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Defend Child Pornography Charges

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Our Experience

Donich Law is a criminal law firm with more than 10 years experience defending and defeating child pornography cases. The Firm has represented clients all over Ontario at both the Ontario Court of Justice and the Superior Court of Justice. The Firm has experience successfully advancing technical challenges in child pornography cases including arguments related to the accused’s intention to possess the material. If you have been charged with a child pornography offence, it’s important to seek legal counsel.

The Firm has defended a number of High Profile Child Pornography allegations where Microsoft, Kik, 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. The Firm is one of the few to have successfully defeated international child pornography investigations.

In 2022, Donich Law successfully defended an individual charged in London Courthouse with one count of child luring, four counts of possession of child pornography, three counts of distribution of child pornography and one count of making child pornography in R. v. T.T. [2022]. The client was charged after sharing child pornography material with another user on Instagram. The activity was flagged by Instagram and reported to law enforcement. Law enforcement investigated and ultimately got a warrant for the accused’s residence. Upon further investigation, the accused was alleged to have also been communicating with a minor online for a sexual purpose. Donich Law successfully resolved the matter by exploiting a significant 11(b) delay in the case, caused by the Crown. The Firm resolved the matter with seven of nine charged being withdrawn.

The London Police service has a dedicated Internet Child Exploitation Unit (ICE) as well as a Digital Forensic unit. In 2021, the LPS also participated in joint force operations that protect multiple jurisdictions. One of which was the Provincial Strategy to Protect Children from Sexual Abuse and Exploitation on the Internet. In 2022, the London Police ICE unit reported near 100 criminal charges were processed, in comparison to around 60 processed charges in 2021. The London Police Services also cooperates with the NCECC, over 200 cases were received from the NCECC contributing to over 350 cases.

In R. V. J.M. [2021], the Firm represented a client charged with one count of child pornography after allegedly downloading child pornography material from a file sharing website. The accused was arrested after a search warrant was executed on his residence. The Internet Child Exploitation (ICE) Unit of the police seized several of the accused’s electronic devices during the execution of the warrant and used the metadata from these devices to confirm that illegal material had been downloaded. The Firm spent roughly 2 years reviewing and analysing the forensic data collected by law enforcement and ultimately secured a withdrawal by arguing the defence of accidental download. Withdrawals are extremely rare in child pornography cases due to the strong public interest in prosecuting those found in possession of child pornography material. Deputy Crown approval is required before Crown counsel can agree to withdrawal the charge.

In 2022, Donich Law represented an individual charged with 7 child pornography offences including making, distributing and possessing child pornography material in R. v. E.Z. [2022]. The accused, a second-time offender who previously spent time in prison for child pornography offences, was caught in a large international sting targeting those in possession of child pornography. After seizing his electronic devices, law enforcement uncovered a large amount of child pornography material and alleged that the accused had been communicating with other offenders online. The Firm conducted a thorough analysis of the production orders and search warrants and uncovered an error which led to the Firm launching a section 8 Charter challenge. The Firm also launched a section 11(b) Charter challenge after significant Crown delay. The challenges led to the Crown significantly altering their position and agreeing to withdrawal 5 of the most serious charges against the accused.

Internet Child Exploitation is a Global Problem

Donich Law - International Child Pornography Investigations we have Defended

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].

In 2021, the Firm represented a client charged with various child pornography offences in R. v. H.H. [2021]. The client was charged after being caught up in a complex joint police investigation related to the online exploitation of young people. The investigation involved police agencies from the United States, Canada, and New Zealand. The investigation led to arrests in Ontario and the United States.

Online Sex Offence are on the Rise in Canada

In 2021, the Firm defended an accused person charged with two counts of possession of child pornography in R. v. M.O. [2021]. The accused was arrested after law enforcement got a tip about online activity that was ultimately traced back to the accused. The Firm analyzed both the production warrant used to gather the accused’s information as well as the Form 1 search warrant used to search his residence and electronic devices. The analysis uncovered issues with the Crown’s case, leading to both charges being dropped after two years of litigation.

In 2022, the Firm successfully represented a youth offender accused of downloading child pornography material from a social media website in R. v. P.S. [2022]. The young person was charged with two counts of possession of child pornography. After significant upfront work and more than two years of Crown negotiations the Firm secured the withdrawal of one charge and a discharge on the other charge, avoiding a criminal record.

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Frequently Asked Questions

What if my Address was Linked to Child Pornography in London?

During an investigation, the police may find a residence where they suspect there is child pornography. It is common for multiple people to live in the same home, and potentially multiple devices that may or may not contain child pornography material. There is no way to differentiate between suspects and devices unless identifying information is found. Identifying information can be things such as a password, the device name, the device owner’s name, as well as any data stored on the device. Often, this information is not readily available at the scene.

In order to prove that someone was accessing or possessing child pornography, the Crown needs to prove beyond a doubt the device was used specifically to access and possess child pornography. Some evidence of who the device belongs to may be obtained through interrogation, forensic analysis, or other investigative techniques. The Crown must prove the identity, the jurisdiction, and the date of the offence in order to convict a person.

Will I be a Sex Offender if I am convicted?

Yes, people convicted of child pornography will be registered in accordance with the Sex Offender Information Registration Act (“SOIRA”). Child pornography is a primary designated offence listed under s. 490.013 of the Criminal Code, meaning that it is among one of the more serious crimes and mandatory for SOIRA registration. Those convicted will be registered as a sex offender. The length of registration depends on the frequency of the offence. A first-time offender may have SOIRA registration for ten years. Second and subsequent offences may result in a SOIRA registration order of twenty years and then life.

How long will I be a Sex Offender?

The Sex Offender Information Registration Act (“SOIRA”) was designed to help police in their investigations. By registering sexual offenders, the police can inculpate or eliminate various suspects with the help of the database. This database may overlap with the national DNA database. A convicted sex offender may also be subject to a DNA order.

SOIRA requires those registered to report when changing residences, report their identification, report the addresses of their place of work or study, report their telephone number, report their physical distinctions, as well as report their car information. They require this information to identify the registrant easily. A SOIRA order may last for life, depending on a number of factors and the offences the person is convicted of.

If any of the eligible offences have a maximum penalty of life the SOIRA order will remain in place for a lifetime. Additionally, previous history with SOIRA will result in a lifetime registration; and a previous conviction or a record of particular offences may result in a lifetime registration. If any of the offences have a maximum penalty of 10 or 14 years, the SOIRA order will remain in place for 20 years. Finally, the lowest duration of ten years is for offences with the low maximum penalties—either two to five years or a summary conviction offence.

What does it mean to be a Sex Offender?

The Sex Offender Information Registration Act (“SOIRA”) requires that the offender register with a government agency once a year. They require your information, such as where you live, work or study. A SOIRA registration will appear on every single background check, which may result in loss of employment or volunteer opportunities. Those registered under SOIRA also cannot work with vulnerable populations.

For example, a person who is registered with SOIRA cannot coach a children’s soccer team, even if they have an intimate relationship with the organization. However, SOIRA is not open to the public and SOIRA registrars do not have to notify neighbours of their registry.

Common Defences to Child Pornography

There are a few common defences for possessing, accessing, making, or distributing child pornography. One of which is examining the material and seeing if it meets the definition of child pornography. If the individuals depicted in the material are over the age of 18, the material is not child pornography. If the picture was for an innocent or an innocuous purpose, such as a picture of a child in a bath taken by a parent, it would not meet the definition of child pornography.

Another defence for possession or accessing child pornography would be the public good defence. This defence argues for the legitimate possession and access of child pornography for use by law enforcement. For example, a lawyer might be given child sexually exploitative material by the Crown as part of disclosure.

A defence similar to the public good defence would be the “innocent possession” defence. The innocent possession defence poses that the defendant possessed child pornography but intended to destroy it or surrender it to law enforcement.

The private use defence is designed for individuals under eighteen who may be in possession of their own nude photos or videos of themselves. The photo or video in question must be taken by the person in the image, and any sharing of the photo may result in a charge of distribution of child pornography. If the material does not depict illegal sexual activity, the minor is allowed to be in possession of it.

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Recent Cases

R. v. Scott, 2023 ONSC 3023

In the Ontario Superior Court of Justice case of R. v. Scott, the accused was charged with possession and importation of child pornography. Mr. Scott entered Canada with various digital devices, many of which contained child pornography. The Court recognized that denunciation and deterrence were the primary sentencing principles with respect to child pornography, but kept in mind the particulars of the offender.

The particulars of the offender included several aggravating and mitigating factors. In their ruling, the Court found that there was nothing “unduly aggravating” about his offence beyond the amount of material and the importation into Canada. Most of the material were anime or stories and did not involve child abuse in its production, however, the Court did take note of the danger of such material, as it may make paedophiles more likely to offend. There were also victim impact statements produced by two victims of child pornography, which contributed to the gravitas of the offence. Mr. Scott was found guilty. In part due to the offender’s old age and the mitigating factors of his good contribution to his family and society, he was sentenced to a conditional sentence.

R. v. Tcheong, 2023 ONCJ 205

In the Ontario Court of Justice case of R. v. Tcheong, the offender pled guilty to one count of child pornography. In September 2020, the police executed a search warrant on Mr. Tcheong’s home, finding a total of 350 images and 14 videos of child pornography on two computes. The contents of the child sexual exploitative material were described to the Court. The judge did not review the contents of the child pornography, nor was it deemed necessary that they do so. There was no doubt that the contents in question were child pornography.

Relying on previous cases such as R. v. Inksetter 2018 ONCA 161, the Court found that the possession of child pornography is a form of child abuse, and that the demand for child pornography causes child pornography to be made. After expert assessment, the defendant was deemed by Dr. Eid to have a pedophilic disorder, which they considered a risk factor. However, another expert, Dr. Gojer contended on whether Mr. Tcheong was a pedophile. In their expert analysis, Dr. Gojer took into factors such as Mr. Tcheong’s overprotective parents, his intellectual limitations, his social limitations, and his autism spectrum disorder. The aggravating factors in this circumstance is the amount of child pornography accessed as well as the serious nature of the collection. Mr. Tcheong’s collection was categorized as level four, out of a total of five levels. He was sentenced to eight months institutional custody with three years’ probation and additional ancillary orders.

R. v. Shokouh, 2023 ONSC 220

In the Ontario Superior Court of Justice case of R. v. Shokouh, the offender was found guilty of one count of accessing child pornography, one count of possessing child pornography, and one count of transmitting, making available or distributing child pornography. The investigation began in April, when Facebook became aware of a person who uploaded files that contained child pornography. After the Toronto Police Service obtained a production order from Rogers Communication Canada Inc., the IP address was found, and the Facebook user discovered in the residence. Seven images and three videos of child pornography were discovered by the police.

The presentence report stated that Mr. Shokouh was a student at the University of Toronto before his offence, that he was remorseful and undergoing counselling, as well as the losses he’s suffered because of his conviction. The Court considered several aggravating and mitigating factors as well. An aggravating factor was the sharing of child pornography through the Kik messenger app. However, the offender’s first-time offence, the relatively small number of videos and images found, as well as his young age all contributed to mitigate his sentence. The offender was sentenced to 12 months’ imprisonment with three years of probation, along with ancillary orders such as a DNA order, a forfeiture of electronic devices, and restricted access to children.

About the Author

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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.