As a child pornography lawyer, our first priority is to look at the disclosure and determine whether there is actual innocence here and then we search for what we can do to defend that individual.

There are situations that happen, as with any other charge, where a person comes to us and says, “This is a problem I have. I recognize it and I’m looking to work out the best possible resolution that I can. What can you do for me?”. That scenario becomes a question of what can be done on the guilty plea. Recent changes to the legislation make negotiation more and more difficult because mandatory minimum sentences are applied to child pornography offenses. It becomes very important for us to be involved psychiatrically with medical experts and with councilors to see if this person’s behaviour can be modified and changed. Are they a threat to the public? Is this an isolated incident? What kind of material do they have? Was it being distributed or simply possessed? Was it being generated by them? A wide variety of questions become part of the sentencing process. If we get into a situation where client tells us he wants to negotiate a guilty plea, we have to still be in a position to help that client.

Minimum sentences don’t apply to young offenders under the Youth Criminal Justice Act. The sentences for adults charged with child pornography depend on whether a person is in possession of child pornography or is found guilty of actually trafficking it or distributing child pornography or transferring–digitally as well as physically. If you’re uploading it to someone else, providing it to them, or if you’re actually involved in making the child pornography (which is the most serious offense), you’re looking at a mandatory minimum that now can range from as little as 14 days in prison to as much as a year on a first offense. The mandatory minimums are constantly rising, so depending on when a person was charged, the most recent mandatory minimum for some charges is now 45 days, so the offense date becomes very important.

Different scenarios come into play that affect sentencing. If the Crown chooses to proceed by indictment, you’re looking at minimums that could be 45 days or longer and maximums of several years. If the Crown chooses to proceed by summary conviction, you’re looking at 14-day minimums, which can also run up to a number of years. Depending on the specifics of the offense charge, the age of the offender, and the age of the offense itself, there are a variety of possible mandatory minimums. What the public can take from that is that Canada is not a place that is soft on this crime, and as time goes on, those mandatory minimums will climb.

If you need a criminal lawyer, we provide legal representation for any criminal charge, including child pornography and internet luring.

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About the author

I am one of the senior partners at Bytensky Shikhman, a criminal litigation firm in Toronto, Ontario, Canada. In my 25+ year career, I have conducted numerous trials and appeals before all levels of Court in Ontario, defending just about every type of charge in our criminal law. I am also an Adjunct Professor of Trial Advocacy at Osgoode Hall Law School and currently the Treasurer of the Criminal Lawyers' Association of Ontario. I am also an Adjunct Professor for Trial Advocacy at Osgoode Hall Law School, York University and a regular lecturer and placement supervisor for Osgoode's Intensive Programme in Criminal Law.
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