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 Charter. Private 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.,  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.