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Getting Bail for Child Pornography

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Being a Surety for Child Pornography

Sexual offences involving children are among the most serious offences outlined in the Criminal Code. This area of offences includes child pornography offences, sexual interference, invitation to sexual touching, and luring, among others. Recent changes in the law have resulted in longer maximum penalties, which has in turn started a trend towards higher average prison sentences overall for those convicted.

In addition to increased prison sentences for those convicted, those charged with a child sexual offence will be placed on strict conditions at the time of their arrest. These conditions will limit the accused’s liberty until the case has been resolved, which in many cases can be two years or more. In the most serious cases, the Crown may oppose the accused’s release altogether, which if successful could result in the accused being remanded in custody pending the outcome of their case. As a result, it is important to have experienced legal counsel represent you during a bail hearing for charges related to child sexual abuse.

Is Child Pornography Considered a Child Sex Abuse Offence?

Yes. Child pornography offences are among the most serious offences outlined in the Criminal Code and are considered child sexual abuse crimes. There is often a misconception that child pornography is not considered child sexual abuse because the accused individual never actually touched a child. While that may be true, the fact is, for child pornography material to exist, a child was sexually abused. Courts have indicated that each time child sexual abuse material is consumed in the form of child pornography, the child is being re-victimized. As a result, child pornography offences are considered child sexual abuse. The fact that the accused never touched a child is not a mitigating factor.

What will Happen if I am Charged with A Child Sex Abuse Offence?

When police receive credible information indicating that an individual has committed a child sexual abuse offence like sexual interference or child pornography, they will arrest the accused and charge them with a criminal offence. Once an accused is placed under arrest and charged, it is within police discretion to release the individual or hold them for a bail hearing. Given the serious nature of child sexual abuse allegations, police will typically hold the offender for a bail hearing.

Will the Police come to my House to Arrest me?

Whether or not the police will attend the accused’s house or place of work to arrest them will depend on a number of factors, including the offence the accused is being charged with.

For example, in child pornography cases it is common for police to execute a search warrant on the accused’s house to collect evidence, typically electronic devices. In some cases, police will have enough to arrest the accused even before executing the search warrant. In these cases, the accused will likely be placed under arrest once police arrive at the scene to execute the warrant.

In other cases, police may not have enough evidence to charge the accused with a crime at the time they execute the warrant. In those cases, they will search the house and seize any evidence they believe may be related to the crime. Typically, electronic devices are seized to be taken back to the police station to be searched. If evidence of a crime is found on the devices, the police will arrest the accused.

It is within police discretion to attend the accused’s house or place of employment to place them under arrest, or to simply call them and ask them to turn themselves in. Police are more likely to attend the accused’s residence or place of employment if they are concerned about the accused attempting to evade arrest or attempting to destroy evidence. Where police don’t have concerns of this nature, they may contact the accused by phone and ask them to attend the police station to turn themselves in.

When dealing with allegations of sexual interference, invitation to sexual touching, or any other offence where there is a direct victim, the police may attend the accused’s home or work to place them under arrest if there are concerns the accused will reoffend. For example, where an accused is alleged to have committed the offence more recently, the police may have more urgency to arrest the individual for fear they pose a risk to the victim or the public. On the other hand, if the allegation stems from an incident that happened in the past, there may be less urgency to arrest the accused as there is less of a public safety concern. In these cases, it is more likely that the police will call the accused and ask them to turn themselves in.

Defending Child Pornography Charges

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Timeline of a Bail Hearing

When an accused is held for a bail hearing, that means they will remain in custody until they can be brought before a judge. Pursuant to section 11(e) of the Charter, an individual must be brought before a judge within 24 hours of arrest or as soon as practicable. While an individual has the right to be brought before the court within 24 hours, this does not necessarily mean they have the right to have their bail hearing within 24 hours or be released within 24 hours. Depending on the nature of the allegations, seriousness of the charges, criminal history of the accused, and availability of an appropriate release plan, an accused person may not have their bail hearing within 24 hours. In some cases, it takes longer to arrange a release plan that both the Crown and Court are agreeable to. Until an amenable release plan has been presented to the court, the accused will remain in custody.

What Happens at a Bail Hearing?

A bail hearing is a court appearance aimed at creating an appropriate release plan for the accused individual. In Canada, those who are charged with a criminal offence are presumed innocent until proven guilty. As a result, there is a presumption that those who are arrested will be released from custody pending the outcome of their matter. There is a further presumption that they will be released with no conditions where possible. A bail hearing is a formal court process where the Crown and defence lawyers will present a plan of release to the Court for consideration. In some cases, the Crown may oppose release altogether.

Prior to the bail hearing beginning, the Crown and defence lawyer can discuss the case and negotiate a release plan. This will include the conditions the accused must abide by while out on bail. In some cases, the Crown and defence counsel can work out a release plan prior to the formal bail hearing. Where the lawyers can come to an agreement, the proposed release plan will simply be presented to the Court for the Court’s consideration. The Court may accept the proposed plan or may decide to make changes. Once the Court is satisfied with the proposed release plan, they will sign off on the accused’s release and the accused will be processed out of custody.

In cases where the Crown and defence counsel cannot come to an agreement on a release plan, the bail hearing will be a contested hearing. This means both lawyers will make submissions to the Court regarding what they believe is the appropriate release plan. The Court will then determine on what conditions the accused can be released, if at all.

Online Sex Offence are on the Rise in Canada

Common Conditions for Child Sexual Abuse Bails

When an individual is charged with a child sexual abuse offence like child pornography, sexual interference, or luring, they will often be held for a bail hearing. In most cases, they will be released from the bail hearing. Only in the most serious cases, where the accused is a repeat offender, or in situations where the accused poses a risk to the public will they be denied bail.

Given the serious nature of child sexual abuse allegations, those released on bail will face strict conditions for the duration of their case, which could be two years or more.

Common conditions include:

  • Requiring the accused to remain in their territorial jurisdiction. For example, if you were arrested in and reside in Ontario, you may be directed to remain inside the jurisdiction of Ontario.
  • Requiring the accused to update the Officer in Charge of their case of any changes in address, name, employment, or occupation.
  • Requiring the accused to deposit their passport with the police.
  • Refraining from attending schools, community centres, day care centres, swimming pools, parks, or anywhere else children are known to be or frequent.
  • Refraining from contacting the complainant or their family (if there was a complainant).
  • Refraining from attending the home, school, place of work, or place of worship of the complainant, or anywhere else the complainant is known to frequent (if there was a complainant).
  • Refraining from accessing the internet or from possessing devices capable of accessing the internet or another digital network. This is common with child luring and child pornography cases.
  • Refraining from possessing any weapons as defined by the Criminal Code.
  • Refraining from volunteering, seeking employment, or being in a position of trust or authority over anyone under the age of 18.
  • Not to be alone with anyone under the age of 18.
  • To live with a residential surety and abide by their rules.

Those charged with child sexual abuse offences face some of the most stringent bail conditions available, including residing with a residential surety. A surety is essentially a community jailer. It is someone in the accused’s life that has agreed to watch the accused while they are out on bail to ensure they abide by their conditions and stay out of trouble. In many cases, the accused is required to reside with this individual and abide by the rules and routines of the household. If the accused commits another offence or fails to abide by their bail conditions, it is the surety’s role to call the police and report the breach. If the surety fails to do so, they may be ordered to pay a sum of money previously promised to the court.

Another extremely limiting condition that is quite common in cases involving child sexual abuse and the internet are conditions prohibiting the accused from accessing the internet or possessing devices capable of accessing the internet. Given that these conditions can remain in place for more than two years, having no access to the internet can be an extremely limiting condition.

Experienced counsel can negotiate with the Court and Crown to ensure the accused is able to access the internet for certain specific purposes, including for work or school, to attend court and/or communicate with their lawyer, or while they are in the direct presence of their surety.

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When will Bail be Denied?

Bail is determined on a case-by-case basis. When an individual is charged and the police decide to hold them for a bail hearing, they will forward the case file with a synopsis of the alleged offence as well as the accused’s criminal history to the Crown’s office. The file will then be reviewed by the bail vettor in the Crown’s office. The bail vettor’s job is to determine whether the accused can be released on consent, or if they should be denied bail. If the Crown determines they can consent to the release, they will then determine what conditions they wish to impose on the accused.

When determining the appropriate release plan for an accused individual, the Crown and Court must follow what is known as the ladder principle. This principle was outlined by the Supreme Court of Canada in the case of R. v. Antic. The ladder principle states that there is a presumption that everyone is to be released from custody with no conditions. This is known as the bottom rung of the ladder. At the top of the ladder is the most strict and onerous release, following by no release at all. If the Crown feels as though the bottom rung is not appropriate, they must move up the ladder step by step, indicating to the Court why the lowest or subsequent rung was not appropriate.

In addition to the ladder principle, the Crown and Court will also consider the three grounds for detention. The primary ground considers whether the accused will attend court in the future as directed. The second ground considers whether the accused will reoffend while out on bail, and the final tertiary ground looks at whether releasing the accused would cause the public to lose confidence in the justice system.  When opposing release, the Crown must indicate on which ground they are relying and provide submissions on why.

With cases involving the sexual abuse of a child, it is common for there to be concerns with the second ground for detention, which considers whether the accused will reoffend while out of custody. To address this concern, the Court will often impose a residential surety to watch the accused while they are in the community. Another common condition to address this concern is prohibitions on accessing the internet altogether, or unless in the direct presence of a surety. This condition is especially common in cases involving luring or child pornography offences.

Where bail is denied, the accused will be remanded into custody pending the outcome of their case, which can be up to or more than two years. The accused may request a bail review, which is a chance to have their case reheard. A bail review may be ordered where there is new evidence, a change in the accused’s circumstances, or where the accused believes the initial decision to deny bail was improper. A bail review is not permitted in every case, and when it is permitted, typically takes a significant amount of time to prepare for. As a result, an individual who is denied bail could remain in custody for weeks or months before they are able to get a bail review date.

Benefits of Retaining Counsel for a Bail Hearing

Bail hearings can be legally complex and difficult to follow for someone without a legal background. Further, as discussed above, the conditions imposed on an individual at a bail hearing will likely remain in place for a significant period of time, sometimes more than two years. As a result, it is important to have experienced counsel represent you at a bail hearing for a child sexual abuse charges.

Having counsel ahead of the bail hearing can ensure the accused is processed out of custody more quickly. Counsel can prepare a release plan ahead of the bail hearing and prepare all necessary documentation ahead of time. For example, if an individual is arrested and charged in the late afternoon or evening, they likely will not have their bail hearing until the following day. Defence counsel can use this time to prepare documents and a release plan to ensure the file is ready to go the next morning when the court opens. Additionally, those with retained counsel are typically heard before individuals without counsel. Defence counsel can reach out to the Crown even before court opens to provide them with material. This will likely get the accused’s matter moved up to the top of the pile and processed more quickly.

Having experience counsel for a bail hearing will also ensure the accused is released on the least onerous grounds possible. Counsel can negotiate with the Crown on the file for more lenient conditions and can advocate on behalf of the client if the Crown opposes release. Counsel can make arguments to the Court regarding the accused’s release and present any applicable case law to bolster their arguments. Due to the fact paced and legally technical nature of bail hearings, it is important to have someone who knows the law and who can think and formulate appropriate legal submissions on the spot when necessary.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.