Child Pornography Defences

This page was last substantively updated or reviewed July 2021. (Rev. # 95219)

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• < Offences
• < Child Pornography (Offence)

Defences Generally

There are two statutory defences and one common law defence. All the defences under s. 163.1 should be "liberally construed."

Reasonable Belief of Age

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.

s. 163.1
[omitted (1), (2), (3), (4), (4.1), (4.2) and (4.3)]

Defence

(5) It is not a defence to a charge under subsection (2) [making child pornography] 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.
[omitted (6) and (7)]
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Public Good Defence

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):

163.1
[omitted (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.

[omitted (7)]
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.

– CCC (CanLII), (DOJ)

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The starting point of the law acknowledges that any materials captured by s. 163.1(1) is "inherently harmful."

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. 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).

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). 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)."

The test has been articulated as requiring consideration of:

• 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:

1. there is an objectively verifiable connection between the accused’s actions and the [legitimate] purpose; and
2. 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.

When making an objective assessment of whether there is a legitimate purpose, the court should not assess the "value" of the activity.

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.

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.

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. It would be rare for there to be necessity for anyone in the administration of justice to create child pornography.

Art

Self-created works of imagination intended for solely private use implicates s. 2(b) expression rights of self-fulfillment, self-actualization, and dignity.

Courts are considered ill-equipped to determine whether art is "good" or not. 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”.

Undue Risk

Harm to Persons

The harm to be considered includes physical, psychological, or both.

History

Public Good Defence (Pre-November 1, 2005)

Sections 163.1(6) and (7) came into force on November 1, 2005. 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". 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"

See also

The offence of Corrupting Morals has a "public good" defence as well.

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.

Where there is evidence of intentional downloading, the Crown can rely on the presumption that "one intends the consequences of one's actions."

In order to rely upon inadvertence the defence must adduce some evidence supporting this, rather than simply speculating.

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." Likewise, the manner in which the files were stored will also contribute to rebutting the conclusion as well as the number of places in which the pornography was saved.

The presence of search terms that relate to child pornography is evidence that can rebut the claims of accidental download.

Identical creation and access dates can be consistent with inadvertent download.

Innocent Possession/Possession With Intent to Destroy

• See Innocent Possession

See Also

• Possession and Access of Child Pornography