Child Pornography Forensic Computer Experts

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CHILD PORNOGRAPHY FORENSIC COMPUTER EXPERTS

Our Firm has an in-house computer expert department to analyze computers and hard drives seized by law enforcement and local police in child pornography stings. We work with firms to defend child pornography charges as technology evolves. We help our partner firms to advance defences associated with hacking and file-sharing programs frequently used to apprehend offenders in child pornography investigations on the darknet. We typically obtain a clone of all material and operating systems seized by police pursuant to s.490(15) of the Canadian Criminal Code for independent analysis, which requires special forensic law enforcement software to review. We reverse engineer the process to determine whether information corresponds with that used by law enforcement to obtain a search warrant, such as the information provided by the Officer in Charge in the Information to Obtain (ITO).

We provide an independent categorization of the alleged material seized by law enforcement. Including relevant defence details associated with this material frequently used and important to sentencing. We have been retained to advance defences associated with inflated number counts and duplicate content between different storage mediums, as law enforcement does not distinguish these categories in detail when the size of a collection becomes excessive.

When this material is disclosed to defence counsel by law enforcement, it is generally a system image or copy of the alleged material. Some of our clients are unaware of the material or its origin, notwithstanding its existence on the hard drive. Accordingly, we have worked with Police Technological Crimes Officers to convert this system image into a Virtual Machine, i.e., enabling the user to browse the seized computer as if it were fully functioning. This enables a more comprehensive level of testing than simply browsing the system image. Extreme caution is required when undertaking these measures, as the forensic examiner risks distribution of the child pornography upon booting the Virtual Machine, depending on which programs were running at the time of seizure. Special safeguards are required if you are undertaking this level of analysis.

We have been involved in investigations with the National Child Exploitation Coordination Centre (NCECC) and the FBI, who often receive complaints from the National Centre for Missing and Exploited Children (NCMEC), located in the United States. We have also defended numerous allegations where the agencies have worked in collaboration with the Internet Child Exploitation Unit (ICE), here in Ontario.

Offences involving the possession or distribution of child pornography are very serious allegations of sexual misconduct. Crown prosecutors vigorously prosecute individuals charged with these offences. The consequences of a conviction can be enormous, and include serious social, relationship, employment and travel consequences in addition to potentially severe penal sanctions.

In our, R v E.G., the Firm handled one of Toronto’s largest child pornography cases. Police seized over 500, 000 images and 600 videos of child sexual abuse content. Police obtained production orders to obtain the files that were being exchanged through what the users believed to be an encrypted communication. The Firm critically analyzed the police investigation, including the production orders, search warrants and other police search tactics used to compromise the encrypted program being used.

Frequently Asked Questions

What is Child Pornography?
Can Written Materials Constitute Child Pornography?
Can Audio Recordings Constitute Child Pornography?
Are Child Pornography Charges Limited to Content Depicting “Real” Persons?
What Criminal Offences Relate to Child Pornography?
What is a Warrant of Seizure?
What is the Offence of Making, Printing and Publishing Child Pornography?
What Penalties are Associated with a Conviction for Making, Printing and Publishing Child Pornography?
What is Transmitting, Distributing or Making Available Child Pornography?
What Penalties are Associated with a Conviction for Transmitting, Distributing or Making Available Child Pornography?
What is Accessing Child Pornography?
What Penalties are Associated with a Conviction for Accessing Child Pornography?
What is Possession of Child Pornography?
What Penalties are Associated with a Conviction for Possessing Child Pornography?
What are some Other Offences that may be laid during Child Pornography Investigations?
What is Luring a Child?
What Penalties are Associated with a Conviction for Luring a Child?
What is Making Sexually Explicit Material Available to a Child?
If Child Pornography Content is Purchased, is this Relevant?
How Will the Criminal Law Group Defend Child Pornography Allegations?

What is Child Pornography?

Section 163.1 of the Criminal Code defines child pornography as a photographic film, video, or other visual representation, whether or not it was made by electronic or mechanical means, that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years.

This definition covers a broad amount of content.

Can Written Materials Constitute Child Pornography?

Yes, the definition of child pornography can include written materials. The Criminal Code states any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years is an offence.

Basically, any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years can constitute a criminal offence contrary to the Criminal Code of Canada.

Can Audio Recordings Constitute Child Pornography?

Yes, the definition of child pornography can include audio recordings. The Criminal Code states any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years is an offence.

Basically, any audio recording whose dominant characteristic, description, presentation or representation is for a sexual purpose, of sexual activity with a person under the age of eighteen years can constitute a criminal offence contrary to the Criminal Code of Canada.

Are Child Pornography Charges Limited to Content Depicting “Real” Persons?

Child Pornography charges can be laid even if there is no “flesh and blood” person depicted in the content. Courts in Canada have held that child pornography charges can be laid, even if the “person” depicted is an imaginary human being. Thus, charges can be laid for drawings, cartoons or computer generated composites.

The Criminal Code does not differentiate between drawings or anime and real photos. They can all be the subject of criminal charges. As long as the purpose of the media is to depict children in a pornographic manner, than the materials can constitute child pornography.

What Criminal Offences Relate to Child Pornography?

Section 163.1(2) – Making, Printing and Publishing Child Pornography

Section 163.1(3) – Transmitting, Distributing or Making Available Child Pornography

Section 163.1(4) – Possession of Child Pornography

Section 163.1(4.1) – Accessing Child Pornography

What is a Warrant of Seizure?

A warrant of seizure is an order made by a judicial official permitting police to seize any representation, written material or recording, that is child pornography within the meaning of section 163.1 of the Criminal Code.

In order for a warrant of seizure to be issued, the judicial official must receive information, given under oath, that suggests there are reasonable grounds to believe that any publication, copies of which are kept for sale or distribution, are located at a premises within the jurisdiction of the court and that they are representations of child pornography.

What is the Offence of Making, Printing and Publishing Child Pornography?

Section 163.1(2) of the Criminal Code makes it an offence to make, print, publish or possess child pornography for the purposes of publishing it.

Taking photos or videos on any device can also count as making child pornography.

In order for there to be a criminal conviction, the Crown must be able to prove an accused person committed a guilty act and that he or she had the requisite criminal intent. All of these elements must be proven beyond a reasonable doubt. Specifically, the Crown must prove the following:

  • An accused person either made, printed, published or possessed for the purpose of publishing materials;
  • The materials were child pornography;
  • The accused person intended to do what they did;
  • The accused person knew (or was willfully blind) the materials were child pornography.

What Penalties are Associated with a Conviction for Making, Printing and Publishing Child Pornography?

Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.

Section 163.1(2) of the Criminal Code sets out the penalties upon a conviction for making, printing or publishing child pornography and indicates it is a straight indictable offence, meaning the Crown has no discretion to elect summarily with these charges:

  • Maximum Sentence: 14 years
  • Minimum Sentence: 1 year

What is Transmitting, Distributing or Making Available Child Pornography?

Section 163.1(3) of the Criminal Code makes it an offence to transmit, distribute or make available child pornography content. Charges can arise under this section anytime an individual helps another person access child pornography. It can include an act as simple as sharing a link or image of child pornography with another person.

In order for there to be a criminal conviction, the Crown must be able to prove an accused person committed a guilty act and that he or she had the requisite criminal intent. All of these elements must be proven beyond a reasonable doubt. Specifically, the Crown must prove the following:

  • An accused person either made available, distributed, sold, advertised, exported or possessed child pornography for the purpose of transmitting it;
  • The material constitutes child pornography;
  • The accused intended to make child pornography available to others.

What Penalties are Associated with a Conviction for Transmitting, Distributing or Making Available Child Pornography?

Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.

Section 163.1(3) of the Criminal Code sets out the penalties upon a conviction for transmitting, distributing or making available child pornography and indicates it is a straight indictable offence, meaning the Crown has no discretion to elect summarily with these charges:

  • Maximum Sentence: 14 years
  • Minimum Sentence: 1 year

What is Accessing Child Pornography?

Section 163.1(4.1) of the Criminal Code makes it an offence to access child pornography. Charges can arise even if an individual does not actually possess child pornography. Charges can arise simply from knowingly opening a file or link that accesses child pornography.

In order for there to be a criminal conviction, the Crown must be able to prove an accused person committed a guilty act and that he or she had the requisite criminal intent. All of these elements must be proven beyond a reasonable doubt. Specifically, the Crown must prove the following:

  • Accused accessed materials;
  • The materials were child pornography;
  • The accused knew or was willfully blind that the materials were child pornography.

What Penalties are Associated with a Conviction for Accessing Child Pornography?

Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.

One of the most important factors when a sentence is being determined is whether the Crown decided to proceed summarily or by indictment. Summarily offences attract significantly lesser penalties than offences prosecuted by indictment. Accessing child pornography is an offence that can be prosecuted either summarily or by indictment. Depending on the mode of election, both prosecutions attract a minimum sentence of imprisonment. There is also a maximum sentence outlined in the Criminal Code.

Section 163.1(4.1) of the Criminal Code sets out the minimum and maximum penalties upon a conviction for accessing child pornography:

  • Indictment
    • Maximum Sentence: 10 years
    • Minimum Sentence: 1 year
  • Summarily
    • Maximum Sentence: 2 years less a day
    • Minimum Sentence: 6 months

What is Possession of Child Pornography?

Section 163.1(4) of the Criminal Code makes it an offence to possess child pornography. Charges can only arise under this section if you have child pornography materials under your control.

In order for there to be a criminal conviction, the Crown must be able to prove an accused person committed a guilty act and that he or she had the requisite criminal intent. All of these elements must be proven beyond a reasonable doubt. Specifically, the Crown must prove the following:

  • Accused possessed images, videos or texts;
  • The accused intended to possess the images, video or texts;
  • The images, videos or texts were child pornography materials.

Charges under this section do not require proof that the accused knew the materials were child pornography. It is possible to be charged with possession of child pornography even if you never view the materials. The simple act of possessing the materials is what constitutes a criminal offence. However, there are exceptions if materials are innocently possessed. For example, if something is in your possession for the sole purpose of either destroying it or reporting it to the police.

What Penalties are Associated with a Conviction for Possessing Child Pornography?

Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.

One of the most important factors when a sentence is being determined is whether the Crown decided to proceed summarily or by indictment. Summarily offences attract significantly lesser penalties than offences prosecuted by indictment. Possessing child pornography is an offence that can be prosecuted either summarily or by indictment. Depending on the mode of election, both prosecutions attract a minimum sentence of imprisonment. There is also a maximum sentence outlined in the Criminal Code.

Section 163.1(4) of the Criminal Code sets out the minimum and maximum penalties upon a conviction for possessing child pornography:

  • Indictment
    • Maximum Sentence: 10 years
    • Minimum Sentence: 1 year
  • Summarily
    • Maximum Sentence: 2 years less a day
    • Minimum Sentence: 6 months

What are some Other Offences that may be laid during Child Pornography Investigations?

There are other criminal offences that deal with underage victims and can often arise in situations where child pornography charges are laid.

Offences that may also arise in criminal investigations of potential offenders with child pornography include:

  • Luring a Child – Section 172.1
  • Making Sexually Explicit Material Available to a Child – Section 171.1

What is Luring a Child?

Section 172.1 of the Criminal Code makes it a criminal offence to lure a child by a means of telecommunications.

There are three circumstances where luring charges can arise, and they vary depending on the age of the victim;

  • If the victim is under 18 (or the offender believes the victim to be under 18): luring charges can be laid if the offender communicates for the purpose of facilitating the commission of sexual exploitation, incest, child pornography, parent or guardian procuring sexual activity, invitation to sexual touching or a prostitution-related offence with respect to that child;
  • If the victim is under 16 (or the offender believes the victim to be under 16): luring charges can be laid if the offender communicates for the purpose of facilitating the commission of sexual interference, invitation to sexual touching, bestiality in the presence of or by a child, indecent acts, sexual assault, sexual assault with a weapon or causing bodily harm, aggravated sexual assault or abduction of a person under sixteen with respect to that child;
  • If the victim is under 14 (or the offender believes the victim to be under 14): luring charges can be laid if the offender communications for the purpose of facilitating the abduction of a person under 14 with respect to that child.

In Canadian law, a presumption of age is made in our Criminal Code. Section 172.1(3) states that if evidence is represented to the accused that a person is underage than we presume that the accused believed the person was underage, unless evidence is presented to the contrary. It is not possible to simply assert a belief that the child was a certain age, unless the accused person took reasonable steps to determine the child’s age.

What Penalties are Associated with a Conviction for Luring a Child?

Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.

One of the most important factors when a sentence is being determined is whether the Crown decided to proceed summarily or by indictment. Summarily offences attract significantly lesser penalties than offences prosecuted by indictment. Child luring is an offence that can be prosecuted either summarily or by indictment. Depending on the mode of election, both prosecutions attract a minimum sentence of imprisonment. There is also a maximum sentence outlined in the Criminal Code.

Section 172.1(2) of the Criminal Code sets out the minimum and maximum penalties upon a conviction for luring a child:

  • Indictment
    • Maximum Sentence: 10 years
    • Minimum Sentence: 1 year
  • Summarily
    • Maximum Sentence: 18 months
    • Minimum Sentence: 90 days

What is Making Sexually Explicit Material Available to a Child?

Section 171.1 of the Criminal Code makes it a criminal offence to make sexually explicity materials available to a child.

There are three circumstances where making sexually explicit material charges can arise, and they vary depending on the age of the victim;

  • If the victim is under 18 (or the offender believes the victim to be under 18): making sexually explicit material available charges can be laid if the offender transmits, makes available, distributes or sells sexually explicit material for the purpose of facilitating the commission of sexual exploitation, incest, child pornography, parent or guardian procuring sexual activity, invitation to sexual touching or a prostitution-related offence with respect to that child;
  • If the victim is under 16 (or the offender believes the victim to be under 16): making sexually explicit material available charges can be laid if the offender transmits, makes available, distributes or sells sexually explicit material for the purpose of facilitating the commission of sexual interference, invitation to sexual touching, bestiality in the presence of or by a child, indecent acts, sexual assault, sexual assault with a weapon or causing bodily harm, aggravated sexual assault or abduction of a person under sixteen with respect to that child;
  • If the victim is under 14 (or the offender believes the victim to be under 14): making sexually explicit material available charges can be laid if the offender transmits, makes available, distributes or sells sexually explicit material for the purpose of facilitating the abduction of a person under 14 with respect to that child.

If Child Pornography Content is Purchased, is this Relevant?

Yes, if content is purchased this is a relevant consideration at the sentencing stage. Section 163.1(4.3) of the Criminal Code states that it is an aggravating factor for a person convicted of a child pornography offence to have committed the offence with an intention to make a profit.

How Will the Criminal Law Group Defend Child Pornography Allegations?

Child pornography charges are complex allegations. There are a number of potential defences to these charges. There are some exceptions that preclude a criminal conviction if an alleged offence under section 163 of the Criminal Code was committed for a legitimate purpose related to the administration of justice, science, medicine, education or art and there is no undue risk of harm to persons under the age of eighteen.

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