Frequently Asked Questions
What Are Some Aggravating and Mitigating Factors to Sentencing for Child Porn?
During sentencing, a court may consider aggravating and mitigating factors to determine the length of the sentence. When sentencing child pornography, the primary principle of sentencing is deterrence and denunciation, not rehabilitation. Therefore, jail time is almost always required of the convicted.
As child pornography can often be used as a tool for further sexual offences such as luring and sexual interference, whether the child pornography was shown or distributed to a child or anyone else can be an aggravating factor. The nature and the amount of the collection also plays a significant factor. If the collection depicted violent illegal sexual activity involving children such as sexual interference or bestiality, they are categorized on the more extreme scale of depravity. The more depraved the material, the more aggravating the crime.
Some mitigating factors may include but are not limited to the age of the offender, the character of the offender and/or the remorse of the offender. A mitigating factor specific to child pornography cases is whether the offender had undergone treatment or counselling for any possible disorders related to the crime. Sexual offenders like those convicted of child pornography will also undergo risk assessments that determine if they are a possible threat to children and/or the community. A positive risk assessment is big mitigating factor and may contribute positively to sentencing.
What Are the Primary Sentencing Principles in Oshawa?
The primary sentencing principles for child-related sexual offences are set out in R. v. Friesen,  SCC 9.In the Supreme Court of Canada case of R. v. Friesen, the accused was sentenced to six years by the trial judge. The accused had met a mother on an online dating website, and after having consensual sex with the mother, asked the mother to call her four-year-old daughter into the room. The defendant then sexually assaulted with the child. The trial judge based their decision on R. v. Sidwell,  MBCA 56, that determined the sentencing for major sexual assaults committed against a minor by an adult in a position of trust or authority. The Court of Appeals overturned the sentence, finding that there was no precedent for such a sentence. In the Supreme Court of Canada decision, the Court also took the time to establish firmly the principles of sentencing for child-related sexual offences.
The Court established in Friesen that due to the extreme nature of the crime and inferring from Parliament’s legislative goals of increasing maximum sentences for these offences, denunciation and deterrence would be the primary sentencing principle. The Court also enumerated five “Friesen factors” that could impact sentencing. The offender’s likelihood to reoffend, the offender’s abuse of their position of trust and authority, the duration and frequency of the abuse, the age of the victim, as well as the degree of physical interference may all play a factor in determining the appropriate length of sentence for an offender.
Section 718.01 of the Criminal Code also states that denunciation and deterrence is the primary objective for sentencing. Crimes and offences enumerated in section 718 of the Criminal Code are also subject to the sentencing principles of rehabilitation, which may factor in. A mitigating factor for sentencing in child pornography cases is often the offender’s efforts at counselling.
What Are Ancillary Orders in Durham?
Ancillary orders, or special sentencing orders, are orders by the Court that requires the offender to comply with certain conditions in addition to serving their sentence. They are comparable to bail conditions. Child pornography have some ancillary orders that are mandated and severe. For example, a DNA order will be required by the Court as child pornography is a primary designated offence. This means that the offence is so serious that section 487.04 mandates the taking of the offender’s DNA.
Section 161(1) of the Criminal Code contains a prohibition order specifically for offences concerning children; this order may prohibit the attendance of any public space where children might be, the employment or volunteer opportunity around children, any contact with children, or using the Internet. The Court may apply all or none of section 161, but at their discretion. One of which is internet usage, where some offenders with low risk are allowed some internet usage albeit with limitations.
Are My Rights Infringed? What Are the Charter Challenges Available?
It is important for every Canadian to know their rights. Section 8 of the Canadian Charter of Rights and Freedoms guarantees the right to be secure against unreasonable search and seizure. This is why the police requires a search warrant, signed by the judge, to search a private residence. Often, child pornography cases have concrete forensic evidence that is difficult to defend. However, a Charter challenge may be available.
In the Supreme Court of Canada case of R. v. Morelli,  SCC 8, the accused was acquitted of possession of child pornography. In their decision, the Court did not negate the trial judge nor the appellate judge’s findings of guilt, as the accused was found with evidence. However, the Court did find the search and seizure of the evidence unconstitutional.
In a split 4-3 decision, the Supreme Court of Canada found that the police did not provide reasonable and probable grounds for a search warrant. Since the search warrant is not valid and neither is the search, the accused was acquitted. It is important upon arrest to request a copy of the search warrant. A lawyer may be able to find a fault within the search warrant or the production order to be able to launch a Charter challenge.
Will My Internet Service Provider Provide Information About Me to Police?
Internet Service Provider’s (ISP) are not allowed to provide information about their clients to the police without a production order. For the police to gain information from the internet service provider, the police must obtain a production order, which is an order that mandates a person or organization to disclose documents and records. Section 487.014 of the Criminal Code enumerates the various types and conditions of a production order. Before a production order is made, the justice or judge must be satisfied that the police have reasonable grounds to believe that illegal activity is happening.
If the police have reason to believe that a suspect’s address is interacting with child pornography, they may get a production order and get an individual’s information from their Internet Service Provider. If the internet service provider handed over information without a warrant, it would be unconstitutional and subject to a Charter challenge.