What are the Best Defences Child Pornography Charges?

Donich Law is part of the elite few Firms to have defended international child pornography charges. The Firm has defeated charges from Homeland Security in the United States, NCMEC, Europol, New Zealand Digital Child Exploitation Police and the RCMP who join efforts with local police agencies across Ontario to execute search warrants. The Firm’s background in cybersecurity, has enabled it to defeat charges related to the nature of the pornography, unintentional peer-to-peer file sharing, metadata errors used in search warrants and malware responsible for accidental exposure. Many of the Firm’s clients also suffer from mental health issues, including pornography addiction(s).

Child pornography offences are among the most difficult to defend. This is largely due to the highly credible evidence that is often collected by law enforcement while investigating the accused. In some cases, law enforcement officials in Canada receive tips from law enforcement agencies in other jurisdictions in Canada, the United States and even Europe. These tips will then be investigating using sophisticated forensic computer software, undercover police officers and computer experts. Investigations into those suspected of consuming, creating or trading child pornography online often uncover evidence that is difficult to refute. The court will also conduct a bail hearing and likely seek to restrict internet access of the accused which can have serious employment consequences.

The Firm has experience advancing technical defences associated with the accused’s lack of knowledge related to possessing child pornography, including where content automatically saves on a smartphone through social media apps like Kik Messenger. These defences often turn on circumstantial evidence, however, as the accused cannot be willfully blind or reckless to possessing child pornography. If this is proven to be the case, the accused will likely be convicted.

When faced with a child pornography charge, there are a number of avenues an individual may take to defend themselves and protect their privacy, such as a  publication ban. Common defences include public good, innocent possession and private use. In addition, where these defence are not appropriate, an individual charged with child pornography may launch Charter challenges in an attempt to have evidence against them rendered inadmissible, or by arguing that the materials themselves do not constitute child pornography materials.

An individual has committed a child pornography offence when they access, possess, distribute or make materials that can be considered child pornography. Section 163.1(1) of the Criminal Code outlines the definition of child pornography. It states that child pornography materials include;

• Any film, video, photograph or other visual representation, whether or not it was created by electronic means,
  • That shows an individual 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
  • Where the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of an individual under the age of eighteen, or
• Any visual recording, audio recording or written material that counsels or advocates sexual activity with a person under the age of eighteen that would be considered a criminal offence under the Criminal Code, or
• Any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of a sexual activity with an individual who is under the age of eighteen that would be considered a criminal offence under the Criminal Code, or
• Any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with an individual under the age of eighteen that would be considered a criminal offence under the Criminal Code.

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. Click here for more information on new changes to child sex offence sentencing.

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.

CP24: Civil Sexual Assault Lawsuit at St. Michael’s in Toronto.

Global News Radio: Two Lawsuits against Harvey Weinstein are being settled.

Global News: Historical Sexual Assault Charges and Bill Cosby.

Global News Radio: Justin Bieber facing allegations of Sexual Assault.

CityNews: Jordan Donich comments to CityNews regarding challenges with Sexual Assault Trials in Toronto.

CityNews: Jordan Donich provides expert commentary to CityNews regarding Sexual Assault Prosecution.

Frequently Asked Questions

What are Common Child Pornography Offences?
-Accessing Child Pornography
-Possession of Child Pornography
-Distribution of Child Pornography
-Making Child Pornography
What are the Best Defences to Child Pornography Charges?
-Public Good
-Innocent Possession
-Private Use
–Charter Challenges
-Challenging the Nature of the Pornography
What Happens if you Plead Guilty to Child Pornography?
What are the Maximum Penalties for Those Convicted of Child Pornography?
-Accessing Child Pornography
-Possession of Child Pornography
-Distribution of Child Pornography
-Making Child Pornography

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 are Common Child Pornography Offences?

Child pornography offences are among the most serious crimes a person can be charged with in Canada. It is not uncommon for those charged with child pornography offences to be otherwise law-abiding citizens. In many cases, those who are charged are active members of society with no history of criminal behaviour.

There are four child pornography offences in the Criminal Code. They include; accessing child pornography, possession of child pornography, distribution of child pornography and making child pornography.

Accessing Child Pornography

An individual has accessed child pornography when they look at or access child pornography materials. Generally, an individual accesses child pornography by accessing digital files containing child pornography materials online.

Possession of Child Pornography

An individual is in possession of child pornography when they have in their possession child pornography materials. A common example of possession of child pornography is an individual having child pornography materials stored on electronic device(s). An individual may also be in possession of child pornography if they have in their possession drawings or written materials that constitute child pornography.

Distribution of Child Pornography

An individual has distributed child pornography when they distribute, make available, transmit, advertise, sell, import, export or possess for the purpose of sale, distribution, advertisement, making available, transmission or exportation of any child pornography materials. A common example of distribution of child pornography is an individual trading or sharing child pornography materials online.

Making Child Pornography

An individual had made child pornography when they publish, print, make or possess for the purpose of publication any child pornography material. An example of an individual making child pornography would be an individual taking photos, for a sexual purpose, of a child.

What are the Best Defences to Child Pornography Charges?

Public Good

The defence of public good may be used by an individual charged with child pornography if they possessed or accessed the materials for a legitimate purpose relate to the administration of justice. For this defence to be successful the materials must not pose undue risk of harm to a person under the age of seventeen.

Innocent Possession

The defence of innocent possession may be used by an individual who possessed child pornography materials for the purpose of destroying them or surrendering them to police.

Use

The defence of private use may be used where the materials were created for private use, by the person shown in the materials and in possession of the materials and where the sexual activity depicted in the materials is legal. This exception was created for individuals under the age of eighteen who take nude or sexual photos of themselves for their own personal use.

Charter Challenges

In many cases, the three defences outlined above will not be appropriate. Where law enforcement has gathered evidence against the accused that tends to suggest the accused is guilty, the defence may attempt to have the evidence ruled inadmissible. When evidence is deemed inadmissible it cannot be presented in Court against the accused. Generally, to have evidence deemed inadmissible, the accused must launch a Charter challenge, arguing that their Charter rights were violated at some point during the collection of the evidence.

If, for example, police seized and searched electronic devices belonging to the accused without a valid warrant, they have violated the accused section 8 Charter right against unreasonable search and seizure. Where such a Charter violation is significant, the Court must provide a remedy to the accused. Generally, this remedy is having all evidence collected as a result of the Charter breach excluded from evidence. In some cases, where key evidence is deemed inadmissible, the Crown may be forced to forfeit their case.

Materials do Not Constitute Child Pornography

If you have been charged with a child pornography offence it is important to contact experienced legal counsel as soon as possible. Those who are convicted of child pornography almost always spend time in prison and all those who are convicted will be registered sex offenders for a minimum of ten years. As a result of these serious consequences, it is important to protect your rights throughout the court process. Donich Law has experience defending individuals charged with various child pornography offences including those accused of making and distributing child pornography. We combine risk management and litigation to ensure the best outcome for our clients.

What Happens if you Plead Guilty to Child Pornography?

As with any criminal offence, an individual charged with child pornography will have the option to plead guilty to the offence or fight the allegations and take the case to trial. Generally, the court process will conclude more quickly where the accused pleads guilty. However, the Court will not accept a guilty plea from an individual who is not guilty or who attempts to qualify their guilt. The accused must agree to the allegations in open Court and must take responsibility for the offence(s).

In the majority of cases, the Crown and the defence will have discussed possible sentencing options with a Judge prior to the sentencing date. These meetings, known as Judicial Pre-Trials, allow the defendant insight into the possible sentence they may be handed should they plead guilty. In many cases, the defence and the Crown may come to an agreement regarding sentence prior to the accused pleading guilty. This is known as a joint position on sentencing, meaning the Crown and defence agree on what they believe the appropriate sentence is. The presiding judge may then impose the sentence agreed to or may impose a sentence of their own if they disagree with the joint position. In the majority of cases the judge will impose the sentence suggested in the joint position.

Once the sentence has been imposed, a conviction will be registered against the accused’s name and they will generally be taken into custody immediately. The minimum and maximum penalties for child pornography offences are discussed in more detail below, however all child pornography offences have mandatory minimum prison sentences, meaning almost everyone convicted of a child pornography offence will be sentenced to a period of incarceration.

What are the Maximum Penalties for Those Convicted of Child Pornography?

Child pornography offences are among the most serious crimes an individual can be charged with. This is reflected in the very serious criminal sanctions that are regularly imposed on those who are convicted. All child pornography offences have mandatory minimum penalties that must be imposed. In addition to prison sentences, all those who are convicted of a child pornography offence will be required to register as a sex offender for ten years, twenty years or life, as ordered by the Court.

Accessing Child Pornography

Accessing child pornography is a hybrid offence. This allows the Crown to elect to proceed summarily or by indictment, depending on the severity of the allegations. Where the allegations are quite serious or where there is a large amount of child pornography materials, the Crown will generally proceed by indictment. In all other cases, the Crown will proceed summarily.

Where the Crown proceed by indictment, an accused will face a maximum of ten years in prison and a minimum of one year in prison. Where the Crown proceeds summarily, an accused will face a maximum of two years less a day in prison and a minimum of six months in prison.

Possessing Child Pornography

Possession of child pornography is a hybrid offence. This allows the Crown to elect to proceed summarily or by indictment, depending on the severity of the allegations. Where the allegations are quite serious or where there is a large amount of child pornography materials, the Crown will generally proceed by indictment. In all other cases, the Crown will proceed summarily.

Where the Crown proceeds by indictment an accused will face a maximum of ten years in prison and a maximum of one year in prison. Where the Crown proceeds summarily, an accused will face a maximum of two years less a day in prison and a minimum of six months in prison.

Distribution of Child Pornography

Distribution of child pornography is a straight indictable offence. Those who are convicted will face a maximum of fourteen years in prison and a minimum of one year in prison.

Making Child Pornography

Making child pornography is a straight indictable offence. Those who are convicted will face a maximum of fourteen years in prison and a minimum of one year in prison.

In many cases, the penalties for child pornography offences are more severe than the penalties for sexual interference. This is true despite the fact that an accused convicted of sexual interference physically touched a child, while an individual convicted of child pornography did not. The policy reasoning behind this is that every time an individual consumes child pornography materials, they are revictimizing the child depicted in the materials. Additionally, consuming child pornography helps to create a market for such materials, fueling the sexual abuse of more and more children. As a result, courts view child pornography offences as just as serious as offences involving the physical sexual abuse of children.