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Charter Rights and Defense Of Child Pornography Charges

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Charter rights are a very big part of child pornography investigations, trials and defenses.

Some relate to a very traditional form of a search warrant where police will actually knock on the door, present a search warrant and say they are looking for computers and digital storage devices. They will take every disc in the home, every computer in the home, every portable hard drive, MP3 player, and anything similar, and then they will begin the long process of analyzing and determining what content is there. It is a long process because every system has gigabytes if not terabytes of information on it that have to be scanned and then sorted. This search is usually preceded by a great deal of investigative activity that involves search warrants, subpoenas, or mere requests to Internet service providers, like your cable company, your phone company, and your financial service company if they’re looking into records of credit cards transactions.

It becomes critical for us to identify what has been done properly and what hasn’t been done properly before we even start down the path of looking at what material has been located and what hasn’t. Process becomes very important and constitutional rights are very important to the defense. We’ve recently seen a trend in entrapment, which is a unique situation in which police are actively involved in chat rooms where they suspect child pornography is being sold. They will pose as either buyers or providers, and try to lure people into these types of transactions. One has to be very careful as a police officer not to cross the line and actually initiate an event, and we’ve seen that happen on occasions where police officers may, in fact, cross those lines and deliver material to somebody who, otherwise, wasn’t seeking it. That’s something that we’re keeping a close eye on as well.

Assuming that a warrant is valid and what they’re looking at is a valid search under the confines of the original warrant, then there is a possibility that the police mat come across a different type of offense in the course of lawfully executing that search warrant, and charges can be laid. For example, an officer has a search warrant to look for marijuana and opens up a drawer and finds an unregistered firearm. If he or she was looking in a place that was a logical part of an authorized search, then that’s probably a legitimate search and new charges can be laid.

Very specific software exists that most of the police forces uses to look for images on computers and other digital equipment, so it would be unusual for them to uncover a fraud or betting operation or something like that because the software isn’t crawling the text files that are on the computer but is looking for images instead. However, there’s no question that, under the criminal code, text can be child pornography as well. If one writes about something that is descriptive of a child pornographic act that’s also illegal.

Our firm has been involved in some cases where there is an exception to the law for those people who are legitimately involved in artistic or scientific endeavors. The owner is responsible for establishing that a particular piece of work is actually artistic and has some form of artistic merit or scientific merit, but there certainly have been cases where artists have been either prosecuted or threatened with prosecution for work that they’re doing that one person believes to be child pornography whereas others may not.

We have had clients stopped for questioning, and in some rare circumstances charged, crossing the border. Their cell phone or iPod is searched and it depicts images of their own small children in the tub or we’ve even seen photos at a ritual circumcision. Border officers looking at these say that’s child pornography. These are terrible situations, because if you could pick one charge in the criminal code that would be the most devastating, vitriolic thing you could accuse a person of, it would be child pornography. So, when a charge like that or even an allegation like that starts to come forth, it is instantly devastating to a person’s reputation.

When it turns out to be something benign like a photo of your own two children playing in the tub, it’s really unfortunate the police aren’t more careful before throwing down those types of charges. Most officers are very cautious, but we’ve seen circumstances where the breadth of the child pornography definition is being used in ways that are totally inappropriate. We do caution people to be cognizant of what’s on their digital media when they’re crossing the border. I’m not suggesting that it happens regularly, but it certainly happens. We’ve seen several instances in our practice.

If you need BSB Toronto Criminal Lawyers, call us at 416.365.3151.

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