Child pornography

Errors by Police Officer and Trial Judge Leads to Appeal Court Overturning Child Pornography Conviction

Written on Behalf of Affleck & Barrison LLP

In a recent decision by the Ontario Court of Appeal, a man convicted on pornography charges had evidence obtained in accordance with a production order and search warrant excluded resulting in his acquittal on all counts.

Former Hamilton minor hockey coach, Steven West (“West”), was charged in 2017 with accessing, possession of, and making child pornography available.  At trial, he was convicted and sentenced to three years in prison. 

THE INVESTIGATION

In August 2016, Hamilton Police were alerted to a pornographic picture that West had uploaded to the mobile messaging app Kik.  The image was of a five year old girl sitting in an explicitly indecent sexual pose on a beach wearing only a bikini top.

The Kik app detected the picture and reported it to the RCMP’s National Child Exploitation Co-ordination Centre, who forwarded it to the Hamilton Police Service.  The police were provided with information regarding the account that the image had been uploaded to and two Internet Protocol addresses associated with the use of the account.  Police determined that both IP addresses belonged to Cogeco Cable. 

Detective Constable Jeremy Miller prepared an Information to Obtain for a general production order under section 487.014 of the Criminal Code.  Detective Miller attached an affidavit which stated “that the information set out herein constitutes the grounds to suspect” that the subscriber committed the child pornography related offences.

After receiving court approval to obtain subscriber information from Cogeco Cable, the police were informed that Steve West was the subscriber and provided his address.  The police then obtained a search warrant to search West’s residence for electronic devices and documents that contain suspected evidence of child pornography. 

When police searched West’s home they seized five digital devices and found 19,687 files containing child pornography, including images and 51 videos.  West was subsequently charged with possession of child pornography, distribution of child pornography and accessing child pornography.

THE APPEAL

The issue before the appeal court was whether West’s rights under section 8 of the Charter (the right to be secure against unreasonable search and seizure) were infringed and if the evidence against him should have been excluded.

West argued that the production order should not have been issued as the police officer incorrectly worded his affidavit by using the wrong legal test in an attempt to obtain the information from Cogeco.  The appeal court agreed with West and in its decision explained the law and the legal test for production orders.

A production order under section 487.014 of the Criminal Code allows police to obtain documents, including electronic documents, from individuals who are not under investigation.  This section allows a justice or judge to make a production order if he/she is satisfied, by the information placed before him/her, that there are reasonable grounds to believe that:

  1. An offence has been or will be committed;
  2. The document or data is in the person’s possession or control; and
  3. The production order will provide evidence of the commission of the named offence.

In West’s case, the officer misstated the standard throughout his affidavit.  He stated he had grounds to “suspect” and the correct standard is grounds to “believe”.  Despite this flaw, the justice authorized the production order. 

The trial judge also failed to address this error.  Given the trial judge’s error, no deference was given by the appeal court to the trial judge’s decision and the three member panel was allowed to consider afresh whether there was a basis on which the production order could have been issued.  The appeal court concluded that the production order was issued in error, therefore the search warrant could not have been issued and the search of West’s residence was unreasonable. 

The Appeal Court ruled that the officer erred when he swore in his affidavit that he had the “grounds to suspect” a crime had been committed, as opposed to the “grounds to believe” a crime had been committed. 

According to Justice Michael Tulloch, Hamilton Police “were effectively fishing for a connection to the offence”.  Thus, the search of West’s residence and electronic devices was unlawful and a violation of the Charter.

Although the Crown prosecutors can appeal this decision to the Supreme Court of Canada, we do not have any information at this time as to whether this decision will be appealed.  We will report any developments in this blog when further information becomes available.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a reputation for effective results in defending all types of criminal legal charges.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

Multiple Child Exploitation Charges Laid Across Ontario

Written on Behalf of Affleck & Barrison LLP

Despite the pandemic that is affecting those living in Ontario and across the globe, the sexual exploitation of children continues to be a problem.  Between May 4 and May 8 a number of warrants were issued across Ontario and five individuals were charged with over 22 Criminal Code offences related to sexual interest in children.

RECENT ARRESTS AND CHARGES

The recent arrests and charges that took place in Ontario show that offenders can be made up of those in all age groups, employment and social economic class. 

Tanner Raymond, 22 years of age from Quinte West, was charged with possession of child pornography and with making available child pornography.

Simon Yalkezian, 33 years old from Cobourg, was charged with five counts of making available child pornography, accessing child pornography and possession of child pornography.

Twenty-five year old James Aldworth, also from Cobourg, was charged with four counts of child luring, transmission of explicit material to a child and with indecent exposure to a child.

A 42-year-old woman from Trenton, who cannot be named in order to protect the identity of the victim, was charged with making child pornography and two counts of possession of child pornography.

Finally, a 17-year-old young man from Haldimand was released to his parents and cannot be named according to provisions under the Youth Criminal Justice Act.  He was charged with voyeurism, making available child pornography, possession of child pornography and with distribution of intimate images without consent.

CHILD EXPLOITATION CONTINUES DESPITE THE PANDEMIC

These recent arrests are indicative of the fact that child exploitation continues in Ontario despite the pandemic and the emergency orders set in place by the government.

As families continue to self-isolate in our homes, children are spending more and more time on the internet and are more often than not unsupervised.  There is an increased risk that children will encounter those with ill intent online.

It is highly recommended that parents speak to their children regularly about the risks and safety concerns of using the internet.  The website ProtectKidsOnline.ca can offer parents and guardians assistance to help their children use the internet safely.

CRIMINAL CODE PROTECTIONS

Canada’s Criminal Code provides a number of provisions related to the protection of children from sexual abuse and exploitation and includes the following specific offences:

  • All forms of child pornography, which include possessing, accessing, making and distributing child pornography;
  • The use of the internet to communicate with a child for the purpose of luring or facilitating the commission of a sexual or abduction offence;
  • All forms of sexual contact/touching or any invitation to engage in sexual touching;
  • The offering up or procurement of a child for illicit sexual activity, including prostitution.

As Canadian youth continue to use the internet in records numbers, their behaviours raise the risk of online sexual exploitation.  Behaviours such as sharing personal information over the internet, emailing or posting photos online, chatting online with strangers and visiting adult-content websites and chat rooms.

The website Cybertip.ca was adopted as a partner to Canada’s National Strategy for the Protection of Children from Sexual Exploitation on the internet in 2004 and was officially regarded as Canada’s national tip-line in 2005.  This website receives and addresses reports of sexual exploitation of children, particularly on the internet, in the form of child luring and child pornography.  Those reports that are possible violations of the Criminal Code are forwarded to the police for further investigation.

According to Catherine Tabak, Cybertip.ca program manager, the tip line has seen a 40% spike since the pandemic began in Canada.  Approximately 98% of the reports involve online child sexual images or videos.  The reports regarding possible suspect/victim information are in regards to the offences of sextortion, luring and grooming offences, as well as youth being exposed to sexually explicit materials.

CHILD PORNOGRAPHY DETECTED BY CANADIAN BOT

A Canadian robot called “Arachnid” detects 10,824 new images of child pornography on the internet every 12 hours.  The robot, run by the Canadian Center for Child Protection (“CCPE”), scans the internet for images and videos of child pornography through digital fingerprints.  When detected, the robot sends a warning to the host requesting immediate removal.  CCPE analysts also review each detected image. 

Hosts that are hesitant to comply with the request for removal are considered to be contributing to the perpetuation of the victimization of children online. 

Since launching two and half years ago, Archanid has detected more than 9 million suspected images related to child pornography.  More than 4 million requests for content removal have been made to hosts around the world.

If you are facing sexual offence charges or have questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  We are available when you need us most.

47 Suspects Charged in Nationwide Human Trafficking Investigation

Written on Behalf of Affleck & Barrison LLP

Twenty sex workers suspected of working against their will, were rescued earlier this month as a result of Operation Northern Spotlight, a massive cross-Canada human trafficking investigation. Most of those rescued are under 19, and some are as young as 14.

Over the past year, Canadian police forces worked with the FBI in a coordinated effort to fight human traffickers. The OPP spearheaded the latest phase of the operation, which involved more than 350 officers and staff from 40 police agencies across Canada. The investigation led to the arrest of 47 people who are facing more than 130 charges including trafficking in persons, forcible confinement, child pornography, and sexual assault with a weapon.

U.S law enforcement agencies conducted Operation Cross Country, a similar operation south of the border, which resulted in the arrest of more than 150 “pimps” and the rescue of 152 minors.

Human Trafficking and Related Charges 

The charges laid in Phase 5 of Operation Northern Spotlight included:

  • Trafficking in Persons under 18
  • Trafficking in Persons
  • Procure Sexual Services under 18
  • Procure Sexual Services
  • Receive Material Benefit under 18
  • Receive Material Benefit
  • Communicate for the Purpose of Obtaining for Consideration the Sexual Services of a Person
  • Exercise Control
  • Make Child Pornography
  • Distribute Child Pornography
  • Possess Child Pornography
  • Child Luring
  • Advertise Another Person’s Sexual Services
  • Assault
  • Obstruct Police
  • Resist Arrest
  • Controlled Drug and Substances Act (CDSA) offences

Human Trafficking in Canada 

Human trafficking charges can be laid against any person who recruits, transports, transfers, receives, holds, conceals, or harbours a person, or any person who exercises control, direction, or influence over the movements of a person for the purposes of exploiting them, or facilitating their exploitation for a forced labour or sexual reason.

If you are facing a human trafficking or related charge, contact us online or at 905-404-1947 to speak with an experienced criminal defence lawyer. We take all steps needed to protect your best interests, both immediate and long term. We maintain a 24-hour emergency service line, and our office is within steps of the Durham Consolidated Courthouse.  We offer a free confidential consultation to all perspective clients.

Canadian Degrassi High Actor Arrested on Child Pornography Charges

Written on Behalf of Affleck & Barrison LLP

A former Degrassi High actor and three Ontario women are facing multiple charges, including possessing child pornography, sexual assault, and bestiality.

Jason (Byrd) Dickens, his wife, Dylan Anne McEwen, and two other women were recently arrested following a months long probe by police. Police stated that they initially received a tip about a man uploading inappropriate images online in January 2016. This led to a search warrant in late April, at which time police discovered several devices containing videos and images.

Police believe that Mr. Dickens and Ms. McEwen actively sought out victims online and in person, going by several user names including: RetroDeviant, Byrd_Dawg and Sir Dirk (Mr. Dickens), and Doll, Dirty Doll (Ms. McEwen). Mr. Dickens and Ms. McEwen will appear in Toronto court on Sept. 1.

Police also believe that between January 2000 and January 2006, Mr. Dickens and another woman sexually abused a child and distributed child pornography online. The woman is charged with 10 child sexual exploitation offences, and Mr. Dickens faces six more charges in that case.

Additionally, police allege that Mr. Dickens met a third woman from Thunder Bay, who also faces one charge of making child pornography.

Police are concerned that the individuals may have had contact with “like-minded individuals” and there may be more victims.

Potential Consequences

It is unclear what the outcome of these charges will be. However, child pornography charges are taken very seriously by prosecutors and police.

Child pornography is defined as any media (photo, film, other) that depicts sexual activity with, or that displays the sexual regions of, a person under the age of 18 (Criminal Code of Canada, s. 163.1(1)).  It is a crime to make, publish, or print child pornography. It is also a separate offence to distribute, to possess or to access child pornography, including sharing on or downloading files from the internet.

In 2012, Bill C-10, the Safe Streets and Communities Act, imposed higher mandatory minimum penalties for making, distributing, possessing and accessing child pornography. Sentences for any individuals charged under s. 163.1 of the Criminal Code all carry mandatory minimum sentences, and no discharges, suspended sentences, or fines are available. Penalties include jail time, and a sex offender registration, which can remain on your record for your whole life.

Protecting Children from Child Pornography

Safeguards for those under 18 have been increasing in recent years. In 2011, the government passed Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The legislation is intended to keep pace with technology used to distribute and access such content. It requires Internet service providers (ISP’s) and others (for instance, Facebook, Google, Hotmail, etc) to report any incident of child pornography.

Under this legislation, anyone can inform an ISP or other entity that a website, hostpage, or email contains child pornography. The ISP or other entity must then report the address of the site, page, or email as soon as possible to a designated organization or the police.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison LLP online or at 905-404-1947.