In today’s day and age, it’s become more common that some offences take place online. Internet crimes are as varied as they come: they can range from cases of child pornography all the way to cyber-bullying. Still, with the right defence strategy, it is possible to have your charges reduced or dropped altogether.
Child Pornography
As per section 163.1 of the Criminal Code, it is illegal for any person to create, possess, publish or distribute/transmit or any photo, film, or other visual representation that depicts those under the age of 18 years of age engaging in sexually explicit acts, or where the dominant characteristic of the depiction is of the intimate areas of the body of a person under age 18, and is for a sexual purpose. Still, child pornography does not only refer to visual media, but also includes any form of written, visual, or audio material that promotes sexual activity with children under the age of 18. It is somewhat ironic that an 18 year old youth can have sex with their 17 year old partner, but cannot possess a naked photo of the other person, even with their consent.
What are the penalties for child pornography?
Typically, a general child pornography charge would include a minimum of 6 months in jail. The charge would also depend on the circumstances: for instance, if you were the one who is charged with actually creating or distributing child pornography, then it is an indictable offence and must be tried in court. As such, the minimum jail time would go up to 1 year, whereas the maximum would be 14 years. On the other hand, if the charge only reflects possession or access to child pornography, then the charge can either be resolved through a summary conviction, or through indictment. This decision is up for the Crown to choose. For a summary conviction, the maximum jail time would be 2 years less a day, and the 6 month minimum would apply. For possession charges, if indictment is chosen by the Crown, the maximum jail time would increase to 2 years, and the minimum would be 1 year.
Aggravating factors which could increase the penalty include the number of images, the number of children, if the possessor of the images has any relationship with the children, how intrusive the photos or videos are, and prior related criminal record.
Jail time is not the only penalty for those who are found guilty for a child pornography charge. In certain cases, if the court is satisfied based on a balance of probabilities that a piece of property (for instance a movie studio in a home) was used to commit the offence, that property might have to be forfeited by the accused. Additionally, if the victim(s) involved were under 16 years of age, the accused may also be restricted for going into certain public spaces or from seeking employment that might place them in proximity with children of this age group. Lastly, if the accused is convicted, their DNA will be registered in a databank, and they will be compelled to register as per Sex Offender Information Registration Act. This is a particular difficult sort of sentence to face; essentially the accused if convicted is ‘branded’ for many years. Any jail is very difficult.
Possible Defences for a Child Pornography Charge
That isn’t to say that all hope is lost if you receive a charge for child pornography. In fact, there are several defences that could be raised:
“Multiple Users” Defence
The first one is called the “Multiple Users” defence. For computers or other electronic devices that are used not just by a single person, it might be difficult for the Crown to prove that viewing or downloading child pornography was linked to a specific person or group of people. This can often be the case for a common computer used by a household, or by multiple people living together. Some factors that will be considered could be whether the browsing history could be linked to a specific person, whether the computer or device contained multiple user accounts, and whether the device was secured using a password.
“Trojan Horse” Defence
The second one is called the “Trojan Horse” defence. This refers to the possibility that a hacker has planted illicit images on your computer or other device. For instance, if ransomware is used, child pornographic content could be distributed onto your device and the user is locked out unless a demand for money is paid. In other cases, hackers may plant offensive content in someone’s device as a means of framing them. For the defence, looking at the context of each case will be incredibly important. Some questions can be raised: Was there clear motive to plant illicit images on someone’s computer? If the images were discovered by the victim, who did he/she notify? What was done with the images once discovered?
“No knowledge of the illicit content” Defence
The third one is where there is “No knowledge of the illicit content”. Simply put, this defence can be raised where people don’t even realize that child pornographic content was on their device in the first place. In many occasions, people who purchase refurbished devices might not even possibly know that offensive material is saved in “unallocated space.” This means a part of your device’s storage that is not associated with any specific file. The files saved here do not have time stamps or other metadata that informs an investigator when a file was accessed or created or who owned the file. Without that key metadata, it is difficult to determine when a file was created, where and when it was downloaded, where it was stored and who accessed it. If it so happens that illicit content is found in unallocated space and do not have metadata associated with it, it is good evidence that the owner of the device never interacted with the child pornographic content at all. As knowledge is a key element of “possession,” if this defence is raised, the Crown must prove that the accused knew that this content existed on their device.
“Accidental Download” Defence
Lastly, there is the “accidental download” defence. As the name suggests, sometimes people who are accused of child pornography possession may have downloaded files that they did not know contained illicit material. For example, for file sharing platforms such as BitTorrent, the files shared between users there are rarely monitored for offensive content. Unfortunately, sometimes a file with nothing unusual on the surface could actually be replete with illicit material. An additional problem with peer-to-peer file sharing such as BitTorrent is you may not even discover problematic content until it is already downloaded and possibly even shared with others. Still, as with any other Criminal Code offence, the Crown has the obligation to prove mens rea (the mental component) of possession of child pornography beyond a reasonable doubt. In light of this, using the defence that a download was truly accidental could raise a certain degree of doubt.
And finally, child pornography charges largely are won or lost on the strength of the police warrant to seize electronic devices, and expert evidence at trial.
Revenge Porn
Typically, revenge porn involves an individual who received or took intimate pictures or other content of another person (such as a boyfriend or girlfriend), and then proceeds to publish this content without the other’s consent. Typically, the reason why the content is posted is to enact revenge after a fight between the two individuals. Once it is posted, reputation damage is severe, and content tends to get distributed into wider and wider circles. It is virtually impossible to retrieve.
With the serious implications of revenge porn, charges laid against the accused refer to section 162.1 of the Criminal Code. There, it states that it is a crime for anyone “who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct.” An ‘intimate image’ is later described as a recording of another person where the person is typically nude, exposing an intimate area, and/or engaged in sexual activity, and where there was supposed to be a reasonable expectation of privacy.
Possible Defences for a Revenge Porn Charge
Most defences for a revenge porn charge deal with the issue of ‘consent.’ If a viable case can be made where your lawyer can help show that the person depicted in the intimate images actually consented to having them published, reasonable doubt could be raised in terms of whether you could be found guilty.
This isn’t the only way to defend against a revenge porn charge. A defence could be made that someone who went under the guise of your identity published the content without you knowing. Additionally, another defence is that the impugned content does not qualify to what the court deems as an ‘intimate image.’
Other Cyber-Crimes
It’s easy for someone to type out mean comments while hiding behind a computer screen. Still, that doesn’t mean that everything you write is legal. There are offences listed in the Criminal Code that outlines prohibited conduct online.
In terms of general cyber-bullying, it’s true that the law does not make it clear as to what you’re actually allowed to say, and what you can’t. Context matters too; sometimes, words that are published online are meant only to be taken as a joke or a meme. It’s sometimes hard to discern what is meant to be taken seriously online versus what is considered satire or harmless. Regardless, nearly all social media platforms have their own terms of use, and may restrict or remove users entirely if they do not abide by the rules in place.
Still, one common offence is libel, which is any written communication that hurts a person’s reputation. Section 299 of the Criminal Code says that libel in public, causing it to be read or seen by any person, is a punishable offence. This also includes words that are said on social media, whether in a Tweet or in your Instagram story.
Another serious offence is cyber-stalking. This refers to the use of information and technological communications to support deliberate, repeated, and hostile behaviour by an individual or group that is intended to harm others. Under section 264 of the Criminal Code, individuals can actually be charged for conducting themselves in such a manner. For those who are found guilty, the penalty could actually mean imprisonment up to 10 years. Aggravating factors will be taken in to account by the court to assess the severity of the penalties involved. By hiring a good defence lawyer, they can help to mitigate these aggravating factors, or even prove that the alleged incident may have been misconstrued in the first place.
