Frequently Asked Questions
What is a Publication Ban and Why Should I Get One in Newmarket?
Child pornography cases can be high publicity media sensations, and to protect the accused, a section 517 publication ban should be requested at the bail hearing if possible. Section 517(1) of the Criminal Code guarantees the protection of any information relayed during the case until the matter is finished. This would protect most information from the media. If the publication ban is not put in place the bail hearing it may be ordered at the next appearance.
However, the Court is still a public forum. The Court can print the name of the accused and their charges. The publication ban will prohibit reporters or anyone else from coming to court and reporting on what it discussed. Some information available to the public are the accused’s charges, the accused’s initials, and the next court date. Any details or facts about the specific case are not printed.
Will My Name Be in the Media for This Offence?
Child pornography is a large public safety concern. In comparison to other non-violent offences, child pornography offences are more likely to be published in the media. This is why it is important to get a section 517(1) publication ban early in the bail hearing process.
The stigmatization that comes with being charged with an offence can be debilitating. The alienation and ostracization that comes with a child pornography offence can be even more so. One of the fundamental principles of justice is that everyone is presumed innocent until proven guilty. A publication ban can not only protect the accused’s rights, but also the safety and dignity of the victim.
Specific publication bans are created for this purpose, pursuant to each of their sections within the Criminal Code. Section 486.4(1) protects the publication of any information that would identify a victim or a witness involved in a sexual offence. Section 486.5(1) protects the publication of any information that would identify the victim or a witness in a case. Section 517(1) is specifically for the accused. It is important to get a lawyer and have a bail hearing plan in place.
What If I Am a Youth and Took a Photo of Myself?
A youth taking a photo of themselves does not constitute as child pornography. This is called the private use defence and is a statutory exemption. If a minor is accused of possession of child pornography, they may raise this defence. Parliament’s intention when creating child pornography offences is not to criminalize youth who may be experimenting with their sexuality. However, if the youth share the picture with anyone else, they may have committed distribution of child pornography.
The private use defence only applies when the material is self-created and expressive: that is, any material that is created and held by the person depicted exclusively for their own personal use. The defence also requires that the material is of minimal risk to children.
Will I Go to Jail for Child Pornography in Newmarket?
Yes, the chances of going to jail for child pornography are very high. Child pornography is a crime that has seen recent rise, which Parliament and the Supreme Court of Canada has taken notice of. In the Supreme Court of Canada case of R. v. Friesen,  SCC 9, the Court enumerated the primary sentencing principle in relation to child-related sexual offences is denunciation and deterrence. Child pornography is one of the few offences in the Criminal Code that has a mandatory minimum prison sentence. The mandatory minimum sentence for accessing and possessing is six months incarceration, maximum is two years less a day or, if by indictable election, ten years’ incarceration. The minimum for making and distributing child pornography is one year incarceration, while the maximum may be 14 years of institutional custody.
In the case of R. v. Inksetter,  ONCA 474, the accused was found with one of the largest collections of child pornography ever discovered in Ontario. The accused was found guilty and sentenced to three years for the possession count and a year and a half for making available child pornography.
How Come the Age of Consent is 16 but the Child Pornography Age is Below 18?
In Canada the age of consent is 16 years old, however, it is illegal to take a sexual photo a photo of a person under 16. Any material depicting a person under the age of 16 in a sexual act is strictly considered as child pornography. A person over the age of 18 may have sexual activity with someone 16 or older, but anyone under the age of 18 is considered still a minor for the purpose of child pornography offences.
Child pornography is an extremely serious offence. Child sexual exploitative material (CSEM) not only causes lifetime trauma for the victims, but their abuse is also shared to a community. Luring children online is sometimes a tactic of predators. By normalizing child pornography and manipulating their victims, pedophiles can receive child pornography in return. Such is the case in R. v. Pathmanathan,  ONCJ 142, where the accused used several images and videos of child pornography to lure young girls to send him child pornography in return.