FIRST OFFENDER? DEFEND CHILD PORNOGRAPHY CHARGES IN NEWMARKET. 416-DEFENCE.
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.
Whether you are on bail or sentenced to child pornography, you can expect specific prohibition orders restricting your contact with children. It may also be important to have a publication ban during your proceeding.
The Firm has defeated a number of international child pornography allegations where Microsoft, Kik, Facebook, Instagram, Twitter 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, York Region, 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].
In 2022, the Firm represented an accused charged with 7 child pornography offense in R. v. E.Z. [2022]. The accused was arrested after a large international law enforcement operation found him to be communicating with other offenders online for the purpose of trading child pornography material. He was charged with distribution of child pornography, making child pornography and possession of child pornography. The Crown’s initial position on sentence was 7 years’ incarceration due to the accused’s past history of committing child pornography offences. The Firm conducted a thorough analysis of the search warrants and production orders used in the case and uncovered an error. The Firm subsequently launched a section 8 Charter challenge as well as a section 11(b) Charter challenge. This led to a significant reduction in the Crown’s position and ultimately to the withdrawal of 5 of the most serious charges.
In R. v. M.O. [2021], the Firm represented an individual charged with two counts of possession of child pornography in Halton Region. To secure the withdrawal of all charges, the Firm ordered and analyzed the Form 1 Search Warrant and Form 5.004 Production Warrant issued in the case. The Firm also performed forensic analysis on the alleged unlawful material, ultimately arguing that the material seized did not constitute child pornography. 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?
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?
What are the Penalties for a Child Pornography Conviction?
-Making Child Pornography
-Distributing Child Pornography
-Possessing Child Pornography
-Accessing Child Pornography
Additional Resources
Assault
Assaulting a Peace Officer
Child Pornography Forensics
Sex Offender Prohibition Orders
Children’s Aid Society
Sexual Assault Law in Canada
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 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.
Why are the Penalties for a Child Pornography Conviction?
Child pornography offences are among the most serious offences an individual can be charged with in Canada. Law enforcement officials devote significant resources to tracking and arresting offenders, and Crown’s prosecute such offences aggressively. There are mandatory minimum sentences for all child pornography offences, with the shortest minimum sentence being six months’ imprisonment. This means that virtually every offender convicted of a child pornography offence will be sentenced to at least six months in prison.
Making Child Pornography
As outlined in section 163.1(2) of the Criminal Code, the offence of making child pornography is a straight indictable offence carrying a maximum penalty of fourteen years’ in prison upon conviction. An individual convicted of making child pornography will be sentenced to a minimum of one year in prison.
Distributing Child Pornography
Section 163.1(3) of the Criminal Code outlines the offence distribution, etc. of child pornography. An individual who distributes etc. child pornography is guilty of a straight indictable offence and will face a maximum of fourteen years’ imprisonment and a minimum of one-year imprisonment if convicted.
Possessing Child Pornography
Section 163.1(4) of the Code outlines the offence of possession of child pornography which is a hybrid offence. This means that the Crown has discretion regarding the maximum penalty that the accused will face if they are convicted. In situations where the Crown proceeds by summary conviction, the accused will face a maximum of two years less a day imprisonment and a minimum of six months’ imprisonment. Where the Crown proceeds by indictment, the accused will face a maximum of ten years’ imprisonment and a minimum of one-year imprisonment.
Accessing Child Pornography
Section 163.1(4.1) of the Criminal Code outlines the offence of accessing child pornography which is a hybrid offence. Where the Crown proceeds summarily the accused will face a maximum of two years less a day imprisonment and a minimum of six months’ imprisonment. If the Crown chooses to proceed by indictment, the accused will face a maximum of ten years imprisonment and a minimum of one-year imprisonment upon conviction.
Quick Facts
What if I Accidentally Clicked on Child Pornography?
To gain a conviction for accessing child pornography, the Crown need not prove that the accused intentionally downloaded the material. If an accused clicked on a file and was genuinely unaware of its contents it may be possible to use this as a defence. This defence however, will only be successful where there was a genuine accident and even then, it may be difficult to prove.
Can I go to Jail for a Child Pornography Offence?
Yes. All child pornography offences come with a mandatory minimum period of imprisonment with the lowest sentence being six months. This means that the majority of individuals convicted of a child pornography offence will spend at least six months in prison. The maximum prison sentence for child pornography offences is fourteen years.
What if the Files were Deleted?
It is generally not relevant that child pornography files have been deleted from an accused’s computer. An individual is guilty of a criminal offence for simply accessing child pornography. Further, an individual will be guilty of possessing child pornography even if they have deleted the files, as they did at one time possess the materials.
Will People Find out About my Charges?
In Canada the majority of court proceedings are open to the public, which means anyone can attend and observe. Additionally, once an individual is convicted of an offence their conviction will become part of the public record which can be accessed by anyone. It is possible to limit exposure by hiring legal counsel to attend certain court hearings on your behalf to limit the amount of time physically present in court.
Will I Have to Register as a Sex Offender?
Yes. The Criminal Code states than anyone convicted of certain designated sexual offences will be required, on a mandatory basis, to register as a sex offender under the Sex Offender Information Registration Act (SOIRA). When an individual is convicted of a designated sexual offence, including all child pornography offences, they will be issued a SOIRA order by the Court. This order requires the offender to register for a period of ten years, twenty-five years or life.
How does the Crown Prove a Child Pornography Offence?
To gain a conviction for child pornography the Crown must prove that the accused knowingly accessed, distributed, possessed or created material that constitutes child pornography.
What if the Pornography were Drawings?
Section 163.1(1) of the Criminal Code defines child pornography as any material that shows a person under the age of eighteen, or a person that is depicted as being under the age of eighteen engaging in sexual activity or for a sexual purpose. This means that even drawings or anime depicting someone under the age of eighteen engaged in sexual activity or for a sexual purpose is considered child pornography.
