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Search warrants and electronic device seizures in Canadian child pornography defence law

What to do if the police execute a search warrant in your home looking for child pornography

Police in Ontario will usually obtain a search warrant before entering someone’s home to search and seize their computers, hard drives, and phones in child pornography investigations. Obtaining prior judicial authorization is important in cases where the police do not yet have enough evidence to arrest the accused. Just because someone suspects that you have viewed or downloaded child pornography should normally not be enough to obtain a warrant. The police will often have a statement from a witness claiming that you or your ISP account was used to access or solicit child pornography material.

Witnesses and informants in child porn cases can range from the police themselves, to family members, to unknown third party members of the public. In cases where the accused is alleged to be interacting with underage victims, it may be the child or their parent who reports what happened to the police. Through both obtaining warrants and with voluntary disclosure of IP/timestamp information from third party internet companies (Facebook, Snapchat, etc.), the police often will have narrowed down their investigation to a particular household, but seek concrete proof of both whether the offence was committed and who is responsible for it.

In most cases, the best way to do this is to obtain a warrant and go in by surprise (usually first thing in the morning). The accused may be awoken with a flashlight in their face from police asking about where their computers are and what their password is. While virtually everyone in these circumstances should respectfully exercise their right to remain silent, many do not. Incriminating statements are made and access is provided to the police by a stunned accused who is desperate to make things right.

Lack of knowledge of the seriousness of child pornography offences is part of the reason why people talk when they get searched.

All child pornography offences carry a mandatory minimum jail sentence of at least 6 months - 1 year in jail upon a finding of guilt, a permanent criminal record (no pardon ever), sex offender registration, and possible conditions for life. There are no minor charges when it comes to all forms of child pornography offences in Canada. While the seriousness of the offence cannot be understated, it is also a crime that is extremely easy to commit. A person can commit the crime with nothing more than a computer or a phone with an internet connection.

A lot of people do not know or fully appreciate how serious it is to view or download child pornography until it is too late. They often will talk to the police and incriminate themselves without much thought. They are shocked when confronted by the police about child porn and have difficulty comprehending the level of trouble they now find themselves in. For them it seems inconceivable that they could be in so much potential trouble relative to the ease with which they committed the crime.

They just can’t truly appreciate the seriousness of the situation (some don’t even after they are first charged). It is also the reason why they should say nothing. Not talking to the police is important in virtually all situations of criminal arrest or detention, but particularly so in cases involving child pornograpy.

The importance of not talking to the police upon being arrested or investigated for child porn offences

By the time the police are conducting a search, often with a warrant, the accused may wrongly assume that they already have, or are about to find, all of the evidence they need. Since they wrongly believe their situation is hopeless, they may talk, confess, provide incriminating passwords and account information, etc. What they do not know is that the police are often unaware of 95% of what they have been doing. They may also need proof (such as a confession) that their suspect is the culprit (as opposed to their son, roommate, vindictive spouse, etc.). Just because someone is a logical suspect does not make them guilty in Canada’s justice system.

A person who has been subject to a police search for child porn should immediately consult with counsel and not make any statements to the police. Any communications with the police can come from counsel at a later date. In some cases the accused ends up getting convicted and going to prison where no reasonable prospect of conviction would have existed had they kept their mouth shut. Some people may have been even able to avoid being charged to begin with had they just remained silent and hired defence counsel immediately to respond to the police on their behalf.

What if the accused already spoke to the police and made admissions, confessed, provided a password, etc.

While this is never a good thing for the defence, in some cases your statement or confession may be of little value to the Crown. Depending on how and when it was obtained by the police it may even be possible to have it excluded as inadmissible evidence against you. Most evidence that is excluded relates to Charter breach violations in how the police obtained the statement. Any evidence however may be deemed inadmissible by the court if it is found to lack quality and reliability.

Charter violations in child pornography cases often hinge on whether the person was under arrest/detained or not at the time they spoke to the police

Those placed under arrest or detained by police can confess to crimes but they have to be properly advised of their Charter rights and be given the opportunity to speak to counsel beforehand. In child porn cases sometimes the police will claim that the person was not yet under arrest. They would argue that the accused was free to leave at any time. The courts will examine the circumstances of when the statements were made.

In cases where it seems like the accused would not believe they were free to leave (such as waking up with a gun and a flashlight in their face), the judge may exclude the statement as being obtained in violation of the accused’s Charter rights to counsel. Police know that suspects are more likely to talk prior to being arrested and may seek to obtain incriminating statements beforehand. A suspect, perhaps while a search warrant is being executed, may talk after a seemingly friendly police officer asks for them to tell their side of the story.

Tainting of evidence

When a search warrant is executed by surprise at someone’s home mistakes are often made by the police leading to Charter violations for improper search and seizure. If the accused provides information (such as logins, passwords) in a way that is inconsistent with Charter principles, any further evidence collected may be considered tainted and excluded by the court if it would not otherwise would have been legally discovered.

Getting child porn charges dropped prior to trial

Child porn cases often hinge on Charter issues of whether evidence can be used or must be excluded. For these reasons the accused’s lawyer will submit pre-trial applications to the court to try to have key evidence deemed unconstitutional and excluded. Pre-trial applications in child porn cases include both raising the issues with the Crown Attorney (hoping they agree) and at the Judicial Pre-Trial stages in front of a judge. If the judge at the JPT indicates they are likely to exclude evidence based on Charter issues raised by the defence, the Crown may relent and withdraw the charges. If not, they may be forced to withdraw after the evidence is excluded (or risk a judicial stay).

The Crown may be reluctant to withdraw charges prior to a judge’s formal ruling on exclusion however as they never want to appear to light on crimes committed against children. They vigorously prosecute child pornography cases as a matter of policy.

How long will it take the police to search my electronic devices after they have been seized?

In Ontario, the time it takes for a police forensic child pornography search depends on the jurisdiction in which you are arrested. A lot of forces have the RCMP conduct this part of the search, which can take months. If the police need to recover the images before laying charges (often when the suspect remains silent), it can be a very stressful wait. It is important to hire a lawyer during this stage of the process to communicate with the police on your behalf.

In other cases where the suspect talks, provides access to the computers, or the evidence is readily available or in plain view, the accused will be arrested and held for bail or released at the station via a Form 10 Undertaking with Criminal Code charges under Section 163.1.


Call us today for a free case review

You need lawyers who understand technology and have experience defending child pornography charges. Sentences (including for all guilty pleas) can result in lengthy jail terms, and 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 Charter constitutional defence strategies.


    call us: 647-228-5969

    contact@torontochildpornlawyer.ca


  call us: 647-228-5969

  contact@torontochildpornlawyer.ca

Your case will be defended by a fully licensed Practicing Lawyer of the Law Society of Ontario. For more information about our lawyer, click here.

We provide our clients with:
  • 2024 constitutional and technological revenge porn defences successfully used throughout Canada and the U.S.
  • Flat fee pricing
  • U.S. travel advice and information
  • Help with related immigration issues
  • Employment background check advice/services
  • Fingerprints and records destruction services
  • Lawyer/client privilege
  • Experienced, focused counsel


* Please note:

If you are not a paying client, we cannot answer questions and provide assistance with US travel, immigration, employment background checks, and avoiding a criminal record. This includes those who have already retained other counsel and those whose cases have already been completed.

We only can take calls/emails relating to Ontario, Canada area cases. Please see our FAQ for a listing of the courthouses we service.

Are you a lawyer? If you are defending a revenge 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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  We provide:
  • 2024 constitutional and technological revenge porn defences successfully used throughout Canada and the U.S.
  • Flat fee pricing
  • U.S. travel advice and information
  • Help with related immigration issues
  • Employment background check advice/services
  • Fingerprints and records destruction services
  • Lawyer/client privilege
  • Experienced, focused counsel