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Child Pornography Charges in Bowmanville, Courtice and Newcastle

Child pornography is an extremely serious offence that carries with it not only criminal sanctions, but social consequences. In criminalizing possession, Parliament recognized the links between possession of child pornography and harm to children. If you have been charged in Bowmanville, Courtice or Newcastle, your first step should be retaining a criminal defence lawyer who is equipped to handle such sensitive matters and tackle your case to help you reach the best resolution possible.

The Offence of Child Pornography

The offence of child pornography, defined in section 163.1 of the Canadian Criminal Code relates to: any “photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, 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.”1 The dominant characteristic of the materials must be for a sexual purpose or of a sexual organ.

Works of Fiction

Within the definition includes “written, visual, or audio materials that advocate the sexual or whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen.”2 A case in 2005 dealt with an accused that was found in possession of 33 graphic and sexual stories depicting adults and children. At trial, the judge found that the materials did not advocate sexual activity however, the Crown appealed arguing that even when sexual activity with a child is not explicitly advocated, it can still be found implicitly.3

Even if no “real child” is depicted, the offence of child pornography still stands. In the Criminal Code there is no distinction between animation, cartoon, drawings or real photographs. However, a 2001 Supreme Court case gave us a distinction between “self-created expressive material” and child pornography. The court held that written or visual material created by the accused held solely by the accused for personal use does not fall under the section 163.1 definition. This is in response to the need to balance the public interest of prosecuting and protecting vulnerable people with people’s freedom of expression Charter right.4

The Different Offences Related to Child Pornography

Under section 163.1, child pornography is a hybrid of 4 offences. Under the section, you can be charged with making, distributing, possessing or accessing child pornography. Possessing or accessing CP is defined as knowingly causing child pornography to be viewed or transmitted to him or herself. Making child pornography constitutes anyone who one prints, publishes or possesses for the purpose of publication.5Distribution means to transmit, make available, distribute, sell, advertise, import, export or possess for the purpose of transmission, making available, distribution, sale, advertising or exportation are guilty of the offence.6

Sentencing – Aggravating and Mitigating Factors

A conviction of making or distributing child pornography carries a minimum sentence of one year imprisonment up to a maximum of 14 years. The nature of the offence requires that the Crown proceed by way of indictment only. Crown attorneys are given no discretion whether or not to lay charges summarily. Possessing or accessing child pornography has a minimum sentence of 6 months, if summarily, and a minimum of one year by way of indictment. There are a number of aggravating factors that can affect sentencing. These include things like the age of the child depicted, the number of images and sophistication of the collection, or whether or not the accused intended to make a profit.7 Some mitigating factors that the court may consider include the age of the offender, whether the offender has shown genuine remorse, or whether the offender is willing to have treatment or counselling.

Defences

Unless the accused took all reasonable steps to ascertain the age of the child depicted, it is not a defence to believe the child depicted is over the age of eighteen. There is one statutory defence which is sound in section 163.1(6) of the Criminal Code. A person is not guilty of the offence if they have a “legitimate purpose related to the administration of justice or to science, medicine, education or art; and does not pose an undue risk of harm to persons under the age of eighteen years.”8 Other defences like accidental download, private use (R. v. Sharpe) or Innocent possession may also be available depending on the case. At Aitken Robertson our experienced lawyers will help you with your case and determine what defences are available to you to gain the best results possible.

A Highly Technical Charge

From 1998 to 2003, the number of child pornography charges has increased 8 fold, due to development of the personal computer.9 Since then the number is still increasing. Increased accessibility of digital and video equipment, file sharing over the internet, as well as enforcement efforts by police leads an increase in the number of child pornography cases. The now widespread reliance on computer forensics makes the offence of child pornography much more complicated than it used to be. Forensic analysis is extremely technical and requires careful investigation. If you have been charged with child pornography in Bowmanville, Courtice or Newcastle, our Oshawa lawyers’ legal knowledge and practical experience can help you make sense of the sometimes complicated nature of the charge.

Contact Us

If charged in Bowmanville, Courtice or Newcastle, all court dates will take place in the Durham Region Courthouse conveniently located only 3 blocks from our Oshawa office. If you have been charged with a child pornography offence, please call our Oshawa office at 905-725-3564 for a free 30 minute consultation.

Footnotes
  1. 163.1(1) Criminal Code.
  2. 163.1(1)(b) Canadian Criminal Code.
  3. R. v. Beattie, 2005 CanLII 10273.
  4. 2001 SCC 2 para. 115.
  5. 163.1(2) Canadian Criminal Code.
  6. 163.1(3) Canadian Criminal Code.
  7. 163.1 (4.3) Criminal Code.
  8. 163.1(6) Criminal Code.
  9. Kathy AuCoin, Children and Youth as Victims of Violent Crime, 2005 Canadian Centre for Justice Statistics.

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