FIRST OFFENDER? DEFEND CHILD PORNOGRAPHY CHARGES IN OAKVILLE.  416-DEFENCE.

Child pornography offences are among the most serious offences an individual can be charged with in Canada. Those who are convicted almost always face custodial sentences as a result of mandatory minimum sentences that have been put in place. As a result, it is important to protect your rights. The most effective way to do this is often to hire experienced legal counsel.

Donich Law has devoted a portion of its practice to defending those charged with various child pornography offences and regularly obtain favourable results for our clients. In addition to child pornography offences we have experience defending other sexual offences including sexual assault, sexual interference, sexual exploitation, invitation to sexual touching and indecent exposure. We combine risk management and litigation to ensure the best possible outcomes for our clients.

In 2020, Donich Law represented an individual charged with distribution of child pornography in R. v. M.C. [2020]. The accused was alleged to have shared child pornography files with an individual in Europe. The investigation involved law enforcement from Canada, the United States and Europe. The Firm was ultimately able to have the charges withdrawn.

In 2017, the Firm represented an individual charged with distributing child pornography in R. v. J.A. [2017]. In that case, the Internet Child Exploitation Unit (ICE) in Ontario received a tip from the National Child Exploitation Coordination Centre (NCECC) and the FBI in the United States regarding files being shared by an internet user in Southern Ontario. After litigating the matter, the Firm was able to have the charges against the accused withdrawn.

In 2014, the Firm represented an individual charged in one of Ontario’s largest child pornography busts involving over 500,000 images and 600 videos in R. v. E.G. [2014]. The Firm used experts to analyze search and production warrants and file sharing domains as an important evidence gathering technique.

Donich Law regularly employs computer and forensic experts to analyse files collected by police. Jordan Donich has personally attended the Internet Child Exploitation (ICE) Headquarters and handled their file sorting software used to locate and categorize child pornography materials.

If you have been charged with a child pornography offence in Oakville, Donich Law can assist you in developing the correct strategy to defend the allegations. Our Firm can also assist those who have not yet been charged with a criminal offence but have had a search warrant executed on their home. If a search warrant has been executed and the police have seized electronic devices it is very likely that charges will soon be laid. We can help protect your rights throughout the process to ensure that you receive the best outcome for your case.

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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Frequently Asked Questions

What is Child Pornography?
How to Defend a Child pornography Charge in Oakville?
-Public Good
-Innocent Possession
-Private Use
What are the Penalties for Those Convicted of Child Pornography? 
-Accessing Child Pornography
-Possessing Child Pornography
-Distributing Child Pornography
-Making Child Pornography
What other Factors does the Court Consider when Sentencing an Offender for Child Pornography? 
Will I be a Registered Sex Offender?

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?

Section 163.1(1) of the Criminal Code outlines the definition of child pornography. The Code states that child pornography is any film, video, 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 sexual activity or depicted as being engaged in sexual activity, or where 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.

Child pornography also includes any visual representation, written material or audio recording that counsels or advocates sexual activity with a person under the age of eighteen that would be an 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 an offennce under the Criminal Code, and any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under the Criminal Code.

How to Defend a Child Pornography Charge in Oakville?

Child pornography offences can be particularly difficult to defend. This is due to the sophisticated investigative techniques used by law enforcement to track and arrest those suspected of consuming child pornography. In many cases, law enforcement from the United States or even Europe tip off law enforcement in Canada. Canadian law enforcement then uses that information to secure production orders to determine who owns the IP address associated with the child pornography. This information is ultimately used to secure a search warrant for the accused’s home or other property. As a result, there is often a direct link between the online activity and the accused. Refuting this evidence can be particularly difficult.

In Oakville and throughout Ontario there are generally three defences used in child pornography cases. These defences include public good, innocent possession and private use.

Public Good

The public good defence has been codified in section 163.1(6) of the Criminal Code. The Code states that an individual shall not be found guilty of possessing or accessing child pornography where they possessed or accessed the materials for public good. This means that there must have been a legitimate purpose related to the administration of justice. In addition to having a legitimate purpose the accused must show that the sexual activity depicted does not pose an unnecessary risk to any individual under the age of seventeen years old.

Public Good

The defence of innocent possession may be used when an accused was in possession of child pornography, but the possession was innocent. An example of innocent possession would be an individual possessing child pornography material for the purpose of destroying them or surrendering them to police. To successfully use this defence the accused must convince the Court he or she had no intention of doing anything with the materials other than destroying them or surrendering them to police.

Public Good

The defence of private use was created as an exemption for teenagers who create or possess sexual materials of themselves. The defence may be used when the child pornography materials were created for private use, depict lawful sexual activity and were made by and depict the person who is in possession of them. Without this exception, a teenager who took a nude photo of themselves would be guilty of both making and possessing child pornography.

What are the Penalties for Those Convicted of Child Pornography?

Child pornography offences are among the most serious crimes an individual can be charged with. Crowns routinely advocate for lengthy periods of incarceration and many child pornography offences come with mandatory minimum prison sentences for those who are convicted.

Accessing Child Pornography

Accessing child pornography is a hybrid offence, allowing the Crown to elect to proceed summarily or by indictment depending on the severity of the allegations. Where the Crown elects to proceed summarily, the accused will face a maximum of two years less a day in jail, and/or a $5,000 fine and a minimum of six months in jail. Where the Crown proceeds by indictment, the accused will face a maximum of ten years in prison and a minimum of one year in prison.

Possessing Child Pornography

Possessing child pornography is a hybrid offence. This means the Crown will elect to proceed either summarily or by indictment depending on the nature and severity of the allegations. Where the Crown elects to proceed summarily, the accused will face a maximum of two years less a day in jail and/or up to a $5,000 fine and a minimum of six months in jail. Where the Crown proceeds by indictment the accused will face a maximum of ten years in prison and a minimum of one year in prison.

Distribution of Child Pornography

Distribution of child pornography is a straight indictable offence. An individual who is convicted will face a maximum of fourteen years in prison and a minimum of one year in prison if convicted.

Making Child Pornography

Making child pornography is a straight indictable offence. An individual who is convicted will face a maximum of fourteen years in prison and a minimum of one year in prison if convicted.

What other Factors does the Court Consider when Sentencing an Offender for Child Pornography?

When determining the most appropriate sentence for an individual who has been convicted of a child pornography offence, the Court will weigh many different factors. The Court will consider the amount of child pornography materials that were involved, the ages of the children involved, the nature of the materials and any other aggravating or mitigating factors the Court deems relevant.

Will I be a Registered Sex Offender?

Yes. As outlined in the Criminal Code, individuals who are convicted of a designated sexual offence will be required to register as a sex offender under the Sex Offender Information Registration Act (SOIRA) on a mandatory basis. All four child pornography offences are considered designated sexual offences. As a result, anyone who is convicted of a child pornography offence will be issued a SOIRA order by the Court, requiring them to register as a sex offender. Such an offender will be required to register as a sex offender for ten years, twenty years or life, as ordered by the Court.

Quick Facts

Can Written Materials be Child Pornography?

Yes. Photographs, visual materials, drawings, written materials, audio recording and any other depiction of a child engaging in sexual activity with an adult will be considered child pornography. This means that an individual who draws a child engaging in sexual activity or writes about a child engaging in sexual activity will be guilty of making child pornography.

What is Distributing Child Pornography?

An individual is guilty of distributing child pornography when they transmit, make available, distribute, sell, advertise, import, export or possess for the purposes of transmission, making available, distribution, sale, advertising or exportation any child pornography.

What is Making Child Pornography?

An individual is guilty of making child pornography when they print, publish, make or possess for the purpose of publication any child pornography. This means that if an individual were to print off images of child pornography from their computer, they may be guilty of making child pornography.

Will I be a Sex Offender if I’m Convicted of Child Pornography?

Yes. Child Pornography is a designated sexual offence. As a result, those who are convicted will be issued a SOIRA order by the Court on a mandatory basis. A SOIRA order requires an offender to register under the Sex Offender Information Registration Act (SOIRA) for a period of ten years, twenty years or life as ordered by the Court.

Will I go to Jail for Child Pornography?

Yes. All child pornography offences come with mandatory minimum prison sentences for those who are convicted. A conviction for even the most minor child pornography offence will result in a minimum of six months’ imprisonment for an accused.

Will a Child Pornography Conviction Affect my Ability to Travel?

In many cases, yes. Having a criminal record of any kind can make travel outside of Canada difficult. This is especially true where the individual was convicted of a sex offence against a child. Countries around the world, including the United Stated, regularly refuse entry to those with a criminal history.

What if I Deleted the Child Pornography?

Whether or not the child pornography materials have been deleted from the accused’s device is generally not relevant. An individual is guilty of possessing child pornography if they possessed child pornography at any point. Even if the materials had since been deleted, if the police can prove that they ever existed on the accused’s device, they will be guilty of an offence.

416-DEFENCE | 416-333-3623