There are four primary offences within the parameters of child pornography:
- Accessing child pornography,
- Possessing child pornography,
- Distributing child pornography, and
- Making child pornography.
“Accessing” means to knowingly view or transmit the child pornography, usually online. “Possessing” means to knowingly have control over the child pornography, and knowledge of its character. “Distributing” means to make the pornography publicly available to others, often through file sharing or posting online. “Making” means to create new forms of child pornography by controlling its production.
All four offences carry mandatory minimum punishments and lengthy maximum sentences. In addition, a sentence will be increased if the offence was committed with the intent to make a profit.
The pornography can take many forms, including on film, in a painting, or even in a short story if it depicts the genitalia of a minor or their engagement in a sexual act. “Person” includes both real and fictional human beings, meaning child pornography could include the sexual acts of imaginary children.
Investigation of Child Pornography Charges in Kelowna
In Kelowna, the RCMP Integrated Child Exploitation (ICE) team investigates allegations of child pornography. Often, ICE will monitor peer to peer and data-sharing sites, where they observe exchanges for the sharing or uploading of child pornography. The investigator will attempt to gather incriminating evidence, which will likely be used to secure a search warrant of your electronic devices.
Other times, the police may initiate an investigation from an informant who has found child pornography on your electronics. For example, a friend borrowing your laptop, or a service technician accessing your computer’s hard drive. The police will attempt to uncover further information about you in order to apply for a search warrant of your computer, cellphone, or any other device or place they can link to the tip and investigation.
When the police gather sufficient evidence and obtain the required search warrants, they will arrest you and seize the electronic devices suspected to contain child pornography. Usually, devices that have nothing incriminating on them are returned. Once arrested, you will be transported to a police detachment for questioning. Should any of your devices be password protected, the police will likely try to have you provide passwords to assist their investigation. If you deny their request, they will obtain the requisite search warrant to make you provide the password, if they don’t have it already.
Bail Process and Conditions for Child Pornography Charges in Kelowna
How do I get myself or a loved one out on bail for child pornography charges in Kelowna?
With child pornography charges, you will likely be held in custody to appear for a bail hearing before a Justice of the Peace in order to secure your release.
The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.
On a weekday, you will be transferred from the district office to the Kelowna Courthouse for your bail hearing.
The address of the Courthouse is as follows:
1355 Water Street
Kelowna BC V1Y 9R3
If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.
If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.
Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.
Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, until that happens, stop questioning you.
Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.
We will immediately do the following:
- Call the district office where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you.
- Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
- Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
- Conduct either an in-person or teleconference bail hearing to secure your release.
When you attend your bail hearing, the Judge will consider the following factors:
- Is detention necessary to secure your attendance in court?
- Is detention necessary to protect the public from a substantial risk of re-offence?
- Is detention necessary in all the circumstances to maintain confidence in the administration of justice?
Due to the serious nature of child pornography charges, you can expect to be placed on very strict conditions. Rest assured, we will work to not only secure your release, but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).
You can expect to be released on conditions that severely limit your access to the internet and minors. We can ensure that these conditions are not overly broad, and that all reasonable exceptions are made in your case.
Our lawyers often succeed at persuading the Crown Prosecutor in charge of bail to let our clients out of custody. Moreover, we will work to secure your release on conditions that are no more restrictive than necessary. If we can’t convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.
Where can I pay for bail for child pornography charges in Kelowna?
If you or a loved one are charged with a child pornography offence in Kelowna and granted bail, you may be required to provide a cash deposit to secure release. You can pay bail at any court registry (courthouse) in British Columbia. If you live in Victoria, you can pay bail there for someone detained in Kelowna.
The Kelowna court registry is open from 8:30 – 4:30, Monday to Friday.
The contact details of the registry office at the Kelowna Courthouse are as follows:
1355 Water Street
Kelowna BC V1Y 9R3
To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.
How do I change my release conditions for child pornography charges in Kelowna?
Release on bail with child pornography charges will almost always require a surety, cash, or a no-cash deposit.
Beyond that, you can expect tight restrictions, including conditions to refrain from:
- Possessing or using any electronic devices capable of accessing the internet;
- Attending any playgrounds, parks, or swimming pools;
- Communicating with children under the age of 16; and/or
- Departing from British Columbia.
The Judge can also impose some additional conditions such as:
- Residing where approved,
- Reporting to probation,
- Attending counselling, and/or
- Maintaining or seeking employment.
A variety of factors will be considered when determining your precise restrictions, including:
- Your criminal history and any outstanding charges,
- Your physical and mental condition,
- Whether you have stable employment,
- Whether you have stable living arrangements,
- Whether you have ties to the community,
- The nature and severity of the alleged child pornography offence,
- The likelihood that you will flee,
- Your history of drug/alcohol usage, and
- Any steps you have taken to address addiction issues.
In order for your lawyer to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public. This may be difficult in child pornography cases, but not impossible.
One of the most onerous release conditions restricts your access to electronic devices capable of accessing the internet. Many employers require the use of electronic devices and the internet. In order to preserve your employment, Crown counsel will usually agree to add a narrow exception to the ban, enabling you to access the internet while at work for work-related purposes.
A condition restricting communication with minors under the age of 16 may also prove difficult, especially if you share a house with children. Depending on your circumstances, we may be able to persuade the Crown to make an exception to the ban on contact with children. For example, we can include an exception allowing contact where the child’s guardian is present.
If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.
Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether. Our lawyers are practiced at negotiating reasonable release conditions with Crown Prosecutors.
If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.
Penalties for Child Pornography Charges in Kelowna
The penalties for child pornography offences can be hefty, usually including a significant jail sentence. Punishments vary depending on the individual circumstances of the offender, and the severity of the offence.
For accessing or possessing child pornography, the Crown can choose whether to proceed by indictment or by summary conviction.
This decision will impact the severity of the penalties that you can expect:
- Indictable offence: Mandatory minimum punishment of 1-year imprisonment and not exceeding ten years, or
- Summary conviction: Mandatory minimum punishment of 6 months imprisonment and not exceeding 2 years less a day.
For making or distributing child pornography, they are both straight-indictable offences.
You can expect:
- Indictable offence: Mandatory minimum punishment of 1-year imprisonment and not exceeding 14 years.
It is worth noting that while the federal government implemented mandatory minimum sentences for more serious offences in the Criminal Code, they are frequently subject to constitutional challenges. A competent defence lawyer will assess whether the mandatory minimums in question are still applicable in the case at bar.
There are a number of aggravating factors that will increase the amount and likelihood of jail time:
- If you are caught in possession of a large volume of pornographic materials,
- If the children depicted in the material are very young,
- If you played a significant role in producing the material, and
- If you intended to profit from the material.
In addition to your sentence, you are likely to receive a number of ancillary orders, including:
- An order to forfeit any property related to the offence, and/or
- An order restricting your ability to frequent places where you are likely to interact with minors under the age of 16.
If you have been convicted of making, possessing or distributing child pornography, you will also receive an order to register with the National Sex Offender Registry per the National Sexual Offender Information Registry Act (SOIRA). As a registered sex offender, you will have to provide the police personal information including where you live, what you drive and what you do for work. You will also be obligated to inform the police any time you move, change employment or volunteer positions, or travel internationally for more than 7 days.
Defending Child Pornography Charges in Kelowna
What are the best defences to child pornography charges in Kelowna?
Child pornography cases are very technical. Just because it is a serious offence does not mean a conviction is inevitable. The best defence for you will depend on the specific circumstances of your case.
Some defences to child pornography offences are:
- Legitimate reasoning & no undue harm: Section 163.1(6) of the Criminal Code states that if the material in question was produced for a legitimate reason related to the administration of justice, science, medicine, education or art; and it does not pose undue risk of harm to minors, then you cannot be convicted. The Court will assess the connection between the material and the purported legitimate purpose. However, even where the purpose is legitimate, the Court can still convict if it poses undue risk of harm. If a reasonable person looking at the material would determine that it creates an objectively ascertainable risk of physical or psychological harm to children, this defence is not available.
- Lack of knowledge: 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. 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, this can aid your case. A failure to do so, according to section 163.1(5), can ultimately result in your conviction.
- Lack of control: 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 possession in law requires that you have control over and knowledge of 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 content. However, bear in mind that you can still be found guilty of the lesser offence of accessing child pornography.
- Innocent possession: If you possessed the child pornography for the sole purpose of delivering it to authorities or destroying it, this could aid your defence. This can help challenge the mental elements of committing a child pornography offence.
- Private use: This defence may be available to you where you can prove that the materials in question pose nominal risk to the child, they depict lawful sexual activity, they were made with the consent of all parties involved, the consent was not coerced, the material is in possession of its creator or the participant of the sexual activity, and the material was held for private use. This defence is not available where the material in question captures a sex act with a person who is not legally capable of providing consent. The child participant(s) depicted must be aged 14-17.
- Violation of constitutional rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence. With child pornography, this typically arises as an unlawful search and seizure. If successful, the evidence in question will be excluded from the case, making it difficult or impossible for the Crown to prove beyond a reasonable doubt that you committed the offence.
It is critical that you have a talented and tenacious lawyer in your corner. Your defence will likely involve complicated rules of evidence, requiring excellent knowledge of constitutional law. We will bring these qualities to defending your case.
Our defence may focus on any of the following issues:
- Can the Crown use the evidence gained from the search in your trial?
- Can the police prove that you were the one using the computer at the time child pornography was accessed, distributed, or possessed?
- Is there anyone else in your household or workplace who could have been responsible for these offences?
- Do you have a defence based on a legitimate purpose related to art, science, education, or medicine?
How can I help defend child pornography charges in Kelowna?
In order to achieve the best results, it is often helpful for you to take positive actions to address the issues that gave rise to the allegations in the first place.
The following can help your lawyer build a strong defence:
- Provide your lawyer with a statement about what happened;
- Collect and maintain all documents and records about the event;
- Gather a list of witnesses that may support your version of events; and
- Log any relevant texts, emails, phone calls or photographic evidence.
As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information to collect, you should contact one of our lawyers immediately to create a plan of action for gathering information.
If you are truly proactive about the matter, consider doing the following:
- Secure proof of employment,
- Secure reference letters,
- Enroll in counselling,
- Secure a record of prescriptions, and
- Secure a record of any mental health conditions you suffer from.
It is important to know that enrolling in counselling is not a sign of guilt but is instead considered to be an extremely positive action that is looked upon favourably by the Crown and the Court. This is often a crucial factor in our ability to resolve child pornography charges with the lowest penalties possible or to seek a resolution that will allow you to walk away from the charges with no criminal record.
These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).
What can a lawyer do to help me defend against child pornography charges in Kelowna?
As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause. Some of these include:
- Identifying mistakes in the actions of the police, such as Charter breaches;
- Pinpointing issues in the manner in which the search of your devices or home was conducted;
- Uncovering problems with the documents that authorized the search, including the search warrant issued by the Judge and the “Information to Obtain” documents prepared by the police to justify applying for the search warrant; and
- Exploring administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.
Below are a few notable cases dealing with various aspects of child pornography charges:
In R v Sharpe, 2001 SCC 2 the Supreme Court of Canada provided comprehensive guidelines with respect to the definition of child pornography. The Court also defined the parameters of available defences and exceptions with respect these types of charges.
In R v Barabash, 2015 SCC 29 the Supreme Court of Canada considered the parameters of the “private use” defence to child pornography charges. The Court found that where consent is obtained in the context of the exploitation of a young person (as defined by s.153) the sexual activity depicted is not lawful and the private use exception does not apply.
In R v Katigbak, 2011 SCC 48 the Supreme Court of Canada considered the statutory “legitimate purpose” defence set out in s.163.1(6) and found that in order to be successful it must be demonstrated that the connection between the impugned activity and the stated purpose is objectively verifiable. It must be shown that there is a connection between the actions of the accused and an enumerated purpose (administration of justice, science, medicine, education or art).
Child pornography cases vary greatly depending on the type of offence. We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.
To learn more about how we can help, please contact our team of Child Pornography Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.
Child Pornography Offence FAQs
- What is a child pornography offence?
- What are the best defences to a child porngraphy charge?