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In 2012 in Canada, there were around 14,000 child and youth who were victims of sexual offences. This is a rate of 205 victims per 100,000 youth under eighteen. As well, children and youth are disproportionality the victims of reported sexual offences. Over half of police-reported sexual offences were offences against youth ages zero to seventeen. In 2017, a 37-year-old man from Newmarket was charged with luring a child online and child pornography. In 2018, more than 122 persons were charged during a single day child exploitation probe by the Ontario Provincial Police, including one 63-year-old man from Newmarket, who was charged with making child pornography, sexual assault, and invitation to sexual touching.

The Newmarket Courthouse is located at 50 Eagle Street West in Newmarket, Ontario. The Superior Court of Justice, the Ontario Court of Justice, and the Criminal Youth Court for Newmarket can be reached at 905-853-4801. The Crown Attorney for the Newmarket Courthouse can be contacted at 905-853-4800. If you are looking for information about your upcoming court appearance in Newmarket, click here.

The Firm has defended a number of High Profile Child Pornography allegations where Microsoft and Google 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].

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.

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.

CityNews: As the temperatures outside get warmer, police say the reported number of cases of voyeurism tend to rise.

VICE News: An Image Site is Victimizing Women and Little Can be Done.

Frequently Asked Questions

What is Child Pornography?
Can Written Material be Considered Child Pornography?
What are the Different Child Pornography Offences?
What if a file was inadvertently Accessed or Accidentally Downloaded?
What if a file has been deleted?
What does “Innocent Possession” Mean?
What is the “Public Good” Defence?
What is the “Private Use Defence?
Why is Difficult to Resolve Child Pornography Accusations?

Additional Resources

Consequences of a Criminal Record
Child Pornography Forensics
Immigration Consequences
Keeping Charges Private
Travel & US Waivers

What is Child Pornography?

Section 163.1(1) of the Criminal Code sets out five types of child pornography. The first type is a visual representation that portrays a person who is (or is depicted as) being a child aged zero to seventeen and is engaged in (or is depicted as engaging in) explicit sexual activity. The next type encompasses visual representations that have a dominant characteristic of a sexual organ or the anal region of a person younger than eighteen years of age for a sexual purpose. Third, the Criminal Code explains that written material may be considered as child pornography when the material advocates or counsels sexual activity with an individual aged zero to seventeen. The Criminal Code as well considers written material that has a dominant characteristic of sexual activity with a person aged zero to seventeen for a sexual purpose. Finally, audio recordings which have a dominant purpose of description, representation, or presentation of a sexual activity with a person aged zero to seventeen for a sexual purpose.

Can Written Material be Considered Child Pornography?

Yes, the Criminal Code in section 163.1(1) explicitly mentions that written material can be considered child pornography. If the written material provides encouragement or inducements of sexual activity with a person under 18 years of age, it can be considered child pornography. The content may implicitly or explicitly elude to child pornography.

What are the Different Child Pornography Offences?

There are four different child pornography offences: making child pornography, making available or distributing child pornography, possessing child pornography, and accessing child pornography. To be charged with making child pornography, the accused must complete the act of making, publishing, possessing, or printing child pornographic materials for the purpose of publication. As well, the accused had to know that the materials were child pornography, or the accused was wilfully blind to the content of the materials. To be charged with making available or distributing child pornography, the accused must intend to make child pornography available to others and actually make the materials available to others. The offence of possession of child pornography requires that the accused possess images, videos or texts that are considered child pornography. The final child pornography offence is accessing child pornography. The accused must obtain access to child pornographic materials and know or be wilfully blind to the fact that the materials were child pornography.

What if a file was inadvertently accessed or accidentally downloaded?

For the Newmarket Crown to prove that an individual possessed child pornography, it is not necessary they establish that the downloading of the file was intentional. However, where there is evidence that indicates intentional downloading, the Newmarket Crown may rely on the presumption that an individual intends the consequences of their actions. In order for an accused to rely on the defence of inadvertent access or accidental download, they must present evidence that can support this conclusion. An accused cannot expect the judge to speculate this. The Newmarket Crown may attempt to rebut that the accused accidentally downloaded a file containing child pornography by presenting evidence pertaining to the amount of child pornographic files the accused possesses or the way in which the file was stored.

What if a File Has Been Deleted?

The fact that an accused has deleted a child pornography file does not nullify or alter the initial possession of the file. When a file has been deleted by the accused, but not overwritten, the Newmarket Crown may attempt to establish that the accessed was still able to access the files and knew how to access them.

What Does “Innocent Possession” Mean?

The doctrine of “innocent possession” is an exception to criminal liability. It is a defence that the accused could potentially use to rebut possession of child pornography. Innocent possession means that the accused possessed the child pornography files for the purpose of destroying the child pornography materials or for placing the materials beyond his control.

It is difficult to utilise the defence of innocent possession when there is evidence that the accused knowingly accessed and stored the files for a period of time before eventually deleting them. As well, evidence of selective deleting of the files by the accused indicates an intent to sort the files, rather than destroy them.

What is the “Public Good” Defence?

The “public good” defence is a statutory defence created in 2004. This defence is enumerated in section 163.1(6) of the Criminal Code. The public good defence provides an exception to otherwise criminal conduct when the alleged criminal conduct was done for a public good. The conduct must have a legitimate purpose which is related to medicine, education, science, or art, or is related to the administration of justice. As well, the conduct must not pose an unnecessary risk of harm to individuals aged zero to seventeen.

What is the “Private Use” Defence?

An exemption was created to classify materials that are for private use. For child pornography materials to be considered as for private use, the materials must depict lawful sexual activity made by or depicting the person in possession. The materials must also be intended for private use only. The only person who may use the private use defence is the person who created the materials and is depicted in the materials. This defence applies to distribution and possession of child pornography as well.

Third-party possession of private use materials can nevertheless still be illegal. This will occur when the materials were obtained without the consent of all the individuals recorded, the materials were obtained by fraud or deception, the materials were obtained as a result of extortion, threat, or coercion, obtaining the materials results in the loss of control of the private use material, the third-party obtained the materials in exchange for any form of consideration, or when the materials were obtained or created in a way that was otherwise exploitive or abusive.

Why is it Difficult to Resolve Child Pornography Accusations?

The evolution of internet technologies is one of the main reasons why child pornography cases in Newmarket may be difficult to solve. Numerous technologies make it difficult to detect, track down, and prove that a child pornography file is linked to a specific individual. Even once an individual has been traced to the child pornography file, proving this in court can as well be difficult due to the same technologies. Additionally, significant amounts of time must be dedicated to reviewing the evidence, which can consist of thousands of different types of media for each child pornography case. The police in Newmarket may spend around 200 hours investigating each individual child pornography case. Our firm will ensure that all investigative techniques used by the police were completed with the proper judicial authorization. We frequently partner with forensic computer analysts in order to best represent an individual as our client.

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