Immigration (IRCC) problems related to Child Pornography Charges in Canada

The vast majority of individuals convicted of child pornography offences in Canada will be stripped of their immigration status and permanently deported after completing their jail or prison sentence. The only exception is if:

1. the conviction is only for possession and/or accessing child pornography (not distribution),


2. the Crown Attorney (at their sole discretion) agrees to proceed summarily and not by indictment, and


3. the Judge imposes the absolute minimum jail sentence of six months.

The above scenario would be the absolute lowest possible outcome upon the court finding the individual guilty. It is important to remember that the Crown Attorney (Government prosecutor) has the absolute right to proceed by indictment in any child pornography case. This decision is not up to the Judge.

In the vast majority of child pornography cases the Crown will elect to proceed by indictment. For possession and/or accessing cases, proceeding by indictment means the minimum punishment is one year in jail and the maximum is 10 years in prison. Distribution of child pornography is always an indictable offence and carries a minimum one year in jail and a maximum of 14 years in prison.

The law governing inadmissibility due to criminality is found in Section 36 (1)(a) of Immigration and Refugee Protection Act which states:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed

How can an accused avoid being convicted of child pornography charges?

Those who are not convicted will not be deportable and be able to continue with the Canadian immigration process. This can happen either by the Crown Attorney deciding to withdraw or stay (discontinue prosecution of) the case or the court (Judge) deciding to stay the charges or acquit the individual after a trial. Sometimes an accused can successfully defend their case by convincing the Crown Attorney or Judge that there is no reasonable prospect of conviction.

In child pornography cases, most commonly used successfully defence involve raising charter arguments over the constitutionality of the computer/phone searches, search warrants, statements made to the police by the accused and/or to demonstrate that a third party had access to the computer either directly or indirectly through hacking. Sometimes the third party is an ex-spouse or other person planting evidence and looking for revenge and an advantage in family court.

If the accused pleads guilty or is found guilty after a trial, they generally would only not be deportable and permanently banned from Canada if the above noted absolute minimum sentence was imposed AND the Crown elected to proceed summarily and not by indictment.

If someone is convicted of child pornography charges can they just be sent back to their home country immediately or do they have to serve their jail sentence first?

This question is often asked by the accused or their spouse/fiancé, parent, or friend. Most people convicted will have to serve their jail or prison (if 2 years or more) sentence before being deported back home.

Sometimes deals can be made with the Crown Attorney to take into account time spent in pre-trial custody and to make legally binding agreements never to return to Canada but in the vast majority of cases the offender must remain in Canada to serve out their sentence.

Upon sentence completion they will be put on an immigration hold and IRCC will determine whether they are inadmissible to Canada. Unless the imposed sentence was the absolute minimum as mentioned above (summary Crown election + 6 months jail), they will likely lose their immigration status and be deported. There is also no right of appeal as listed in Section 64 (1).

Most offenders will never be able to enter Canada again for the rest of their life. As such, there is currently no application or way to overcome the ban.

Will a child pornography conviction in Canada prevent me from travelling or immigrating to the United States, U.K., etc. in the future?

In addition to being deported and banned permanently from Canada the immigrant will also be placed on numerous sex offender registration databases along with having their criminal child pornography conviction placed in the RCMP CPIC database. Canada shares all of this information with the United States, the United Kingdom, Australia, New Zealand, and many other countries throughout the world.

As such, upon being deported the offender will likely find themselves banned from travelling or immigrating to most western world countries. If the accused is not a U.S. citizen they have virtually no chance of ever entering the United States in the future if they are convicted of a child pornography related offence in Canada.

If an immigrant has a house, family, job, etc. here in Canada how are they supposed to manage their affairs if they are charged with child pornography?

This is one of many problems for anyone charged with child pornography offences (immigrant or not).

If the immigrant accused is able to get bail they will be released prior to their trial or resolution of their case. This will allow them to take steps to prepare for trial with their lawyer and get their affairs in order should they end up being found guilty, jailed, and deported. Their lawyer must work to achieve the least restrictive bail conditions particularly with regards to the permission of computer/cell phone usage. Immigrants who have a spouse, parent, or other close relative that can act as a surety and supervise their release are fortunate and have a greater chance of getting bail and having less restrictive conditions of release.

Are immigrants who are convicted of child pornography eligible for a Records Suspension (pardon) so they do not get deported?

Nobody convicted of a child sexual offence (Schedule 1) in Canada is eligible for a Records Suspension whether they are an immigrant or a citizen. As of 2020, any finding of guilt for a child pornography offence will result in a Canadian criminal record for life.

For this reason, it is extremely important to do everything possible to defend the charges and avoid a 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.

---