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Child Pornography

Old city hall Ontario Court of Justice Toronto, Toronto Child Pornography Lawyer

Child Pornography

Toronto Child Pornography Lawyer

Child pornography offences are extremely serious. A conviction for possession, accessing, distributing, or making child pornography can attract a significant jail sentence. In addition to a jail sentence, ancillary orders that accompany a child pornography conviction will require registration with the Federal and provincial sex offender registries. Moreover, upon conviction, the Court will order restrictions upon contact with individuals under the age of 16. Internet access may similarly be restricted or prohibited for a significant period of time. Brian Weingarten has successfully defended individuals charged with child pornography offences, and has a strong understanding of the computer forensics and computer science issues that arise in these cases.

What is Child Pornography and What are the Different Child Pornography Offences?

Section 163.1 of the Criminal Code contains a comprehensive multi-subsection definition of “child pornography. Specifically, the section states:

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.

There are four general categories of child pornography offences. These are

• Making, printing, publishing child pornography;
• Transmitting, making available, or distributing child pornography;
• Possession of child pornography;
• Accessing child pornography.

What are Some Defences to Child Pornography Charges?

Child pornography prosecutions are very fact driven. Each case is unique and must be thoroughly reviewed before potential defences can be assessed. In some cases, it might be possible to argue that the materials alleged to be child pornography, do not meet the definition set out in the Criminal Code.

In other cases, it might be possible to challenge the search warrant authorized to review devices seized by policesuch as: computers, laptops, hard drives, and cell phones.

In some cases, depending upon the forensic evidence, it might be possible to argue that the Crown cannot make out technical “possession” of the purported child pornography materials. Practically speaking, this approach will depend upon the area of the computer/device where the offending materials are located.

In other cases, multiple people may have access and regularly use the electronic device(s) in question. There might therefore be a defence of “identity.”

What are the Penalties for a Child Pornography Conviction?

It should be noted that various mandatory minimum penalties have recently been found to be unconstitutional. However, the criminal Code sets out the minimum and maximum penalties for child pornography convictions as follows:

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.

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.

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.

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.

What Other Legal Consequences Flow From a Child Pornography Conviction?

There are a certain ancillary orders that may flow from a child pornography conviction. Upon conviction, an order will be made requiring the accused to provide a sample of their DNA for the national DNA databank.

A second ancillary order that will be made upon a conviction for a child pornography conviction is the requirement that the individual register with the sex offender registry as required by the Sex Offender Information Registration Act ( SOIRA order). A SOIRA order ends 10 years after it was made if the offence was prosecuted by way of summary conviction or if the maximum term of imprisonment was between 2 to 5 years. The order lasts for 20 years if the maximum penalty for the offence is 10 or 14 years. The order will last for life if the maximum penalty for the offence is life imprisonment.

Finally, upon conviction, the Sentencing Judge will impose a prohibition order under s. 161 of the Criminal Code. This order can be for a maximum life term. This section provides:

Order of prohibition

161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or

(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.