Frequently Asked Questions
What is Child Pornography?
What are the Penalties for a Child Pornography Conviction in Kitchener?
-Accessing or Possessing Child Pornography
-Making or Distributing Child Pornography
-Sex Offender Information Registration Act
Why is it Difficult to Convict someone of Child Pornography?
What Aggravating Factors may be Considered in Child Pornography Cases?
What Mitigating Factors may be Considered in Child Pornography Cases?
Importance of seeking the help of a Lawyer in Kitchener Child Pornography Stings.
How to Defend a Child Pornography Charge
Assaulting a Peace Officer
Child Pornography Forensics
Children’s Aid Society
Sexual Assault Law in Canada
Consequences of a Criminal Record
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
What is Child Pornography?
The various child pornography offences are outlined in section 163.1 of the Criminal Code. Section 163.1(1) provides a description of what materials constitute child pornography. Child pornography includes any video, photographic, film or other visual representation, or any written material or audio recording that shows a person under the age of eighteen or someone depicted to be under the age of eighteen, engaging in sexual activity or depicted as engaging in sexual activity, or where there is a sexual purpose to the materials.
In Canada there are four different child pornography offences. These include; making child pornography, distribution, etc. of child pornography, possessing child pornography and accessing child pornography.
What are the Penalties for a Child Pornography Conviction in Kitchener?
Being arrested and charged with a child pornography related offence can lead to very serious criminal sanctions for those who are found guilty. Sexual offences involving child are investigated and prosecuted vigorously in Kitchener and across the country. Penalties for those convicted can range significantly, from two years’ less a day imprisonment to fourteen years’ imprisonment for the most serious cases.
Accessing or Possessing Child Pornography
Those convicted of accessing child pornography or possessing child pornography will face a maximum of ten years’ imprisonment where the Crown proceeds by indictment and two years less a day where the Crown proceeds by summary conviction. Individuals convicted of either of these offences will also face a minimum sentence of six months’ imprisonment.
Making or Distributing Child Pornography
Those convicted of making child pornography or distributing child pornography will face a maximum of fourteen years’ imprisonment if they are charged with an indictable offence and two years less a day where they are charged with a summary conviction offence. Further, anyone convicted of either of these offences will be sentenced to a minimum of one year in prison.
Sex Offender Information Registration Act
In addition to incarceration, those convicted of a child pornography offence will also be issued a SOIRA order on a mandatory basis. In Canada, those convicted of a designated sexual offence, including all child pornography offences, will be required to register as a sex offender under the Sex Offender Information Registration Act. A SOIRA order will remain in place for a period of ten years, twenty-five years or life as ordered by the Court.
If you have been charged with a child pornography offence it is important to consult with qualified legal counsel as soon as possible. Donich Law has experience defending a variety of individuals charged with even the most serious child pornography offences and regularly obtain favourable results for our clients.
Why is it Difficult to Solve Child Pornography Cases?
Child pornography cases in Kitchener are often difficult to solve due to the constant evolution of internet technologies. Most cases begin with the relevant police service obtaining a search warrant to seize any equipment that could contain child pornography materials. This equipment may include DVR systems, MP3 players, DVD players, computers, tablet computers, smartphones, cameras, hard drives, discs, flash drives, and any other technologies or equipment that can be used to view, play, or store child pornographic content. Searching through these materials and further proving that a file is, in fact, child pornography can be time consuming, often taking up to 200 hours for the Kitchener police to investigate. The large majority of time spent on a child pornography case often consists of reviewing the evidence, which could contain thousands of videos and images. The constant evolution of internet technologies may additionally make it time consuming to both detect and prove an allegation in court.
What Aggravating Factors may be Considered in a Child Pornography Charge?
An aggravating factor is any circumstance or fact that can lead to an increase in the severity or culpability of a criminal act. There are numerous aggravating factors that may be taken into consideration in a child pornography charge in Kitchener. The first factor is when the child pornography materials were distributed or shown to a person under eighteen years. As well, the Kitchener Crown will consider the volume of images or videos collected, with a greater number leading to an increased sentence. Whether the files were posted to public areas of the internet or distributed in a way they could be accidentally found by individuals not searching for such materials will also be considered. An additional factor is how sophisticated the collection of child pornography is. The Kitchener Crown may determine this by looking at how the files were organized on the accused’s computer. This factor is looked at because it may indicate the level of personal interest in the material or trading of the material. When the accused was the individual who originally created the images, especially in instances where the offender’s victims were members of their own family or belonging to a vulnerable group, this will be an aggravating factor. As well, if the offender has abused a position of trust that they held, such as being a teacher, social worker, or friend of the family, this will also be taken into account as an aggravating factor. The Kitchener Crown will also consider the age of the children being depicted, with depiction of younger children leading to a greater aggravating factor. The manner in which the illegal files were obtained, signs of distribution or production, and the types of sexual acts depicted are additional factors that may be considered. Finally, the Kitchener Crown may look to an accused’s criminal record for related criminal conduct and look for evidence that the offender has a diagnosis of paedophilia or pedophilic tendencies.
What Mitigating Factors may be Considered in a Child Pornography Charge?
A mitigating factor is evidence or information that may be presented to the court that could result in a reduced charge or a lesser sentence for the accused. Mitigating factors that may be considered in Kitchener include: a young offender, the extent to which the accused has demonstrated genuine remorse, the presence of a guilty plea, whether the accused is willing to undergo counselling or treatment or has already done so, otherwise good character of the accused, and the extent that the accused has already suffered for their child pornography offence.
Why is it Important to Seek Counsel in Kitchener Child Pornography Charges?
There are a number of defences available for individuals accused of child pornography in Kitchener. However, child pornography charges are a very serious offence that should not be taken lightly. Therefore, it is important to have a knowledgeable team able to understand and apply the defences that may be available to you. A person convicted of a child pornography charge may have to register as a sex offender, which is a label that will follow the individual for the rest of their life. We are able to ensure that the police used investigative techniques that were done with prior judicial authorization. As well, our firm frequently partners with forensic computer analysts to best represent our Kitchener clients. Our firm seeks to ensure that you receive the most favourable outcome and that your rights are protected.
How to Defend a Child Pornography Charge?
Defending child pornography offences can be difficult. Crowns in Canada prosecute all sexual offences involving children aggressively and almost always advocate for periods of incarceration for those who are found guilty. When dealing with child pornography offences, there are generally three defences used. These defences include; innocent possession, private use and public good.
The defence of innocent possession can be used is cases where an individual is in possession of child pornography for innocent purposes. Examples of innocent possession include situations where a person is in possession of child pornography for the purposes of destroying it or turning it over to law enforcement.
The defence of private use is an exception created to ensure minors are not charged with child pornography offences for being in possession of nude photos of themselves. This defence can be used in situations where the child pornography materials were created for private use by the individual depicted in the photos and depict only lawful sexual activity.
The defence of public good is enumerated in section 163.1(6) of the Criminal Code. This defence allows for child pornography to be accessed or possessed for certain legitimate purposes that benefit the public in some way. Some examples include medical or educational purposes or where necessary to assist in the administration of justice. For example, in many criminal cases involving child pornography it is necessary for certain legal professional to view the materials to ensure they are in fact child pornography.
What is a SOIRA Order?
A SOIRA order is an order made by the Court requiring individuals convicted of certain designated sexual offences to register as a sex offender for a certain period of time. SOIRA stands for Sex Offender Information Registration Act. Offenders who commit certain designated offences, including child pornography, will be ordered to register as a sex offender on a mandatory basis for ten years, twenty-five years or life.
Will I go to Jail for Child Pornography?
Yes. Child pornography is a very serious offence in Canada and comes with serious penalties for those who are convicted. Maximum sentences range from two years less a day to fourteen years imprisonment. All child pornography offences come with a mandatory minimum sentence, so anyone who is convicted will be sentenced to a minimum of six months imprisonment.
What if the Alleged Pornography were Drawings or Anime?
Even drawings or anime will be considered child pornography if they show a person under the age of eighteen, or a person that is depicted as being under the age of eighteen, engaging in sexual activity of for a sexual purpose. Essentially, any depiction of a child engaging in sexually explicit behaviour will be considered child pornography.
Is Child Pornography Illegal in Canada?
Yes. Section 163.1 of the Criminal Code outlines the various child pornography offences in Canada. Section 163(2) outlines the offence of making child pornography, section 163(3) outlines the offence of distribution of child pornography, section 163(4) outlines the offence of possession of child pornography and section 163(4.1) outlines the offence of accessing child pornography.
How to get Child Pornography Charges Dropped?
Child pornography charges can be very difficult to defend. Due to the serious nature of all sexual offences involving children, Crowns tend to prosecute child pornography offences aggressively and almost always advocate for periods of incarceration upon conviction. As such, having child pornography charges dropped can be very difficult.
What if the Files were Deleted?
Whether or not the files were deleted from an accused’s computer will not affect whether they are convicted of child pornography. The fact that an individual possessed child pornography at any point means they are guilty of a criminal offence.
Will my Charges be Made Public?
When an individual is convicted of a criminal offence it becomes part of the public record, available for anyone to access. Additionally, court proceedings are generally open for members of the public to attend. This can make it difficult to keep charges private. However, accused’s can hire legal counsel to attend court on their behalf which can limit exposure.