Child Pornography Lawyer2023-08-02T21:10:14+00:00

Toronto Child Pornography Lawyer

Since children are vulnerable, child pornography is considered an extremely serious criminal offence in Canada. It is always a good idea to consult a child pornography lawyer early on in the process to ensure your case is on the right track. It can make all the difference—especially since these charges carry mandatory jail terms.

What is child pornography?

In Canada, under section 163.1 of the Criminal Code, it is a criminal offence to access, possess, distribute, or make child pornography. Child pornography includes depictions of children under the age of 18 engaged in sexual activity in videos, photographs, written material, audio recordings, and drawings. The Criminal Code outlines that it can also be material that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under the Criminal Code.

As outlined in the Criminal Code, there are four possible charges related to child pornography:

  1. Accessing child pornography
  • Accessing child pornography means that you are knowingly causing child pornography to be viewed by or transmitted to yourself.
  1. Possession of child pornography
  • This offence requires that you have the child pornography materials in your possession and under your control. To meet the charge for possession, it is not necessary that you actually viewed the child pornography, it is enough that you have the materials in your possession and had knowledge of them.
  1. Distribution of Child Pornography
  • It is a criminal offence to transmit, make available, distribute, sell, advertise, import, export, or possess for the purpose of transmission, making available, distribution, sale, advertising or exporting any child pornography.
  • This includes helping someone else access child pornography, whether it be through sending them a link online or by selling them child pornography material.
  1. Making child pornography
  • It is a criminal offence to make, print, publish or possess for the purpose of publication any child pornography.
  • This includes taking photos, making videos, visual representations, or even writing.

Arrest and bail process for child pornography charges in Toronto

When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a criminal defence lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.

You may be released directly by police, or you could be held for a bail hearing, depending on the circumstances of the offence and your own personal circumstances (e.g. if you have a criminal record). The police have a few mechanisms for release, which all require you to attend court as specified. If you are released by police, there are likely to be conditions attached to it through what is known as an undertaking. These conditions can be, for example, prohibitions against contacting the victim(s) or attending a certain location.

Although accessing and possessing child pornography are hybrid offences (i.e. the Crown has the ability to choose whether to proceed summarily or by indictment), all hybrid offences are considered indictable until the Crown elects. As such, you will be asked to attend a police detachment for fingerprinting ahead of your first court appearance.

If you are held for bail, you will be brought in front of a judicial official within 24 hours of your arrest. Not only will a child pornography lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.

If you are brought to court for bail, a lawyer can speak to the Crown about what is required to secure your release and can propose a bail plan. The plan often involves one or more people called “sureties.” A surety is someone you know who agrees to take responsibility for your release into the community. They pledge to pay a certain amount of money if you do not follow your conditions of release. Being a surety is a huge responsibility, and a lawyer can explain their role and adequately prepare them for court.

Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”

The Crown may consent to your release based on the plan. If they have concerns about the plan, the circumstances of the offence, your chance of reoffending, your ability to follow conditions (especially if you have breached bail before), et cetera, they may contest your bail. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified.

There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:

    • Whether you are a flight risk (primary ground);
    • Whether you pose a threat to the public (secondary ground); and
    • Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).

The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.

As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:

    • Supervision through sureties;
    • Curfews or house arrest, including ankle monitoring;
    • Refraining from use of drugs and alcohol;
    • Mandatory counselling;
    • No contact with certain individuals, such as the victim(s); and/or
    • Restrictions on where you can travel.

With respect to child pornography specifically, there are also typically prohibitions on accessing and using electronic devices and having contact with individuals under 16 years of age.

When making this consideration, the Crown and the court are bound by the “ladder principle.” This principle means that when it comes to imposing conditions, the least restrictive conditions must be imposed unless the Crown can show that the less restrictive conditions are not appropriate in your case. The Supreme Court of Canada’s 2017 decision in R. v. Antic reinforced this principle. A number of courts, however, seem to have forgotten this obligation. A lawyer can help the court recognize that your detention is not necessary and can remind the court why less strict bail conditions are appropriate.

If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a child pornography lawyer in Toronto maximizes your chances of being released.

It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.

Awaiting trial:

Once you are released by police or a bail hearing is conducted, a lawyer can start preparing a successful defence for your case.

A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. These rules are particularly stringent when it comes to cases involving materials depicting the exploitation of children.

In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them  to effectively advocate for you.

A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.

If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a child pornography defence lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.

There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.

If you are charged with making and distributing child pornography, or if you are charged with possessing and accessing it and the Crown chooses to proceed by indictment, and the case goes to trial, there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, a judge alone in the Superior Court, or a judge and jury in the Superior Court. Since making and distributing child pornography carries a possible sentence of 14 years in prison for that offence, you will also be entitled to a preliminary inquiry for those offences, which is a sort of mini-trial that determines whether there is sufficient evidence to even hold a trial on the charges. If the judge finds that there is not sufficient evidence, then you will be discharged. Making your election and having a preliminary inquiry are strategic decisions. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.

Consequences if found guilty:

Due to its sensitive nature involving children, child pornography offences carry mandatory minimum jail terms. For possession and accessing child pornography, the Crown has a choice whether to proceed by summary conviction or by indictment. If proceeding summarily, you will face a minimum sentence of six months and a maximum sentence of two years less a day. If proceeding by way of indictment, you will face a minimum sentence of one year and a maximum sentence of ten years. For making and distributing child pornography, the Crown must proceed by indictment. You will face a minimum sentence of one year and a maximum sentence of 14 years in prison.

In addition to these jail terms, there are also certain orders that accompany a child pornography charge, such as a DNA order, a section 161 order (if the complainant is under 16 years of age), and a SOIRA order (which involves the Sex Offender Registry). These orders can have a far-reaching effect on your life long after you are sentenced. If you have children, there may also be issues with the Children’s Aid Society. A lawyer is in the best position to explain the possible consequences to you and to work tirelessly to obtain the best outcome in the circumstances.

It’s vital to hire a lawyer for child pornography charges

Being charged with child pornography offence can be a stressful experience. Just being charged with this offence can carry a very serious stigma due to its sensitive nature. It is important to seek professional advice from a lawyer about your rights from the beginning in order to obtain a quality child pornography defence.

A child pornography lawyer can also do much more. They can:

  • Work to secure your release with the most favourable conditions;
  • Help you navigate the criminal justice system;
  • Ensure that the Crown meets its disclosure obligations;
  • Identify systematic or administrative errors in the criminal process, including Charter rights violations;
  • Speak to the Crown on your behalf, negotiate, and advise you of your options;
  • Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
  • Gather further evidence to support your version of the events;
  • Obtain a more lenient sentence in the event a guilty plea or conviction is entered.

All criminal cases are complex and fact specific. We have provided general information about how child pornography charges are handled. Hiring a lawyer provides your best chance at mounting a successful defence for your sexual assault case or any other difficult charge. For more information about how we can help, please contact our team.

Frequently Asked Questions About Child Pornography Charges

Will Child Pornography Accusations Become Public?2022-09-28T18:49:09+00:00

Specific orders are mandatory for all child pornography charges in Canada. A SOIRA order involves registering as a sex offender. If you are a parent, you may have legal matters to resolve with the Children’s Aid Society. Aspects of your case will be public record, and citizens have the right to access legal records and documents regarding criminal cases.

Do Drawings or Sketches Constitute Child Pornography?2022-09-28T18:49:55+00:00

Child pornography includes depictions of children under eighteen years of age engaged in sexual activity in the format of drawings, audio recordings, written material, photographs, and videos. It is a criminal offence in Canada to make, print, publish, or possess for the purpose of publication any child pornography. This includes taking photographs, making videos, visual representations, or even writings.

Which Age is Relevant to Child Pornography Charges?2022-09-28T18:50:53+00:00

Child pornography may include depictions of children under eighteen years of age engaged in sexual conduct. Individuals under the age of eighteen will inform child pornography charges. Individuals who are eighteen years of age and older do not fall under the definition of “child” under the Criminal code. “Child” means a person who is or appears to be under the age of eighteen years.

What Are the Requirements for Posting Bail for Child Pornography Charges in Toronto?2022-09-28T18:52:27+00:00

Officers in Canada are mandated to inform you of your right to legal counsel. If you are not released by the officers, you may be detained for a bail hearing. Whether or not you are detained for a bail hearing will be based on the specific facts and circumstances regarding the offence, and your prior criminal history.

A lawyer can set forth a bail plan and speak to the Crown about the terms of your release. Typically, a surety will be involved as part of your bail plan who will take responsibility for you after you are released back into your community. The surety will make a financial payment if you do not follow the provisions of your bail plan.

Those accused of crimes cannot be denied bail without “just cause,” and the Crown must demonstrate why you should be denied bail. You may be denied bail because you pose a flight risk, you pose a threat to public safety, or you need to be detained to ensure the administration of justice.

Is It Possible to Alter the Conditions of My Release for Charges Related to Child Pornography in Toronto, Canada?2022-09-28T18:53:31+00:00

The court will take into consideration several factors concerning your proposed bail plan. These factors include the nature of sureties, the elements of the proposed bail plan, the nature of the criminal offence, your prior criminal history, and your personal relationships with members of your community.

Conditions of release are imposed for the following reasons:

  • To protect public safety, including witnesses and victims
  • To stop the accused from committing other criminal offences
  • To stop the accused from committing the same offence in the future
  • To determine the identity of the accused
  • To make sure the accused appears in court

Altering conditions of bail will depend on whether or not an individual accused of a crime was released after a bail hearing or after an undertaking. Another major factor regarding altering the conditions of release includes whether or not it is done with or without the consent of a prosecutor.

Conditions of release can be altered at any point in time with the prosecutor’s consent. However, if the conditions of release required a surety, the individual accused of a criminal offence must obtain written consent from the surety regarding the altered conditions of bail.

If you were released on an undertaking, you must apply for and schedule a hearing during which you can request that specific bail conditions be altered. The hearing will take place before a justice of the peace or a judge. If you were released on bail and the prosecutor does not agree to an alteration of bail conditions, you must file a bail review application.

Affidavits and transcripts of bail hearings are required as part of the bail review application. You must demonstrate a procedural or substantive error that occurred at the bail hearing, or a material change in your circumstances. The bail review occurs in Superior Court.

What Penalties Are Associated with Charges of Child Pornography?2022-09-28T18:54:37+00:00

Under Canadian law, individuals who commit child pornography offences face mandatory minimum prison sentences. Individuals accused of possessing and accessing child pornography will face either indictment or summary conviction. Those who are indicted will be sanctioned with at least one year of imprisonment and a maximum sentence of ten years. Summary conviction may lead to at least six months imprisonment or a maximum sentence of two years minus one day.

Indictment is mandated for cases involving manufacturing and distributing child pornography. Individuals indicted for manufacturing and distributing child pornography may be sanctioned with a minimum one-year prison sentence. The maximum sentence is fourteen years imprisonment.

Child pornography charges are associated with orders that must be entered. A SOIRA (Sex Offender Information Registry Act) order, a section 161 order, and a DNA order must be entered after an accused individual is convicted of a child pornography offence. The Children’s Aid Society may also play a role in your case if you are a parent or guardian.

The consequences that arise from a child pornography conviction can affect every area of your life. You may face issues related to housing and employment. A child pornography lawyer can provide you with the guidance and advice you need to enforce your legal rights.

May Charges Related to Child Pornography Be Reduced or Dismissed?2022-09-28T18:55:29+00:00

Retaining an experienced child pornography lawyer can help you obtain a less severe sentence if you are convicted or plead guilty. A skilled child pornography lawyer will work diligently to analyze all the evidence presented by the Crown to establish your defence. With a robust defensive strategy, it is possible that child pornography charges may be withdrawn. You may also be acquitted of the charges filed against you by the Crown.

A child pornography lawyer can also collect evidence to create a timeline of events that suggest you did not commit the crime for which you have been accused. Also, a knowledgeable lawyer can negotiate with the Crown and inform you of several options available to you regarding sentencing. A child pornography lawyer will also note procedural and administrative errors that may have prejudiced you.

How Much Does It Cost to Remove Child Pornography Charges?2022-09-28T18:56:24+00:00

Every case is unique, and the facts and circumstances of your case will affect the cost of legal representation. Also, the more complex your case, the more time and money your lawyer must devote to gathering evidence and formulating a defensive strategy.

In Canada, the average hourly cost for a lawyer is approximately $75. Some lawyers work on a pro-bono basis, but these services are not commonly available for the accused in criminal matters.

Consult with your lawyer regarding the cost of your defence. If you cannot pay the total cost immediately, you may be able to pursue other options, such as an installment plan or seeking public legal defence.

What Are the Best Defences for Child Pornography Charges in Toronto?2022-09-28T18:57:20+00:00

A knowledgeable and skilled child pornography lawyer will begin preparing a strong defence tailored to the facts and circumstances of your case. No two criminal cases are identical, and the specific factors that are relevant in one case may not be important in your case. The particular facts of your case will determine the best defence for your lawyer to implement.

Disclosure is an important element in every criminal case. A child pornography lawyer will request all the relevant evidence the Crown possesses. Although the Crown may not necessarily use all the evidence it has against you, the Crown must disclose all of its evidence to your lawyer. Particular items of evidence may only be released to a lawyer. Having a skilled child pornography lawyer by your side will help you obtain all the evidence that is relevant to your case.

You may have not known the age of the individual in the material you possessed or distributed. You may also have access to many different computers in your home which are also accessed by other people. These circumstances may suggest that the accusations you are facing are incorrect, or even false. A skilled lawyer will examine the facts of your case and analyze the evidence so that you can be proven innocent if the facts warrant such a conclusion.

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