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Defend Child Pornography Charges

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Our Experience

Donich Law is one of the few Firms with experience defending child pornography charges for over 10 years and to have litigated and defeated international child pornography charges across Ontario. We have defended Child Pornography charges from Thunder Bay to London, in Ontario. The Firm has defeated charges with international cooperation from Homeland Security in the United Sates, Europol, NCMEC, New Zealand Digital Child Exploitation Team and the RCMP who cooperate with local police agencies across Ontario to execute search warrants. The Firm has successfully advanced defences related to challenging the nature of the pornography, search warrant Charter challenges, batch file/accidental download and proving the existence of malware responsible for unintended exposure to child pornography. The Firm’s practice has been built on its technical background in cybersecurity.

Jordan Donich has attended Police Internet Crime (ICE) Headquarters and been trained on their forensic software used for categorizing various child pornography images and videos.

  • In the Firm’s R. v. C.S. [2024], it secured a withdrawal of distribution of child pornography after nearly 3 years of litigation for a collection involving nearly 40,000 images and videos of child sexual abuse material. The investigation was conducted with BitTorrent by undercover officers. To aggravate the investigation, the accused had allegedly been downloading the unlawful pornography and backing it up for an extended period of time. The firm was able to challenge the software used by law enforcement.
  • Recently in the Firm’s R. v. M.C. [2022], it secured a withdrawal of Child Pornography Distribution in Brampton. The accused was alleged to have distributed illegal material to a user in Europe. The matter involved the resources and cooperation between, Canadian, American and European internet child exploitation police. The investigation was further complicated given the involvement of large U.S. Tech Companies who cooperate with law enforcement. It took over 3 years to achieve the result. The Firm has defended Child Pornography allegations involving nearly all U.S. Tech Giants including Facebook, Instagram, Twitter, Snapchat and Kik Messenger.
  • In 2022, the Firm defended a young person charged with two counts of possession of child pornography after allegedly downloading child pornography material from a social media website in R. v. P.S. [2022]. After more than two years of Crown negotiations, the Firm secured the withdrawal of one count and a discharge on the remaining count, avoiding a criminal record for the accused.
  • In 2022, the Firm successfully defended an individual charged with four counts of possession of child pornography, three counts of distribution of child pornography, one count of making child pornography and one count of child luring in R. v. T.T. [2022]. The individual was charged after he was reported by Instagram for sharing child pornography material with another user. After investigating further, law enforcement discovered the accused had allegedly also been communicating with a minor online for a sexual purpose. Due to the serious nature and quantity of the offences, the accused faced a significant period of incarceration upon conviction. The Firm discovered potential 11(b) Charter issues with the case and leveraged this in Crown negotiations. After two years of negotiations, the Firm resolved the matter with seven of nine charges being withdrawn by the Crown.
  • In the Firm’s R. v. E.Z. [2022], it defended one of Ontario’s most complex international child pornography investigations. The accused was a second offender and previously served a jail sentence for possessing child pornography. He was arrested in relation to a Kik Messenger and international cloud-based storage provider investigation, Mega. He was further alleged to have been communicating with other offenders around the world and was charged with 7 child pornography related charges including possession, accessing, distribution and making child pornography. The Crown prosecution team was seeking a 7 year jail sentence, given the accused was a previous offender and was alleged to have possessed some of the most unlawful content online. In these types of cases, there is very little ability to negotiate, given the high public interest in prosecution and public safety. The Firm conducted a forensic analysis of the seized electronics and discovered an error in the information used by law enforcement to obtain a search warrant. The Firm advanced a dual Charter challenge (s.8 and s.11(b)) and was able to secure a withdrawal of 5 child pornography charges, including the most serious allegations.

If you are charged with a child sex offence, you can expect to be placed on bail or sentenced with specific prohibition orders restricting your contact with children. Some of these conditions include places children may be or restrictions on internet use. If you have been charged or will be arrested for a sex offence, you should consider the implications of a publication ban during the proceeding.

  • The Firm has experience defending joint international child pornography investigations. In the Firm’s R. v. H.H. [2021], it handled one of the most complex and leghthily child pornography investigations in Ontario, involving cooperation between Homeland Security in the United States, Toronto Police and Cloud based storage providers in New Zealand. Offenders were arrested in both Ontario and the United States with the most illegal form of child pornography considered by the Internet Child Exploitation Police (ICE).
  • In 2021, the Firm defended R. v. M.O. [2021] out of Halton, where the client was charged with Possession of Child Pornography x2. To challenge the allegations, the Firm ordered and analyzed both the Form 1 Search Warrant and the form 5.004 Production Warrant used to seize the client’s computers. The Firm conducted a forensic analysis and challenged the alleged unlawful pornography. Ultimately, all charges were withdrawn after 2 years of litigation.

In many cases, Child Pornography investigations happen aggressively and without notice. The Internet Child Exploitation Police (ICE) execute search warrants without notice, often seizing several electronic devices at the address and conducting interviews. Although surveillance of the address was done well before the execution of the warrant, not all seizures lead to arrests. In 2020, the Firm secured the return of property without criminal charges executed by Toronto and St. Catharines police in two separate investigations.

Internet Child Exploitation is a Global Problem

Donich Law - International Child Pornography Investigations we have Defended
  • In the Firm’s R. v. J.M. [2021], it secured a withdrawal of Possession of Child Pornography after a search warrant was executed by the Internet Child Exploitation (ICE) Police. The accused was allegedly downloading child pornography in a file sharing program which was used by law enforcement to execute the warrant. ICE used metadata to confirm the existence of illegal material. Over a period of two years the Firm reviewed forensic evidence, including computer data from seized electronics. In a rare outcome, the Firm was able to secure a withdrawal of child pornography charges by advancing the defence of accidental download. This defence which is rarely successful was supported by forensic metadata. Child pornography charges are rarely withdrawn because they require prior Deputy Crown approval and the strong public interest in their continued prosecution, even if the case has frailties.
  • In November, 2020, the Firm secured a withdrawal of several serious child sex offences in its R. v. A.B. [2020] in Brantford, Ontario. The Defence secured a withdrawal of Making Child Pornography x2, Possession of Child Pornography and Voyeurism x2. Over a period of 2 years of litigation, the Firm was able to establish the accused could not have created the alleged sexually explicit material. This was achieve by obtaining a system image of the electronic devices seized by police. The Firm had the electronic evidence independently reviewed for forensic analysis pursuant to s.490(15) of the Criminal Code. Click here for more specific information on defending child pornography charges.
  • Possession or distribution of child pornography is a serious sex offence allegation. In Firm’s R. v. E.G. [2014], it handled one of Ontario’s largest Child Pornography busts, with over 500,000 images and 600 videos of child sexual abuse content seized by Police. Files were being exchanged through what the user thought was encrypted file-sharing communication. The Firm analyzed the Production Orders from the file sharing domains, Search Warrant and other invasive police search tactics used to compromise the encrypted file-sharing program. Given the nature size of the collection, the Firm also completed a child pornography forensic analysis of the numerous devices. Obtaining a copy of the seized computers is often vital to a successful defence, given this data yields information on which the arresting officer obtained a search warrant.

The Firm frequently defence allegations of child pornography throughout Ontario. In many cases, offenders are accused of distributing child pornography on social media. Cyber tips are frequently sent to the National Child Exploitation Coordination Centre (NCECC) located in the United Sates which cooperates with local Canadian law enforcement and internet service providers.

Online Sex Offence are on the Rise in Canada

The Firm has extensive experience working to various ICE Unit Police Forces across Ontario. The Firm has worked on international child pornography rings involving both Interpole and Europole. The Firm has also handled international allegations involving the NCMEC and FBI, including seizures of electronics near the Canadian border.

Almost all these cases involve a separate investigation by Children’s Aid Society (CAS). In many instances, CAS works in a joint investigation with law enforcement to obtain a statement from the accused. If the accused does not provide a statement, CAS will refuse access to the accused’s child and may even question the mother’s ability to be responsible. In these cases, the accused can often be caught in a dilemma between protecting his legal interests and seeing his child when presumed innocent.

  • In the Firm’s R. v. A.E. [2019], the Firm successfully challenged CAS bail restrictions prohibiting access to the accused’s child without CAS approval, which ultimately gives too much power to the agency. The court overturned Children’s Aid Society and allowed the accused access to his own child.
  • In the Firm’s R. v. J.A. [2017], it secured a withdrawal of both Possession of Child Pornography and Distribution of Child Pornography in Guelph. The Firm has also defended allegations where offenders have been caught using Tor Browser and other anonymous file sharing software to avoid detection, including its it R. v. J.T. [2019], in Peel.

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Frequently Asked Questions

How does the Court Determine Sentencing for Child Pornography Offences?

When determining the appropriate sentence to impose on an offender, the court will consider many different factors. The first factor to consider will be the offence(s) charged. Some offences in the Criminal Code, including child pornography offences, have a mandatory minimum prison sentence attached to them. This means the offender must serve a minimum amount of time in prison. Where there is a mandatory minimum sentence prescribed by the Code, the court generally cannot impose a lower sentence. The Code also includes the maximum penalty for each criminal offence. Some child pornography offences carry a maximum term of 10 years in prison and others carry a maximum of 14 years in prison.

In addition to the sentencing guidelines contained in the Criminal Code, the court must also consider what is known as common law. Common law refers to judge made case law. This means that, for example, where the Supreme Court of Canada (the highest court in Canada) issues a decision on a particular issue of law, all other courts must follow that decision. That means the higher courts decision becomes law, known as common law or precedent. This means that when determining a sentence, the court must consider decisions of higher courts as well as sentences imposed out by other courts at the same level. Sentences must have parity, meaning there will be similar sentences for cases with similar facts. The Supreme Court case of R. v. Freisen, outlines the sentencing principles that lower courts must consider when sentencing offenders for sexual offences against children.

To tailor the sentence to the particular offender and circumstances of the case, the court will also consider various factors related to the offence and offender including the offender’s age, personal circumstances, criminal history, and any other relevant aggravating or mitigating factors brought to the court’s attention. To assist in providing the court with a more wholesome picture of an offender being sentenced for child pornography, the court may be provided with a pre-sentence report.

What is Phallometric Testing?

Phallometric testing, also known as penile plethysmography, is an objective, forensic way to measure sexual arousal in men. Phallometric testing is considered the most valid method used to measure sexual deviancy in adult males.

Phallometric testing has been used in the Canadian criminal justice system, particularly where the accused is charged with a sexual offence involving children, to determine the level of sexual deviancy. The test is conducted in a lab by a qualified individual.

The results of the testing would then be provided to the accused and/or their counsel to be used as evidence in court. The results of the test may be used to show that the accused is not sexually deviant. They may also be used during sentencing to show that the accused is unlikely to reoffend in the future.

Friesen Sentencing Framework in Child Pornography Cases

In 2020, the Supreme Court of Canada released its decision in the R. v. Friesen case, imposing new lengthier sentencing ranges for those convicted of sexual offences involving children. The case involved a man convicted of sexually abusing the young child of a woman he met on a dating app. Originally sentenced to 6.5 years in prison, the accused appealed and had his sentenced reduced to 4.5 years. The Crown appealed the sentence arguing that it was too low. The Supreme Court ultimately restored the decision of the trial court, indicating that 6 years was the correct sentence.

Search Warrants and Child Pornography Offences

Law enforcement agencies across Canada have developed specialized units to find, investigate, and prosecute internet sex crimes. Police services across Ontario have developed Internet Child Exploitation (ICE) units for this purpose. These specialised departments communicate with foreign law enforcement agencies including the FBI and the Department of Homeland Security.

Potential child pornography offences may come to the attention of ICE units either through their own online investigations or through third parties like internet hosting companies or foreign law enforcement agencies. When police in Toronto get a tip from an outside source about a user located in Toronto, or discover suspicious activity through their own investigations, they will attempt to get a production order for the user information.

Once the police have the production order and the suspect’s information, they can apply for a warrant from judge to search the suspect’s residence for evidence of child pornography material. This would include seizing any electronic devices the suspect has access to inside the residence.

What should you do if Police Execute a Warrant on your Residence in Toronto?

When law enforcement officials in Toronto suspect an individual of committing a child pornography offence, they may obtain and execute a search warrant on the suspect’s home in an attempt to gather evidence. In child pornography cases, police are typically looking for electronic devices that may contain child pornography material including computers, smart phones, tablets, and hard drives.

If the police show up at your door with a valid search warrant, you cannot refuse the search. You should ask for a copy of the warrant and contact a lawyer as soon as possible. Law enforcement will likely seize all electronic devices in the residence.

If they have enough for an arrest already, police may take the accused into custody where they will be held for a bail hearing. In some cases, the police will not have enough to charge the suspect at the time the warrant is executed and will leave without charges being laid. Police will then have forensic experts search the devices for child pornography material and lay charges at a later date if any is found.

Regardless of whether you are arrested when the warrant is executed, it is important to contact legal counsel right away. If child pornography material exists or existed in the past, the chances are high that it will be found by police. It is important to protect your rights as early on as possible.

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Recent Cases

R. v. Scott, 2023 ONSC 3023

In the Ontario Superior Court of Justice case of R. v. Scott, the accused was charged with possession and importation of child pornography. Mr. Scott entered Canada with various digital devices, many of which contained child pornography. The Court recognized that denunciation and deterrence were the primary sentencing principles with respect to child pornography, but kept in mind the particulars of the offender.

The particulars of the offender included several aggravating and mitigating factors. In their ruling, the Court found that there was nothing “unduly aggravating” about his offence beyond the amount of material and the importation into Canada. Most of the material were anime or stories and did not involve child abuse in its production, however, the Court did take note of the danger of such material, as it may make paedophiles more likely to offend. There were also victim impact statements produced by two victims of child pornography, which contributed to the gravitas of the offence. Mr. Scott was found guilty. In part due to the offender’s old age and the mitigating factors of his good contribution to his family and society, he was sentenced to a conditional sentence.

R. v. Tcheong, 2023 ONCJ 205

In the Ontario Court of Justice case of R. v. Tcheong, the offender pled guilty to one count of child pornography. In September 2020, the police executed a search warrant on Mr. Tcheong’s home, finding a total of 350 images and 14 videos of child pornography on two computes. The contents of the child sexual exploitative material were described to the Court. The judge did not review the contents of the child pornography, nor was it deemed necessary that they do so. There was no doubt that the contents in question were child pornography.

Relying on previous cases such as R. v. Inksetter 2018 ONCA 161, the Court found that the possession of child pornography is a form of child abuse, and that the demand for child pornography causes child pornography to be made. After expert assessment, the defendant was deemed by Dr. Eid to have a pedophilic disorder, which they considered a risk factor. However, another expert, Dr. Gojer contended on whether Mr. Tcheong was a pedophile. In their expert analysis, Dr. Gojer took into factors such as Mr. Tcheong’s overprotective parents, his intellectual limitations, his social limitations, and his autism spectrum disorder. The aggravating factors in this circumstance is the amount of child pornography accessed as well as the serious nature of the collection. Mr. Tcheong’s collection was categorized as level four, out of a total of five levels. He was sentenced to eight months institutional custody with three years’ probation and additional ancillary orders.

R. v. Shokouh, 2023 ONSC 220

In the Ontario Superior Court of Justice case of R. v. Shokouh, the offender was found guilty of one count of accessing child pornography, one count of possessing child pornography, and one count of transmitting, making available or distributing child pornography. The investigation began in April, when Facebook became aware of a person who uploaded files that contained child pornography. After the Toronto Police Service obtained a production order from Rogers Communication Canada Inc., the IP address was found, and the Facebook user discovered in the residence. Seven images and three videos of child pornography were discovered by the police.

The presentence report stated that Mr. Shokouh was a student at the University of Toronto before his offence, that he was remorseful and undergoing counselling, as well as the losses he’s suffered because of his conviction. The Court considered several aggravating and mitigating factors as well. An aggravating factor was the sharing of child pornography through the Kik messenger app. However, the offender’s first-time offence, the relatively small number of videos and images found, as well as his young age all contributed to mitigate his sentence. The offender was sentenced to 12 months’ imprisonment with three years of probation, along with ancillary orders such as a DNA order, a forfeiture of electronic devices, and restricted access to children.

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.