Possession and Access of Child Pornography

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Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 6 months incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 10 years incarceration (poss'n/access)
14 years incarceration (make/distr.)
Reference
Offence Elements
Sentence Digests

Offence Wording

s. 163.1
...
Possession of child pornography
(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.


Accessing child pornography
(4.1) Every person who accesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

Interpretation
(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17.


CCC

Proof of the Offence

Proving possession of child pornography under s. 163.1(4) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed images, videos or texts
  5. the images, videos or texts were child pornographic

Proving accessing of child pornography under s. 163.1(4.1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit obtained access to materials, either through a computer or otherwise
  5. the materials accessed were child pornographic
  6. the culprit knew or was wilfully blind to the nature of the materials

Possession

See generally, Possession

The automatic storing of files as part of the computer's "cache" alone does not amount to possession. A person cannot be expected to know about the files that are stored there.[1] There may however be "rare cases" where possession can be found in cache files.[2]

As with all forms of possession, the Crown must prove knowledge and control.[3]

The minimum requirements to prove personal possession of a file requires:[4]

  1. physical contact with the file;
  2. knowledge of the criminal character of the file; and
  3. a degree of control over the file.

While constructive possession requires:[5]

  1. the accused have knowledge of the character of the object;
  2. the accused knowingly puts or keeps the object in a particular place; and
  3. the accused intends to have the object in the place for his "use of benefit" or that of another person.

Where an accused acknowledges ownership or physical possession of a computer then personal possession is at issue.[6]

Subject matter of possession
Possession of child pornography requires "possession of the underlying data files in some way". "Simply viewing images online" is not sufficient.[7]

What is being "possessed" to make out the offence is simply the file itself, not the image or depiction found within the file.[8]

Possession concerns the control of the underlying file and not the image or video depicted.[9] For that reason, it is not necessary that the accused actually have viewed the images/videos to be in possession of them.[10] It is only necessary that the accused be aware of the underlying illegal nature of the file stored on the computer.[11]

The accused begins their possession at the time that they initiate the download, not at the point where the download is complete.[12]

  1. R v Morelli at para 36
  2. Morelli
  3. Morelli, 2010 SCC 8 (CanLII) per Fish J. at para 15 ("It is undisputed that knowledge and control are essential elements common to both.")
  4. R v Tresierra, 2006 BCSC 1013 (CanLII)
    R v Garbett, 2010 ONSC 2762 (CanLII) at para 42
    R v Morelli at paras 14 to 16
  5. Morelli at para 17
  6. e.g. Garbett at para 34
  7. R v Morelli, 2010 SCC 8 (CanLII) at para 14
  8. R v Morelli at paras 24 to 26
    R v Panko, 2007 CanLII 41894 (ON SC), 52 C.R. (6th) 378 [2007] O.J. No. 3826 (S.C.J.)
    R v Weir, 2001 ABCA 181 (CanLII), 95 Alta. L.R. (3d) 225
    R v Daniels
  9. R v Morelli at para 19
  10. R v Daniels, 2004 NLCA 73 (CanLII) at paras 12 to 14
  11. R v Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531
  12. R v Daniels, 2004 NLCA 73 (CanLII) at 10-14
    Morelli at para 23

Physical Contact

It is usually sufficient for the Crown to prove physical contact by establishing "that the material was on a computer with which the accused had contact, or to which the accused had access."[1] Mere possession of a computer however is not sufficient to establish all elements of personal possession.[2]

This element has been made out by inference where discs containing the files were found in a desk drawer of the accused's locked bedroom.[3]

  1. R v Braudy, 2009 CanLII 2491 (ON SC) at para 47 ("It is merely required, in other words, to show that the material was on a computer with which the accused had contact, or to which the accused had access.")
  2. R v Cockell, 2013 ABCA 112 (CanLII) at para 71
  3. see R v Love, 2011 ABPC 40 (CanLII) at para 24

Knowledge

The elements of knowledge consists of two branches. The "accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is."[1]

The element of knowledge requires that the accused be aware of the "criminal character of the item".[2] This does not require that the accused be aware that the files meet the legal definition of child pornography, rather it only requires that they know of the "nature and contents" of the file.[3]

The fact that a file was found on a computer does not lead inexorably to the conclusion that the user knew of the existence of the file, that it was ever viewed, that the user intended to view it, intended to save it, or did anything to cause it to be saved.[4]

Where the accused has viewed the materials, he becomes imbued with the knowledge of the files' contents.[5] Knowledge can be inferred on the basis of circumstantial evidence.[6]

It has been suggested that there is no real difference between knowing what is in a person's car or in his computer such that knowledge of the contents can be inferred for both.[7]

  1. R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253 at para 16
  2. see R v Garbett, 2010 ONSC 2762 (CanLII) at para 40
    R v Chalk, 2007 ONCA 815 (CanLII) at para 18
  3. Garbett at para 40
  4. R v Garbett, 2008 ONCJ 97 (CanLII), [2008] O.J. No. 917, at para 24 ("the mere fact that an image was found on a computer’s hard drive does not lead inexorably to an inference that the user knew of its existence, or that the user had ever viewed it, intended to view it, intended to save it, or did anything to cause it to be saved. ") appealed to 2010 ONSC 2762 (CanLII)
    R v Allart, 2009 BCSC 1949 (CanLII) at para 56
  5. see R v Garbett, supra at para 47 appealed to 2010 ONSC 2762 (CanLII)
    Also R v Braudy, 2009 CanLII 2491 (ON SC) at para 51
  6. e.g. R v Grey, 1996 CanLII 35 (ON CA), (1996), 28 O.R. (3d) 417 (C.A.)
    Braudy at para 51 ("While [direct evidence of viewing] may be sufficient proof of knowledge, however, it is not strictly necessary. Knowledge may instead be inferred from circumstantial evidence")
  7. R v Missions at para 71
    R v Johannson, 2008 SKQB 451 (CanLII) at para 44

Factors in Inferring Knowledge

Factors in favour of knowledge include:[1]

  • the accused's ownership of the computer[2]
  • history of the accused's frequent use of the computer[3]
  • elaborate filing system of the files[4]
  • presence of the files on the computer for an extended period of time
  • concealing the files in cryptic or obscure folder names or locations
  • use of secure wiping software
  • the use of settings that delete records of the user's activities
  • presence of user-created links to the folders containing the files
  • evidence of the accused's interest in the materials
  • websites visited from internet history[5]
  • the accused level of computer skills
  • use of search terms indicative of child pornography[6]
  • the number of child pornography files present on the computer[7]
  • evidence of child pornography on other devices owned or possessed by the accused, as well the number of devices total[8]
  • the presence of children's belongings[9]
  • file names suggestive of child pornography[10]

Factors in favour of unknowing possession include:[11]

  • the existence of a previous owner of the computer
  • multiple persons with access to the computer, in light of their familiarity with computers[12]
  • evidence of misleading files names causing inadvertent downloading
  • automated downloading while web-browsing
  • pop-up sites, spyware, viruses

Courts should look at indictators such as "ownership, access, and usage of the computers on which the electronic file is stored".[13] Knowledge in some cases can be inferred by simply establishing that the accused was the owner of the computer or even the last person to use the computer.[14]

Evidence can include links or icons on the desktop of the computer.[15]

While the existence of a previous owner is a factor to consider, it is not necessary for the Crown to disprove the existence of a previous owner to establish knowledge.[16]

Evidence of other people accessing the computer weighs against knowledge.[17]

The larger the number of transactions involving the files, the number of files present, the number of devices containing the files, the manner in which they were stored, and their file names will make inadvertent downloading less likely.[18]

While indicative file names can be misleading, when the number of files are large, the inference of knowledge will be stronger.[19]

Evidence of the accused's interest in child pornographic subject matters, either through forensic evidence or by external evidence such as a statement will tend towards establishing knowledge.[20]

User-created links found on the desktop that connected to folders containing child pornography was sufficient evidence to infer knowledge.[21]

Evidence of attempts to conceal the user's activities, such as with wiping software or setting that automatically delete the user's internet history.[22] Also evidence that the internal clock

Where the internet browsing history is adduced, the Crown should also present evidence of the contents of the website to strengthen the inference.[23]

A person can be aware that they possess a computer or a storage device without being aware of their contents.[24]

File Location
Signs of attempts to conceal the files will be a factor in favour of intentional acquisition of files.[25]

The presence of an organized collection of child pornography images was enough to infer knowledge.[26]

Files that are in the unallocated clusters (having been deleted) may make the ability to infer knowledge diminished.[27]

Evidence of Means of File Acquisition
The question of how the files came to be on the computer is a major area of inquiry, particularly where possession is not well established by other evidence.

There generally are three relevant ways in which a file can get on a computer:[28]

  1. the accused downloaded it knowingly;
  2. the accused downloaded it unknowingly;
  3. a third party downloaded it, either knowingly or unknowingly.

Files can get on a computer from previous owner, another user, accidental download based on misleading file names, downloaded while web-browsing, pop-up sites, and spyware.[29] The courts should be cautious of these considerations, however, as inadvertent download does not eliminate the possibility of knowledge after the fact and where the evidence of inadvertence is limited, the presumption of the users intent will apply and establish knowledge.[30]

In some cases, the lack of evidence of file acquisition can raise a doubt on guilt as other persons may be responsible for putting the files on the computer.[31]

Physical Location
The location in which the device was found can lead to an inference of knowledge. The intimate nature of the bedroom will create a stronger inference of knowledge.[32]

  1. see cases discussed below for sources
  2. see R v Love, 2011 ABPC 40 (CanLII) at para 30
  3. see Love at para 30
  4. R v Caza, 2012 BCSC 627 (CanLII), at para 67
  5. see Love, supra at para 30
  6. R v Leask, 2013 BCSC 653 (CanLII)
  7. Leask, supra
  8. see Love, supra at para 30, 32
  9. see Love at para 30 - children's underwear in his bedroom
  10. R v Donnelly, 2010 BCSC 1294 (CanLII)
  11. see cases discussed below for sources
  12. Love at para 32
  13. R v Braudy, 2009 CanLII 2491 (ON SC) at para 52
    citing R v Tresierra, 2006 BCSC 1013 (CanLII), [2006] BCJ No. 1593 at paras 7 and 8 (B.C.S.C.)
  14. R v Tresierra, supra at para 46
    R v Garbett, 2010 ONSC 2762 (CanLII) at para 42
  15. eg. R v Panko, 2007 CanLII 41894 (ON SC), [2007] O.J. No. 3826 (S.C.J.) at para 61
  16. e.g. Braudy, supra at para 56, 57
  17. e.g. Tresierra, supra at para 53
  18. Braudy, supra at para 68 to 72
  19. R v Donnelly, 2010 BCSC 1294 (CanLII)
  20. Braudy, supra at para 77
  21. R v Panko, supra at para 61
  22. Braudy, supra at para 75
  23. Love, supra at para 31
  24. Love, supra at para 32
  25. Braudy, supra at para 74 - using file folders named "X" and "_"
  26. R v Missions, supra
  27. Garbett, supra at para 44
    Tresierra, supra at para 51-56
    Braudy, supra at para 53
  28. R v Panko, 2006 ONCJ 200 (CanLII)
    see also Tresierra, supra at para 27
  29. Braudy, supra at para 53
    Tresierra, supra at para 27
  30. Braudy, supra at para 54, 55
    R v Missions 2005 NSCA 82 (CanLII) at para 21
  31. e.g. Tresierra, supra at para 54
  32. R v Smith, 2013 ONSC 2274 (CanLII), [2013] OJ No 1731 (SC) - regarding cocaine found in bedroom

Control

The Crown must show either physical contact or control.[1]

Control over a computer file refers to the "power or authority over the item, whether exercised or not."[2]

Evidence of control can consist of evidence of downloading, copying, moving, storing the files, organizing the files in a user-created filing system, or accessing and creating data on separate occasions.[3]

Control can be inferred by the same evidence from which knowledge can be inferred.[4] In a similar sense, there is no principled distinction between a car and a computer. Inferences may be drawn of control and knowledge.[5]

Control can be based on the duration for which the files were present on the hard drive.[6]

  1. R v Panko, 2007 CanLII 41894 (ON SC) at para 47
  2. R v Chalk, 2007 ONCA 815 (CanLII) at para 19
    see also R v Daniels 2004 NLCA 73 (CanLII), (2004), 191 CCC (3d) 393 (N.L.C.A.), at para 12, the ability to determine "what will be done with the material."
  3. R v Garbett, 2010 ONSC 2762 (CanLII) at para 48
    R v Braudy, 2009 CanLII 2491 (ON SC) at para 88-90
  4. Braudy at para 89
    see Tripp, 2007 NBPC 32 (CanLII) at para 15.
  5. R v Panko at para 71
  6. R v Chalk at para 26 - files were on the hard drive for several months

Accessing

Accessing is a separate offence from possession. It was created to "capture those who intentionally viewed child pornography on the [inter]net but where the legal notion of possession may be problematic".[1]

Accessing requires "knowingly causing child pornography to be viewed by, or transmitted to, oneself."[2]

The definition of accessing excludes the possibility of "inadvertent viewing" where the user opens the file unaware of its criminal character.[3]

The manner in which a file is stored can be suggestive of accessing rather than possession. For example, a file stored in a cache (stored as "temporary internet files") is indicative of accessing, either inadvertently or inadvertently, by the user.[4]

The mere fact that a file was stored as a temporary internet file does not infer that the accused knew of the presence of the file, viewed it, or intended to save it.[5]

Evidence of browsing child pornographic sites, the saving of a "favourite" link to a child pornographic site, and indicators of frequent downloading of child pornographic materials is sufficient to establish accessing.[6]

  1. R v Morelli, 2010 SCC 8 (CanLII) per Fish J. at paras 25, 26
    citing R v Panko 2007 CanLII 41894 (ON SC), (2007), 52 C.R. (6th) 378
    R v Weir, 2001 ABCA 181 (CanLII)
    R v Daniels, 2004 NLCA 73 (CanLII)
  2. see s. 163.1(4.2)
    R v R.D., 2010 BCCA 313 (CanLII), 289 BCAC 133 at para 31 ("The elements of accessing child pornography are: knowingly causing child pornography to be viewed by, or transmitted to, oneself.")
  3. R v Garbett, 2010 ONSC 2762 (CanLII) at para 16
  4. e.g. R v Garbett
    R v Woods, 2008 ONCJ 395 (CanLII), [2008] O.J. No. 3466 (Ct. J.) at paras 15, 47-49 per Campbell J. - deleted file consistent with inadvertent accessing
    R v Morelli at paras 14, 35
  5. R v Garbett at para 9 - citing findings of lower court
  6. R v Graham, 2011 ONSC 4002 (CanLII) at para 18

Evidential Issues

An intention to download CP files can be inferred by the number of CP files found in the shared directory of the file sharing program.[1]

Possession (as well as accessing) can be inferred by factoring in evidence such as:[2]

  • the internet search history;
  • the number of images present at any given time;
  • number of locations the images were found;
  • the duration of existence;

An admission by the accused that he viewed child pornography is not determinative to accessing or possessing. The judge must consider its weight and degree of consistency with the forensic evidence.[3]The Crown should attempt to link the admission with the forensic evidence.[4]

An accused can be found guilty of having accessed and possessed child pornography only where “he knew that at least one of the files that he downloaded showed a person under the age of 18 engaged in explicit sexual activity.”[5]

  1. R v Pelich, 2012 ONSC 3611 (CanLII) at para 72
  2. e.g. R v Tootoosis, 2010 ABQB 11 (CanLII) at paras 32 to 54 - denial by accused rejected due to evidence of history, amount of pictures and their locations
  3. Garbett, 2010 ONSC 2762 (CanLII) at para 68
  4. Garbett at para 69
  5. R v Pressacco, 2010 SKQB 114 (CanLII)

Determining Acquisition of Files

See above under "Knowledge"

Time of Possession and Access

When a file is created or accessed a time and date stamp is frequently recorded.[1]

The time and time stamp may be unreliable where the user failed to corrected set the internal clock on the computer or where the clock has been intentionally changed to falsify the time and date stamp.[2]

The time of the access or possession is not essential for the Crown to prove, unless defence present evidence that relies upon the dates of the information such as alibi evidence. A judge would err to acquit simply due to lack of evidence with respect to time.[3]

  1. Braudy at para 57
  2. Braudy at para 58
  3. R v Jacques, 2013 SKCA 99 (CanLII) at para 65, 68 to 70

Shared Access to Computer

Where there is evidence that multiple people had access to the computer containing the files at issue, the level of computer competency of each person is significant.[1] It assists in evaluating the reasonableness of other person being capable of downloading or planting the files on the computer without the accused being aware.

Where the evidence simply suggests that other people may have had access to the computer without anything further, such as corroboration with forensic evidence, can be dismissed as speculation.[2]

  1. e.g. R v Braudy, 2009 CanLII 2491 (ON SC) at paras 62 to 67
  2. e.g. R v Graham, 2011 ONSC 4002 (CanLII) at para 21, 22

Deleted Files

An accused does not possess a file where he believes that it has been permanently deleted.[1]

The fact that a file is deleted does not alter or end the possession of the file.[2] However, the ability to make the inference of knowledge of deleted files is less than files readily visible to the user.[3]

Generally, "it does not matter for the purpose of criminal possession how briefly one is in possession of the object".[4]

Where a file has been deleted but not overwritten, the Crown should establish that the accused knew that the files were still accessible and knew how to access them.[5]

  1. R v McDermid, 2008 CanLII 68135 (ON SC)
    see also UK: Rowe, R v [2008] EWCA Crim 2712 (04 November 2008) <http://www.bailii.org/ew/cases/EWCA/Crim/2008/2712.html>
  2. R v Benson, 2012 SKCA 4 (CanLII) at paras 14 to 17
  3. R v Tripp, 2007 NBPC 32 (CanLII), [2007] NBJ No. 336 at para 23
    R v Tresierra, 2006 BCSC 1013 (CanLII), [2006] BCJ No. 1593 at paras 51-56
    R v Braudy, 2009 CanLII 2491 (ON SC)
  4. Morelli, supra at para 30
  5. R v Davies, 2012 ONSC 3631 (CanLII)

Procedural Issues

Section 163(1)(a) can be a lesser included offence of s. 163.1(4).[1]

  1. R v J.C., 2013 BCPC 237 (CanLII) at para 2

See Also