FIRST OFFENDER? DEFEND CHILD PORNOGRAPHY CHARGES. 416-DEFENCE.
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 background and technical training in cybersecurity.
The Firm has successfully advanced technical defences related to the intention of the accused to possess or access child pornography. In some cases, such as with Kik Messenger, WhatsApp or peer-to-peer file sharing Torrent programs, unlawful pornography can be automatically downloaded and saved to the media library, such as on a smartphone. These defences have limits, however, as law enforcement will review meta data and circumstantial evidence to determine whether the accused was willfully blind or reckless to the possession of child pornography. If this is established, the offence will unlikely be defeated and a conviction will follow.
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.
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.
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. 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.
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 Firm works with a network of forensic computer experts, specializing in file sharing software, including retired Internet Child Exploitation police officers. Jordan Donich has even personally attended Police Internet Crime (ICE) Headquarters and directly handled their automated file sorting software used for categorizing various child pornography images and videos. The Firm has been involved in some Toronto’s largest child pornography busts and throughout Ontario.
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.
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?
Can Child Pornography be Written Material?
What is Making, Printing and Publishing Child Pornography?
What is Transmitting, Distributing or Making Available Child Pornography?
What is Accessing Child Pornography?
What Penalties are Associated with a Conviction for Accessing Child Pornography?
What is Possession of Child Pornography?
What Penalties are Associated with a Conviction for Possessing Child Pornography?
Are Sexually Explicit Drawings or Anime of Children Child Pornography?
What about Audio Recordings?
What are some Other Offences that my be laid during Child Pornography Investigations?
What is Luring a Child?
What are the Penalties for Luring a Child?
What is Making Sexually Explicit Material Available to a Child?
What is a Warrant of Seizure?
What are the Penalties Associated with a Conviction for the various Child Pornography Offences?
What Penalties are Associated with a Conviction for Making, Printing and Publishing Child Pornography?
What Penalties are Associated with a Conviction for Transmitting, Distributing or Making Available Child Pornography?
Is the Quantity or Nature of the Content Relevant?
What if the Content was Purchased?
How to Defend a Child Pornography Allegation?
Additional Resources
Assault
Assaulting a Peace Officer
Child Pornography Forensics
Children’s Aid Society
Sex Offender Prohibition Orders
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?
There is often considerable misunderstanding as to the scope of content which falls within the statutory definition of child pornography. Section 163.1 of the Criminal Code defines child pornography as a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or 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.
Can Child Pornography be Written Material?
Any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years 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 years that would also be an offence.
What is Making, Printing and Publishing Child Pornography?
Making, printing and publishing or possessing child pornography for the purposes of publication is a criminal offence under Section 163.1(2) of the Criminal Code. Making child pornography includes taking videos or photos on any device. To prove the offence of making, printing and publishing child pornography the Crown must prove that the accused committed the guilty act and that he or she intended to. Specifically, the Crown must prove the following elements:
- The accused did the act of making, printing, publishing or possessing for the purpose of publishing materials;
- The materials were child pornography, meaning they involved someone under the age of 18 engaging in sexual activity;
- The accused intended to perform the act or making, printing or publishing;
- The accused knew or was willfully blind to the materials being child pornography.
What is Transmitting, Distributing or Making Available Child Pornography?
Transmitting, making available or distributing child pornography is a criminal offence under Section 163.1(3) of the Criminal Code. A person can be charged with distribution, transmitting or making available child pornography anytime they assist another person in accessing child pornography, whether by sharing a link or image, selling or exporting. To prove the offence of transmitting, making available or distributing child pornography the Crown must prove that the accused committed the guilty act and that he or she intended to. Specifically, the Crown must prove the following elements:
- The material in question was child pornography;
- The child pornography was made available, distributed, sold, advertised, imported, exported or possessed for the purpose of transmission by the accused;
- The accused had the intent to make the child pornography available to others.
What is Accessing Child Pornography?
Accessing child pornography is a criminal offence under Section 163.1(4.1) of the Criminal Code. It is possible to be charged with an offence of accessing child pornography without actually possessing it. For example, an individual can be charged for knowingly opening a file or a link to a web-site to view child pornography. A person accesses child pornography when he or she knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
To prove the offence of accessing child pornography the Crown must prove that the accused committed the guilty act and that he or she intended to. Specifically, the Crown must prove the following elements:
- The accused obtained access to materials;
- The materials accessed were child pornography;
- The accused knew or was willfully blind to the nature of the materials.
What Penalties are Associated with a Conviction for Accessing Child Pornography?
Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.
One of the most important factors when a sentence is being determined is whether the Crown decided to proceed summarily or by indictment. Summarily offences attract significantly lesser penalties than offences prosecuted by indictment. Accessing child pornography is an offence that can be prosecuted either summarily or by indictment. Depending on the mode of election, both prosecutions attract a minimum sentence of imprisonment. There is also a maximum sentence outlined in the Criminal Code.
Section 163.1(4.1) of the Criminal Code sets out the minimum and maximum penalties upon a conviction for accessing child pornography:
- Indictment
- Maximum Sentence: 10 years
- Minimum Sentence: 1 year
- Summarily
- Maximum Sentence: 2 years less a day
- Minimum Sentence: 6 months
What is Possession of Child Pornography?
Possession of child pornography is a criminal offence under Section 163(4) of the Criminal Code. Possession requires you to have the materials under your control. To prove the offence of possessing child pornography the Crown must prove the accused committed the guilty act and that he or she intended to. Specifically, the Crown must prove the following elements:
- The accused possessed images, videos or texts;
- The accused intended to possess the media;
- The images, videos or texts were child pornographic.
The Crown does not need to prove that the accused had knowledge of the contents of the images, videos or texts. Possession does not require that an accused view the materials. However, it is possibly to innocently possess something if you have it for the sole purpose of destroying it or reporting it to the police.
What Penalties are Associated with a Conviction for Possessing Child Pornography?
Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.
One of the most important factors when a sentence is being determined is whether the Crown decided to proceed summarily or by indictment. Summarily offences attract significantly lesser penalties than offences prosecuted by indictment. Possessing child pornography is an offence that can be prosecuted either summarily or by indictment. Depending on the mode of election, both prosecutions attract a minimum sentence of imprisonment. There is also a maximum sentence outlined in the Criminal Code.
Section 163.1(4) of the Criminal Code sets out the minimum and maximum penalties upon a conviction for possessing child pornography:
- Indictment
- Maximum Sentence: 10 years
- Minimum Sentence: 1 year
- Summarily
- Maximum Sentence: 2 years less a day
- Minimum Sentence: 6 months
Are Sexually Explicit Drawings or Anime of Children Child Pornography?
Yes, sexually explicit drawings or anime of children constitute child pornography. The Criminal Code makes no differentiation between drawings or anime and real photos. Furthermore, the purpose of the photos is the same. Therefore, it is possible that sexually explicit drawings or anime of children could attract the same charges as possessing, accessing, distributing or making real photos would.
What about Audio Recordings?
Even an audio recording that has as its dominant characteristic, description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years would be an offence.
What are some Other Offences that my be laid during Child Pornography Investigations?
There are other criminal offences that deal with underage victims and can often arise in situations where child pornography charges are laid.
Offences that may also arise in criminal investigations of potential offenders with child pornography include:
- Luring a Child – Section 172.1
- Making Sexually Explicit Material Available to a Child – Section 171.1
What is Luring a Child?
Luring a child is a criminal offence under Section 172.1 of the Criminal Code. Every person commits the offence of luring a child who, by a means of telecommunications, communicates with:
- A person who is, or who the accused believes is, under the age of 18 for the purpose of facilitating the commission of sexual exploitation, incest, child pornography, parent or guardian procuring sexual activity, invitation to sexual touching, or a prostitution-related offence, with respect to that person; or
- Any person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of sexual interference, invitation to sexual touching, bestiality in presence of or by a child, indecent acts – exposure to a person under the age of 16, sexual assault, sexual assault with a weapon or causing bodily harm, aggravated sexual assault or abduction of a person under sixteen, with respect to that person; or
- Any person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of abduction of a person under fourteen, with respect to that person.
Basically, an individual can be charged if they use telecommunications to communicate with a person under the age of eighteen for the purposes of committing one of the above named offences against that person. For example, if an accused speaks in an Internet chat room with a 16-year old, he or she can be charged with any of the offences under Section 172.1(a) or (b) if he or she commits the guilty act of communicating with an underage person and intends to do so.
Under Section 172.1(3) there is a presumption about age that if evidence was represented to the accused that the person was under the age of eighteen, sixteen or fourteen, he or she believed that person was under that age unless there is evidence to the contrary. It is not a defence to a charge under Section 172.1 to say the accused believed the person was at least eighteen, sixteen or fourteen unless the accused took reasonable steps to ascertain the age of the person.
What are the Penalties for Luring a Child?
Penalties for luring a child will vary depending on the specific circumstances of the offence, the characteristics of the offender and the presence of other aggravating and mitigating factors.
Section 172.1(2) of the Criminal Code sets out that a conviction of luring a child can result in a penalty of up to ten years imprisonment when the Crown proceeds by indictment. There is a mandatory minimum penalty of one-year imprisonment for a conviction when the Crown proceeds by indictment. If the Crown proceeds by summary election, the offence is punishable by up to two years less a day imprisonment. There is also a mandatory minimum penalty of ninety days imprisonment for a conviction when the Crown proceeds summarily.
Section 172.1(2) of the Criminal Code sets out the minimum and maximum penalties upon a conviction for luring a child:
- Indictment
- Maximum Sentence: 10 years
- Minimum Sentence: 1 year
- Summarily
- Maximum Sentence: 2 years less a day
- Minimum Sentence: 6 months
What is Making Sexually Explicit Material Available to a Child?
Making sexually explicit material available to a child is a criminal offence under Section 171.1 of the Criminal Code. Every person commits the offence of making sexually explicit material available to a child who transmits, makes available, distributes or sells sexually explicit material to:
- A person who is, or who the accused believes is, under the age of 18 for the purpose of facilitating the commission of an offence of sexual exploitation, incest, child pornography, parent or guardian procuring sexual activity, invitation to sexual touching, or a prostitution-related offence, with respect to that person; or
- Any person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence of sexual interference, invitation to sexual touching, bestiality in presence of or by a child, indecent acts – exposure to a person under the age of 16, sexual assault, sexual assault with a weapon or causing bodily harm, aggravated sexual assault or abduction of a person under sixteen, with respect to that person; or
- Any person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of abduction of a person under fourteen, with respect to that person.
Basically, an individual can be charged if they make sexually explicit materials available to a person under the age of eighteen for the purposes of facilitating the commission of one of the above named offences against that person. For example, if an accused makes available a video of familial sexual intercourse to a sixteen-year old, he or she can be charged under Section 172.1 if he or she intends to do so.
What is a Warrant of Seizure?
A judge who is satisfied by information on oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene or a crime comic, within the meaning of section 163 of the Criminal Code, any representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is child pornography within the meaning of section 163.1, or any recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is a voyeuristic recording, may issue a warrant authorizing seizure of the copies.
What are the Penalties Associated with a Conviction for the various Child Pornography Offences?
Penalties for a conviction of various child pornography offences will vary depending on the specific circumstances of the offence, the characteristics of the offender and the presence of other aggravating and mitigating factors. Section 163.1(4.3) sets out that it will be an aggravating factor if a person committed an offence under Section 163 with intent to make a profit.
Section 163.1(2) of the Criminal Code sets out that a conviction of making, printing or publishing child pornography can result in a penalty of up to fourteen years imprisonment There is a mandatory minimum penalty of one-year imprisonment. This offence is a straight indictable offence, giving the Crown no discretion to elect summarily.
Section 163.1(3) of the Criminal Code sets out that a conviction of transmitting, making available or distributing child pornography can result in a penalty of up to fourteen years imprisonment There is a mandatory minimum penalty of one-year imprisonment. This offence is a straight indictable offence, giving the Crown no discretion to elect summarily.
Section 163.1(4) of the Criminal Code sets out that a conviction of possessing child pornography can result in a penalty of up to ten years imprisonment when the Crown proceeds by indictment. There is a mandatory minimum penalty of one year imprisonment for a conviction when the Crown proceeds by indictment. If the Crown proceeds by summary election, the offence is punishable by up to two years imprisonment. There is also a mandatory minimum penalty of six months imprisonment for a conviction when the Crown proceeds summarily.
Section 163.1(4.1) of the Criminal Code sets out that a conviction of accessing child pornography can result in a penalty of up to ten years imprisonment when the Crown proceeds by indictment. There is a mandatory minimum penalty of one year imprisonment for a conviction when the Crown proceeds by indictment. If the Crown proceeds by summary election, the offence is punishable by up to two years imprisonment. There is also a mandatory minimum penalty of six months imprisonment for a conviction when the Crown proceeds summarily.
Convictions for any of the above offences will also likely result in a SOIRA order, meaning the accused person will be registered as a sex offender, pursuant to the Sex Offender Information Registration Act.
What Penalties are Associated with a Conviction for Making, Printing and Publishing Child Pornography?
Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.
Section 163.1(2) of the Criminal Code sets out the penalties upon a conviction for making, printing or publishing child pornography and indicates it is a straight indictable offence, meaning the Crown has no discretion to elect summarily with these charges:
- Maximum Sentence: 14 years
- Minimum Sentence: 1 year
What Penalties are Associated with a Conviction for Transmitting, Distributing or Making Available Child Pornography?
Criminal sentencing in Canada is largely discretionary and the same offence can attract a wide range of sanctions. A sentence in a particular case will vary depending on the circumstances of the offence and the offender. A court will also consider any additional aggravating or mitigating factors. Offences involving children are often aggravating in nature.
Section 163.1(3) of the Criminal Code sets out the penalties upon a conviction for transmitting, distributing or making available child pornography and indicates it is a straight indictable offence, meaning the Crown has no discretion to elect summarily with these charges:
- Maximum Sentence: 14 years
- Minimum Sentence: 1 year
Is the Quantity or Nature of the Content Relevant?
Yes, the quantity or nature of the content of child pornography are both relevant considerations at the sentencing stage. The nature of child pornography related to a criminal conviction is relevant at sentencing because the more the nature of the content depicts violence or harm towards children, the more aggravating it will be for sentencing. More disturbing or violent content will be considered an aggravating factor and will indicate that a harsher sentence is appropriate.
The quantity of child pornography is also relevant at sentencing because the larger the collection is, the more aggravating this will be at sentencing. A large collection implies a lengthy period of accumulating the prohibited material. Therefore, larger collections tend to indicate that a harsher sentence is appropriate.
What if the Content was Purchased?
It is relevant if the content was purchased because Section 163.1(4.3) states that it is an aggravating factor for a person convicted of an offence under Section 163 to have committed the offence with an intent to make a profit.
How to Defend a Child Pornography Allegation?
There are a number of avenues to defend these complex allegations. Generally, no person shall be convicted of an offence under section 163.1 of the Criminal Code if the act that is alleged to constitute the offence has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and does not pose an undue risk of harm to persons under the age of eighteen years.
There is considerable litigation surrounding the interpretation of these defences. For child pornography allegations, we canvass all avenues for success. The police draw from an arsenal of sophisticated investigative techniques, many which require prior judicial authorization. In developing a strategy for your defence, we critically analyze police investigative protocol and search warrant procedure, often with the assistance of forensic computer analysts.
Where do you Defend Child Pornography Charges?
The Firm defends child pornography charges across Ontario, some of the place we service include: Barrie, Bradford, Brampton, Brantford, Burlington, Hamilton, London, Oakville, Orangeville, Oshawa, Pembroke, Perth, Peterborough, and St. Catharines.
Quick Facts
Is Child Pornography illegal in Canada?
Yes. The Criminal Code outlines in s.163.1 that child pornography is a photograph, film, video or other visual representation that shows a person who is under the age of eighteen years engaged in sexually explicit activity or where the dominant characteristic of the depiction is for a sexual purpose.
What is the Punishment for Child Pornography Charges?
Nearly all child pornography convictions results in a jail sentence. The amount of jail will depend on a number of factors, including the nature of the material, the size of the collection, the duration of downloading and whether the accused distributed the child pornography.
Can Child Pornography be Anime or Drawings?
Yes. Sexually explicit drawing of children engaged in explicit activity is still child pornography in Canada. Even audio recordings can be defined as child pornography.
Are Child Pornography Charges made Public?
Many times there is a strong public interest in disclosing the identity of the person charged with child pornography. This is especially true where the accused has access to children other than his or her own. The police may also do a press release to determine whether there are other victims. In certain cases, this type of public disclosure can be contained.
What if the Child Pornography was deleted?
Even if the child pornography was deleted, people are still often charged. Special law enforcement software is used to detect these offenders and recover any deleted material. Deleted material is mitigating, however, so a lawyer could use that as part of a defence strategy.
Does Children's Aid Society get Involved?
Children's Aid Society (CAS) will almost always get involved if there are children close to the accused. The mandate of CAS is much different than the police or judicial process, so it is very important for the accused to get legal representation quickly.
Can Child Pornography Charges be Dropped?
These are difficult and complex cases to win. The police have a designated team in Ontario to investigate and prosecute internet sex offenders. Many defences include arguments that the rights of the accused were breached in the investigation process.
