Child Pornography Defences: Difference between revisions

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


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}}
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The starting point of the law acknowledges that any materials captured by s. 163.1(1) is "inherently harmful".<Ref>
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|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}}
{{CanLIIRx|Schacter|hs9pr|2018 ONCJ 371 (CanLII)}}{{perONCJ|Chapman J}}{{AtL|hs9pr|38}}
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; Requirements of s. 163.1(6)
; 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>
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|McLachlin CJ and Charron J}}{{atL|fnh5f|56}}
{{CanLIIRP|Katigbak|fnh5f|2011 SCC 48 (CanLII)|[2011] 3 SCR 326}}{{vlex|681737185}}{{perSCC-H|McLachlin CJ and Charron J}}{{atL|fnh5f|56}}
</ref>
</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>
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>
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===Legitimate Purposes===
===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>
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|McLachlin CJ and Charron J}}{{AtL|fnh5f|60}}<br>
{{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}}
{{CanLIIRx|Mellor|j952j|2020 ONSC 4820 (CanLII)}}{{perONSC|Dennison J}}{{atL|j952j|70}}
</ref>
</ref>
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; Art
; 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>
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|McLachlin CJ}}{{atL|523f|107}}
{{CanLIIRP|Sharpe|523f|2001 SCC 2 (CanLII)|[2001] 1 SCR 45}}{{perSCC-H|McLachlin CJ}}{{atL|523f|107}}
</ref>
</ref>


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; Harm to Persons
; Harm to Persons
The harm to be considered includes physical, psychological, or both.<ref>
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|McLachlin CJ and Charron J}}{{atsL|fnh5f|66| to 67}}<br>
{{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>
</ref>


Latest revision as of 14:20, 14 July 2024

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

Defences Generally

There are two statutory defences and one common law defence. All the defences under s. 163.1 should be "liberally construed."[1]

  1. ↑ R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at paras 60, 73

Reasonable Belief of Age

See also: 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.

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)

Note up: 163.1(5)

Public Good Defence

See also: 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):

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)

Note up: 163.1(6)

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

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.[2] 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).[3]

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).[4] 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)."[5]

The test has been articulated as requiring consideration of: [6]

  • 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:[7]

  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.[8]

When making an objective assessment of whether there is a legitimate purpose, the court should not assess the "value" of the activity.[9]

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.[10]

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.[11]

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.[12] It would be rare for there to be necessity for anyone in the administration of justice to create child pornography.[13]

Art

Self-created works of imagination intended for solely private use implicates s. 2(b) expression rights of self-fulfillment, self-actualization, and dignity.[14]

Courts are considered ill-equipped to determine whether art is "good" or not.[15] 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”.[16]

  1. ↑ R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 62 R v Schacter, 2018 ONCJ 371 (CanLII), per Chapman J, at para 38
  2. ↑ R v Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326(V), per McLachlin CJ and Charron J, at para 56
  3. ↑ R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 61
  4. ↑ Katigbak, supra, at paras 57, 58
  5. ↑ Katigbak, ibid., at para 60
  6. ↑ R v Jeffrey, 2012 SKPC 12 (CanLII), 383 Sask R 287, per Agnew J, at para 31
  7. ↑ R v Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326(V), per McLachlin CJ and Charron J, at para 60
    R v Mellor, 2020 ONSC 4820 (CanLII), per Dennison J, at para 70
  8. ↑ see RL v R, 2009 QCCA 546 (CanLII), RJQ 669, per Dutil JA, esp. para 53
  9. ↑ Katigbak, supra, at para 61
  10. ↑ R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 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.")
  11. ↑ R v Blencowe, 1997 CanLII 12287 (ON SC), [1997] OJ No 3619 (ONSC), per Watt J
  12. ↑ R v Vander Leeuw, 2021 ABCA 61 (CanLII), per curiam, at para 58
  13. ↑ Vander Leeuw, ibid., at para 58
  14. ↑ R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at para 107
  15. ↑ Katigbak, supra, at paras 61 to 65
  16. ↑ Katigbak, supra, at para 63
    Mellor, supra, at para 71

Undue Risk

Harm to Persons

The harm to be considered includes physical, psychological, or both.[1]

  1. ↑ R v Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326(V), per McLachlin CJ and Charron J, at paras 66 to 67

History

Public Good Defence (Pre-November 1, 2005)

Sections 163.1(6) and (7) came into force on November 1, 2005.[1] 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"[2]. 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"[3]

See also

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

  1. ↑ 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)
    see List of Criminal Code Amendments
  2. ↑ Sharpe, supra, at para 70
  3. ↑ Sharpe, ibid., at para 70

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.[1]

Where there is evidence of intentional downloading, the Crown can rely on the presumption that "one intends the consequences of one's actions."[2]

In order to rely upon inadvertence the defence must adduce some evidence supporting this, rather than simply speculating.[3]

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."[4] Likewise, the manner in which the files were stored will also contribute to rebutting the conclusion[5] as well as the number of places in which the pornography was saved.[6]

The presence of search terms that relate to child pornography is evidence that can rebut the claims of accidental download.[7]

Identical creation and access dates can be consistent with inadvertent download.[8]

  1. ↑ R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at paras 15 to 38
  2. ↑ R v Missions, 2005 NSCA 82 (CanLII), 196 CCC (3d) 253, per Roscoe JA, at para 21
    R v Braudy, 2009 CanLII 2491 (ON SC), per Sinson J, at para 55
  3. ↑ R v Jenner, 2005 MBCA 44 (CanLII), 195 CCC (3d) 364, per Monnin JA, at para 21
    Missions, supra, at para 21
  4. ↑ R v Pelich, 2012 ONSC 3611 (CanLII), 103 WCB (2d) 295, per Dunnet J, at para 72
    e.g. R v Smith, 2008 CanLII 59107 (ON SC), [2008] OJ No 4558 (S.C.), per Clark J, at para 28 - judge dismisses first-time accidental download claim
  5. ↑ e.g. Smith, supra, at para 28
  6. ↑ Missions, supra, at paras 22, 27
  7. ↑ e.g. R v Gilbert, 2015 NSSC 69 (CanLII), per Murphy J
    R v Clarke, 2016 CanLII 874 (NL PC), per Porter J
  8. ↑ R v Garbett, 2010 ONSC 2762 (CanLII), 255 CCC (3d) 212, per Tulloch J, at para 64

Innocent Possession/Possession With Intent to Destroy

See Also

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