Markham Child Pornography Lawyer: Defending s.163.1 Charges in York Region

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A charge under s.163.1 of the Criminal Code is among the heaviest allegations a person in Markham can face, and it usually arrives without warning: a search warrant at the door early in the morning, every device in the house carried out in evidence bags, and a first appearance at the Newmarket courthouse. The person charged is presumed innocent. That is not a slogan. It is the operating rule of the entire case, and everything on this page flows from it. Kazandji Law defends these prosecutions across York Region with the discretion and precision they demand. Call 647-588-3234 before you speak to anyone.

By Fadi Matthew Kazandji, Founding Partner, Kazandji Law. Serving Markham. Updated July 2026.

The knock at the door comes first

Almost no one charged under s.163.1 sees it coming. These files surface all at once: officers at the door with a search warrant, usually early. The warrant names the address and authorizes the seizure of computers, phones, tablets, consoles, routers and storage media, and in practice every device in the home leaves in labelled bags, including those belonging to a spouse or to children. The person named in the investigation is presumed innocent through all of it.

Two things tend to happen on the doorstep. Someone is invited to explain, and the invitation sounds casual. It is not: anything said that morning is evidence. And an arrest may follow immediately, or the police may leave with the devices and lay charges only after a forensic examination measured in months, not days.

There are only three moves worth making that morning, and they are simple.

• Say nothing. Identify yourself, be polite, and decline to answer questions until you have counsel. You give up nothing by staying silent, and you protect everything.
• Touch nothing. Do not delete files, wipe accounts or reset devices, before, during or after the search. Deleting material once an investigation has begun can become its own serious problem, whatever the truth of the underlying allegation.
• Call a lawyer. Not tomorrow. From the driveway if you have to. Early advice shapes everything that follows, from interviews to release to what the family tells an employer.

We take these calls at any hour, and the first conversation costs nothing and stays confidential.

What the law calls this now, and why words matter

Since a 2024 amendment, the Criminal Code no longer uses the term child pornography. Section 163.1 now speaks of child sexual abuse and exploitation material, and that name runs through the definition, the offences and the defences a person charged, still presumed innocent, will hear read in court. Parliament changed the label, not the substance: the four offences and their penalties came through that amendment intact. People still search for the older term, courts and police still say it, and that is why it appears in this page's title. In our written work and in the courtroom we use the statutory language, because precision is a defence discipline in a case where every word is loaded.

And the words carry real weight here. An allegation under s.163.1 is not a finding. It is an accusation the Crown must prove beyond a reasonable doubt, count by count, element by element, against a person the law presumes innocent. That presumption is easy to recite and hard to hold onto in a case like this, which is exactly why it matters. These are among the most stigmatizing allegations Canadian law knows, and their weight lands on the whole household, not just on the person charged.

So this page is deliberately plain: what the section says, what the Crown has to prove, and where the defence work happens. Charges of this kind sit within a wider family of prosecutions we defend across York Region: our Markham sexual offence defence page maps that family, and our Ontario page on these charges covers the province-wide picture.

Four separate offences, four different cases

Section 163.1 creates four distinct crimes, and the difference between them is the difference between cases that end in very different places. A person charged is presumed innocent on every count, but the counts themselves set the framework: how the Crown can proceed, what the maximum and minimum penalties are, and whether a preliminary inquiry is available.

Offence	How the Crown can proceed	Maximum sentence	Minimum printed in the Code
Making, printing, publishing or possessing for publication, s.163.1(2)	Indictable only	14 years	1 year
Transmitting, making available, distributing, selling, advertising, importing, exporting or possessing for those purposes, s.163.1(3)	Indictable only	14 years	1 year
Possession, s.163.1(4)	Hybrid	10 years by indictment, or two years less a day on summary conviction	1 year by indictment, 6 months on summary conviction
Accessing, s.163.1(4.1)	Hybrid	10 years by indictment, or two years less a day on summary conviction	1 year by indictment, 6 months on summary conviction

Two consequences follow from that table. The making and distribution offences are indictable only, they carry the 14 year maximums, and because of those maximums they are the counts on which a preliminary inquiry can be requested. Possession and accessing are hybrid: the Crown elects how to proceed, and that election moves the maximum, the minimum and the procedural route all at once.

The wording on the information matters just as much. A file described as distribution sometimes rests on nothing more than a folder setting in a file-sharing program. Reading the counts against the actual forensic evidence, rather than the police summary, is where defence work begins.

What counts as the material: the boundary lines in s.163.1(1)

Every count in one of these prosecutions depends on the Crown proving, beyond a reasonable doubt, that what a presumed innocent person is alleged to have made, shared, possessed or viewed actually meets the statutory definition. That definition has four branches, and the person charged is entitled to hold the Crown to every word of the branch alleged.

• Visual material. A photographic, film, video or other visual representation showing a person who is, or is depicted as being, under 18 and engaged in explicit sexual activity, or one whose dominant characteristic is the depiction, for a sexual purpose, of the sexual organs or anal region of a person under 18.
• Material that advocates or counsels. Written material, a visual representation or an audio recording that advocates or counsels sexual activity with a person under 18 that would be an offence under the Criminal Code.
• Written descriptions. Written material whose dominant characteristic is the description, for a sexual purpose, of that kind of sexual activity.
• Audio. An audio recording with that same dominant characteristic.

One phrase deserves particular attention: is, or is depicted as being, under 18. The definition does not require that a real, identified child exist, and it can reach drawn, animated or computer-generated depictions as well as depictions of adults presented as minors. Definitional arguments are legal arguments, and they belong to counsel.

Parliament also answered one question directly. Under s.163.1(7), whether written or audio material advocates or counsels is a question of law. Judges decide it, which makes the defence position on those branches a matter of statutory argument rather than impression.

The penalty picture, told straight

Nobody facing these allegations is helped by soft answers, so here it is plainly, remembering that penalties attach only on conviction and that the person charged is presumed innocent unless the Crown proves otherwise. Making and distribution counts carry maximums of 14 years and are indictable only. Possession and accessing carry up to 10 years by indictment, or up to two years less a day on summary conviction. Each of the four offences has a mandatory minimum printed beside it: one year on the indictable routes, six months on the summary side of possession and accessing.

These minimums remain in the printed Criminal Code. Mandatory minimums of this kind have faced Charter challenges across Canada and their enforceability in a particular case is a legal question your lawyer must assess. What is not in doubt is the sentencing climate: the Supreme Court has directed that sentences for sexual offences against children must increase. That direction comes from R. v. Friesen, 2020 SCC 9, and Ontario courts apply it daily.

The Code adds one express aggravating factor. Under s.163.1(4.3), a court sentencing a person convicted under this section must treat an intent to make a profit as aggravating. Beyond the custodial range sits the collateral layer, the registry, the prohibition orders and the record consequences covered further down this page, which in many files worry people as much as the sentence itself.

One honest observation follows: sentencing ranges only matter if the Crown gets to a conviction. The defence questions, what was found, where, who put it there and how the search happened, come first, and they occupy the next three sections. For the province-wide view of how Ontario courts approach this family of prosecutions, see our Ontario sexual offence defence page.

Possession and accessing turn on knowledge

Most Markham files are possession or accessing files, and both offences are built around a mental element the Crown must prove, not merely assert. An allegation that material sat on a hard drive is not the same as proof that the person charged knew it was there, and the gap between those two propositions is where many of these cases are decided.

The statute itself frames the fight. For accessing, s.163.1(4.2) says a person accesses material only where they knowingly cause it to be viewed by, or transmitted to, themselves. Possession likewise requires knowledge and control, not mere proximity to a device. Those words, knowingly, causes, possesses, are where these prosecutions are won and lost.

Which is why the defence questions in these files are concrete and forensic.

• Who actually used the device, and when? Homes have shared computers and open Wi-Fi, and passwords are shared far more often than anyone admits.
• How did the material arrive? Automatic caching, bundled downloads, pop-ups, malware and peer-to-peer clients can place files on a device in ways the user never saw.
• Was the material alleged ever opened, and by whom? File-system records, thumbnails and deletion artifacts each tell their own story, and the stories do not always agree.
• Does the timeline hold? Timestamps, log-ins, workplace records and travel can put the person charged somewhere else entirely when the alleged activity happened.

None of this is a guarantee, and any lawyer who offers one should be shown the door. But these are questions the forensic evidence has to answer, and we read forensic reports as closely as the examiners who wrote them.

The statutory defences, honestly sized

Clients arrive having read about defences online, and part of our job is to size them honestly. The presumption of innocence does the heavy lifting in these cases; the statutory defences are real but narrow.

Section 163.1(6) protects an act that has a legitimate purpose related to the administration of justice or to science, medicine, education or art, provided the act does not pose an undue risk of harm to persons under 18. Both branches must be satisfied, together. It exists for the police examiner, the prosecutor, the researcher, the clinician. It is not a general excuse, and courts read it accordingly.

Section 163.1(5) deals with belief about age on making charges. A belief that a depicted person was 18 or older is no defence unless the person took all reasonable steps to ascertain that age and, where the person was in fact an adult, all reasonable steps to ensure the depiction did not present them as under 18. It is a due diligence rule, and due diligence has to be shown, not assumed.

In practice, most of these files are not fought on either provision. They are fought on knowledge and identification, the questions in the section above, and on the Charter: whether the warrant should ever have issued, whether the search stayed within its lawful limits, and whether the person's rights on detention and arrest were respected. Those grounds live in the evidence gathered on day one, which is why early defence involvement matters more here than in almost any other kind of case.

Your devices: seizure, forensics and section 8

Everything in one of these prosecutions flows through the seized devices, so the law surrounding that seizure earns a section of its own. And because the devices were taken from a person who remains presumed innocent, how they were taken is never a formality.

The warrant comes first. A justice issued it on sworn police material the defence eventually reads line by line. Was it full, fair and accurate? Did it establish reasonable grounds to search that address, for those things, at that time? A defective foundation can taint what follows, and s.8 of the Charter is the lens for every step: the entry, the scope of what was taken, the manner of the forensic examination and the time it all took.

The examination itself is slow. Devices are imaged and queued at a forensic unit, and reports arrive months later, sometimes in stages, with the family's phones and laptops simply gone for that period. Some devices come back, some are held as exhibits, and on conviction the Code goes further: s.164.2 lets the court order forfeiture of things used to commit an offence under s.163.1. Seizure for investigation and forfeiture after conviction are different creatures.

Separately, s.164.1 allows a judge to order the material alleged to be removed from computer systems within the jurisdiction while the case proceeds. A takedown order concerns the material, not guilt. It says nothing about how the prosecution will end.

If convicted: the orders that follow the sentence

None of what follows applies to a person who is acquitted or whose charges are withdrawn. Families read about these orders and assume they arrive with the charge. They do not. They follow a conviction, and they are a major reason these cases get defended hard.

The federal sex offender registry

Section 163.1 is listed as a primary offence under the federal registration scheme. On conviction, a registration order is mandatory where the Crown proceeded by indictment, the sentence is two years or more and the victim was under 18, and likewise where the person has a relevant prior conviction or an existing registration obligation. In other circumstances the order is presumptive: the court must impose it unless the person establishes either that registering them would not serve the registry's police purposes or that its impact would be grossly disproportionate to the public interest it protects. Registration generally runs 10 years where the route was summary and 20 years on the indictable routes for these offences, and it can be for life where findings repeat.

The s.161 prohibition order

Where the offence is in respect of a person under 16, the sentencing court must consider an order under s.161. The menu is wide: staying away from parks, playgrounds, school grounds and daycare centres; not taking paid or volunteer positions of trust or authority over people under 16; no contact with people under 16; and no use of the internet or other digital networks except as the court allows. Orders can run up to life, and breaching one is itself a criminal offence. The same regime appears in other prosecutions we defend, including sexual interference allegations.

Publication bans and everything else

A s.486.4 publication ban in these files protects the identity of complainants and witnesses. It does not cover the person charged, whose name remains public unless some other order applies. Beyond that sit the practical consequences: police record checks and vulnerable sector screening, complications at foreign borders, and serious immigration exposure for non-citizens. Each of those deserves specific advice tied to your circumstances, not a paragraph on a website.

Bail and living on conditions

A person arrested on these charges is presumed innocent and, in most cases, entitled to reasonable bail. These are not offences reserved for a superior court judge, so bail runs in the Ontario Court of Justice at Newmarket, and the charge does not by itself put the person in a reverse onus position. That said, Crown positions in these files are cautious, hearings are contested more often than average, and preparation decides them.

The conditions are their own world. Release orders in these files almost always restrict devices and internet access: no internet except for work, banking or counsel; no device capable of going online except one declared phone; residence terms; sometimes no unsupervised contact with people under 16. For someone whose life runs through a phone, those terms need real thought on day one.

A workable plan wins releases: a surety who understands the file, device arrangements police can verify, a residence that fits the terms. Conditions can be varied later, and a breach is a new criminal charge, so fix a bad term before it breaks. Our Markham bail lawyer page covers the process in detail, including sureties, variations and the first 24 hours after an arrest.

The path through the Newmarket courthouse

Every criminal case from Markham runs through the courthouse at 50 Eagle St. W. in Newmarket, and a person charged under s.163.1 walks the same procedural road as anyone else, presumed innocent at every step of it.

It starts in the Ontario Court of Justice: a first appearance, counsel on record, then disclosure, which in these files is dominated by forensic reporting that arrives in waves and often late. Pushing for the underlying data rather than just the summary report is unglamorous work that decides later motions. On the hybrid counts the Crown elects summary or indictable procedure, and that election moves everything at once.

Where the charge is making or distribution and the Crown proceeds by indictment, a preliminary inquiry can be requested, because those counts carry 14 year maximums. Possession and accessing counts do not qualify, so they move to trial without one. A prelim is not a second trial. It is a testing ground for the Crown's committal case and, used well, a discovery tool the defence never gets back once waived.

In between sit judicial pre-trials and resolution discussions. Some files resolve, some narrow, and some are built for trial from the first month. Timing has teeth too: the Supreme Court in R. v. Jordan set presumptive ceilings of 18 months for provincial court cases and 30 months for Superior Court cases, and forensic backlogs make delay a live issue in device-heavy prosecutions.

Allegations that begin online do not always travel alone. Communication-based counts are sometimes laid alongside, and our Markham internet luring page deals with that companion territory.

For spouses and parents standing beside the accused

The warrant is executed against a household, not just a person, and the people who live around the accused wake up inside the case too. They have been charged with nothing, and the person they love is presumed innocent, yet their phones and laptops may sit in an evidence locker, their home has been searched, and nobody has explained anything to them.

We think the family deserves its own briefing, and with the client's consent we give one. What was seized and how return works. What the release conditions actually forbid, since a shared home makes some conditions everyone's business. What can safely be said to an employer or a school. And who should not be talking to investigators without advice, because follow-up interviews of family members are routine and rarely sound like interrogations.

Two cautions we repeat in every file. Do not run your own forensic investigation of household devices; a well-meaning search through a shared computer can damage the very records the defence needs. And keep the circle small.

An allegation of this kind strains a family like very little else. The most useful thing we can offer, beyond the defence itself, is a clear account of what happens next, repeated as often as it takes.

Markham files, Newmarket courtrooms

Markham has no criminal courthouse. Anyone charged in Markham, Unionville, Milliken or anywhere else in York Region answers to the courthouse at 50 Eagle St. W. in Newmarket, which houses the Ontario Court of Justice and, upstairs, the Superior Court for matters that are indicted and elected up. Bail, remands, pre-trials and trials all happen there, and the person charged remains presumed innocent through every one of those appearances.

Investigations in these files are conducted by York Regional Police through its specialized investigators, and prosecutions are run by the Crown office at Newmarket. Knowing the local practice, how the forensic queue is moving, what release terms tend to be workable, is quiet knowledge that shortens cases.

Discretion is usually the first thing on a caller's mind. Consultations happen by phone or behind a closed door at our Thornhill office at 7191 Yonge St., Suite 310, a few minutes from anywhere in Markham by Highway 407 or Yonge Street. Nothing about a consultation is public, and nothing leaves the room. For clients closer to downtown, our Toronto office at 180 John St., Unit 320 is headquarters. Our Markham criminal defence hub covers the full range of charges we defend across York Region.

Why people charged in York Region call Kazandji Law

Choosing counsel for an allegation like this is not like hiring for a shoplifting charge. The person charged is presumed innocent, but the stakes, the forensics and the stigma demand a defence that is technical, discreet and steady. Here is what we bring.

• Founder-led defence. Fadi Matthew Kazandji takes these files personally, and the lawyer you meet is the lawyer who runs your case.
• Forensic literacy. We read imaging reports, artifacts and logs ourselves, and we know when the file calls for an independent examiner.
• Four offices. Toronto headquarters at 180 John St., Unit 320; Thornhill at 7191 Yonge St., Suite 310, serving Markham and all of York Region; plus North York and Oakville locations.
• Straight answers. We do not promise outcomes, and we explain strategy, timelines and costs clearly at every stage.

The first consultation is free, confidential and without obligation, at any stage of a file.

Questions Markham residents ask about s.163.1 charges

This page is general legal information for people facing or worried about allegations in York Region. It is not legal advice, it does not address the facts of any specific case, and reading it does not create a solicitor-client relationship with Kazandji Law. The criminal law changes, and every case turns on its own evidence. For advice about your situation, call 647-588-3234 and speak with a lawyer.