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. We are one of the few Firm’s to have successfully defeated international child pornography operations with our dedicated internal cybersecurity team. 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.
Oakville has a dedicated team of police officers to investigate online sexual abuse. If you are charged, your internet use will be restricted. Local media may sometimes cover child pornography stings, so a publication ban may be something to consider.
In 2022, Donich Law represented a second-time offender charged with 7 child pornography offences including distributing child pornography, making child pornography and possessing child pornography in R. v. E.Z. [2022]. The accused was arrested as part of a large international sting targeting individuals distributing child pornography material online. He was found to be in possession of a large quantity of child pornography material and was alleged to have been communicating with other offenders online and trading material. The Firm conducted a forensic analysis of the devices seized by law enforcement as well as a thorough analysis of the production orders and search warrants. The Firm uncovered an error in the information used to obtain the search warrant and subsequently launched both section 8 and section 11(b) Charter challenges. This led to the Crown ultimately withdrawing 5 of the worst charges against the accused.
In 2022, Donich Law represented a young offender charged with two counts of child pornography after downloading child pornography material from a social media website in R. v. P.S. [2022]. Law enforcement were altered to the activity by the social media website and obtained a production order for the IP address associated with the account, ultimately leading them to the accused. The Firm put in a significant amount of up front work in Crown negotiations and ultimately secured a discharge for one count and a withdrawal of the remaining count.
In 2022, the Firm represented an accused charged with one count of making of child pornography, one count of child luring, three counts of distributing child pornography and four counts of possession of child pornography in R. v. T.T. [2022]. The client was arrested after sharing child pornography with another user a popular social media website. The material was flagged as child pornography by the site and reported to law enforcement. Production orders were issued as well as a search warrant for the accused’s residence. Upon search of the accused’s devices, he was charged with multiple child pornography offences as well as a child luring charge for communicating with a minor in an inappropriate manner online. The Firm explored an 11(b) Charter challenge after significant Crown delay in the case. Ultimately, the Firm resolved the matter with seven of nine charged being withdrawn.
In 2021, the Firm defended an individual charged with possession of child pornography x2 in R. v. M.O. [2021] in Halton Region. The Firm performed a forensic analysis of the alleged unlawful material and challenged whether it constituted child pornography. The Firm also ordered and analysed the Search Warrant and Production Warrant used to seize the client’s devices. The Firm was able to secure the withdrawal of all charges.
In the Firm’s R. v. J.M. [2021], the Firm successfully represented a client alleged to have been in possession of child pornography. After receiving information about possible child pornography downloads on a file sharing site, the Internet Child Exploitation (ICE) unit of the police executed a search warrant on the accused’s residence and seized multiple electronic devices. After analyzing the metadata, ICE determined that the files did contain illegal material. In a rare outcome, the Firm was able to secure a withdrawal of the charge after 2 years of analyzing the metadata collected by law enforcement. Ultimately, the Firm successfully put forth an accidental download defence, resolving the matter. Crown counsel are generally very reluctant if not totally unwilling to withdrawal child pornography charges, even where the case is weak. This is due to the strong public interest in prosecuting those found in possession of child pornography material.
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.
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.
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.
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?
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
Sex Offender Prohibition Orders
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.