FIRST OFFENDER? DEFEND CHILD PORNOGRAPHY CHARGES IN GUELPH. 1-866-DEFENCE.
The Guelph Courthouse is located at 36 Wyndham Street South in Guelph, Ontario. The Guelph Courthouse is located at the intersection of Wyndham Street South and Fountain Street in downtown Guelph. This courthouse serves the areas of both Guelph and Wellington County. The Ontario Court of Justice for youth and adults in Guelph can be reached at 519-826-4431.
Child pornography is a serious offence that significantly impacts its victims. Statistics Canada has reported a 233% increase in child pornography incidents over the last decade. This trend is likely owing to the spread of child pornography materials over the internet as internet technologies have evolved over the last decade. Guelph, Ontario has been no exception to this increase in child pornography incidents. In 2018, five Guelph residents were charged with child pornography related offences after an Ontario-wide child pornography investigation led to charges against 122 people. The offences that the Guelph residents were charged with included making child pornography, possession of child pornography, making child pornography available, and accessing child pornography. In March 2019, a tip coming from the United States led to charges against a man in Guelph, Ontario. A number of electronic devices were seized from the individual, leading to the accused facing three child pornography charges. In April 2019, the Guelph police laid charges against a 58-year-old man in Guelph after carrying out a search warrant. The individual was charged with distributing child pornography, possessing child pornography, and accessing child pornography.
If you are charged with a child sex offence, you can expect to be placed on bail with specific prohibition orders restricting your contact with children. Consider the implications of a publication ban during your proceeding as well.
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.
The Firm has defended a number of High Profile Child Pornography allegations where Microsoft, Google and Twitter 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]. Click here for more information on defending child pornography charges.
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.
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. For information on our forensics practice, click here.
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 are the Different Child Pornography Offences?
What does “Explicit Sexual Activity” Mean?
What does “Person Under the Age of 18 ” Mean?
What does “Dominant Characteristic” Mean?
What does “Sexual Purpose” Mean?
What are the Maximum Penalties for Child Pornography Offences?
-Making Child Pornography
-Distribution, etc. of Child Pornography
-Possession of Child Pornography
-Accessing Child Pornography
What are some Defences to Child Pornography Charges in Guelph?
-Innocent Possession
-Public Good
-Private Use
Additional Resources
Assault
Assaulting a Peace Officer
Child Pornography Forensics
Children’s Aid Society
Sexual Assault Law in Canada
Sex Offender Prohibition Orders
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 five types of child pornography that an individual can be charged with in Guelph. The first type of child pornography defined is a visual representation which shows a person who either is, or is depicted as, being younger that eighteen years of age and is either engaging in, or is depicted as engaging in, sexual activity. The second type of child pornography is visual representations that have a dominant characteristic of depiction of the anal region or a sexual organ of a person younger than eighteen years of age for a sexual purpose. The third type of child pornography defined by the Criminal Code is written materials that advocate or counsel sexual activity with a person younger than eighteen years of age. The fourth definition of child pornography in the Criminal Code is written material containing a dominant characteristic of description, for a sexual purpose, of sexual activity with a person younger than eighteen years of age. The final definition of child pornography in the Criminal Code is audio recordings that have a dominant characteristic of representation, presentation, or description of sexual activity with a person younger than eighteen years of age for a sexual purpose.
What are the Different Child Pornography Offences?
The Criminal Code describes four different child pornography offences. The first is making child pornography. In order to be found guilty of this offence, the Guelph Crown must prove that the accused made child pornography materials that differ from other already existent child pornography materials. The second offence is making available, or distributing, child pornography. In order to be convicted of making available child pornography, the Guelph Crown will have to prove that the accused actually made available or distributed child pornographic materials and that they intended to do this. Third, the Criminal Code explains the offence of possessing child pornography. To be charged with this offence, the Guelph Crown must be able to show that the accused possessed texts, images, or videos, and that these materials were in fact child pornography. Lastly, the Criminal Code describes the offence of accessing child pornography. To be found guilty of accessing child pornography, the Guelph Crown must prove that the individual accessed child pornography materials and that the accused either knew that these materials were child pornography, or they were wilfully blind to the content of the materials.
What Does “Explicit Sexual Activity” Mean?
Section 163.1 of the Criminal Code frequently mentions the phrase “explicit sexual activity”. This does not include simple nudity. Rather, explicit sexual activity suggests acts which, when viewed in an objective manner, fall closer to the extreme end of the spectrum of what is constituted as sexual activity. These may be acts that involve intimate sexual activity which is represented in an unambiguous and graphic fashion with individuals younger, or depicted as younger, than eighteen years of age. This term does not encompass contact such as kissing, hugging, or touching, since these are not intimate sexual activity.
What Does “Persons Under the Age of 18” Mean?
This phrasing appears in section 163.1 of the Criminal Code. The term “persons” has been interpreted to include imaginary or fictional human beings. If the age of an individual appearing in speculated child pornography is not clear, the judge should not speculate or guess the age of the individual. This is frequently because assessing the age of adolescents can be a difficult task. The physical characteristics of an individual is also not determinative of their age. Instead, a judge may assess the apparent age of an individual by using the facts of the case.
What Does “Dominant Characteristic” Mean?
The phrase “dominant characteristic” appears in the Criminal Code in section 163.1. A court will take an objective approach to considering the dominant characteristic of alleged child pornography materials. The dominant characteristic of a text, image, or video can be influence by the contextual aspects of the material. If the context of materials eludes to a non-sexual purpose, such as a photo of a child bathing in a photo album, this will be considered by the sentencing judge. Factors that are likely to be considered when determining the dominant characteristic of an alleged child pornography material include posing of the individual in a way that has a sexual connotation to it or captions on the alleged child pornography materials that create a sexual meaning. One way to determine the dominant characteristic of a material is to ask whether a reasonable viewer who is looking at the material objectively and in context would interpret the dominant characteristic of the material to be of a sexual purpose.
What Does “Sexual Purpose” Mean?
The phrasing “sexual purpose” also appears in section 163.1 of the Criminal Code. To determine the sexual purpose of an alleged child pornography material, a court should take an objective approach. If it can be reasonably perceived that the alleged child pornography materials were indented to cause sexual stimulation to some viewers, the material will likely be interpreted to have a sexual purpose. It is not necessary that the alleged child pornography materials contain an “extreme” sexual purpose.
What is a Publication Ban?
A publication ban is an order made by the court which prevents anyone from sending, broadcasting, or publishing any information that could identify a witness, victim, or other person who participates in the criminal justice system. A publication ban is intended to permit witnesses, victims, and others to participate in the justice system without having to suffer from the negative consequences that may result from their name or personal information being sent, broadcasted, or published.
There are several types of publication bans they may be ordered through the Criminal Code. The most common for child pornography offences are bans under sections 486.4(1), 486.4(2) and 486.4(3). Under section 486.4(1) the Guelph court may choose to make an order where any information that can identify a complainant or witness cannot be transmitted, published, or broadcast for any sexual offences. Under section 486.4(2), any complainant or witness who is younger than eighteen years of age must be made aware of their right to make an application for the order of a publication ban. If a complainant or witness who is younger than eighteen years of age requests a publication ban, the judge must make the order. For charges under section 163.1 of the Criminal Code, the court must make a publication ban for any person who is the subject of child pornography materials.
What are the Maximum Penalties for Child Pornography Offences?
Child Pornography offences are very serious and are investigated and prosecuted vigorously by Crowns in Guelph and across Ontario. Further, Crown counsel’s in Guelph often advocate for lengthy prison sentences upon conviction. As a result, it is important to have experienced legal counsel on your side. Donich Law has experience defending a variety of clients charged with various child pornography offences and regularly obtain positive results for our clients.
Section 163.1 of the Criminal Code outlines the various child pornography offences which include; making child pornography, distribution, etc. child pornography, possessing child pornography and accessing child pornography.
Making Child Pornography
Making child pornography is a straight indictable offence. Those who are convicted will face a maximum of fourteen years’ imprisonment and a minimum of one-year imprisonment.
Distribution, etc. of Child Pornography
Distribution, etc. of child pornography is a straight indictable offence. Those who are convicted will face a maximum of fourteen years’ imprisonment and a minimum of one-year imprisonment.
Possession of Child Pornography
Possession of child pornography is a hybrid offence, meaning the Crown has discretion regarding the maximum penalty depending on the amount of child pornography the accused was in possession of and the nature of the pornography. Where the Crown proceeds summarily an accused will face up to two years less a day imprisonment and a minimum of six months’ imprisonment. Where the Crown chooses to proceed by indictment, an accused will face up to ten years’ imprisonment and a minimum of one-year imprisonment.
Accessing Child Pornography
Accessing child pornography is a hybrid offence. In cases where the Crown chooses to proceed by indictment the accused will face up to ten years’ imprisonment and a minimum of on year imprisonment. Where the Crown chooses to proceed by summary conviction, the accused will face up to two years less a day imprisonment.
What are some Defences to Child Pornography Charges in Guelph?
Developing a defence for child pornography offences can be difficult due to the sophisticated technology often used in child pornography investigations. Law enforcement employ computer experts and sophisticated computer software to gather evidence against those accused of child pornography offences. This evidence can be difficult to refute. There are three defences commonly used for child pornography offences including; the innocent possession defence, the public good defence and the private use defence.
Innocent Possession
In some cases, an individual found in possession of child pornography may be able to argue that they were in possession of the materials for an innocent purpose. Examples of innocent purposes include having possession to destroy the materials or handing the materials over to law enforcement. If an accused can prove that they had innocent intentions, they will be found not guilty of possession of child pornography.
Public Good
The public good defence is outlined in section 163.1(6) of the Criminal Code. It states that an individual will not be guilty of a child pornography offence if they were accessing or possessing child pornography for public good. The reason for accessing or possessing the materials must be legitimate. Examples include accessing or possessing the materials for medicinal or educational purposes or where related to the administration of justice. To successfully use this defence, the defendant must prove that the activity depicted in the materials does not pose an unnecessary risk of harm to individuals under the age of seventeen.
Private Use
This defence argues that the child pornography materials were created for private use, depict lawful sexual activity, and were made by and depict the person who is in possession of them. This exception was created to ensure minors who take nude photos of themselves are not convicted of child pornography offences. Without this exception, an individual under the age of eighteen who took and possessed naked photos of themselves would be guilty of both making and possessing child pornography.
Quick Facts
Is Child Pornography Illegal in Canada?
Yes. Section 163.1 of the Criminal Code outlines the various child pornography related offences that exist in Canada. Section 163.1(2) outlines the offence of making child pornography. Section 163.1(3) outlines the offence of distributing child pornography. Section 163.1(4) outlines the offence of possession of child pornography. Finally, section 163.1(4.1) outlines the offence of accessing child pornography.
What if I Deleted the Files?
It is generally not relevant that the accused has deleted the files off of their computer. According to section 163.1(4.1) of the Criminal Code it is a criminal offence to even access child pornography. As such, even if the files have been deleted, the accused was guilty of a criminal offence for having had the materials in the first place.
What if I Clicked on the Files by Accident?
To gain a conviction for a child pornography offence, the Crown is not required to prove that the accused intentionally downloaded or accessed child pornography. If an accused clicked on material, genuinely unaware of the contents, it may be possible to use this as a defence. However, even in situations where an accused made a genuine mistake, proving this to the Court can be difficult.
Will the Children’s Aid get Involved?
If an accused has been charged with a child pornography offence and has minor children or is regularly in the presence of children, the Children’s Aid will almost always get involved. Virtually every individual charged with a sexual offence involving a child will be ordered not to be alone in the presence of children as part of their bail conditions. The Children’s Aid will also likely prohibit an accused charged with a child pornography offence from being alone with even their own children.
What are the Maximum Penalties for those Convicted of Child Pornography?
Child pornography offences are considered very serious in Canada which is reflected in the serious criminal sanctions handed down to those who are convicted. Depending on the severity of the allegations, maximum sentences range from two years less a day imprisonment to fourteen years imprisonment.
Will by Charges be Made Public?
When an individual is convicted of a criminal offence in Canada their conviction becomes part of the public record, available for anyone to access. Further, the majority of adult criminal court proceedings are open to the public. It is possible for an accused to limit their amount of exposure by hiring legal counsel to attend court on their behalf.
What if the Alleged Pornography was Anime?
Section 163.1(1) of the Criminal Code provides a definition of child pornography. It states that child pornography is any photograph, film, video or other visual representation, whether or not it was made by electronic or mechanical means. This means that even drawings or anime depicting an individual under the age of eighteen engaging in sexual activity or for a sexual purpose will constitute child pornography.
