View source for Child Pornography Defences

{{Currency|July 2021}}
{{LevelZero}}{{HeaderChildPorn}}

==Defences Generally==
There are two statutory defences and one common law defence.  All the defences under s. 163.1 should be "liberally construed."<ref>
{{CanLIIRP|Sharpe|523f|2001 SCC 2 (CanLII)|[2001] 1 SCR 45}}{{perSCC-H|McLachlin CJ}}{{AtsL|523f|60|}}, {{atsL-np|523f|73|}}<br>
</ref>

{{reflist|2}}

==Reasonable Belief of Age==
{{seealso|Consent in Sexual Offences}}

In an offence for making child pornography under s. 163.1(2), the accused may not rely upon a mistaken belief of age unless reasonable steps are taken.

{{quotation2|
s. 163.1<br>
{{removed|(1), (2), (3), (4), (4.1), (4.2) and (4.3)}}
; Defence
(5) It is not a defence to a charge under subsection (2) {{AnnSec1|163.1(2)}} in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.
<br>
{{removed|(6) and (7)}}
{{LegHistory90s|1993, c. 46}}, s. 2; {{LegHistory00s|2002, c. 13}}, s. 5; 
{{LegHistory00s|2005, c. 32}}, s. 7; 
{{LegHistory10s|2012, c. 1}}, s. 17;
{{LegHistory10s|2015, c. 23}}, s. 7.
{{annotation}}
|{{CCCSec2|163.1}} 
|{{NoteUp|163.1|5}}
}}

{{Reflist|2}}

==Public Good Defence==
{{seealso|Obscenity (Offence)}}
There is an exception where the otherwise criminal conduct is for an enumerated public good and does not pose an undue risk of harm to persons under the age of 18. 
Section 163.1(6):
{{quotation2|
163.1<Br>
{{removed|(1), (2), (3), (4), (4.1), (4.2), (4.3) and (5)}}
; Defence
(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence
:(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
:(b) does not pose an undue risk of harm to persons under the age of eighteen years.
{{removed|(7)}}
{{LegHistory90s|1993, c. 46}}, s. 2; {{LegHistory00s|2002, c. 13}}, s. 5; 
{{LegHistory00s|2005, c. 32}}, s. 7; 
{{LegHistory10s|2012, c. 1}}, s. 17;
{{LegHistory10s|2015, c. 23}}, s. 7.
|{{CCCSec2|163.1}} 
|{{NoteUp|163.1|6}}
}}

The starting point of the law acknowledges that any materials captured by s. 163.1(1) is "inherently harmful."<Ref>
{{CanLIIRx|McSween|j8186|2020 ONCA 343 (CanLII)}}{{perONCA|Trotter JA}}{{AtL|j8186|62}}
{{CanLIIRx|Schacter|hs9pr|2018 ONCJ 371 (CanLII)}}{{perONCJ|Chapman J}}{{AtL|hs9pr|38}}
</ref>

; Requirements of s. 163.1(6)
The defence set out in s.163.1(6) involves two elements, but of which must be independently satisfied.<ref>
{{CanLIIRP|Katigbak|fnh5f|2011 SCC 48 (CanLII)|[2011] 3 SCR 326}}{{vlex|681737185}}{{perSCC-H|McLachlin CJ and Charron J}}{{atL|fnh5f|56}}
</ref>
The lack of "undue risk" must only be considered if the object of the material is "tied to one of the four legitimate purposes found in s. 163.1(6)(a).<Ref>
{{CanLIIRx|McSween|j8186|2020 ONCA 343 (CanLII)}}{{perONCA|Trotter JA}}{{atL|j8186|61}}
</ref>

First, the court must consider whether there is any doubt that the accused subjectively had good faith reason for possessing child pornography for the reasons listed (administration of justice or to science, medicine, education or art).<ref> 
{{supra1|Katigbak}}{{atsL|fnh5f|57|, 58}}</ref> 
It must also determine whether, "based on all of the circumstances, a reasonable person would conclude that (1) there is an objective connection between the accused’s actions and his or her purpose, and (2) there is an objective relationship between his or her purpose and one of the protected activities (administration of justice, science, medicine, education or art)."<ref>
{{ibid1|Katigbak}}{{atL|fnh5f|60}}</ref>

The test has been articulated as requiring consideration of: <ref>
{{CanLIIRP|Jeffrey|fpkt9|2012 SKPC 12 (CanLII)|383 Sask R 287}}{{perSKPC|Agnew J}}{{atL|fpkt9|31}}<br>
</ref>
* whether the accused "had a genuine, good faith reason for dealing with the child pornography in question in the manner they did?" 
* whether the reasons are listed in 163.1(6)
* whether "the accused’s actions objectively connected to his or her stated reason for dealing with the child pornography?" 
* if so, whether "there [is] an objective connection between that stated purpose and one of the protected activities in subsection (6)?"  
* if all the answers above are affirmative, whether the accused’s actions poses a risk to persons under 18, which involves considering:
** whether the risk is "significant" (more than "trivial or passing");
** whether the risk is “objectively ascertainable” (ie. risk is clear to the reasonable person based on commonly-available information).

===Legitimate Purposes===
The legitimate purpose requirement directs the court to consider, "based on all of the circumstances", that a "reasonable person" would conclude that:<ref>
{{CanLIIRP|Katigbak|fnh5f|2011 SCC 48 (CanLII)|[2011] 3 SCR 326}}{{vlex|681737185}}{{perSCC-H|McLachlin CJ and Charron J}}{{AtL|fnh5f|60}}<br>
{{CanLIIRx|Mellor|j952j|2020 ONSC 4820 (CanLII)}}{{perONSC|Dennison J}}{{atL|j952j|70}}
</ref>
# there is an objectively verifiable connection between the accused’s actions and the [legitimate] purpose; and
# whether there is an objective relationship between the accused’s purpose and one of the protected activities

; Education
"Education" can include "the education that parents may want to impart to their children in specific circumstances”, which can encompass a father holding onto a discovered child pornographic video created by the daughter in anticipation that the daughter would voluntarily admit her doings to her mother.<ref>
see {{CanLIIRPC|RL v R|27jm3|2009 QCCA 546 (CanLII)|RJQ 669}}{{perQCCA|Dutil JA}}, esp. para 53</ref>

When making an objective assessment of whether there is a legitimate purpose, the court should not assess the "value" of the activity.<Ref>
{{supra1|Katigbak}}{{AtL|fnh5f|61}}
</ref>

It is not a defence to say that the text messages that constitute child pornography were done as "a joke". This only implicates motive and not intent to commit the offence.<ref>
{{CanLIIRx|McSween|j8186|2020 ONCA 343 (CanLII)}}{{perONCA|Trotter JA}}{{AtL|j8186|86}} ("The respondent’s claim that he was joking in his text messages is not a denial of intent; it is an assertion of lack of motive. There is no presumption at common law that requires the Crown to prove a particular motive or ulterior purpose on the part of the accused.")
</ref>

; Administration of Justice
The Crown obligation to provide disclosure of child pornographic materials will be protected under s. 163.1(6) as it relates to the administration of justice.<ref>
{{CanLIIRP|Blencowe|1w4vv|1997 CanLII 12287 (ON SC)|[1997] OJ No 3619 (ONSC)}}{{perONSC|Watt J}}
</ref>

It is recognized that police, counsel, expert witnesses and court staff must be permitted to possess child pornography so long as it is done for legitimate purposes.<ref>
{{CanLIIRx|Vander Leeuw|jd6mr|2021 ABCA 61 (CanLII)}}{{TheCourtABCA}}{{atL|jd6mr|58}}
</ref>
It would be rare for there to be necessity for anyone in the administration of justice to create child pornography.<Ref>
{{ibid1|Vander Leeuw}}{{atL|jd6mr|58}}
</ref>

; Art
Self-created works of imagination intended for solely private use implicates s. 2(b) expression rights of self-fulfillment, self-actualization, and dignity.<ref>
{{CanLIIRP|Sharpe|523f|2001 SCC 2 (CanLII)|[2001] 1 SCR 45}}{{perSCC-H|McLachlin CJ}}{{atL|523f|107}}
</ref>

Courts are considered ill-equipped to determine whether art is "good" or not.<ref>
{{supra1|Katigbak}}{{atsL|fnh5f|61| to 65}}
</ref>
Art should include any "expression that may reasonably be viewed as art" as “[a]ny objectively established artistic value, however small, suffices to support the defence”.<ref>
{{supra1|Katigbak}}{{AtL|fnh5f|63}}<Br>
{{supra1|Mellor}}{{atL|j952j|71}}<Br>
</ref>

{{Reflist|2}}
===Undue Risk===
; Harm to Persons
The harm to be considered includes physical, psychological, or both.<ref>
{{CanLIIRP|Katigbak|fnh5f|2011 SCC 48 (CanLII)|[2011] 3 SCR 326}}{{vlex|681737185}}{{perSCC-H|McLachlin CJ and Charron J}}{{atsL|fnh5f|66| to 67}}<br>
</ref>

{{Reflist|2}}
===History===
; Public Good Defence (Pre-November 1, 2005)
Sections 163.1(6) and (7) came into force on November 1, 2005.<ref> 
An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 2005, c. 32 (Bill C-2)<br>
see [[List of Criminal Code Amendments#2005 to 2009|List of Criminal Code Amendments]]
</ref>
Prior to the 2005 amendments, there was a common law defence for possession for the "public good". The public good was defined as "necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest"<ref>
{{supra1|Sharpe}}{{atL|523f|70}}</ref>. This was found to include possession "by people in the justice system for purposes associated with prosecution, by researchers studying the effects of exposure to child pornography, and by those in possession of works addressing the political or philosophical aspects of child pornography"<ref>
{{ibid1|Sharpe}}{{atL|523f|70}}</ref>
 
; See also
The offence of [[Obscenity (Offence)|Corrupting Morals]] has a "public good" defence as well.
{{Reflist|2}}

==Private Use Defence==
* [[Child Pornography Private Use Defence]]

==Accidental Download==
It is not necessary for the crown to establish intentional downloading to establish possession. The accused must have 1) knowledge of the character of the object, 2) knowingly put or keeps the object in a place and 3) intends to have the object in the place for his or another person's benefit.<ref>
{{CanLIIRP|Morelli|28mrg|2010 SCC 8 (CanLII)|[2010] 1 SCR 253}}{{perSCC-H|Fish J}}{{atsL|28mrg|15| to 38}}<br>
</ref>

Where there is evidence of intentional downloading, the Crown can rely on the presumption that "one intends the consequences of one's actions."<ref> 
{{CanLIIRP|Missions|1knrn|2005 NSCA 82 (CanLII)|196 CCC (3d) 253}}{{perNSCA|Roscoe JA}}{{atL|1knrn|21}}<br>
{{CanLIIRx|Braudy|228vp|2009 CanLII 2491 (ON SC)}}{{perONSC|Sinson J}}{{atL|228vp|55}}<br>
</ref>

In order to rely upon inadvertence the defence must adduce some evidence supporting this, rather than simply speculating.<ref>
{{CanLIIRP|Jenner|1k3pf|2005 MBCA 44 (CanLII)|195 CCC (3d) 364}}{{perMBCA|Monnin JA}}{{atL|1k3pf|21}}<br>
{{supra1|Missions}}{{atL|1knrn|21}}</ref>

The number of CP files present on the computer will weigh against the conclusion of accidental downloading. Larger numbers will, in fact, permit the inference of "actively searching and downloading files."<ref>
{{CanLIIRP|Pelich|frtzq|2012 ONSC 3611 (CanLII)|103 WCB (2d) 295}}{{perONSC|Dunnet J}}{{atL|frtzq|72}}<br>
e.g. {{CanLIIRP|Smith|21k23|2008 CanLII 59107 (ON SC)|[2008] OJ No 4558 (S.C.)}}{{perONSC|Clark J}}{{atL|21k23|28}} - judge dismisses first-time accidental download claim</ref>
Likewise, the manner in which the files were stored will also contribute to rebutting the conclusion<ref>
e.g. {{supra1|Smith}}{{atL|21k23|28}}<br>
</ref> as well as the number of places in which the pornography was saved.<ref>
{{supra1|Missions}}{{atsL|1knrn|22|}}, {{atsL-np|1knrn|27|}}<br>
</ref>

The presence of search terms that relate to child pornography is evidence that can rebut the claims of accidental download.<ref>
e.g. {{CanLIIRx|Gilbert|ggmzf|2015 NSSC 69 (CanLII)}}{{perNSSC| Murphy J}}<br>
{{CanLIIRx|Clarke|gmz9l|2016 CanLII 874 (NL PC)}}{{perNLPC|Porter J}}<br>
</ref>

Identical creation and access dates can be consistent with inadvertent download.<ref>
{{CanLIIRP|Garbett|29qq4|2010 ONSC 2762 (CanLII)|255 CCC (3d) 212}}{{perONSC|Tulloch J}}{{atL|29qq4|64}}
</ref>

{{Reflist|2}}

==Innocent Possession/Possession With Intent to Destroy==
* See [[Innocent Possession]]

==See Also==
* [[Possession and Access of Child Pornography]]