FIRST OFFENDER? DEFEND CHILD PORNOGRAPHY CHARGES IN ST. CATHARINES. 1-866-DEFENCE.
Statistics Canada reported a 41% increase in child pornography incidents from 2015 to 2016, and a 233% increase in child pornography incidents from 2006 to 2016. As well in 2016, the number and rate of child pornography incidents reported to police for the eighth consecutive year. As a result, there were 17 incidents of police-reported child pornography per 100,000 population in 2016. This increase in the number of police reported child pornography incidents is also reflected in St. Catharines. In 2018, a St. Catharines resident was charged with possession and making of child pornography. In 2019, the Niagara Regional Police Service Internet Child Exploitation commenced an investigation into the sexual exploitation of children. This resulted in the arrest of a St. Catharines man for making, possessing, and accessing child pornography. Individuals crossing the Canada – United States border near St. Catharines risk being searched for child pornography materials on their electronic devices. In April 2019, a B.C. truck driver was found guilty of crossing the border with obscene material on his phone.
The St. Catharines Courthouse is located at 59 Church Street in St. Catharines, Ontario. The Superior Court of Justice for youths and adults and the Ontario Court of Justice for St. Catharines can be reached at 905-988-6200. The Crown Attorney for the St. Catharines Courthouse can be contacted at 905-685-4293.
If you are charged with child pornography, including importing at the border, you will be restricted from contacting children. A publication ban may also be an option to discuss with a lawyer, given that local media may cover the case.
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].
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.
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.
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?
What are the Best Defences to Child Pornography Offences in St. Catharines?
-Innocent Possession
-Public Good
-Private Use
Will I be a Sex Offender if I am Convicted of Child Pornography?
What are the Penalties for a Child Pornography Conviction in St. Catharines?
-Accessing Child Pornography
-Possession of Child Pornography
-Making Child Pornography
-Distributing Child Pornography
Can Written Materials be classified as Child Pornography?
What are Aggravating Factors in Child Pornography Sentencing?
What are Mitigating Factors for Child Pornography Sentencing?
How is Child Pornography Categorized?
Additional Resources
Assault
Assaulting a Peace Officer
Child Pornography Forensics
Children’s Aid Society
Sex Offender Prohibition Orders
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?
The definition of child pornography is outlined in section 163.1(1) of the Criminal Code. It states that child pornography is any video, film, photograph or other visual representation, whether or not it was made by electronic means, that shows a person who is under the age of eighteen or who is depicted as being under the age of eighteen and is engaged in or depicted as engaging in sexual activity, or where the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal area of an individual under the age of eighteen.
Child pornography also includes any written material, audio recording or visual representation that advocates or counsels sexual activity with an individual under the age of eighteen that would be a criminal offence under the Criminal Code, any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen that would be a criminal offence under the Criminal Code, and any audio recording that has as its dominant characteristics the description, representation or presentation, for a sexual purpose, of sexual activity with an individual who is under the age of eighteen that would be a criminal offence under the Criminal Code.
hat are the Best Defences to Child Pornography Offences in St. Catharines?
Law enforcement officials in Canada and abroad devote considerable resources to tracking down and prosecuting those suspected of accessing, possessing, creating or distributing child pornography. In many cases, law enforcement from the United States and even Europe tip off Canadian authorities about Canadian internet users who appear to be accessing or trading child pornography online. They utilize sophisticated computer software to track domains, IP addresses and users linked to child pornography materials. As a result, these offences are often quite difficult to defend.
Common defences used in child pornography cases in St. Catharines include innocent possession, public good and private use.
Innocent Possession
A defence sometimes used in child pornography cases is the innocent possession defence. An accused may use the defence of innocent possession when they possess child pornography for an innocent purpose, such as destroying the materials or handing them over to law enforcement. Once the Crown has proven that the accused did in fact possess materials that can be considered child pornography, the accused may argue that they possessed the materials for an innocent purpose. For this defence to be successful the accused will generally be required to present some evidence to the Court proving their possession was innocent.
Public Good
Section 163.1(6) of the Criminal Code codifies the defence of public good. An individual who has been charged with accessing or possessing child pornography may use the defence of public good if they were accessing or possessing the materials for some legitimate purpose related to the administration of justice. The materials must not have caused undue risk of harm to a person under the age of seventeen for this defence to be successful.
Private Use
The defence of private use may be used in rare circumstances where the individual depicted in the child pornography materials is also the person who possesses the materials and created the materials. An individual may argue private use where the materials were created for private use, depict lawful sexual activity and were created by and depict the person who is in possession of them. For example, a teenager who took nude photos of themselves would not be guilty of child pornography, even though the materials are considered child pornography under the Criminal Code. This exception was created to ensure minors who take photos of themselves are not convicted of child pornography offences and labeled sexual predators.
Will I be a Sex Offender if I am Convicted of Child Pornography?
Yes. Section 490.011(1)(a) of the Criminal Code provides a list of designated sexual offences. If an offender is convicted of any of these offences, they will be required to register as a sex offender under the Sex Offender Information Registration Act (SOIRA) on a mandatory basis. Upon conviction, the Court will issue the offender a SOIRA order which requires them to register as a sex offender for ten years, twenty years or life depending the on severity of the allegations. All child pornography offences are considered designated sexual offences. As a result, all those who are convicted are required to register as sex offenders on a mandatory basis.
hat are the Penalties for a Child Pornography Conviction in St. Catharines?
Child pornography offences are among the most serious crimes an individual can be charged with. Those who are convicted are almost always sentenced to a period of incarceration and in many cases, offenders are sentenced to several years in prison. The amount of child pornography and type of child pornography found will play a large role in the sentence imposed on the accused upon conviction.
Accessing Child Pornography
Accessing child pornography is a hybrid offence. This means that the Crown will elect to proceed either summarily or by indictment, depending on the nature and severity of the allegations. The Crown election will determine, among other things, the maximum penalty that may be imposed on the accused if they are convicted. In serious cases where there is a significant amount of pornography or the nature of the pornography is particularly shocking the Crown will proceed by indictment and in all other cases the Crown will proceed summarily. Where the Crown proceeds by indictment, an accused will face a maximum of ten years in prison and a minimum of one year in prison. Where the Crown proceeds summarily, an accused will face a maximum of two years less a day in prison and a minimum of six months in prison.
Possession of Child Pornography
Possession of child pornography is a hybrid offence. This allows the Crown to elect to proceed either summarily or by indictment, depending on the nature and severity of the allegations. The Crown will proceed by indictment in more serious cases and summarily in all other cases. Where the Crown proceeds by indictment an accused will face a maximum of ten years in prison and a minimum of one year in prison. Where the Crown proceeds summarily the accused will face up to two years less a day in prison and a minimum of six months in prison.
Making Child Pornography
Making child pornography is an indictable offence. Those who are convicted will face a maximum of fourteen years in prison and a minimum of one year in prison if convicted.
Distribution of Child Pornography
Distribution of child pornography is an indictable offence. Those who are convicted will face a maximum of fourteen years in prison and a minimum of one year in prison.
Can Written Materials be Child Pornography?
Simply put, written materials are constituted as child pornography in the Criminal Code. Section 163.1(1)(b) of the Criminal Code describes that any written material (or audio recording or visual representation) that either counsel or advocates sexual activity with a person between the ages of zero and seventeen is an offence in Canada. As well, section 163.1(c) explains that any written material that contains a dominant characteristic of describing, for a sexual purpose, sexual activity with a person between the ages of zero and seventeen is also an offence in Canada. In order for written materials to be considered child pornography in St. Catharines, they must contain either encouragement or active inducements of sexual activity with a person between the ages of zero to seventeen. This may be either implicit or explicit from the narrative contained in the written materials.
What are Aggravating Factors for Child Pornography Sentencing?
Some of the aggravating factors that are considered by a judge for child pornography sentencing in St. Catharines include:
– if child pornography materials were distributed or shown to an individual younger than eighteen years old.
– the volume of videos, images, or texts collected by the accused.
– how sophisticated the child pornography collection is.
– if the accused distributed texts, images, or videos to a public area of the internet or in a way where they may be accidentally accessed by an individual not searching for this content.
– if the accused is responsible for the making of the child pornography.
– if the accused makes child pornography with individuals who are members of their own family or individuals who belong to a vulnerable group.
– if the accused abused a position of trust (e.g. a teacher or social worker) to gain access to victims.
– the age of the children depicted in the child pornography materials.
– the degree of repulsivity and intrusion of the sexual acts depicted in the child pornography materials.
– whether the materials were downloaded or purchased.
– signs that the accused potentially distributed or produced child pornography materials.
– the accused’s related criminal record.
– evidence that the accused has a diagnosis of pedophilia or has pedophilia inclinations.
What are Mitigating Factors for Child Pornography Sentencing?
Some of the mitigating factors that are considered by a judge for child pornography sentencing in St. Catharines include:
– a young age of the accused.
– otherwise good character exhibited by the accused.
– the extent to which the accused has demonstrated insight into their problem.
– the extent to which the accused has demonstrated genuine remorse.
– whether or not the accused is willing to complete treatment or counselling.
– whether or not the accused already has undergone treatment or counselling.
– the presence of a guilty plea by the accused.
– if the accused has already suffered for their crime.
How is Child Pornography Categorized?
There are five categories that depictions of child pornography may fall under. From least serious to most serious, these categories are:
1) photos that depict erotic posing, but include no sexual activity;
2) sexual activity between individuals who are between the ages of zero to seventeen;
3) sexual activity that does not contain explicit sexual acts between an individual aged eighteen and older and an individual younger than eighteen years;
4) sexual activity that does contain explicit sexual acts between an individual aged eighteen and older and an individual younger than eighteen years; and
5) bestiality or sadism.
Quick Facts
What is Distribution of Child Pornography?
An individual is guilty of distribution of child pornography when they transmit, distribute, make available, sell, advertise, export, import or possess for the purposes of transmission, distribution, making available, sale, advertising or exportation any child pornography.
What is Making Child Pornography?
An individual is guilty of the offence of making child pornography if they publish, make, print or possess for the purposes of publication any materials that can be considered child pornography.
What if the Child Pornography Materials were Deleted?
It is generally not relevant if child pornography materials were deleted from an individual’s computer or other electronic device. If the individual possessed child pornography at any point and the Crown can prove it, the individual will be convicted of possessing child pornography.
What if I Clicked on the Child Pornography by Accident?
Generally, if an individual clicked on child pornography accidentally only once, they will not gain the attention of law enforcement. In the majority of cases law enforcement will not arrest an individual for a child pornography offence for clicking on one file one time if the file was stumbled upon. If, however, an individual searched for child pornography and then clicked on one file, they may be arrested and charged with accessing child pornography.
Are Written Materials or Drawings Considered Child Pornography?
Yes. Written materials and drawings are considered child pornography if they advocate or counsel sexual activity with a person under the age of eighteen that would be a crime in Canada, or if they depict or describe a person under the age of eighteen engaging in sexual activity that would be a crime in Canada.
Will I go to Jail for Child Pornography?
Yes. Almost everyone who is convicted of child pornography will be incarcerated. Mandatory minimum sentences exist for all child pornography offences, with the lowest minimum being six months. This means that virtually every adult who is convicted of child pornography will be sentenced to at least six months in prison.
What if I am a First-Time Offender?
Even first-time offenders are regularly sentenced to prison for child pornography offences. All child pornography offences have mandatory minimum prison sentences, with the lowest sentence being six months for accessing and possessing child pornography. That means that virtually everyone who is convicted of a child pornography offence will be sentenced to at least six months in prison.