FIRST OFFENDER? DEFEND CHILD PORNOGRAPHY CHARGES IN OTTAWA.  1-866-DEFENCE.

A single month’s worth of child exploitation investigations by the Ontario Provincial Police led to 551 child exploitation charges in November 2018. The officers involved stated that they identified 834 unique IP addresses accessing child pornography during the month of November alone. Since inception of the child pornography investigations in 2006, police said the provincial strategy has resulted in nearly 21,000 charges against 5,686 people. The growth of the internet has led to an increase in the volume and extent of child pornography and Ottawa, Ontario has been no exception to the increase in child pornography incidents. In January 2019, an individual from Ottawa was arrested at Toronto’s Pearson International Airport and escorted off a plane where he was then charged with possessing and importing child pornography. In March 2019, separate investigations led to the arrest of two Ottawa individuals, one charged with making, accessing,A and possessing child pornography, and the other charged with possessing child pornography.

The Ottawa Courthouse is located on the second floor of 161 Elgin Street in Ottawa, Ontario. The Ontario Court of Justice for youths and adults, and the Superior Court of Justice in Ottawa can be reached at 613-239-1153. The Crown Attorney at the Ottawa Courthouse can be called at 613-239-1200. If you are looking for information about your upcoming court appearance in Ottawa, click here.

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

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.

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Legal Information

Frequently Asked Questions

What is Child Pornography?
Can Child Pornography be in Print or Writing?
What is the Difference between Accessing and Possessing Child Pornography?
What is the Difference between Making and Distributing Child Pornography?
What is Relevant to Child Pornography Sentencing in Ottawa?
Is it important to get Legal Advice?
What are the Maximum Penalties for Child Pornography in Ottawa?
How to Beat a Child Pornography Charge in Ottawa?
-Public Good
-Innocent Possession
-Private Use

Additional Resources

Assault
Assaulting a Peace Officer
Child Pornography Forensics
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?

It is common for individuals in Ottawa to have a misunderstanding of what is considered child pornography. Section 163.1(1) of the Criminal Code defines what child pornography means for individuals charged with child pornography in Ottawa. This section explains that child pornography is photographic, video, film or other visual representation, whether or not it was made by mechanical or electronic means, of youth under the age of eighteen. The Criminal Code in section 163.1(1) also explains that some types of child nudity and material that has been computer doctored to look like child pornography to be child pornography may be considered child pornography. Section 163.1(1) of the Criminal Code also prohibits the production, distribution, and sale of child pornography. It is as well an offence to access (view) and possess (download) child pornography materials.

Can Child Pornography be Written Material?

It’s important for individuals in Ottawa to note that written material can be considered child pornography. Sections 161.1(1)(b) and 161.1(1)(c) of the Criminal Code explain that written material, and even visual representations and audio recordings, can be considered child pornography. The Criminal Code deems as an offence the production, distribution, possession, and access of any written material, visual representation, or audio recording that advocates or counsels sexual activity with a person under the age of eighteen. It is also an offence in Ottawa to produce, distribute, possess, or access any written material whose dominant characteristic is the explanation, for a sexual purpose, of sexual activity with a person between the ages of zero to seventeen.

What is the Difference Between Accessing and Possessing Child Pornography?

The offence of accessing child pornography was created to charge individuals who are not in possession of the child pornography files but are intentionally viewing child pornography on the internet. Accessing child pornography requires that an accused knowingly view or transmit child pornography to oneself. Not included in the offence of accessing child pornography is “inadvertent viewing”, which occurs when the individual opens a file containing child pornography but is unaware of the file’s criminal character.

On the other hand, possession of child pornography in Ottawa requires that the accused have possession of the underlying data files in some way. Only viewing child pornography files online is not sufficient to prove possession. The subject matter being “possessed” is the file itself, not the depiction or image of child pornography that is found within the file. For this reason, it is not necessary that the accused viewed the content of the file. Rather, it is only necessary that the accused is aware of the underlying illegal nature of the file being stored. The possession of the file begins immediately once the accused initiates the downloading of the file, rather than at the time when the downloading of the file is complete.

What is the Difference Between Making and Distributing Child Pornography?

To be convicted of making child pornography in Ottawa, an individual must create novel child pornography. That is, an instance of child pornography that differs from existing instances of child pornography. Since 2008, no criminal cases in Canada have stated that downloading and then transmitting child pornography on to a disk amounts to making child pornography in Newmarket. The person who is considered the “maker” of the child pornography is the individual who controls or directs production of novel child pornography.

To prove distribution of child pornography, the Ottawa Crown must be able to prove that the accused had a subjective knowledge of the nature of the photo, film, video, other visual representation, written material, or audio recording. Proving recklessness is not sufficient. To prove distribution of child pornography in Ottawa, one of the following factors must be present:

(1) actual intent by the accused to make computer files containing child pornography available to others through the use of a file sharing program,

(2) actual knowledge by the accused to make file sharing programs available to others, or

(3) wilful blindness, which can be satisfied through proving that the accused’s file sharing program actually made child pornographic files available to others coupled with a suspicion by the accused that they had done so, but no steps were taken by the accused to determine if this suspicion was true.

Sentencing for Child Pornography in Ottawa

Offences under section 163.1(1) and (3) for making or distributing child pornography are indictable offences. The maximum penalty for these offences is 14 years incarceration and the minimum penalty is one year incarceration.

Offences under section 163.1(4) and (4.1) for possession and access are hybrid offences. If the accused is prosecuted by indictment, the maximum penalty is 10 years incarceration and the minimum penalty is one year incarceration. If the accused is prosecuted by summary conviction, the maximum penalty is two years less a day incarceration and the minimum penalty is six months incarceration.

Why is it Important to Seek Counsel in Ottawa Child Pornography Charges?

There are common law and Criminal Code defences available for individuals accused of child pornography in Ottawa. However, there is considerable litigation that surrounds the interpretation and application of these defences. For child pornography allegations in Ottawa, our team canvasses all possible areas to increase the likelihood of a successful outcome. The police often use a host of sophisticated investigative techniques to charge an individual in Ottawa with a child pornography offence. We critically analyze these techniques and ensure that all evidence was obtained with prior judicial authorization, often partnering with forensic computer analysts in order to best represent our clients and receive the most favourable outcome.

What are the Maximum Penalties for Child Pornography in Ottawa?

Child pornography offences are considered very serious in Canada. Law enforcement officials devote considerable resources to tracking those believed to be committing child pornography offences and gathering evidence to prosecute them. Crowns routinely advocate for periods of incarceration for those who are convicted, and the Criminal Code even prescribes mandatory minimum sentences for all child pornography offences.

Making child pornography and distributing child pornography are both straight indictable offences. Those who are convicted of either of these offences will face a maximum of fourteen years in prison and a mandatory minimum of one year in prison. Accessing child pornography and possessing child pornography are both hybrid offences. This allows the Crown to elect to proceed either summarily or by indictment based on the severity of the allegations. Where the Crown proceeds summarily the accused will face a maximum of two years less a day in prison, up to a $5,000 fine or both and a mandatory minimum of six months in prison. Where the Crown proceeds by indictment the accused will face a maximum of ten years in prison and a mandatory minimum of one year in prison.

How to Beat a Child Pornography Charge in Ottawa?

The best defence for any child pornography offence will depend largely on the facts of the case and the evidence that has been collected by law enforcement. Evidence in child pornography cases is often very difficult to defend due to sophisticated technology and the use of highly experienced law enforcement officers and computer experts.

Generally, there are three defences that may be used in child pornography offences. These defences include; public good, innocent possession and private use. These defences can be difficult to put forth. As a result, it is important to have experienced legal counsel on your side as early on as possible.

Public Good

Section 163.1(6) of the Criminal Code outlines the defence of public good. The Code states that a person will not be guilty of a child pornography offence if they possessed or accessed the materials for public good. Examples of public good include medical research, educational purposes or where the materials are possessed or accessed for to further the administration of justice. To present this defence, the accused must prove that the materials did not pose an unnecessary risk of harm to anyone under the age of seventeen.

Innocent Possession

Where an individual is in possession of child pornography for an innocent purpose, they will not be guilty of an offence. An example of an innocent purpose is an individual possessing child pornography material for the purpose of turning them over to law enforcement. The accused must prove that they possessed the materials for an innocent purpose.

Private Use

The private use defence creates an exception for individuals who possess child pornography material that were created for private use by the individual depicted in the material, and where the sexual activity depicted is lawful. This exception was intended to protect minors who take sexual photos of themselves for private use.

Quick Facts

What is Child Pornography?

Section 163.1(1) of the Criminal Code outlines what exactly constitutes child pornography in Canada. Child pornography is any photograph, film, video or other visual representation, whether or not it was made by electronic or mechanical means, written material, visual or audio recordings, that shows an individual who is or is depicted as, under the age of eighteen years old and is engaged or depicted as engaged in sexual activity, or where the dominant characteristic of the depiction is for a sexual purpose or of a sexual organ or anal region of a person under the age of eighteen years old.

What if the Files were Deleted?

It is generally not relevant whether or not the files were deleted. Law enforcement officials utilize sophisticated computer technology to uncover files that have been previously deleted in order to gather evidence against an accused. An individual is guilty of possession of child pornography even if they deleted the files and are no longer in possession.

How does the Crown Prove a Child Pornography Offence?

To gain a conviction for child pornography the Crown must prove that the accused possessed, created, distributed or accessed child pornography. The Crown must also prove that the materials constitute child pornography and that the accused intended to possess, access, create or distribute them.

Will I have to Register as a Sex Offender if I am Convicted?

Yes. The Criminal Code provides a list of designated sexual offences, that if committed, will warrant a mandatory SOIRA order. A SOIRA order is an order under the Sex Offender Information Registration Act requiring an offender to register as a sex offender for a period of time. Child pornography is a designated sexual offence so those who are convicted will be required to register as a sex offender on a mandatory basis.

How to Defend a Child Pornography Offence?

Child pornography offences can be of the most difficult to defend. Sexual offences involving children are of the most serious in Canada and as a result are investigated and prosecuted aggressively. Law enforcement employ sophisticated technology to track down offenders and this evidence can be difficult to defend. Having experienced legal counsel on your side will ensure you receive the best possible outcome for your case.

Can I get my Child Pornography Offence Dropped?

Having a child pornography charge dropped can be very difficult. Crown attorneys prosecute such offences aggressively and are rarely willing to negotiate charges down to a lesser offence. In almost all cases, it is necessary to vigorously fight a child pornography charge to receive any positive outcome.

Will a Child Pornography Conviction Affect my Ability to Travel?

In many cases, yes. Having a criminal conviction on one’s record, especially for sexual offences involving children, can make it very difficult to travel outside of Canada. Many countries deny entry to those convicted of certain criminal offences. The Unites States in particular is strict regarding whom they will allow over their borders and regularly refuse entry to those convicted of even minor offences.

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