officials devote considerable resources and use sophisticated computer software and experts to investigate those suspected of committing child pornography offences. The evidence gathered through these methods is often difficult to defend. Further, Crowns prosecute sexual offences involving children vigorously and the Courts support periods of incarceration for virtually everyone who is convicted. As such, there are few defences that can be used in even fewer circumstances.
Generally, there are three defences that may be used by an individual who has been accused of a child pornography offence. These defences include; public good, innocent possession and personal use. These defences may be used in situations where it is undisputed that the materials constitute child pornography.
Public Good
An individual accused of possessing or accessing child pornography may use the defence of public good. The public good defence argues that the accused possessed or accessed the materials for some legitimate purpose that is beneficial in some way to the general public. Examples of legitimate purposes include possessing or accessing child pornography for medical or educational purpose or in the furtherance of the administration of justice. To successfully use this defence the materials may not have posed an undue risk to an individual under the age of eighteen years old.
Innocent Possession
An individual accused of possession child pornography may in some circumstances use the defence of innocent possession. An individual is in innocent possession of child pornography where they are possessing the materials for the purpose of handing them over to the law enforcement or destroying them. Generally, if an accused is in possession for an extended period of time this defence will be difficult to use.
Personal Use
An individual accused of possessing, accessing, distributing or making child pornography may use the defence of personal use only in situations where they are the one depicted in the materials. Additionally, the material may only depict lawful sexual activity and be for the private use of the individual depicted.
Charter Violations
In some cases, it may also be possible to argue that the accused’s Charter rights have been infringed in some way. When an accused’s Charter rights have been violated, a common remedy is for the Court to exclude all evidence borne out of the violation. This can lead to important evidence being excluded which can in turn make it difficult or impossible for the Crown to prove their case.
The best defence for child pornography allegations will depend on the accusations being made and the evidence in the Crowns possession. If you have been charged with a child pornography offence Donich Law can assist you in developing the best defence to ensure you receive the best possible outcome for your case.
Quick Facts
Is Child Pornography illegal?
Yes. Section 163.1 of the Criminal Code states that child pornography includes any; film, photograph, or any other audio or visual representation or written material that depicts an individual under the age of consent engaging in, or being counselled or encouraged to engage in sexual activity with an adult.
What is the Punishment for Child Pornography Charges?
Being convicted of any child pornography offence is very serious. Almost all individuals convicted of child pornography are sentenced to a period of incarceration. Those convicted of distributing child pornography will be sentenced to a mandatory minimum one year imprisonment. Whether or not an accused will be sentenced to a period of incarceration and the length of that incarceration will depend on the number of items of child pornography, how graphic the images are, the age of the victims, the history of the accused and any other factors the Court deems relevant.
Can Child Pornography be Drawings or Anime?
Yes. Even hand drawn images or cartoon images of children engaging in sexually explicit activity will be considered child pornography.
Are Child Pornography Charges Made Public?
Yes. In many cases after an individual is arrested for a child pornography related offence the police will release their name and photograph to the media. In more serious cases the police may even make a press release discussing the arrest(s). This is often the case when police are concerned that there may be more victims. By retaining council early on, it is sometimes possible to avoid the information being disclosed to the public.
What if the Child Pornography was Deleted?
Even where the accused has deleted the child pornography files off of their device, the police will often still lay charges. Police use forensic investigators who can locate files on an individual's computer even after they have been deleted. This allows police to charge individual's even after the files have been deleted.
Does the Children’s Aid Society get Involved?
If the accused lives with children or is in close contact with children, the Children’s Aid Society will almost always get involved. Children’s Aid have their own processes and procedures separate from the criminal justice system. In some situations, it is possible for a person accused of child pornography to have their children removed from their custody pending the outcome of their case.
Can Child Pornography Charges get Dropped?
Due to the serious nature of all child pornography charges, the Crown will almost never agree to drop a child pornography charge unless they have no reasonable prospect of conviction. All sexual offences involving children are investigated stringently and prosecuted vigorously in Ontario.
