Child pornography is one of the most serious crimes you can be charged with in Canada. If you have been accused of a crime related to child pornography, you need an experienced criminal lawyer who has defended people in your situation to be at your side from the time of your arrest and onwards.
In this blog, we will discuss what is involved in the charge of child pornography and how a child pornography lawyer can defend you.
What are the Child Pornography Laws in Ontario?
Child pornography is dealt with in the Criminal Code of Canada (the “Code”) in Section 163.1, where it is described as making, distributing, possessing, or accessing:
- A visual (photo, film, video, or other) representation of a person under the age of 18 engaged in explicit sexual activity or in a sexualized pose. Note that a visual representation can also mean a drawing, painting, or computer-generated image.
- A depiction of a person under the age of 18 in which the dominant characteristic is the minor’s sexual organs or anal region, if the depiction is for a sexual reason.
- Material of any kind (written, visual or audio) that promotes or advocates for sexual activity with a minor.
What are the Penalties for Child Pornography Charges?
Consistent with the seriousness of these crimes, the penalties for child pornography-related crimes are severe. The maximum penalty for accessing or possessing this material is 14 years in prison, while the maximum penalty for making or distributing it is 20 years in prison. Aggravating conditions such as repeated offences, a particularly young victim, a lack of remorse, or having a large number of images or videos can result in even more severe penalties, up to and including imprisonment for life.
In addition to prison time, you may also be placed on the National Sex Offender Registry, which can severely limit your employment opportunities, freedom to travel, memberships in organizations, and even where you live. Beyond these statutory penalties, being accused of child pornography-related crimes can entail severe social stigma that could make it impossible for you to regain your standing in the community. Hiring a qualified child pornography lawyer is crucial, given the scale and scope of the potential punishments.
What to Do If You Are Accused of Child Pornography
If you are accused of a child pornography-related crime, contact an experienced criminal defence lawyer immediately. Do not speak to the police, and do not give a statement, even if you believe you can conclusively prove your innocence on the spot. In a highly stressful situation such as this, it is very easy to say or do something that inadvertently incriminates you. It is much better to wait until you have a qualified child pornography lawyer at your side.
Working with a Child Pornography Lawyer to Prepare Your Case
Your child pornography lawyer will begin preparing your defence as soon as you hire them. You can aid in your defence by providing them with all of the information they ask for, being available for meetings and consultations, following their instructions closely, and asking for clarification if there is anything you do not understand.
Your lawyer may use a number of strategies to defend you, depending on the evidence the police and the prosecution have assembled. Here are the most common defences a child pornography lawyer could use in your case:
Your Rights Under the Canadian Charter of Rights and Freedoms (the “Charter”) Were Violated
The Charter offers certain protections for people who have been placed under arrest, including:
- The right to be informed of the reason for your arrest or detention in clear language that you can understand.
- The right to retain and instruct legal counsel and to be informed of this right.
- The right to be brought before a court within a reasonable period of time following your arrest and to challenge the legality of your detention.
- Protection against unreasonable search and seizure.
If your child pornography lawyer can show that any of these rights were violated, they can move to have the charges dismissed or, in the case of an illegal search, to have the evidence excluded from your case.
A recent decision of the Supreme Court extended Charter protection to IP addresses. An IP address is a numerical identifier that every device connected to the internet has. Sites may record the IP addresses of devices that visit them, and the police can use them to track down people that visited the site. But, as of the decision in R. v. Bykovets, if the police acquired your IP address without a warrant, this could be found to be a breach of your Charter rights and lead to the exclusion of evidence.
You Were Not the Perpetrator of The Crime
The prosecutor for your case must prove beyond a reasonable doubt that you were the person who possessed, distributed, or accessed the material in question. Your child pornography lawyer may be able to show that someone else could have been responsible, raising doubt about the identity of the perpetrator. For example, if child pornography was located on your computer, but you occasionally left your computer unattended, your child pornography lawyer could use that to argue that other people could have accessed the offending material using your computer.
There Was Technological Interference with Your Device
It is not unusual for child pornography offenders to store pornographic material on other peoples’ devices to avoid detection. This can be done using malware or via hacking. A malicious hacker could even do this deliberately to incriminate you. To develop this defence, your child pornography defence lawyer may enlist the services of a computer forensics expert to examine your devices or to testify on your behalf.
You Were Unaware of The Child Pornography
It is entirely possible to download a file with child pornography in it accidentally. This is possible if the file is part of a larger download and was misleadingly labelled or if some of your applications are set to automatically download certain types of files. This defence can be complex, but if this happened to you, your child pornography lawyer may be able to use this defence successfully.
The Material in Question Is Not Child Pornography
Under the Code, if someone has a “legitimate purpose related to the administration of justice or to science, medicine, education or art” for possessing materials that would otherwise be considered child pornography, it is legal to have those materials as long as they do not pose a risk or harm to a minor. For example, if you are an instructor of pediatric nursing, you might have images of the genital areas of minors in your possession for instructional purposes, which is entirely legitimate.
These are the most common defences that are used in these cases, but of course, other strategies are possible, depending on the specifics of the case and the evidence against you. Working closely with a child pornography lawyer is crucial to ensuring that you get the best and most appropriate defence possible.
Need a Child Pornography Lawyer in Toronto?
Being accused of a child pornography-related crime is upsetting and disorienting. Hiring a child pornography lawyer as soon as possible will help you get back your sense of stability and control.
If you are in this situation, trust the criminal defence lawyers at Zamani Law to help. We have successfully defended many people charged with child pornography-related offences. We have the expertise, experience, and familiarity with the local justice system to guide you through this difficult time. Contact us today for a free consultation.
