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Toronto Criminal Lawyer Mark Zinck

Child Porn Charges and Defence


Lawyers frequently defend charges relating to the possession, distribution, and making of child pornography in Canada. As technology improves, more people are finding themselves charged for child porn offences under Section 163.1 of the Criminal Code of Canada with things such as:

1) Possession of child pornography;
2) Making child pornography;
3) Distribution of child pornography; and
4) Accessing child pornography.

Please note: Providing highly sophisticated technological and constitutional defences for clients charged with child pornography throughout the GTA/Toronto is a primary area of practice for Attorney Mark Zinck. For more specific information on how we can help those charged with child porn related offences, please see: http:www.torontochildpornlawyer.ca.

Definition of Child Pornography in Canada

The definition of child porn in Canada is found in Section 163.1 of the criminal code, which reads as follows:

163.1 (1) In this section, “child pornography” means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.


Photos or videos of naked children is not necessarily child porn


It is important to note that the definition of child pornography in Canada seems to exclude images or video of children who are under the age of 18 who are simply nude or naked where there is no sexual activity, suggestion, or inference and no focus on genital or anal organs. As such, material that depicts nudist, nudism or naturist activities that includes no sexual activity and does not focus on a "sexual organ or anal region" would seemingly not meet the definition of child porn.

This is the reason a picture taken by a parent of their child naked in the bathtub is not child porn, unless the genitals are focused on or the child is engaged in a sexual act.

How do people get caught and charged for child porn?

While there are numerous ways in which child porn charges originate, several scenarios most commonly lead to police investigations and charges being laid. Most often, the police become aware of possible child pornography possession when a third party reports to the police that an individual may have images or videos on their computer that meet the definition. Once the police receive this information they will quickly apply for a warrant to seize and search the suspect's computer for child pornography.

The circumstances that commonly give rise to reports possession of child porn charges include the following:

1) a girlfriend, friend, or family member discovers child porn on a computer and tells the police;

2) the accused forgets or leaves their computer in a public place, which is recovered by a third party and the infringing material is found and reported;

3) a computer containing child porn is brought in to a store or sent away for maintenance or repair and the material is discovered;

4) an individual accidentally or mistakenly shares images or videos via a public folder over a wi-fi or other public network;

5) an individual mistakenly uploads or sends images or videos to a social networking site, msn chat, email, or other communication;

6) the accused attempts to print material at a public location, such as a wal-mart or other store;

7) the individual views or leaves child porn displayed on their computer screen which is noticed in a public place.

In all of these cases, a third party becomes aware of the child porn on the suspect's computer and reports it to the police. The police then obtain a warrant using the reasonable grounds of the third party seeing the images or videos. The police then seize and search the computer, find the child porn, and arrest and charge the accused. In many cases, they also have an incriminating statement from the accused that is obtained via police interrogation.

Admission of possession, making, or distribution of child porn

If the police find images or videos that meet the definition of child porn, they will immediately attempt to extract an admission of guilt or possession from the suspect. This means they will interview the suspect as soon as possible to try to get him to admit incriminating things, such as that he:

1) intentionally downloaded the child porn;

2) that he was aware the child porn was on his computer or that he was aware that he was in possession of the child porn;

3) that he owns or had control over the computer or hard drive that the child porn was found on;

4) that nobody else had access to the computer to hard drive that the images or video was found on;

5) that he was aware the child porn was being shared via torrent or other peer to peer websites (to support a charge of distributing or creating child porn);

6) that he copied the files to an external hard drive, burned the files to a CD/DVD, printed, or otherwise made a copy of the files (to support a charge of making child pornography).

The police may also try to extract generally incriminating statements from the suspect such as admitting that he is perverted, attracted to minors, or that he is sexually aroused by naked children. Sometimes police will try to appeal to and gain confessions from suspects by questioning or sympathizing with their histories, which may include child sexual abuse or sexual assault.

Police demanding passwords for child porn files

While many people believe that any child porn on a computer can be recovered by the police, in reality there are some methods of password encryption that are currently unrecoverable by police.

The normal method of password cracking used by police is known as the "brute force" method, which essentially means attempting every possible password combination until the correct one is found. Even with 2011 technology and processing speed, sufficiently long and complicated passwords using technology such as TrueCrypt or .rar encryption can take decades or centuries to crack because forensic investigators must try a googolplex+ of possible combinations to break the password. As computer systems become faster, this time will be reduced, but as of 2011 some sufficiently long and complex passwords using numerous variations of characters can literally take 100s of years to crack even with the fastest computer technology.

Suspect provides the password

Since the police cannot crack all passwords, they will attempt to gain access to password information from suspects through questioning. Many suspects, acting under the false belief that all passwords can be cracked, will openly give the police the password. By doing so, a suspect's fate can easily change from being let go to having their life destroyed with a child porn charge.

Searching for passwords in text files, written documents, etc.

Police also sometimes gain access to .rar and TrueCrypt encrypted child porn files that they can't crack using brute force by looking for passwords in text, word processing, and other files found on the suspect's computer. Many suspects will store the file containing the password near the location of the encrypted files. Sometimes the password is also found on written documentation in the suspect's home or possession.

For example: If the suspect has a text file on his machine containing 67 random characters, numbers, and symbols, police will attempt to use this information as a password.

Defending child porn charges

While many suspects assume that once the images are found on their computer that their case is a lost cause and they will be found guilty, there are numerous defences available to those found with child porn on their computer. Some defences involve exceptions found in Section 163.1(6) of the criminal code for images that for specific purposes, which reads:

163.1(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and

(b) does not pose an undue risk of harm to persons under the age of eighteen years.


This means that if the accused has a legitimate purpose for possessing the child pornography, such as research, art, or science, they may be able to rely on this defence. It should be noted, however, that since this defence was included in the criminal code in 2005 to replace the previous "artistic merit" defence, some courts have been reluctant to grant the exception to defendants who would have received it pre-2005 (see: R. v. Katigbak, 2010 ONCA 411). The burden on the accused has been increased (particularly in Ontario).

When the police investigate and charge someone with child porn offences they will also attempt to secure incriminating statements/admissions from the suspect regarding their use/purpose to prevent them from relying on Section 163.1(6) later at trial.

Child Porn Defences - someone else responsible

There are other possible defences that involve a third party being responsible for the material that depending on the circumstances could lead to the acquittal of the accused, such as:

1) someone else had access to the computer and downloaded the images and they were reasonably unaware the images were on their computer;

2) the computer was compromised by a virus or malware that allowed someone else to download the images;

3) that their wi-fi connection was not secured allowing a third party to download the material; and

4) that they reasonably believed the individuals in the child pornography to be of legal age.

The problem is that many suspects will admit to the police that they had downloaded the images or knew they were on their computer thus damaging their ability to mount such defences.

In the heat of the moment, many accused will make the mistake of talking to the police and making incriminating statements that essentially ensure their conviction by denying them viable defence options. Had these individuals refused to give statements, the result of their case (and their personal future), may have been significantly different.

Making of Child Pornography

While most people think of "making child pornography" as involving the actual first hand filming of child pornography pictures or video, most people charged with the offence have simply copied a file on their computer. Police will charge suspects with making after they admit to printing images, burning files to a CD/DVD, or copying files to an external hard drive or other device.

Since many suspects choose to throw away their chances of defending the charges against them by speaking to the police, they end up incriminating themselves for charges of "making" child porn, by telling police they copied files to another computer, disk, drive, or device.

The social stigma attached to a child pornography conviction is significant. It is even far worse to have the label or reputation of "making child pornography", especially considering most people in the public assume this means actually taking pictures or videotaping child porn first hand.

Accessing Child Pornography

Accessing child porn is a charge that is normally included when a person is charged with possessing child porn. Some people also end up charged with accessing child porn after they admit to searching for it on the internet to the police. If the police are unable to find or recover incriminating files on their suspect's computer, they can still charge the suspect with accessing child porn if the accused admits to doing so under police interrogation.

If an internet service provider (ISP) alerts the police that a user's account was discovered to by accessing child porn the police will immediately search the user's computers, hard drives, disks, etc. Even if no images or videos are recovered, they may still charge the person with accessing child porn. While many wi-fi connections are unsecured, and many computer are accessible to people other than the suspect, creating possible defences to such charges, many accused admit to accessing child porn to the police thus possibly denying them this viable defence.

Distributing Child Pornography

Distributing child porn is defined in Section 163.1(3) of the criminal code of Canada to include anyone who "transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography". In practical terms, this usually means people who are openly sharing child porn files on torrent, peer to peer, discussion board forums, IRC, usenet, ftp, or through other methods throughout the internet.

Some individuals are unaware they are distributing child porn as file sharing programs often automatically share files without specifically informing the user. Furthermore, sometimes when an individual's computer is infected with a botnot or other malicious application, their computer is used to transmit child porn without the user even knowing. Again, these are some possible defences that the police will attempt to deny the suspect by extracting an admission of guilt or confession.

Penalty and Sentencing for Child Pornography

Those convicted of child porn offences in Canada face a range of possible sentences depending on the individual's criminal history and the severity of the facts of their case. Spending some time (7 - 45 days) in jail for a mild child porn possession conviction is becoming more normal, even for individuals with no previous record. In more serious cases involving individuals who are profiting from child porn or who have significant histories of sex crimes, they may face much longer jail/prison sentences and penalties.

Offenders will also likely be required to complete a period of probation of at least 1 year and register as a sex offender both Federally and Provincially (for those in Ontario).

The range of punishment for child porn is prescribed in Section 169 of the criminal code. Ultimately, the sentence is up to the discretion of the Judge.

 

169. Every one who commits an offence under section 163, 165, 167 or 168 is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.


If you've been charged with a child porn related offence do not answer questions or make statements to the police - contact our law offices immediately.



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