FIRST OFFENDER? DEFEND CHILD PORNOGRAPHY CHARGES IN HAMILTON. 1-866-DEFENCE.
With the internet becoming more widespread and accessible year after year, the number of child pornography related charges being laid in Ontario has skyrocketed. On a national level, Canada has experienced a 233% increase in the number of child pornography charges being laid in the last decade. Hamilton has been unable to escape this trend, also seeing a rise in the number of child pornography related charges.
Donich Law has defended numerous high-profile child pornography allegations involving the National Child Exploitation Coordination Centre (NCECC) located in the United States. The NCECC often receives cyber tips from online service providers like Google and Microsoft regarding potential child pornography, which are then forwarded to police for further investigation. These cyber tips may be used by police as the basis for Production Orders, which are warrants served on telecommunication companies like Rogers Communication and Bell Media, ordering them to release data related to a particular customer. This information may reveal sensitive information such as an individual’s online search history and may be used against an individual in a subsequent criminal proceeding.
Hamilton has a dedicated police force to investigate online child sexual abuse, if you are arrested, you will be prohibited from contacting children. Local media in Hamilton may also more likely cover child pornography stings, so a publication ban should be discussed with a lawyer.
In addition, the Firm has experience defending clients who have been charged in relation to activity on the Darknet including individuals who have attempted to use anonymous file sharing software, Tor Browser or other private networks to avoid detection.
In R. v. J.M. [2021], the Firm defended an individual charged with one count of possession of child pornography after allegedly downloading child pornography material from a file sharing site. The Internet Child Exploitation (ICE) unit of the police department executed a search warrant on the accused’s place of residence and seized electronic devices belonging to the accused and others inside the residence. After running forensic analysis on the devices, ICE confirmed the presence of child pornography material. The Firm ran their own analysis on the forensic data collected by the police and used it to successfully advance the defence of accidental download. Ultimately, the charges were withdrawn at the request of the Crown. Child pornography charges are rarely withdrawn, even where the case is weak, due to the strong public interest in prosecuting individuals allegedly in possession of child pornography. Deputy Crown approval is required before the Crown can agree to withdrawal charges of this nature.
In the Firm’s 2017 case R v. J.A. [2017], the Ontario Provincial Police Internet Child Exploitation (ICE) Unit received a cyber tip from the NCECC and the Federal Bureau of Investigation (FBI) which ultimately resulted in charges being laid against our client. After defending the case the Firm secured a withdrawal of the charges of possession of child pornography and distribution of child pornography.
In 2020, the Firm represented an individual charged with distributing child pornography in R. v. J.A. [2020]. Canadian authorities were contacted by law enforcement in the United States and Europe regarding an internet user in Southern Ontario who was allegedly sharing child pornography material with another user located in Europe. After reviewing the evidence and negotiating with the Crown the Firm was able to secure the withdrawal of all charges against the accused.
In addition to child pornography offences, the Firm also has experience defending those charged with other sexual offences including sexual interference, sexual exploitation, sexual assault, child luring, invitation to sexual touching and indecent exposure. For more information on child pornography offences, click here.
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.
The Hamilton Superior Courthouse is located at 45 Main Street East and 55 Main Street East in Hamilton Ontario and can be reached at (905) 645-5252. The Crown Attorney’s office for the Superior Court of Justice can be reached at (905) 645-5252. The Ontario Court of Justice in Hamilton is located 45 Main Street East and 55 Main Street East in Hamilton Ontario and can be reached at (905) 645-5252. The Crown Attorney’s office for the Ontario Court of Justice can be reached at (905) 645-5262. To find out more information on your upcoming court appearance, click here.
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.
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?
-Distribution of Child Pornography
-Making Child Pornography
-Possession of Child Pornography
-Accessing Child Pornography
What are the Best Defences to a Child Pornography Charge in Hamilton
-Public Good
-Innocent Possession
-Private Use
What Penalties are Associated with a Child Pornography Conviction in Hamilton
-Distribution of Child Pornography
-Making Child Pornography
-Possession of Child Pornography
-Accessing Child Pornography
Will I be a Registered Sex Offender if I’m Convicted of Child Pornography?
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 are the Elements of a Child Pornography Offence?
Section 163.1(1) of the Criminal Code provides a very detailed definition of what is considered child pornography material. It states that child pornography includes;
- Any photograph, video, film or other visual representation, whether or not it was created by electronic means,
- That shows an individual who is under the age of eighteen or who is depicted as being under the age of eighteen and is engaged in sexual activity, or
- Where the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of an individual under the age of eighteen, or
- Any visual recording, audio recording or written material that counsels or advocates sexual activity with a person under the age of eighteen that would be considered a criminal offence under the Criminal Code, or
- Any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of a sexual activity with an individual who is under the age of eighteen that would be considered a criminal offence under the Criminal Code, or
- Any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with an individual under the age of eighteen that would be considered a criminal offence under the Criminal Code
What are the Different Child Pornography Offences?
The Criminal Code outlines four different child pornography offences. The four offences include distribution of child pornography, making child pornography, possession of child pornography and accessing child pornography.
Distribution of Child Pornography
An individual has committed the offence of distribution of child pornography when they distribute, transmit, make available, sell, advertise, import, export or possess for the purpose of sale, making available, distribution, transmission advertising or exportation any child pornography materials. A common example of distribution of child pornography is one user sharing child pornography materials with another user online.
Making Child Pornography
An individual has committed the offence of making child pornography when they print, publish, make or possess for the purpose of publication any child pornography material. An example of making child pornography is an individual filming a child being sexually abused.
Possession of Child Pornography
An individual is guilty of the offence of possession of child pornography when they have in their possession any child pornography material. An example of possession of child pornography is an individual saving child pornography material on their electronic device(s).
Accessing Child Pornography
An individual has committed the offence of accessing child pornography when they access or look at child pornography material. An example of accessing child pornography is an individual viewing child pornography material online.
What are the Best Defences to a Child Pornography Charge in Hamilton?
Child pornography offences can be among the most difficult to defend. This is due to the significant resources that are devoted to investigating and prosecuting those suspected of trading or viewing child pornography material. Law enforcement use sophisticated technology and experts to track suspected online predators. Generally, they will investigate an individual for some time before any arrests are made. This often means that police have had the opportunity to gather a large amount of evidence against the accused prior to their arrest. This evidence can be difficult to refute as it is generally considered quite credible.
In Hamilton and across Canada there are three defences commonly used to in child pornography cases. These offences include; public good, innocent possession and private use. In cases where these defences are not available, experienced legal counsel may canvas other defences including Charter challenges.
Public Good
The public good defence may be used where an individual possessed child pornography material for a legitimate purpose related to the administration of justice. To use this defence, the accused person must show that the materials did not pose an undue risk of harm to an individual under the age of seventeen.
Innocent Possession
The defence of innocent possession may be used where an individual possessed child pornography material for the purpose of destroying them or surrendering them to law enforcement.
Private Use
The defence of private use may be used by individuals where the materials were created for private use, by the individual shown in the materials and in possession of the materials and where the sexual activity depicted is legal. This is an exception that allows minors to possess sexual materials of themselves without being charged with a child pornography offence.
What Penalties are Associated with a Child Pornography Conviction in Hamilton?
Child pornography offences are among the most serious crimes an individual can be charged with. This is reflected in the lengthy maximum prison sentences as well as the mandatory minimum prison sentences that are associated with these offences.
Distribution of Child Pornography
Distribution of child pornography is a straight indictable offence. Where an accused is convicted, they will face a maximum of fourteen years in prison and minimum of one year in prison.
Making Child Pornography
Making child pornography is a straight indictable offence. The maximum penalty that may be imposed on an accused who is convicted is fourteen years in prison and the minimum penalty that will be imposed is one year in prison.
Possession of Child Pornography
Possession of child pornography is a hybrid offence. This means that the Crown may elect to proceed either summarily or by indictment depending on the nature and severity of the allegations. Where there is a large quantity of materials or where the materials are particularly shocking the Crown will generally elect to proceed by indictment. In all other cases, they will proceed summarily.
Where the Crown elects to proceed by indictment an accused will face a maximum of ten years in prison and a minimum of one year in prison. Where the Crown elects to proceed summarily, an accused will face up to two years less a day in prison and a minimum of six months in prison.
Accessing Child Pornography
Accessing child pornography is a hybrid offence. This means that the Crown may elect to proceed either summarily or by indictment depending on the nature and severity of the allegations. Where there is a large quantity of materials or where the materials are particularly shocking the Crown will generally elect to proceed by indictment. In all other cases, they will proceed summarily.
Where the Crown elects to proceed by indictment, an accused will face a maximum of ten years in prison and a minimum of one year in prison. Where the Crown elects to proceed summarily, an accused will face a maximum of two years less a day in prison and a minimum of six months in prison.
Due to the very serious criminal sanctions that are imposed on the vast majority of individuals convicted of child pornography offences, it is important to contact and consult with experienced legal counsel right away if you have been charged with a child pornography offence in Hamilton.
Will I be a Registered Sex Offender if I’m Convicted of Child Pornography?
Yes. The Criminal Code states that an individual who is convicted of a designated sexual offence must register as a sex offender under the Sex Offender Information Registration Act (SOIRA) on a mandatory basis. Child pornography offences are all considered designated sexual offences. As a result, when an individual is convicted of a child pornography offence, they will be issued a SOIRA order by the Court at sentencing. This order will require the offender to register for a period of ten years, twenty years or life depending on the nature and severity of the offence and the likelihood that the individual will re-offend.
Quick Facts
What is Distribution Child Pornography?
The offence of distribution of child pornography has been committed when an individual makes available, transmits, advertises, distributes, sells, imports, exports or possesses for the purpose of making available, transmission, advertising, distribution, sale or exportation of any child pornography materials.
What is Possession of Child Pornography?
The offence of possession of child pornography has been committed when an individual has in their possession materials that could be considered child pornography. An individual is in possession of something when they knowingly have actual physical possession of it or where it is in another place that can be controlled and accessed by the accused. An example is an accused who has downloaded child pornography files onto an electronic device.
What if I am a First-Time Offender Charged with Child Pornography?
Due to the serious nature of child pornography offences, those who are convicted, even as first-time offenders, are routinely sentenced to periods of incarceration. The Criminal Code mandates mandatory minimum sentences for all four child pornography offences, with the lowest minimum being six months.
What is a SOIRA Order?
A SOIRA order is an order issued by the Court at sentencing ordering an offender to register as a sex offender under the Sex Offender Information Registration Act (SOIRA). The Court issues SOIRA orders to those who are convicted of sexual offences.
How Long does a SOIRA Order Last?
A SOIRA order will require an offender to register as a sex offender for a period of ten years, twenty years or life, as ordered by the Court. The length the order will remain in place will depend on the nature and severity of the allegations and the likelihood that the offender will reoffend in the future.
Will I go to Jail for Child Pornography?
Yes. There are currently mandatory minimum prison sentences for all four child pornography offences. The lowest minimum sentence for a child pornography offence is six months. This means that the vast majority of adult individuals who are convicted of a child pornography offence are sentenced to at least six months in prison.
Will People Find out about my Child Pornography Charges?
Court proceedings in Canada are generally open to the public. This means anyone is free to attend court and listen in on the proceedings. Further, when an accused is convicted of a criminal offence the record of that conviction becomes part of the public record which is available to any member of the public.