How to get child pornography charges dropped

Child pornography charges are considered among the most serious offences and as a result Crown Attorneys will only drop/withdraw/stay them if they believe there is no reasonable prospect of conviction (RPC).

A child pornography offence will never be considered too minor to not be in the public interest to prosecute. This being said, it is Crown policy not to proceed with charges in circumstances where they do not believe the accused can possibly be found guilty which is often the result of key evidence being excluded.

Crowns are usually reluctant not to proceed in child pornography related cases. Sometimes the decision is not made until the trial date meaning the accused must live with the stress of the charges for a year or more while their case grinds through the system. While it usually will take a while to convince the Crown Attorney to drop the charges, it sometimes is possible.

Here are some of the most common reasons why charges or dropped (or the accused is found not guilty).

Challenging the identity of the party responsible for downloading, accessing and/or distributing the material

It can be difficult to prove beyond a reasonable doubt that the accused was the only person who could have been responsible for the downloading/viewing/distribution of the prohibited material in some cases. This is why the police will try to get the accused to confess to knowingly downloading the material as soon as possible.

Exercising the right to remain silent is extremely important in child pornography cases although often the accused is taken by surprise and falsely believes they can talk themselves out of it by being upfront and honest with the police.

In cases where the accused does not talk and incriminate themselves they can rely on the defence of identity which can include both in person direct use or third party hacking use.

In person direct access to the electronic equipment

If someone else, whether they live in the household or not, have access to the computer the accused could be innocent. This could be a family member, a vengeful spouse or ex-partner, a roommate, a friend of the person’s son, a houseguest or anyone else with access to the computer.

Sometimes the police have tunnel vision in investigating these crimes and fail to determine potential third party suspects. Perhaps they did not conduct in person surveillance of the home to document those coming and going or interview enough potential witnesses to definitively state no one else was home at the time the offences were committed. The less work the police do in identifying other potential suspects the stronger the defendant’s case will be.

The defendant’s lawyer may have information proving someone else could be responsible. Perhaps someone else was in the house at the time that the police/Crown were not aware of. The defence will often wait to present this evidence to the Crown Attorney until the last minute so that the Crown does not have time to prepare and adequately respond.

In some instances, this strategic advantage may be enough for the Crown to decide there is no reasonable prospect of conviction at trial and drop the charges.

Computer hacking/unknown third party remote use

As of 2020, the police actively try to take steps during their investigations to reduce the likelihood of the accused relying on hacking/spyware/computer vulnerabilities as a defence. This not only includes attempting to extract a confession but also preserving the state of the hard drive(s) as soon as possible. Police will normally use a program called Encase to locally make an exact replica of the hard drive and search for images/videos on it including ones that may have already been deleted.

The police will often claim that no virus or malware was found on the machine but this can be challenged in court as it is possible that vulnerabilities did exist at the time the material was downloaded (and has since been removed or patched) or that their procedure for discovering vulnerabilities is out of date and/or not comprehensive enough. No computer system is ever fully “up to date” and new methods of breaching them are discovered every day. This lack of sureness can be a source of reasonable doubt.

Getting evidence excluded for Charter/constitutional reasons in child pornography cases

The other most common way that lawyers convince the Crown to drop child pornography charges is to have some or all of the evidence provided by the police be determined inadmissible in court and excluded. If a key piece of evidence such as a confession, the search of a residence, or the seizure and analysis of a computer is unable to be used in court the Crown’s case may simply fall apart leaving them to conclude there is no reasonable prospect of conviction.

While it is rare to convince the Crown that the evidence should be excluded the defence can submit applications to the Judge to have the evidence excluded. This may happen before or during the trial. It is extremely important for the lawyer to raise Charter exclusion arguments where possible because even if they are denied they could be a reason for a successful appeal in the future.

Exclusion of confessions and statements against interest

The accused’s first contact with police often happens early in the morning during a raid on their home. They may be startled by a pounding on the door or even a flashlight on their face while in bed. The police will be documenting everything the accused says and admits to. Evidence issues arise when the accused makes incriminating statements in circumstances where they are being detained or under arrest. Some circumstances are considered a de-facto arrest in that the accused is not free to leave despite being told they could.

An accused has a right to be informed of and provided the opportunity to speak with counsel upon arrest or detention. Any criminal lawyer would advise their client not to speak to the police particularly in these circumstances. If a confession or incriminating statement is made to the police it may be considered to be in violation of their Charter rights.

There are many ways such breaches of rights that can occur. Just because someone incriminates themselves doesn’t mean it can be used against them in court especially in circumstances where their liberty is reduced at the time of the statement.

Exclusion of physical evidence recovered from searches of the accused’s home, electronic devices, etc.

In most cases the police will search for and seize computers, external hard drives, thumb drives, cell phones, and other electronic devices that can be used to access, possess, and distribute child pornography. These search and seizures can be with or without a warrant (judicial authorization).

In cases where there is no warrant the police normally must show exigent circumstances for the search and seizure. In child pornography cases the most common justification used for a warrantless search is the potential immediate destruction of evidence.

These cases can often be successfully challenged in court for reasons such as the accused being in custody at the time of the search. In other types of cases such as firearm related offences officer safety or plain view is used as a reason for a warrantless search but these instances are rarely applicable in child pornography cases.

Challenging the legality of search warrants

Most child pornography searches will be conducted with a search warrant (ITO – Information to Obtain). This being said the legality of the ITO warrant can often be challenged in court.

Sometimes the warrant can be quashed and the evidence excluded because the police exaggerated their reasons for probable cause, conducted a search before actually applying for the warrant, misled the Crown to hold the accused in custody under false pretences, obtained the warrant based on confessions of the accused that were extracted unconstitutionally, justified requesting the warrant for a search at night when no such immediate necessity existed, and many other reasons.

In a 2020 decision of the Ontario Court of Appeal, the accused was acquitted of child pornography charges after the search and seizure of his apartment was found to be unconstitutional (despite the police ultimately obtaining a warrant): see R. v. Adler (2020 ONCA 246).

This is an example of the highest court in Ontario affirming that breaching an accused’s rights against unreasonable search and seizure under Section 8 of the Charter can justify an acquittal. It is a precedent setting case that all lower courts in Ontario must follow.

Crown Attorney’s in reviewing child pornography cases where there are issues with searches, seizures and warrants issued must strongly consider this case when assessing whether to continue to prosecute or drop the charges.

Many child pornography cases can result in the charges being dropped or an acquittal if properly defended

Being charged with a child pornography offence is devastating and it often feels like there is no hope to defend the charge. In reality, there are often many defences available to the accused that may save them from a conviction. Child pornography charges result in mandatory jail sentences, sex offender registration, and conditions for up to life upon conviction.

If you or someone you know or love is charged with a child pornography offence it is crucial that they do everything possible to have the charges dropped or otherwise avoid a conviction at trial. There are often many defences available to the accused that can work in court if exercised. These cases are not nearly as cut and dry as the police may portray them to be even if a confession has been obtained. There are often technological and Charter/constitutional defences available to the accused. Such defences have been routinely held up by the courts.

Anyone accused of a child pornography offence should consult with a criminal lawyer focusing on child pornography law immediately as it may be the difference between walking free and suffering the numerous consequences of a first offence child pornography conviction.


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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