What is Child Pornography?
Child pornography is a serious offence in Canadian criminal law, classified as an offence tending to corrupt morals. A conviction requires interaction with adult images, video, writings, or sound recordings of a minor who is nude or engaging in sexual activity.
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 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.
Although instances of accessing or being in possession of child pornography have declined since 2015, incidents of making or distributing child pornography have steadily increased. In 2009 the Internet Child Exploitation Unit (ICE) was created to help combat these crimes by combining members of the Reginia Police Service, Saskatoon Police Service, Prince Albert Police Service and RCMP.
The relevant provisions for child pornography in the Criminal Code of Canada (the “Code”) are:
Child 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.
Given the serious nature of these charges, it is critical you have a seasoned criminal defence lawyer on your side.
Investigation of Child Pornography Charges in Saskatchewan
In Saskatchewan, the ICE unit typically 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 requisite 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.
Child pornography charges are typically prosecuted by a specialized team of prosecutors. They will screen the file to determine whether there is sufficient evidence for the charge. If there is not, they will either stay the charges, or withdraw them altogether.
Bail Process and Conditions for Child Pornography Charges in Saskatchewan
How do I get myself or a loved one out on bail for child pornography charges in Saskatchewan?
With child pornography charges, you can expect a formal bail hearing be required to secure your release.
Prior to conducting the bail hearing, you will likely be transferred to a provincial correctional facility to wait for your bail hearing. If you are a male, you will be transferred to the nearest of the following: the Regina Provincial Correctional Centre, the Prince Albert Provincial Correctional Centre, or the Saskatoon Provincial Correctional Centre. If you are a female, you will be transferred to the Pine Grove Correctional Centre in Prince Albert. In some cases, you may be held at the local RCMP detachment or municipal police cells.
The bail hearing can be held within as little as 24 hours, a period of time that starts from the moment of arrest or detention. However, the Crown can request up to three days to prepare for your bail hearing and may ask the court for longer. An effective defence lawyer will ensure that your bail hearing occurs as soon as possible so that you are not in custody for any longer than necessary.
The Regina Provincial Correctional Centre address is:
Regina Provincial Correctional Centre
4040E 9th Avenue North
Regina, SK S4P 3A6
Tel: (306) 924-9000
The Saskatoon Provincial Correctional Centre address is:
Saskatoon Provincial Correctional Centre
910 60 Street East
Saskatoon, SK S7K 2H6
Tel: (306) 956-8800
The Prince Albert Correctional Centre address is:
Prince Albert Correctional Centre
3021 1 Avenue West
Prince Albert, SK S6V 6G1
Tel: (306) 953-3000
In Prince Albert, the Pine Grove Correctional Centre address is:
Pine Grove Correctional Centre
1700 7 Avenue North-East
Spruce Home, SK S0J 2N0
Tel: (306) 953-3100
Loved ones are not able to contact you while you are detained. Unless the detained person is a minor, 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.
Given 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 process and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private. If you choose to exercise this right, the police must stop questioning you until you have had the opportunity to do so.
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 into the correctional centre where you are being held 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-offending?
- Is detention necessary in all the circumstances to maintain confidence in the administration of justice?
Rest assured, we will work to not only secure your release but also ensure the least restrictive set of bail conditions (including the minimum cash deposit) possible.
In order for our lawyers 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 is often difficult in child pornography cases, but not impossible.
Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. 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. Such reviews are conducted at the Court of Queen’s Bench of Saskatchewan.
Where can I pay for bail for child pornography charges in Saskatchewan?
If you or a loved one are charged with child pornography in Saskatchewan and granted bail, you will likely be required to provide a cash deposit to secure release. The mode by which you pay the cash deposit will depend on the courthouse at which your bail hearing is held. Your defence lawyer will advise you on the procedures specific to your location and will be able to explain the options for payment to you, or to a loved one who is making the payment on your behalf.
How do I change my release conditions for child pornography charges in Saskatchewan?
Release on bail with child pornography charges will almost always require a surety, cash, or no-cash deposit.
Furthermore, 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 Saskatchewan.
The judge may also impose 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;
- Your physical and mental condition;
- Your history of drug/alcohol usage;
- The nature of the alleged offence;
- The likelihood that you will flee;
- Whether you have stable employment;
- Whether you have stable living arrangements; and
- Whether you have ties to the community.
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.
Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes adding exceptions to some of the conditions or eliminating them altogether.
If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. It is always our priority 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 you.
Penalties for Child Pornography Charges in Saskatchewan
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, you can expect:
- Summary: Mandatory minimum punishment of 6 months imprisonment, not exceeding 2 years less a day;
- Indictable: Mandatory minimum punishment of 1-year imprisonment, not exceeding 10 years.
For making or distributing child pornography, you can expect:
- Indictable: Mandatory minimum punishment of 1-year imprisonment, not exceeding 14 years.
It is worth noting that while the federal government implemented mandatory minimum sentences for more serious offences in the 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 in accordance with the National Sex 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.
A conviction for child pornography will result in a mandatory minimum 10-year SOIRA order for just one offence, which can have significant and overwhelming consequences for your future.
Under a SOIRA order you are required to report to the Sexual Registry anytime you:
- Change your address or place of residence;
- Change employment or volunteer positions; or
- Travel internationally for more than 7 days.
Furthermore, your personal information will remain in the Sexual Registry database indefinitely.
Defending Child Pornography Charges in Saskatchewan
What are the best defences to child pornography charges in Saskatchewan?
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 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.
- Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms (the “Charter”) 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 Saskatchewan?
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:
- Take detailed notes about your version of events to provide to your lawyer;
- 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.
What information is relevant will depend on the facts in your case. As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action for gathering information.
To be 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 favorably 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 Saskatchewan?
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 McKenzie, 2017 SKQB 186 the accused was charged with possession of child pornography. At issue was whether the accused knew that the discs found in his room had child pornography on them, as the Crown cannot prove possession without knowledge. The accused testified that other people had access to the computer and he was not there at all times to monitor it. After reviewing the evidence, the court concluded that the computer had been used for the purpose of child pornography during times where only the accused had access to the computer. He was found guilty.
In R v Reeves, 2018 SCC 56, the Crown appealed a previous acquittal made by the Court of Appeal in regards to possession of child pornography charges against the accused. At issue was whether the evidence of child pornography found on the accused’s computer was collected in a way that infringed the accused’s section 8 Charter right against unreasonable search and seizure. The evidence was collected when the wife of the accused allowed police to take the accused’s computer after she mentioned to the accused’s probation officer that she may have seen child pornography on the computer. The Supreme Court of Canada unanimously agreed that the child pornography files could not be submitted as evidence. The law would not allow police to take the device or its data without the individual’s consent or a warrant. The accused’s wife could not wave his Charter privacy rights; therefore, the not guilty verdict was upheld.
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?