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.
In rendering its judgement, the Court discussed the lifelong trauma caused by sexual abuse, including child pornography offences. The Court indicated that due to recent increases in maximum penalties associated with convictions for sexual offences involving children, the average sentences imposed should increase as well.
Under the Court’s new sentencing guidelines, individuals convicted of sexual offences involving children should be sentenced to upper single digit to lower double digit prison sentences. The Court reference denunciation and deterrence as the primary sentencing principles in these types of cases.
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.