- Types of Child Pornography Offences
- Navigating Child Pornography Court Proceedings
- Presentation and Challenges of Digital Evidence
- Child Pornography Defence Strategies
- Penalties and Sentencing in Child Pornography Cases
- Appeals in Child Pornography Conviction
- Legal Support and Resources
Legal proceedings in criminal matters can be complicated for anyone, especially when facing such serious allegations as child pornography. The justice system in Ontario is complex in itself, while child pornography court proceedings can be totally overwhelming.
While no criminal case is the same, there are a number of child pornography defence strategies that can be applied depending on the circumstances to beat the charges. Below, we have a closer look at the types of child pornography offences, explain the court process and legal tactics, and explore your legal options.
Types of Child Pornography Offences
As it has been extensively demonstrated by court practice, Canada has extremely strict child pornography laws that are vigorously enforced. The Criminal Code of Canada defines child pornography very broadly and includes mandatory minimum sentencing in these criminal cases.
In Canada, child pornography includes photos, videos or other visual representations of minors under eighteen years of age engaged in explicit sexual activity or visuals depicting their genital area. At the same time, the definition extends beyond just that and also includes any visuals, written materials, or audio recordings that “promote, counsel or describe” sexual activities involving minors. On top of that, the images do not have to be actual photographs of children—anime, manga, and books which depict or describe sexual activity involving minors can also count as a criminal offence.
The Canadian criminal law has the following types of child pornography offences:
- Accessing: knowingly causing child pornography to be viewed or transmitted.
- Distributing: Transmitting, making available, selling, advertising, importing or exporting or possessing child pornography for the same purposes.
- Making: Creating, printing or publishing sexually explicit materials involving minors or possessing the same for the purposes of publishing.
- Possessing: Having child pornography in possession or control even without viewing.
Navigating Child Pornography Court Proceedings
When someone is arrested for child pornography, they have the right to remain silent and the right to speak to a lawyer. Depending on the circumstances of the offence, the police can release the accused until trial or hold them in custody for a bail hearing. The Crown prosecution may agree with the release on bail based on the bail plan or contest it if they have any concerns about the plan or the accused’s ability to follow bail conditions.
Before the trial, there are several pre-trial hearings, which include the Crown Pre-Trial with the prosecution and the Judicial Pre-Trial with the judge. During these conferences, the defence has a chance to discuss the case with the prosecution and the judge and negotiate settlements.
At this stage, the defence can also obtain disclosure, which is the evidence the prosecution has in the case and develop a defence strategy from there.
Since child pornography is a hybrid offence, the Crown may prosecute the case by indictment or summarily. In more serious cases, where the Crown proceeds by indictment, the accused has the right to choose the mode of trial from the following options:
- judge alone in a provincial court,
- judge alone in the Superior Court,
- judge and jury in the Superior Court.
Presentation and Challenges of Digital Evidence
Digital evidence in child pornography can win or lose a case, so critically analyzing the evidence and its admissibility is crucial for building a strong defence.
In child pornography cases, the following main types of evidence are typically used:
- having child pornography on computer, such as images, videos or texts,
- file history and metadata showing when the files were downloaded or opened,
- deleted files,
- browser history and search history,
- social media footprint.
The good news is that the defence does not have to prove the innocence of the accused. It is the prosecution’s task to show the admissibility and relevance of evidence and prove it beyond a reasonable doubt. Meanwhile, a skilled criminal defence lawyer can critically analyze the existing evidence in the matter, point out its flaws and contest the prosecution case.
Child Pornography Defence Strategies
Every criminal matter is fact-specific, and child pornography cases are no exception. When selecting among available defence strategies in child pornography cases, a criminal lawyer would conduct their own investigation, analyze all evidence the police and prosecution have against the accused, examine whether the Charter rights were observed during the arrest, search, or seizure and all other details pertaining to the case.
While the choice among child pornography defence strategies will be based on individual circumstances, a criminal lawyer can use one of the following defences:
- Lack of knowledge regarding age. This defence can stand in court if the defendant can prove that they took all reasonable steps to ascertain age and ensure that the explicit materials didn’t depict or describe someone under eighteen.
- Innocent possession. In this type of defence, the defendant can justify innocent possession of explicit materials depicting a minor based on the plan to destroy it or submit it to authorities.
- Legitimate purpose and no undue risk or harm. According to Section 163.1 (6) of the Criminal Code, someone cannot be convicted of an offence if the act has a legitimate purpose related to science, medicine, education, art or administration of justice and does not pose an undue risk or harm to persons under eighteen.
- Violation of Charter rights. Whenever the police or the prosecution conducts an investigation, arrest or collection of evidence in violation of the defendant’s Charter rights, the defence may argue about the inadmissibility of such acts.
Penalties and Sentencing in Child Pornography Cases
The range of possible penalties for child pornography depends on the severity of the offence and the presence of aggravating factors, such as significantly underage children, a considerable amount of sexually explicit materials, intent to make a profit or a history of previous offences.
Whether there are aggravating factors or not, all child pornography offences carry mandatory minimum jail time:
- If the Crown decides to proceed by indictment, the minimum mandatory sentence is one year, and the maximum sentence is ten years in prison for accessing and possession offences and fourteen years for making and distribution.
- For less serious cases prosecuted summarily, the minimum sentence is six months of jail time, while the maximum penalty is two years less a day.
Additionally, those convicted of child pornography offences face other, nonetheless devastating consequences, including a DNA order, registration in the Sex Offender Registry and a criminal record.
Appeals in Child Pornography Conviction
When the defendant is found guilty and believes to be unjustly convicted, they have a legal option to appeal the court decision. To do so, a convicted person needs to submit a Notice of Appeal within 30 days of the conviction or sentencing.
Importantly, the appeal process does not reconsider the evidence or facts in the criminal case. Instead, the appeal court focuses on potential legal errors during the initial trial process that could result in a wrongful conviction.
Legal Support and Resources
In Canada, everyone has the right to legal counsel and support, no matter the type and severity of the allegations. Accordingly, anyone facing child pornography charges has the right to have a criminal defence lawyer at any stage of the process, starting from arrest and bail hearing and up to the trial or appeal.
While having an experienced child porn lawyer can make all the difference in obtaining the best possible outcome in the criminal case, the defendant can explore other opportunities and legal aid resources. For example, someone interested in learning more about navigating the criminal process or self-representation may learn about the legal procedure from a Criminal Law Handbook made available by the Canadian Judicial Counsel.
Other opportunities include the assistance of duty counsel lawyers and other forms of legal support provided by Legal Aid Ontario for financially qualifying individuals.
Conclusion
Among all criminal offences in Canada, child pornography is one of the most stigmatizing, with harsh repercussions beyond sentencing. Canadian criminal law defines child pornography very broadly, while the police and prosecution apply zero tolerance to against sexually explicit materials involving minors on the Internet.
If you face charges for having child pornography on a computer in Mississauga, Barrie, Brampton, Scarborough, Newmarket or anywhere else in the Greater Toronto Area, you definitely need legal support.
An experienced defence lawyer can assist in critically analyzing the evidence the prosecution has against you and building a strong line of defence. Please don’t hesitate to contact the Vilkhov Law criminal defence team today for a free consultation on how we can help with your case.
