Child Pornography Lawyers in Toronto

Child pornography is a serious offence in Canadian criminal law, classified as an offence tending to corrupt morals. A conviction requires some interaction with adult images, video, writings, or sound recordings of a minor who is nude or engaging in sexual activity.

The relevant provisions for child pornography in the Canadian Criminal Code are:

There are four primary offences within the parameters of child pornography:

• Accessing child pornography,
• Possessing child pornography,
• Distributing child pornography, and
• Making child pornography.

“Accessing” means to knowingly view or transmit the child pornography, usually online. “Possessing” means to knowingly have control over the child pornography, and knowledge of its character. “Distributing” means to make the pornography publicly available to others, often through file sharing or posting online. “Making” means to create new forms of child pornography by controlling its production.

All four offences carry mandatory minimum punishments and lengthy maximum sentences. In addition, a sentence will be increased if the offence was committed with the intent to make a profit.

The pornography can take many forms, including on film, in a painting, or even in a short story if it depicts the genitalia of a minor or their engagement in a sexual act. “Person” includes both real and fictional human beings, meaning child pornography could include the sexual acts of imaginary children.

Investigation of Child Pornography Charges in Toronto

In Ontario, the Internet Child Exploitation (ICE) unit typically investigates allegations of child pornography. Often, ICE will monitor peer to peer and data-sharing sites, where they observe exchanges for the sharing or uploading of child pornography. The investigator will attempt to gather incriminating evidence, which will likely be used to secure a search warrant of your electronic devices.

Other times, the police may initiate an investigation from an informant who has found child pornography on your electronics. For example, a friend borrowing your laptop, or a service technician accessing your computer’s hard drive. The police will attempt to uncover further information about you in order to apply for a search warrant of your computer, cellphone, or any other device or place they can link to the tip and investigation.

When the police gather sufficient evidence and obtain the requisite search warrants, they will arrest you and seize the electronic devices suspected to contain child pornography. Usually, devices that have nothing incriminating on them are returned. Once arrested, you will be transported to a police detachment for questioning. Should any of your devices be password protected, the police will likely try to have you provide passwords to assist their investigation. If you deny their request, they will obtain the requisite search warrant to make you provide the password, if they don’t have it already.

Child pornography charges are typically prosecuted by a specialized team of prosecutors. They will screen the file to determine whether there is sufficient evidence for the charge. If there is not, they will either stay the charges, or withdraw them altogether.

Bail Process and Conditions for Child Pornography Charges in Toronto

How do I get myself or a loved one out on bail for child pornography charges in Toronto?

With child pornography charges, you will likely be held in custody to appear for a bail hearing before a Justice of the Peace in order to secure your release.

In order to conduct a bail hearing, you will be taken to the Toronto Police Service Division that is responsible for the alleged crime. The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought into the Division.

The phone number for each division is 416-808-[Division Number – 00], so for example, the number for 52 Division is 416-808-5200. The addresses for each Division of the Toronto Police Service can be found here.

Alternatively, the accused may be held at the Toronto South Detention Centre:

160 Horner Ave
Toronto, ON M8Z 0C2
Tel: 416-354-4030

Penalties for Child Pornography Charges in Toronto

The penalties for child pornography offences can be hefty, usually including a significant jail sentence. Punishments vary depending on the individual circumstances of the offender, and the severity of the offence.

For accessing or possessing child pornography, you can expect:

• Indictable offence: Mandatory minimum punishment of 1-year imprisonment and not exceeding ten years, or
• Summary conviction: Mandatory minimum punishment of 6-months imprisonment and not exceeding 2 years less a day.

For making or distributing child pornography, you can expect:

• Indictable offence: Mandatory minimum punishment of 1-year imprisonment and not exceeding 14 years.

It is worth noting that while the federal government implemented mandatory minimum sentences for more serious offences in the Criminal Code, they are frequently subject to constitutional challenges. A competent defence lawyer will assess whether the mandatory minimums in question are still applicable in the case at bar.

There are a number of aggravating factors that will increase the amount and likelihood of jail time:

• If you are caught in possession of a large volume of pornographic materials,
• If the children depicted in the material are very young,
• If you played a significant role in producing the material, and
• If you intended to profit from the material.

In addition to your sentence, you are likely to receive a number of ancillary orders, including:

• An order to forfeit any property related to the offence, and/or
• An order restricting your ability to frequent places where you are likely to interact with minors under the age of 16.

If you have been convicted of making, possessing or distributing child pornography, you will also receive an order to register with the National Sex Offender Registry. As a registered sex offender, you will have to provide the police personal information including where you live, what you drive and what you do for work. You will also be obligated to inform the police any time you move, change employment or volunteer positions, or travel internationally for more than 7 days.

Defending Child Pornography Charges in Toronto

What are the best defences to child pornography charges in Toronto?

Child pornography cases are very technical. Just because it is a serious offence does not mean a conviction is inevitable. The best defence for you will depend on the specific circumstances of your case.

Some defences to child pornography offences are:

• Legitimate reasoning & no undue harm: Section 163.1(6) of the Criminal Code states that if the material in question was produced for a legitimate reason related to the administration of justice, science, medicine, education or art; and it does not pose undue risk of harm to minors, then you cannot be convicted. The court will assess the connection between the material and the purported legitimate purpose. However, even where the purpose is legitimate, the Court can still convict if it poses undue risk of harm. If a reasonable person looking at the material would determine that it creates an objectively ascertainable risk of physical or psychological harm to children, this defence is not available.
• Lack of knowledge: Another common defence to a child pornography charge is to argue that you did not know that the person depicted was under the age of 18 years. If you can demonstrate that you took all reasonable steps in the circumstances to ensure that the person was at least 18 years of age, this can aid your case. A failure to do so, according to section 163.1(5), can ultimately result in your conviction.
• Lack of control: If you have been charged with possession of child pornography, you can sometimes argue that you did not have the level of control required to be found guilty of a possession offence. Because possession in law requires that you have control over and knowledge of the item in question, you can argue that simply viewing pornography stored in a location on the internet is not enough for you to be found guilty of possessing the content. However, bear in mind that you can still be found guilty of the lesser offence of accessing child pornography.
• Innocent possession: If you possessed the child pornography for the sole purpose of delivering it to authorities or destroying it, this could aid your defence. This can help challenge the mental elements of committing a child pornography offence.
• Private use: This defence may be available to you where you can prove that the materials in question pose nominal risk to the child, they depict lawful sexual activity, they were made with the consent of all parties involved, the consent was not coerced, the material is in possession of its creator or the participant of the sexual activity, and the material was held for private use.
• Violation of constitutional rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence. With child pornography, this typically arises as an unlawful search and seizure. If successful, the evidence in question will be excluded from the case, making it difficult or impossible for the Crown to prove beyond a reasonable doubt that you committed the offence.

It is critical that you have a talented and tenacious lawyer in your corner. Your defence will likely involve complicated rules of evidence, requiring excellent knowledge of constitutional law. We will bring these qualities to defending your case.

Our defence may focus on any of the following issues:

• Can the Crown use the evidence gained from the search in your trial?
• Can the police prove that you were the one using the computer at the time child pornography was accessed, distributed, or possessed?
• Is there anyone else in your household or workplace who could have been responsible for these offences?
• Do you have a defence based on a legitimate purpose related to art, science, education, or medicine?

How can I help defend child pornography charges in Toronto?

In order to achieve the best results, it is often helpful for you to take positive actions to address the issues that gave rise to the allegations in the first place.

The following can help your lawyer build a strong defence:

• Provide your lawyer with a statement about what happened;
• Collect and maintain all documents and records about the event;
• Gather a list of witnesses that may support your version of events; and
• Log any relevant texts, emails, phone calls or photographic evidence.

What information is relevant will depend on the facts in your case. As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action for gathering information.

If you are truly proactive about the matter, consider doing the following:

• Secure proof of employment,
• Secure reference letters,
• Enroll in counselling,
• Secure a record of prescriptions, and
• Secure a record of any mental health conditions you suffer from.

It is important to know that enrolling in counselling is not a sign of guilt but is instead considered to be an extremely positive action that is looked upon favorably by the Crown and the Court. This is often a crucial factor in our ability to resolve child pornography charges with the lowest penalties possible or to seek a resolution that will allow you to walk away from the charges with no criminal record.

These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against child pornography charges in Toronto?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause.

Some of these include:

• Identifying mistakes in the actions of the police, such as Charter breaches;
• Pinpointing issues in the manner in which the search of your devices or home was conducted;
• Uncovering problems with the documents that authorized the search, including the search warrant issued by the Judge and the “Information to Obtain” documents prepared by the police to justify applying for the search warrant; and
• Exploring administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.

What’s Next?

Child pornography cases vary greatly depending on the type of offence. We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Child Pornography Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.

Child Pornography Offence FAQs

1. Child Pornography Laws in Canada