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Mitigating Factors and Sentencing in Child Pornography Possession – New Precedents

The possession or distribution of even a small amount of child pornography is a serious crime in Canada. The sentencing guidelines are harsh due to the sensitive nature of the crime and to protect minors both in Canada and from around the world from exploitation. Section 163.1 of the Canadian Criminal Code sets out the minimum mandatory sentences for child pornography possession:

  1. An indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
  2. An offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

All offenders are also added to the Sex Offender Registry.

Even significant mitigating factors have traditionally not been able to achieve more lenient sentences, and offenders who are suffering from other trying life circumstances are subjected to jail time. William Jaksa and his colleague Nabeel Sheiban, however, recently set a new precedent when they defended a man who pleaded guilty to possession of child pornography and through a successful argument were able to overturn the mandatory incarceration in favour of a 10-month Conditional Sentence Order (house arrest) and 3-year Probation Order. 

If you’ve been accused of child pornography possession, you need to have the most up-to-date and relevant information on sentencing and mitigating factors. Read on to learn more about the case William Jaksa tried and what it means for your sentencing.

What constitutes child pornography in Canada?

There are very clear guidelines in section 163.1 of the Canadian Criminal Code for what materials constitute child pornography. It is not just photography or video, but also written or audio materials that can be considered child pornography:

  • (a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
    • (i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
    • (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
  • (b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
  • (c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
  • (d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

How the mitigating factors influenced the sentencing decision

The courts agree that crimes of a sexual nature against children are serious and harmful, and the latest decision of the Supreme Court of Canada calls for harsher sentencing in sexual offences against children (R. v. Friesen, 2020).

In R. v. Jongsma, the defence put forth that the accused was a victim of years of “hands-on” sexual abuse and argued that his life circumstances, including his drug addictions, are significant mitigating factors. His clean record since his arrest and recommendations from his doctors, family and partner that speak to his recovery and genuine remorse are also mitigating factors.

He also had no prior criminal record, and there was no evidence to suggest he was any danger to any children in the community.

The sentencing factors a judge will consider for sexual crimes against children as set out in R. v. Friesen are:

  1. Likelihood to Reoffend; 
  2. Abuse of a Position of Trust or Authority; 
  3. Duration and Frequency; 
  4. Age of the Victim; 
  5. Degree of Physical Interference; 
  6. Victim Participation.

Making a Case For More Appropriate Possession of Child Pornography Sentencing

If you have been arrested for child pornography possession, your life circumstances may help you achieve a lighter sentence. You should be prepared to speak to your lawyer about your life circumstances and present mitigating factors that affect your case along with your plans for rehabilitation or treatment to correct issues that may have led to your crime.

If you are looking for someone to properly defend the circumstances of your child pornography possession, William Jaksa can help. He will help you understand these criminal sentencing considerations and can advise you on the best circumstances to present to a judge and how to present your case in the best light. 

If you are facing child pornography possession charges, contact William Jaksa for a legal consultation today.

Questions? Contact William Jaksa Today.

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