Defend Child Pornography Charges
Crime Statistics
The Guelph Police Service reported that there were 177 sexual violations in Guelph in 2020, rising to 178 in 2021. There were 133 sexual assaults and 13 occurrences of luring a child in 2021, and 119 and 22 respectively in 2020. As the child pornography offence often requires a computer to commit an offence. There were 471 occurrences in 2020, compared to 516 incidents in 2021.
Our Experience
Donich Law has over 10 years of experience defending clients charged with child pornography offences and one of the few to have litigated and defeated international child pornography charges across Ontario.
The Firm has litigated child pornography cases all over Ontario, regularly obtaining favourable results for our clients. The Firm has dealt with cases involving international agencies including the FBI, U.S. Department of Homeland Security, Europol, New Zealand Digital Child Exploitation Team, and the National Centre for Missing and Exploited Children. The Firm also has experience with computer forensics and has attended the police’s Internet Crime Exploitation Headquarters to be trained on their forensic software.
In R. v. J.M. [2021], the Firm successfully defended a client charged with possession of child pornography by arguing accidental download. The accused was alleged to have downloaded child pornography material from a file sharing site. As a result, the Internet Child Exploitation (ICE) Unit of the local police department executed a search warrant on the accused’s residence and seized multiple electronic devices. The metadata from the devices was then used to confirm that illegal material had been downloaded. The Firm spent 2 years reviewing and analysing the metadata before successfully advancing its defence and the charges were withdrawn at the request of the Crown. This outcome is particularly rare as there is a strong public interest in prosecuting those charged with child pornography offences, even where the case is weak.
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The Firm frequently represents residents of Guelph charged with distributing child pornography online. Many of these cases are joint investigation with U.S. technology companies, including Microsoft, Google, SnapChat, Instagram, Kik or other social media platforms. These businesses will cooperate with international investigative agencies to provide valuable data needed for search warrants. It’s not uncommon to have multiple police forces involved in a child pornography bust. The Firm has extensive experience defending international investigations which involve cooperation between law enforcement jurisdictions.
The Firm defended a Guelph resident in its R. v. J.A. [2017], after Guelph Police received a tip from the National Child Exploitation Coordination Centre (NCECC). The offender was allegedly sending child pornography online and was arrested with a search warrant at his door. Like many offenders, he had suffered sexual abuse as a child which was relevant to the resolution position. The Firm also discovered through forensic data that many of the images were very low resolution, deleted and barely visible. Technical data is relevant to defending allegations of child pornography because in many cases, accidental download or unintentional accessing can happen. After extended Crown pretrial negotiations, the Firm secured a withdrawal of both possession and distribution of child pornography in Guelph.
Internet Child Exploitation is a Global Problem
In 2022, the Firm represented an individual charged with distribution of child pornography in R. v. M.C. [2022]. The accused was arrested after allegedly distributing child pornography material to a user in Europe. The case was complicated by the involvement of international agencies in Canada, Europe, and the U.S. After more than three years litigating the matter, the Firm secured a withdrawal of the charge.
In 2022, the Firm represented a youth offender charged with two counts of possession of child pornography in R. v. P.S. [2022]. The young person was charged after allegedly downloading child pornography material from a popular social media website. The Firm negotiated with the Crown for more than two years before securing a withdrawal of one charge. The client was discharged on the remaining count, avoiding a criminal record.
Online Sex Offence are on the Rise in Canada
In 2022, the Firm represented a second-time offender charged with child pornography offences in R. v. E.Z. [2022]. The client was caught in a complex police investigation into online child exploitation. The client was found to have been communicating online with other offenders from around the world, trading and sharing child pornography material. The client was ultimately charged with seven child pornography offences including possession, distribution, making and accessing child pornography. Given that the client had previously served jail time for child pornography offences, the Crown sought a significant period of incarceration. The Firm uncovered an error in the information to obtain and launched a section 8 Charter challenge, as well as a section 11(b) Charter challenge, due to Crown delay in the case. The Firm ultimately secured the withdrawal of five of the seven charges, avoiding a significant period of incarceration for the accused.
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Frequently Asked Questions
What If I Accidentally Downloaded?
Downloading child pornography is an extremely serious offence, and possession is subject to a six-month minimum penitentiary sentence. With the Internet, child pornography is more accessible than ever. As child pornography is often a cybercrime, the Guelph Regional Police has an Internet Child Exploitation Unit that works internationally with agencies such as the Department of Homeland Security and the National Child Exploitation Crime Center (NCECC). Any download or access of child pornography may be found by the police. A search warrant will then be ordered.
After the seizure of electronic devices, the police will examine the files on hand. Through the metadata, they can see how many files the suspect has, when it was downloaded and how long it was on the hard drive. Accidental downloads, as a defence, is not very commonly used. An accidental download must be a legitimate thing and usually must be accompanied with some sort of forensic evidence. It is important for the accused upon arrest to get a lawyer as soon as possible and know their rights.
Common Types of Disclosure
Disclosure is where the Crown gives the materials of the case to the defence. The Crown must disclose all materials in a criminal proceeding that is inculpatory or exculpatory as evidence. This is in accordance with a principle of fundamental justice that the defence has a right to know the case to meet and the right to give a full answer.
There can be many types of disclosure. Common types of disclosure can include: the accused’s criminal record, witness statements, police officer statements and hard drive copies. Child pornography cases usually contain more disclosure, as the police need to create an extraction report for the materials found. In child pornography cases, the police will usually create an extraction report, which reports how many files of child pornography was present in the hard drive, or whether there were any duplicates. Other types of disclosure include the warrants used to search the residence, production orders for Internet companies, as well as information to obtain for the judge.
Why Does Disclosure Take So Long in Guelph?
Child pornography may take longer than regular disclosure. To begin disclosure, the police first collect everything and start a case file. Upon the accused’s arrest, the case file and accompanying information will be given to the Crown’s office. The Crown will then undertake two screening processes: screening the file as well as screening for a position for the Crown. The Crown will then vet the files, redacting any personal information. It often takes several months for Crown to go through the screening and vetting process.
In addition, the devices containing child pornography may be password protected, which requires time and effort on the part of the police to extract the information. Professionals will also watch the extracted child pornography and provide a description to the court as to what the child pornography contained.
Process of Getting Disclosure in Guelph
The process of getting disclosure from the local Guelph Crown’s office varies from office to office. Usually, a lawyer is retained, and the defence communicates with the Crown on the matters of disclosure. A large amount of disclosure may come with a long waiting time for its release. It is important that after disclosure, for the accused to connect with the Crown to discuss the next steps of the proceedings. It is important to retain a lawyer early—the lawyer will connect and communicate with the Crown for the accused.
Common Bail Conditions
After a person is released on bail, there are a few conditions that they must follow. These are called bail conditions, and any violation of them may be a criminal offence. One of the most common bail conditions would be notify the officer in charge if there was a change in employer or address. There are also some bail conditions specific to child pornography charges. Due to the gravity of the offence, the bailee must reside in a residence with a named surety and must remain there for the full duration of the case. In addition to this is an Internet ban, with the condition of not using any device or anything that can access the internet. If the accused needs the internet for work, they may be allowed access to it, but only in the presence of a surety. This is to ensure that the accused has zero access to child pornography.
The accused also cannot be within a certain range where minors are expected to be. They are not allowed near schools, parks, playgrounds, or community centres. There would also be no direct or indirect contact with anyone under the age of 18 unless the accused is in the presence of their surety. This is to ensure that all parties remain safe, especially during a criminal proceeding.
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Recent Cases
R. v. A.M., 2023 ONCJ 181
In the Ontario Court of Justice case of R. v. A.M., the accused entered a guilty plea for possessing and accessing child pornography. A detective, using a child protection program, discovered the offender accessing and downloading child pornography. After the seizure of devices, the police found 18 unique images and five unique videos. The defendant regularly deleted material he downloaded. The judge ordered a pre-sentence report as well as a sexual behaviours assessment.
The pre-sentence report detailed the defendant’s childhood, as well as his relationships with his family. The defendant denied any sexual interest in children or an attempt to develop sexual interest in children, and results of phallometric testing, the scores were low. The medical professional professed that the defendant was likely to violate terms of release, involving the use of the internet for a non-sexual purpose. The defendant was also a member of the Canadian Forces and would be dishonorably discharged following his conviction. Following R. v. Friesen, [2020] 1 SCR 424, the Court decided there was nothing different about this child pornography case that would set it outside the normal range of jailtime for sentencing. The defendant was sentenced to nine months.
R. v. Crump, 2023 ONCJ 132
In the Ontario Court of Justice case of R. v. Crump, the defendant was found guilty of accessing, possessing, and making available child pornography. Child pornography was found in a computer in the bedroom of the defendant. During the search, the defendant made incriminating statements. The defendant’s statements were excluded by the judge due to his section 10(b) rights being violated, as the police did not inform the defendant of his rights during the detainment. However, the child pornography images found by police during their investigation were not obtained in a manner that infringed any Charter right. In total 204 images of child pornography were found.
During sentencing, the judge considered various aggravating and mitigating factors. Pursuant to the Code, there was an already established minimum penitentiary sentence of six months in prison, and the judge applied the law strictly. The child pornography was examined and found to be mostly in the first category of child sexual exploitative images (images depicting erotic posing with no sexual activity), and this was a mitigating factor. The defendant was sentenced to six months, with ancillary orders of a DNA order and a SOIRA order. In addition, the defendant was subject to a s. 161 order, prohibiting him from being employed or volunteering for a community under 16 years of age.
R. v. Hughes, 2023 ONSC 1589
In the Ontario Superior Court of Justice case of R. v. Hughes, the accused was charged with two counts of possession of child pornography and one count of making child pornography available to others. The accused pleaded not guilty. The accused’s devices were found with over a thousand unique images of child pornography, along with 22 unique videos.
In order to prove a possession charge, the Crown must prove that the accused had knowledge and control of the material. The significant number of files, the amount of devices and their ownership, as well as the presence of the peer-to-peer file sharing program proves beyond a reasonable doubt that the defendant had knowledge and control of the child pornography. In addition, the defendant made child pornography available through a file-sharing network. The accused was found guilty on all counts.
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About the Author
Jordan Donich
Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.
Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.