Child Pornography Private Use Defence

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General Principles

See also: Child Pornography Defences

There is a constitutional exemption for the class of materials that are for private use.[1] This consists of:[2]

  1. Self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and
  2. Private recording of lawful sexual activity: i.e. any visual recording created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.

The defence applies only where "the potential for its harmful use by others minimal."[3]

The exemption is derived from s. 2(b) and 7 of the Charter since the materials "may be of significance to adolescent self‑ fulfillment, self‑actualization and sexual exploration and identity."[4]

The interpretation of “private use” is not a strict “bright line” and can include passing on materials for safe-keeping.[5]

The only persons who can possess CP under the private use exception is the “creator and the persons depicted therein.”[6]

When the defence raises an "air of reality" to the defence, the crown has the burden of disproving the applicability of the defence beyond a reasonable doubt.[7] This can be raised by evidence "that the parties intended the ... material for the private use of [the victim] as well as that of the [accused], sometimes called a mutuality of benefit. Also, the evidence must show that [the victim's] consent was obtained in circumstances precluding her exploitation or abuse".[8]

This defence may also apply to distribution as well as possession.[9]

The defence is only applicable to "expressive conduct" that is of "nominal risk" to children.[10]

Possession of materials for any other purpose other than private use will not be protected.[11] The materials should be kept in "strict privacy" by the person in possession.[12]

However, Sharpe summarizes the exception as protecting “person’s possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted.”[13]

The test requires:[14]

  1. materials depict lawful sexual activity;
  2. the activity posed a "nominal risk" to the child;[15]
  3. the materials were made with the consent of the persons depicted (ie. all parties involved);
  4. consent was not obtained by any exploitation or abuse of the subject;
  5. the materials is in possession of the creator of the material or participant to the sexual activity; and
  6. was held for private use.

"Lawful" requirement does not simply mean it is conduct that is not criminal but can include the absence of "exploitation" or "abuse".[16]

There is some suggestion that there must also be a mutual benefit to all parties (ie. a requirement of "mutuality").[17]

The defence does not cover the distribution of private use materials[18]

Child participants in private use materials will be aged 14 to 17 years old.[19]

The capturing of a sex act with a person who is not legally permitted to consent to the sex act will not fall within the private use defence.[20]

  1. R v Sharpe 2001 SCC 2 (CanLII), [2001] 1 SCR 45 at para 75
  2. Sharpe at para 115
  3. R v Sharpe, at para 105
  4. R v Sharpe at 109
  5. R v Dabrowski, 2007 ONCA 619 (CanLII)
  6. Sharpe at para 116
  7. Sharpe at para 116
    R v Cockell, 2013 ABCA 112 (CanLII) at para 33 - 36
  8. Cockell at para 36
  9. R v Keough (No. 1), 2011 ABQB 48 (CanLII) at para 282
  10. R v Barabash, 2014 ABCA 126 (CanLII) at para 34, appealed at [2015] 2 SCR 522, 2015 SCC 29 (CanLII)
  11. Sharpe at para 116, 118
  12. Sharpe at para 116
  13. Sharpe at para 128]
  14. Sharpe at para 116
    Cockell at para 36 to 39
    R v Barabash
  15. see Barabash at para 36
  16. R v Barabash at para 36
  17. Cockell at para 41, 42
  18. R v Schultz, 2008 ABQB 679 (CanLII) at paras 86-88
  19. R v Keough (No. 2), 2011 ABQB 312 (CanLII) at para 121
  20. R v Cockell at paras 10 to 14 - suggests that pictures of sex between accused and a 13 year old female cannot be private use.

Third Party Possession

A third-party (ie. persons not depicted in the materials) may also possess these materials.[1] By contrast an "owner" is someone who is a participant in the recording or is the creator of the recording.[2]

The expectation it that the "owner" must maintain control over the materials for the defence to apply to the third party. Factors to consider whether the owners maintain control include:[3]

  1. the recipient of the material,
  2. the purpose or reason for the transfer,
  3. what the third party recipient was told were the criteria for the transfer,
  4. the residual control of the ‘owners’ over the private use materials, and
  5. whether the private use materials were viewed by anyone other than its ‘owners’.

Third party possession of private use materials is illegal when it is: [4]

  1. without the consent of all persons recorded,
  2. obtained by fraud or deception,
  3. a result of coercion, threat, or extortion,
  4. results in the loss of control of the private use material,
  5. in exchange for any form of consideration, or
  6. otherwise exploitive or abusive.

Generally, the third party recipient will be an intimate partner of the "owner".[5]

There is some suggestion that the "owners" of the materials may withdraw their consent to remove the exception.[6]

All tranfers to third parties in exchange for payment is exploitive.[7]

  1. Keough (No. 1), 2011 ABQB 48 (CanLII) at para 278
    c.f. R v Bono, 2008 CanLII 51780 (ON SC)
  2. Keough (No. 1) at para 284
  3. Keough (No. 1) at para 288
    R v Dabrowski, 2007 ONCA 619 (CanLII) at para 30
  4. Keough (No. 1) at paras 71, 293
  5. Keough (No. 1) at para 294
  6. R v Keough (No. 1) at para 288 to 289 - discusses implication of loss of "owner's" control and ability to seek its return or destruction
  7. R v Keough (No. 1) at paras 291 to 292

Exploitation

See also: Sexual Exploitation (Offence)

The victim of exploitation need not be aware that they are being exploited. Exploitation of a victim will often produce a lack objectivity in the victim or ability to appreciate the nature of the exploitation.[1]

Establishing exploitation goes beyond a "moral taste test".[2]

Factors considered include:[3]

  • age difference;
  • circumstances of their meeting;
  • speed at which their relationship escalated;
  • active pursuit of sexual contact before face-to-face meeting
  • accused possessing images of other children;
  1. R v Cockell 2013 ABCA 112 (CanLII) at para 38
  2. Cockell at para 39
  3. Cockell at para 43 to 46