Frequently Asked Questions
How Are Foreign Law Enforcement Involved in These Types of Cases?
Due to the seriousness of the offence, many countries around the world have laws against child pornography. Cybercrime has become more and more prevalent along with the advancement of technology. As child pornography has become more accessible through the internet, governments and law enforcement have collaborated globally to control the spread of child sexual exploitative material. Child pornography is often traded internationally over the internet, and many children that are exploited may come from various different countries.
Operation H was the largest online child exploitation operation launched by New Zealand’s Te Tari Taiwhenua Department of Internal Affairs (DIA). In 2019, New Zealand’s Digital Child Exploitation Team notified the Royal Canadian Mounted Police’s National Child Exploitation Crime Centre (RCMP NCECC) of a website containing child sexual exploitative material. Collaborating with the NZ DIA and the International Child Exploitation (ICE) units, the RCMP was able to arrest 47 Canadians and save 12 children from abusive situations. This operation showed that child pornography is often an international cybercrime. To combat child pornography, when foreign law enforcement discovers activity interacting with child pornography outside of their jurisdiction, they may relay the information to the local authorities. The local police then have the authority to investigate.
What If I Accidentally Received Child Pornography in Orangeville?
Accessing child pornography is enumerated in the Criminal Code, section 163.1(4.1) states that to access child pornography, a person must knowingly or knowingly cause child pornography to be viewed by, or transmitted to themselves. The language in the section is very specific.
Possession in the law is defined in section 163.1(4) of the Criminal Code. A person possesses child pornography when they knowingly have child pornography material. For example, if child pornography is linked to an innocent file, and the person downloading the file has no knowledge of such a thing, and only intended to download the innocent file for an innocent purpose, they did not possess child pornography.
If a person accidentally receives child pornography, the best thing to do is to delete the material immediately and not to keep it. The person accessing child pornography is put at risk to be charged with accessing child pornography. If law enforcement somehow discovers that there is transmission of child pornography and the accused is arrested, the accused must go to trial. Under the law, everyone is presumed innocent until proven guilty—a charge, however, must be disproven. If the Crown can prove that the accused had the material in their possession, or accessed it, the accused must show that they did not do so intentionally. It must be proven that the material was sent accidentally. Factors such as the number of files, the number of transactions, in addition to deleting the material immediately may increase the chances of such a defence being successful.
Do the Quantity of Files Matter in Orangeville?
Yes, the quantity of files does matter. The amount of files can be an aggravating or mitigating factor. The Kienapple principle is the rule against multiple convictions. It prevents multiple charges and convictions for a single criminal act. Therefore, possession of multiple files will only amount to one count of possession of child pornography.
In the Ontario Court of Appeals case of R. v. Inksetter,  ONCA 474, the respondent pled guilty to possession of child pornography and making available child pornography. The respondent had one of the largest and worst collections of child sexual abuse material. The police were able to identify 28,052 unique images and 1,144 unique videos from over 1.2 million images and over 40,000 videos before halting their investigation. The respondent also shared these files to others. The trial judge noted that the amount The Court of Appeal, understanding the primary sentencing principle to be denunciation and deterrence, also took in mind the rehabilitation principle. The Court sentenced the respondent to three years in prison for possession of child pornography, and three and a half years for making available child pornography.
Does the Type of Child Pornography Offence Charges Matter?
The type of child pornography offence matters. In total, there are four different offences related to child pornography.
Accessing child pornography means that the person knowingly caused child pornography to be viewed by or transmitted to themselves. This meant that the intention to perform the crime mattered, and without the intent of “knowingly” viewing pornography, the person cannot be convicted. If convicted, the mandatory minimum sentence is six months incarceration. Should there be any aggravating factors, the Court may increase the sentence to a maximum of two years less a day if the Crown proceeds summarily. If the offence is prosecuted by indictment, the maximum penalty is ten years’ incarceration.
Possession of child pornography means that the person knowingly held child pornography in their possession. Without the intention or knowledge of the crime, the person cannot be convicted. For example, if someone did not know child pornography was in their possession, that could be a possible defence in a case. If convicted, the mandatory minimum sentence is six months incarceration. Given aggravating factors, the Court may increase the sentence to a maximum of two years less a day on summary conviction. If the Crown elected by indictment, the maximum penalty is ten years.
The sentencing for making and distributing child pornography are the same. A person knowingly makes child pornography when they create material that is centred around child sexual abuse. The distribution of such a material means that the person was knowingly sharing and making available such content to other people. The mandatory minimum for both is one year. The maximum penalty for making and distributing child pornography is 14 years. Both offences are straight indictable.
What If the Offender Never Touched a Child?
Child pornography is often misconstrued as a “victimless crime” because the offender in most cases have never actually touched a child. If they have touched a child, they will likely be charged with sexual assault, sexual interference or some other sexual offence in addition to the child pornography charges. The Supreme Court of Canada in R. v. Friesen,  SCC 9, recognized the degree of harm in which child-related sexual offences can have to the victims and society at large. In their decision, the Court sought to send a strong message of denunciation and deterrence of these crimes.
Child pornography is not a victimless crime. There exists a market for child pornography, and by accessing or possessing child pornography, the offender encourages more offences to be committed. In addition, the making of child pornography almost always involves child sexual exploitation or the promotion of child sexual abuse material. Each time the material is shared, the child is victimized again, and their victimization is used for other people’s enjoyment.