First Offence Child Pornography Charges

What happens when someone gets charged with child pornography offences as a first time offender in Canada?

The majority of individuals charged with child pornography type offences (Accessing, Possession, Distribution) are first time offenders. Most have never been arrested before, let alone for one of the most serious offences in the Criminal Code. As a result of their naivety they are prone to speak to the Police and answer questions about their computer usage, which is often needed for the Police to charge them and have them ultimately convicted. They essentially talk themselves into being charged in many cases by confessing to the essential elements of the offence.

All Child Pornography Offences are Mandatory Minimum Offences

Many first timers are under the false impression that since they have never been charged with anything before in their lives they will be given a “slap on the wrist”. Nothing could be further from the truth. Anyone found guilty of accessing, possession, or distribution of child pornography is subject to a minimum jail sentence of six months.

If convicted of a distribution charge the accused faces up to 14 years in prison. Most P2P file sharing related cases include a distribution charge. For possession and accessing the maximum punishment is 10 years in prison. Most first time offenders receive more than the six month minimum sentence.

In Ontario, Crown Attorneys will normally seek a 2 - 4 year prison sentence initially for a first time offender, but some will get less than that depending on the specifics of their case. Nobody however will receive a sentence of less than six months in jail.

One image that constitutes child pornography is sufficient for a conviction and will attract the six month jail term at a minimum.

It doesn’t matter whether accused is caught with one image of someone a day before they turn 18 (that meets the definition of child pornography), or an entire collection of extremely violent and graphic child abuse involving extremely young children, the charge of possession of child pornography will still apply and so will the mandatory minimum sentence (6 months jail, sex offender registration, etc.).

Even the most minor collection imaginable is thus a tremendously serious case, however some collections will attract much longer sentences than others. This being said the size and nature of the collection is a major factor the courts will consider in determining the length of the jail/prison sentence. In fact, the courts often use the COPINE, or SAP (Oliver) scale of factors to assess child pornography in determining how much jail time and other restrictions for life are appropriate.

While the absolute minimum is six months upon a summary election by the Crown Attorney and the decision of the Judge, most cases proceed by indictment and result in longer sentences than six months upon conviction. The size of the collection and the nature of the images/videos are an important factor for the courts consideration.

How most people get caught and charged with child pornography crimes

The Police will often get a tip from the National Center for Missing and Exploited Children in the U.S., a large internet company such as Microsoft, Yahoo, or anyone else providing cloud storage, a local Internet Service Provider, a member of the public, someone the accused has been chatting with on webcam, or even a relative or friend of the accused. They will then apply for a warrant to enter the home and search and seize the computers, phones, hard drives, etc. Since they do not want the accused to hide or destroy evidence they will usually execute the warrant at the residence of the accused very early in the morning.

When the accused is awaken in their bedroom by a Police flashlight in their face they are often startled and likely to talk and make admissions (or completely confess) to the Police. While the Police have a right to seize the computers, they still want the accused to admit to downloading/accessing child pornography so that the they cannot later blame someone else for it (houseguest, jealous wife setting him up, etc.). They may also need the accused to provide passwords to access the electronic equipment. It also bolsters their case if the accused admits to being curious or interested in child pornography and this may ultimately lead to a longer jail sentence upon conviction.

What other punishments are likely in addition to jail?

In addition to jail, first time offenders face up to three years of probation upon their release with conditions that can include curfews, restrictions or prohibition on computer use (or devices capable of accessing the internet), being required to avoid pools, schools, and any place children are known to be, attend counselling, etc.

Orders of Prohibition under Section 161 (1) of the Criminal Code

While restrictions on computer use and attending places where children can be will undoubtedly be attached to the probation order, the court will normally make a separate order under Criminal Code section 161 (1) preventing or restricting the defendant’s ability to use electronic devices capable of accessing the internet, attending at public parks and pools, working, volunteering, and/or communicating or having contact with anyone under age 16. These conditions will normally be put in place for 10 or 20 years but can be also be for life depending on what the sentencing Judge determines to be appropriate.

Sexual Offender Registration (SOIRA and OSOR)

First time offenders will have to register with Canada’s National Sexual Offender Registration database (SOIRA) and the Ontario Sex Offender Registry (OSOR)

There are two sex offender databases that Ontarians convicted of child pornography offences must register and comply with: SOIRA and OSOR. The length of registration in the databases will be for a term of a minimum of 10 years to life at the discretion of the court. The databases, while currently only accessible to law enforcement, require the offender actively to report their address, employment, travel plans, and other personal information.

While sex offender databases are currently not publicly searchable in Canada, many law enforcement agencies will publicly release the names, dates of birth, and current addresses of registered sex offenders who are recently released from prison, move to a new community, start a new job, attend school etc. Of course their registration will also show up on any criminal background check.

Criminal Records, Immigration, Travel Issues, and other consequences

It goes without saying that everyone found guilty of a child pornography offence will receive a criminal conviction record. An absolute or conditional discharge is not a sentencing option. As mentioned, the very minimum punishment is six months in jail. It is also important to note that child pornography convictions are permanent meaning there is no pardon (now called a records suspension) available. The offender will be deemed a convicted sex offender for life.

Canadian immigration law states that those who are sentenced to six months or more in jail are not admissible to Canada. Since the very minimum sentence available is a jail term of six months those who are found guilty will be deemed inadmissible to Canada and deported if they are not a Canadian Citizen. Even if the individual holds permanent residence (PR) status they can be deported upon completion of their jail term and have their immigration status stripped from them.

Unless the individual happens to be a U.S. Citizen they will also be denied and banned entry into the United States for life. They will also likely be denied the ability to travel to the United Kingdom, Australia, New Zealand, or from entering the EU Schengen Area.

Media, reputation, and public shaming/stigma

While the legal ramifications for first time (or any) child pornography offenders are overwhelmingly harsh, many also have their name, age, picture, and hometown reported in the media causing irreversible damage to their reputation for life. These stories are often shared online by various media networks and will show up high in online searches permanently. The Police often release the accused individual’s information once they charge them to encourage any other potential victims to come forward. Rarely is the eventual outcome of the case reported.


Call us today for a free case review
You need lawyers who understand technology and have experience defending child pornography related charges. Child porn sentences (including for all guilty pleas) result in mandatory lengthy jail terms, sex offender registrations, and other employment, travel, and immigration related consequences that can ruin your life.

Winning acquittals and withdrawn charges often requires more than traditional defence methods. It may be possible to avoid a conviction by raising doubt in your case using highly sophisticated technological and constitutional defence strategies.





Are you a lawyer? If you are defending a child pornography related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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