If you are facing child pornography charges, you need a criminal defence lawyer in Toronto to look at your case as soon as possible.
Child pornography is a serious criminal offence in Canada. The law defines child pornography as photos, videos, writings, or audio that show or describe sexual acts involving people under 18, or that focus on the sexual body parts of a person under 18 for a sexual purpose.
A conviction requires some interaction with adult images, video, writings, or sound recordings of a minor who is nude or engaging in sexual activity.
All child pornography offences in Canada are hybrid offences, meaning the Crown can choose to prosecute them as either indictable (more serious) or summary (less serious) offences.
There are four main child pornography offences: making, distributing, possessing, and accessing child pornography.
“Accessing” means to knowingly view the child pornography, usually online. “Possessing” means to knowingly have control over the child pornography, and knowledge of its character.
“Distributing” means to make the pornography publicly available to others, often through file sharing or posting online. “Making” means to create new forms of child pornography by controlling its production.
All four offences carry mandatory minimum punishments and lengthy maximum sentences. In addition, a sentence will be increased if the offence was committed with the intent to make a profit. The pornography can take many forms, including on film, in a painting, or even in a short story if it depicts the genitalia of a minor or their engagement in a sexual act. “Person” includes both real and fictional human beings, meaning child pornography could include the sexual acts of imaginary children.
Strategic Criminal Defence is a top Google-rated criminal defence firm in Toronto, with over 500 5-star reviews. Our firm, and our experienced legal team, have defended clients in over 10,000 criminal cases. Leveraging our extensive network of lawyers and decades of experience, we craft defence strategies to help those accused of child pornography offences beat the charge.
The lawyers at Strategic Criminal Defence are both highly experienced and dedicated to defending your rights and future in the face of these charges. Contact a Toronto child pornography offence lawyer today by calling (647) 986-8077.
Key Takeaways
- Child pornography offences include making, distributing, possessing, and accessing material showing sexual content involving people under 18.
- These are extremely serious charges that carry significant social stigma and harsh penalties.
- All child pornography offences have mandatory minimum jail sentences.
- Making or distributing carries a mandatory minimum of 1 year (indictable) or 6 months (summary).
- Possessing or accessing carries a mandatory minimum of 1 year (indictable) or 90 days (summary).
- Bail conditions typically include no internet access, no contact with minors, and computer monitoring.
- Possible defences include lack of knowledge, illegal search and seizure, or challenging the classification of materials.
How can a child pornography lawyer in Toronto help?
A Strategic Criminal Defence lawyer provides crucial protection when facing these devastating charges. We can prevent self-incrimination by ensuring an accused does not make damaging statements during police interviews that could strengthen the case against them. We can also communicate with the police for you through the process of computer seizures.
We can gather important evidence about how files appeared on an accused’s devices, including technical data that might show lack of knowledge or intent. When needed, our lawyers retain expert witnesses like digital forensic specialists who can analyze devices and explain technical aspects to the court.
Our lawyers know how to navigate the complex child pornography court process, including specialized bail hearings and mandatory minimum sentencing provisions. During trial, we provide skilled representation, challenging the prosecution’s evidence about possession, access, or identity while working to protect the freedom and reputation of our clients against these serious allegations.
Child Pornography Charges in the Criminal Code of Canada
According to section 163.1 of the Criminal Code:
Definition of child pornography
163.1 (1) In this section, “child pornography” means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) 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
(ii) 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;
(b) 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 this Act;
(c) 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 be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
Making child pornography
163.1(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
Distribution, etc. of child pornography
163.1(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
Possession of child pornography
163.1(4) Every person who possesses any child pornography is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Accessing child pornography
163.1(4.1) Every person who accesses any child pornography is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Examples of Child Pornography Charges
Here are some examples of what could lead to various kinds of child pornography charges in Toronto:
- Someone downloads a large database of sexual images and videos online which included some materials showing minors engaged in sexual acts. This resulted in possession of child pornography charges.
- Someone takes photos of a minor engaged in sexual activity in front of people at a party, which led to charges of making child pornography.
- A person allows others to access child pornography stored on their computer and uploaded to a shared cloud, leading to distribution charges, even though they didn’t actively send files to specific individuals.
- Someone visits websites containing child pornography and intentionally views the content without downloading it, resulting in accessing child pornography charges.
Consequences of a Child Pornography Charge
The penalties for child pornography offences are severe, usually including a significant jail sentence. Punishments vary depending on the individual circumstances of the offender, and the severity of the offence.
For accessing or possessing child pornography, you can expect:
- Indictable offence: Mandatory minimum punishment of 1-year imprisonment, maximum ten years, or
- Summary conviction: Mandatory minimum punishment of 6-months imprisonment and maximum two years.
For making or distributing child pornography, you can expect:
- Indictable offence: Mandatory minimum punishment of 1-year imprisonment and maximum 14 years.
There are a number of aggravating factors that will increase the amount and likelihood of jail time:
- If you are caught in possession of a large volume of pornographic materials,
- If the children depicted in the material are very young,
- If you played a significant role in producing the material, and
- If you intended to profit from the material.
In addition to your sentence, you are likely to receive a number of other court orders, including:
- An order to forfeit any property related to the offence, and/or
- An order restricting your ability to frequent places where you are likely to interact with minors under the age of 16.
If you have been convicted, you will also have to register with the National Sex Offender Registry. As a registered sex offender, you will have to provide the police personal information including where you live, what you drive and what you do for work.
A conviction also creates a permanent criminal record that makes finding employment difficult, may prevent international travel, and often leads to lasting social stigma and isolation even after completing your sentence. Facing a child pornography charge in Canada brings extremely serious consequences that can affect the rest of life. Contact a Strategic Criminal Defence lawyer today to ensure your rights are protected.
Child Pornography Charge Defences
Depending on the situation, these are some possible defences that may be available:
- Legitimate Reasoning & No Undue Harm: If the material in question was created for a valid purpose pertaining to the administration of justice, science, medicine, education, or art, and it does not present an excessive risk of harm to minors, then a conviction is unlikely. The court will look at how the material is related to the legal purpose.
- Not Knowing or Not Being Able to Control: This applies if you didn’t know that there was illegal content on your devices. A lot of people share computers with family, roommates, or guests who may have accessed or downloaded illegal content without your knowledge.
- Illegal Search and Seizure: Police have to follow strict rules when they get evidence in child pornography cases. If they searched your home, car, or electronic devices without a valid warrant or outside the limits of their warrant, the evidence they found might not be allowed in court.
- Violation of constitutional rights: The Canadian Constitution tells you what your rights are before and after you are arrested. If the police don’t follow these rights, it could help your case. When it comes to child pornography, this usually happens during an illegal search and seizure. If the evidence in question is successful, it will be thrown out of the case. This will make it hard or impossible for the Crown to prove beyond a reasonable doubt that you did the crime.
Child Pornography Charge Investigation
In Ontario, the Internet Child Exploitation (ICE) unit typically investigates allegations of child pornography. Often, ICE will monitor peer to peer and data-sharing sites, where they observe exchanges for the sharing or uploading of child pornography. The investigator will attempt to gather incriminating evidence, which will likely be used to secure a search warrant of your electronic devices.
Other times, the police may start an investigation from an informant who has found child pornography on your electronics. For example, a friend borrowing your laptop, or a service technician accessing your computer’s hard drive. The police will attempt to uncover further information about you in order to apply for a search warrant of your computer, cellphone, or any other device or place they can link to the tip and investigation.
When the police gather sufficient evidence and obtain the requisite search warrants, they will arrest you and seize the electronic devices suspected to contain child pornography. Usually, devices that have nothing incriminating on them are returned.
Once arrested, you will be transported to a police detachment for questioning. Should any of your devices be password protected, the police will likely try to have you provide passwords to assist their investigation. If you deny their request, they will obtain the requisite search warrant to make you provide the password, if they don’t have it already. Child pornography charges are typically prosecuted by a specialized team of prosecutors. They will screen the file to determine whether there is sufficient evidence for the charge. If there is not, they will either stay the charges, or withdraw them altogether.
Bail Conditions for Child Pornography Charges
If you’re charged with a child pornography offence in Canada, you may be released on bail while waiting for your trial, but the conditions will be strict.
The most significant restriction is typically a complete ban on internet access. In some cases, you might be allowed limited internet use for work purposes, but only under strict supervision.
You will almost certainly be forbidden from having any contact with minors under 18 years of age. This means you cannot live in a home where children are present, visit places primarily used by children like schools or playgrounds, or work in positions involving youth.
The court will likely require you to surrender your passport to prevent international travel. Regular reporting to police or a bail supervisor will also be mandatory, sometimes as often as several times per week.
Violating any bail condition is a serious separate offence that will likely result in immediate return to jail while awaiting trial on both the original charges and the bail violation.
