Home  |  FAQ  |  Terms  |  Learn  |  About  |  Contact    

Toronto Revenge Porn Lawyer

Being charged with both voyeurism and child pornography offences in Ontario, Canada

Charges for voyeurism under Section 162 (1) of the Criminal Code often are laid in addition to child pornography related offences under Section 163.1. Being charged with both voyeurism and child porn offences happens in cases where the accused is alleged to have:
  1. Used a hidden camera in the bathroom, bedroom, other place a child resides;

  2. Sent, received, selfies, pictures, facetime or other screen captures of child nudity perhaps as part of a luring related incident;

  3. Made recordings via hidden camera, phone, or other device in a locker room, change room, or other place nudity (and privacy) is expected.
Since Section 162 (1)(c) of the Criminal Code requires the Crown to prove the accused has a “sexual purpose” in viewing or retaining media of child nudity in some cases, recordings deemed voyeuristic by the police are often also alleged to constitute child pornography within the context of the sexual nature of the offence.

If a stepfather is charged with voyeurism for secretly recording their spouse’s children in the shower or using the bathroom, then the police have already determined the material to have been made for a sexual purpose, they likely will allege that the material is pornographic in nature (since it was made for sexual gratification). If the alleged victim is under 18, the making and possession of the material would constitute child pornography as well.

Which charges are more serious: child pornography or voyeurism?

Voyeurism is an extremely serious charge with devastating consequences in Canada (up to 5 years in prison), but all child pornography offences are considered much worse. Unlike child pornography, voyeurism does not have a mandatory minimum jail sentence, a discharge is potentially possible (though rare), no mandatory sex offender registration (though it can be ordered), and no potentially lifelong s. 161 conditions on electronic device usage, attending where children present, etc.

Child porn offences attract much harsher punishments and are generally considered by the public as much more offensive, dangerous, and deserving of lifelong consequences and restrictions than voyeurism offences involving adults only.

In cases where someone is charged with both voyeurism and child pornography they are better off to have the child porn charges dropped and the Crown proceed on voyeurism only. This may be possible in some cases, but generally the Crown will proceed with all charges to trial if they feel they have a reasonable prospect of conviction (RPC).

If the child porn case is weak (low RPC) the Crown may offer the accused a deal that they will drop the child porn charges if they plead guilty to voyeurism. This may or may not be a good offer depending on other factors that the accused must discuss with their lawyer.

All child porn offences in Canada carry a mandatory minimum 6 month jail sentence, even for first time offenders

While the mandatory minimum sentence for child porn (at the lowest end) is 6 months in jail, offenders are liable to up to 10 years of imprisonment (14 years for distribution). Many first time offenders are sentenced in the 1 - 5 year range, but sentences far beyond that are possible in aggravating cases or for those with prior records of committing similar offences.

The problem for those charged with child porn and voyeurism simultaneously is that the fact that the accused is often exploiting a position of trust to record the child victim, which is considered an extremely aggravating factor. The Crown and the courts may feel that a lengthy prison sentence and lifelong supervision is justified given the covert nature of the offence and vulnerability of the victim.

Not everyone charged with voyeurism and/or child pornography offences is guilty. How defendants are sometimes able to get the charges dropped or be found not guilty.

Just cause you are charged with voyeurism or child pornography does not mean you will go to jail of course. A court will only sentence an offender upon finding them guilty (via a trial or plea) and it is important to note that not everyone accused of a crime is guilty. The court will only find guilt in cases where the Crown can prove each required element of the offence beyond a reasonable doubt.

In voyeurism cases the identity of who produced the recordings can be difficult to prove in court.

Identity issues are particularly apparent in cases where other third parties have access to the premises where the offences allegedly took place (maybe they were one ones responsible). If the accused has exercised their right to remain silent (which they should), the Crown may have difficulty proving they were the one responsible in some cases. Judges must acquit in circumstances where they find reasonable doubt, such as another potential culprit.

Sometimes evidence can be excluded as per the Canadian Charter of Rights and Freedoms search and seizure violations

In other cases the evidence that was collected as a result of the police executing a search warrant at the home or on the electronic devices of the accused, may be found inadmissible. Sometimes the police’s conduct violates the accused’s s. 8 Charter rights against unreasonable search and seizure.

Crown case problems leading to evidence exclusion in voyeurism and child porn cases in Canada can include:
  1. Lack of a search warrant
  2. Police actions going beyond the limited scope of the search warrant issued
  3. Search warrant found to be issued improperly or on false grounds
  4. Lack of or improper constitutional rights warnings and cautions given by police upon arrest or detention
  5. Confessions or admissions of guilt obtained while under arrest or detention without the accused having the proper opportunity to speak to counsel
  6. Police behaviour that is offensive, improper, or otherwise violates the accused’s s. 7 Charter rights to “life, liberty, and security of the person”
If the court agrees, this evidence may be excluded as per s. 24 of the Charter leaving the Crown with no choice but to drop (withdraw or stay) the charges. If the case goes to trial the judge may acquit the accused or enter a judicial stay of proceedings (stopping the case resulting in no conviction or criminal record) upon excluding the evidence that was unreasonably or wrongly collected in breach of the accused’s s. 8 Charter search and seizure rights.

The excluded evidence as per s. 24 of the Charter is often the pictures, videos, or other media of voyeurism or child pornography itself.

Even though the police found child pornography or voyeurism media in your possession, they may not be able to use it in court if it was not collected properly during their investigation. The RCMP, OPP or other police force will conduct a full forensic search on your seized electronics. While it can them take several months to do a deep dive search of seized electronic devices, or recover old pictures/videos that were previously deleted, if the drive/phone/computer was initially collected as a result of s. 8 Charter violation, the court may still exclude their findings via s. 24.

A lot of people charged with child pornography or voyeurism go through a period where a search warrant is executed at home, their devices are seized, and police basically leave them waiting to say “if we find something you will hear back from us”. The computer forensic analysis can take many months in Ontario. During this precharge phase you should contact a lawyer immediately for legal counsel. Just because the police take their time in laying the charges, often just as a result of limited computer forensics resources, does not mean that they haven’t already made mistakes or that your Charter rights were not already violated.

Given the serious nature of the offences, an accused must take all steps to proactively mitigate or if possible avoid being charged and/or convicted with the assistance of counsel.


Call us today for a free case review

You need lawyers who understand technology and have experience defending voyeurism and 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 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.


 

Prefer to reach us via email?
Fill out the below form:










 

Error: please enable JavaScript and reload this page before using the form.




  More Information:


  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