Child Pornography Lawyer Toronto
Possession, accessing, making and distribution of child pornography are serious allegations and are regarded as grievous sexual offenses. The criminal code provides that a conviction for possession of child pornography carries a mandatory minimum jail sentence, irrespective of the age of the offender or the circumstances surrounding the case. However, the good news is that the Ontario Court of Appeal has just struck down the mandatory minimum sentences as being unconstitutional. That now opens the door many new options on sentencing.
Once convicted, every child pornography offender must officially register with the Sexual Offender Information Registry Act (SOIRA). The length of registration will vary based on the severity of the conviction, requiring a minimum of 10 years for a summary offense and 20 years for an indictment. In addition, there is also mandatory registration on the Ontario Sex Offender Registry.
Child pornography cases are typically prosecuted in a very aggressive fashion. Heavy sentences and penalties aside, there are all kinds of other negative consequences associated with a child pornography conviction. It can affect your standing in the community, employability, personal relationships, and international travel.
These cases are often built on evidence taken from the computer files and other electronic devices. Issues that tend to arise with this type of evidence is the lawfulness of which the files were procured. If they were seized illegally, that presents a problem for the prosecution. It also must be proven that the files or records were a result of the accused’s action, and not someone else with access to that computer or device.
Also, each image or video used as evidence must meet the definition of child pornography as stated in the criminal code. The onus is on the crown to demonstrate this.
Anyone that has been charged with a child pornography offense should seek legal counsel immediately, and exercise the right to remain silent.
The law firm of Daley, Byers has extensive experience in defending individuals charged with child pornography. Just like with any other charge, the accused is innocent until proven guilty. It is incumbent on the crown to prove all elements of the case beyond a reasonable doubt.
Daley, Byers will do everything in their power to inspect every plausible defense for your case. With the assistance of technical experts, we will analyze the investigative procedures and warrants used to obtain evidence, ensuring nothing is left unchecked. If there is a way to win it, we will find it. If an acquittal seems unlikely due to overwhelming evidence, there are still negotiations to pursue. A summary conviction is much less damaging than an indictment.
The lawyers at Daley, Byers have a wealth of experience defending child pornography charges, with outstanding results.
Issues of Concern
There are a multitude of questions and concerns that arise from a child pornography charge. Let’s start with the basics.
What is Child Pornography?
There is typically a fair amount of confusion surrounding what exactly falls within the scope of child pornography, based on the lawful definition.
As stated under the Criminal Code, Section 163.1:
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;
Can written material be construed as child pornography?
Child pornography is not limited to pictures and video, it can also come in the form of an audio recording or any written material that depicts any person under the age of 18 as a sexual object or promotes sexual activity. This can be found under Section 163.1 (b) and (c) of the Criminal Code:
- (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;
We have recently successfully defended a client charged with possession of child pornography and accessing child pornography by using his computer to read a short story with graphic child pornography. His charges were ultimately withdrawn.
What kind of laws are there regarding the manufacturing and displaying of child pornography?
It is a criminal offense in Canada to make, print, or publish child pornography. It is also a criminal offense to possess child pornography for the purpose of publication under Section 163.1(2) of the Criminal Code:
Making child pornography
(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. (note that the minimum sentence was recently struck down by the Ontario Court of Appeal)
The manufacturing of child pornography includes any photos, videos, audio recordings, or written material taken on any device or any other medium.
The Crown is obligated to prove beyond a reasonable doubt that:
- The content was in fact made by the accused
- The materials included child pornography (a person under the age of 18 depicted in a sexual manner)
- The act was carried out with intent
- The accused was aware of or purposefully blind to the content
What does it mean to transmit of distribute child pornography?
The distribution laws on child pornography prohibit the act of abetting or assisting anyone in obtaining or viewing it. This can be as simple as sharing a link or an image with someone, or as involved as actively selling and exporting child pornography.
Section 163.1(3) of the Criminal Code states:
Distribution, etc. of child pornography
(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. (the minimum sentence provision has recently been struck down by the Ontario Court of Appeal)
The Crown must prove:
- The material is defined as child pornography
- It was made available for transmission or distribution by the accused
- It was done with intent
Who is guilty of accessing child pornography?
It is not imperative that a person be in possession of child pornography in order to be guilty of accessing it. Anyone that deliberately opens a file or a link with the purpose of viewing child pornography may be charged with accessing it.
It is on the onus of the Crown to prove:
- The accused did access it
- Child pornography was what was accessed
- It was done with intent
What is the punishment for an Accessing Child Pornography conviction?
The sentence handed down for accessing child pornography is largely up to the discretion of the Crown as well as the judge. Accessing Child pornography is an offense that can be tried either as a summary offense, or by indictment. The Ontario Court of Appeal has stated that general deterrence and denunciation are the primary factors in sentencing. However, the circumstances of the offence, the circumstances of the accused and the risk or lack thereof to society are also significant factors to be considered on sentence. If the case gets to the point of determining the appropriate sentence we will arrange for our clients to see the a top rated sex psychiatrist, well respected in their field and the courts to prepare a psychological report which will address the issue of potential risk.
The sentences are set out in the Criminal Code as follows.
Section 163.1(4.1) of the Criminal Code states:
Accessing child pornography
(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.
The minimum sentences have been recently struck down by the Ontario Court of Appeal.
What are the laws regarding the possession of child pornography?
In order to be charged with possession of child pornography, it must be proven that the illegal materials were under the accused’s control. The crown must also prove that the accused was aware of the content, and that the content was child pornography. It is not necessary for the Crown to prove that the accused actually viewed the materials.
It is legal to possess criminal child pornography if the sole purpose for that possession is to destroy it, or turn it over to the police.
Penalties
Child pornography possession is another type of offense that can be prosecuted as either a summary or an indictable offense. The penalties associated with a summary offense are far less severe than those for an indictable one.
Section 163.1(4) of the Criminal Code states:
Possession of child pornography
(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.
The minimum sentences have recently been struck down by the Ontario Court of Appeal.
What about drawings, cartoons, or anime? Can those be considered child pornography?
Any drawings, cartoons, or anime that contain sexually explicit content involving someone under the age of 18 are considered child pornography. In the eyes of the law, these types of materials are no different than ‘real life’ photos or videos. The content and intent are the same, regardless of medium.
Are there any other offenses associated with child pornography, other than making, publishing, distributing and accessing it?
There are other offenses related to child pornography that revolve around dealings or interactions with the actual children.
One example is providing access to sexually explicit material to a child.
What does is mean to provide access to sexually explicit material to a child?
It is a criminal offense under Section 171.1 to make any sexually explicit material available to a child (anyone under the age of 18). This includes the transmission, distribution, or availability of any material depicting sexual acts.
Section 171.1 of the Criminal Code states:
Making sexually explicit material available to child
- 171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to
- (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
- (b) a 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 under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
- (c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
Another type of crime that one may be charged with under child pornography laws is Luring a Child.
What is does Luring a Child mean?
Child luring means exactly what it says. Luring a child for sexual activity. This often occurs through the use of the internet. It is not necessary that the internet be used. Any conduct that is for the purpose of luring a child for sexual activity will satisfy the definition of child luring.
Section 172.1 of the Criminal Code states:
Luring a child
- 172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with
- (a) a person who is, or who the accused believes is, under the age of eighteen years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155 or 163.1, subsection 212(1) or (4) or section 271, 272 or 273 with respect to that person;
- (b) a person who is, or who the accused believes is, under the age of sixteen years, for the purpose of facilitating the commission of an offence under section 280 with respect to that person; or
- (c) a person who is, or who the accused believes is, under the age of fourteen years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 281 with respect to that person.
Anyone can be charged with luring a child when using telecommunication to communicate with a child for the purpose of facilitating the commission of sexual exploitation, incest, sexual touching, sexual assault, child pornography, or abduction.
Penalties for Luring a Child
The sentencing for a child luring offense will vary based on the specifics of the offense, the character of the accused, risk factors in the future and many other relevant factors. These factors may aggravating, or mitigating. Child luring is another offense that can be tried as either a summary or indictable offense.
Penalties are set out in the Criminal Code as follows:
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of
(a) is guilty of 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) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
(The minimum sentence regime has been struck down by the Ontario Court of Appeal – opening the door for many more possible outcomes)
What does Warrant of Seizure mean?
A warrant of seizure may be issued by a judge in a child pornography case, if there are reasonable grounds to suspect publication of child pornography intended for distribution is present on the premises in question.
Break down of Penalties for a Child Pornography Conviction
As previously mentioned, sentences will influenced by the character and integrity of the accused, potential risk to the public in the future and the circumstances of the offence.
Making Child Pornography
Strictly an indictable offense, no option for a summary conviction.
- Minimum penalty – 1 year (now struck by the Ontario Court of Appeal)
- Maximum penalty – 14 years
Distribution of Child Pornography
Also an indictable offense only, no chance for a summary prosecution.
- Minimum penalty – 1 year (now struck by the Ontario Court of Appeal)
- Maximum penalty – 14 years
Possession of Child Pornography
A possession offense can be tried as either a summary or indictable offense.
- Indictable – minimum penalty – 1 year (now struck by the Ontario Court of Appeal)
maximum penalty – 10 years
- Summary – minimum penalty – 6 months (now struck by the Ontario Court of Appeal)
maximum penalty – 2 years less a day
Accessing Child Pornography
An accessing child pornography charge can also be prosecuted as an indictable or summary offense.
- Indictable – minimum penalty – 1 year (now struck by the Ontario Court of Appeal)
maximum penalty – 10 years
- Summary – minimum penalty – 6 months (now struck by the Ontario Court of Appeal)
Maximum penalty – 2 years less a day
A conviction for any of the above offenses will result in mandatory registration with the Sex Offender Information Registration Act (SOIRA).
Does the nature or quality of the content make a difference when it comes to sentencing?
Yes, the nature and quantity of the content is relevant when it comes to sentencing. The size of the collection, and the description of the content will serve as mitigating or aggravating factors.
For instance, if the accused has a substantial collection of child pornography, it will serve as an aggravating factor, as it indicates a longer accumulation period.
If the content is violent in nature, and depicts abuse to a child, that is also an aggravating factor.
Does it matter if the content was purchased?
Purchased child pornography is considered an aggravating feature, simply because it supports the business of child pornography.
What is the best way to defend against a child pornography allegation?
First things first, exercise your right to remain silent and contact a dependable and experienced child pornography lawyer immediately.
Daley, Byers is an excellent choice due to their long-running experience and expertise in dealing with such cases. They will explore every possible defense to ensure all evidence was obtained legally and that no corners were cut.
Having an experienced lawyer can mean the difference of being prosecuted for summary offense instead of an indictable one in some cases. Every avenue of defence must be pursued. Sometimes even the smallest of mistakes on the part of the police can result in a successful defence.