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:
- Accessing child pornography
- Accessing child pornography means that you are knowingly causing child pornography to be viewed by or transmitted to yourself.
- 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.
- 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.
- 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
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 porn 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.
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
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 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.