What are the best defenses to a child pornography charge?

>>What are the best defenses to a child pornography charge?

Defending child pornography offences in Canada is very difficult, and the best defences to your charge will depend on the specific circumstance of you case. However, one way of defending a child pornography charge is to rely on the statutory defence set out in section 163.1(6) of the Criminal Code. According to this section, you cannot be convicted of a child pornography offence if the material in question meets two criteria:

  1. It was produced for a legitimate reason related to the administration of justice, or if it is related to science, medicine, education or art.
  2. It does not pose an undue risk of harm to persons under the age of 18 years.

When determining whether the material was made for a legitimate purpose, the court will look to see whether there is an objectively reasonable connection between the material and the alleged purpose. Even if the court finds that the pornography was made for a legitimate purpose, they can still find that the material is unlawful if it poses an undue risk of harm to individuals under 18. The material will pose an undue risk of harm if a reasonable person looking at the material would determine that it creates objectively ascertainable risk physical or psychological harm to children.

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. However, this is not always an easy defence to raise. In accordance with section 163.1(5) of the Criminal Code, you can only use this defence 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. A failure to do so can ultimately result in your conviction for this offence.

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 in law the concept of possession requires that you have at least some control over 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 images. However, bear in mind that you can still be found guilty of the lesser offence of accessing child pornography.

Lastly, one of the most effective ways to defend a child pornography charge is by arguing that the evidence against you was unlawfully obtained. This can be done by making a Charter motion, or an argument that the evidence was gathered in violation of the rights guaranteed to you by the Canadian Charter of Rights and Freedoms. In Canada, section 8 of the Charter guarantees that we all have a right to be free from unreasonable search and seizure. Sometimes when the police are investigating a crime, they will take actions that deliberately or accidentally violate your section 8 Charter rights. If this is the case, you can then argue that any evidence that the police gained during the violation should be excluded from trial. In this way, much, if not all of the evidence against you can be excluded from your trial and you could potentially be acquitted of the offence.

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All our 30-60 minute free consultations are conducted with one of our Criminal Defence Lawyers and include the following steps:

  1. Gathering of some personal information about you, such as your level of education, occupation, and citizenship status. This information can be crucial for building your defence and seeking a resolution with the Crown Prosecutor;
  2. Careful review of all documents you received from the police. We will explain what each document is, and what you can expect from and need to do for all upcoming appearances;
  3. Critical review of your recollection of events, and any supporting materials you choose to bring with you. This step helps us identify possible defences and avenues for further investigation; and
  4. Discussion of the court process, our fee structure, and what we can do to help.

Beyond these steps, we would be happy to tell you more about us, and answer any questions you may have. If you chose to retain us to help you, we will immediately provide an overview of what steps we plan to take next, and suggestions as to what you should do to improve your chances of a successful outcome.

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  • A written statement (preferably typed) outlining your version of events;
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  • Any disclosure you have received;
  • Photo ID; and
  • Any supporting documents, such as photographs, emails, texts, phone records, medical records, receipts, etc.

Ideally, you will have prepared a copy of these materials for us to keep, but if not, we can always photocopy them during the consultation.

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The cost of a criminal defence lawyer will depend on several factors, including:

  1. how complex your case is,
  2. how serious the charges are, and
  3. how experienced the Criminal Defence lawyer is.

The fees of a competent Criminal Defence Lawyer will typically range into the thousands of dollars. The good news is that only a fraction of that amount is due initially. We offer flexible payment schedules so thefees can be paid in monthly installments.

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