Innocent Possession: Difference between revisions
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{{LevelZero}}{{HeaderDefences}} | {{LevelZero}}{{HeaderDefences}} | ||
==General Principles== | ==General Principles== | ||
The doctrine of "innocent possession" is a potential defence to possession of child pornography. The doctrine is a "public duty defence" which permits possession for lawful purposes such as delivering it to authorities.<ref> | The doctrine of "innocent possession" is a potential defence to possession of child pornography. The doctrine is a "public duty defence" which permits possession for lawful purposes such as delivering it to authorities.<ref> | ||
{{CanLIIRP|Loukas|1nlj4|2006 ONCJ 219 (CanLII)|, [2006] OJ No 2405 (Ont. C.J.)}}{{perONCJ|M Green J}} - discussing drug possession<br> | |||
{{CanLIIR|Chalk|1txps|2007 ONCA 815 (CanLII)}}{{perONCA|Doherty JA}}{{atL|1txps|24}}<br> | |||
</ref> | </ref> | ||
It also excuses possession where it is for the sole purpose of immediately destroying the materials or placing them beyond his control.<ref> | It also excuses possession where it is for the sole purpose of immediately destroying the materials or placing them beyond his control.<ref> | ||
{{CanLIIRP|Braudy|228vp|2009 CanLII 2491 (ON SC)}}{{perONSC|Stinson J}}{{atL|228vp|92}} citing Chalk{{atL|1txps|23}}</ref> | |||
By establishing this limited intention, there will be an absence of a blameworthy state of mind or blameworthy conduct. Mere technical findings of knowledge and control should not constitute possession.<ref> | By establishing this limited intention, there will be an absence of a blameworthy state of mind or blameworthy conduct. Mere technical findings of knowledge and control should not constitute possession.<ref> | ||
Revision as of 17:22, 24 January 2021
- < Criminal Law
- < Defences
General Principles
The doctrine of "innocent possession" is a potential defence to possession of child pornography. The doctrine is a "public duty defence" which permits possession for lawful purposes such as delivering it to authorities.[1] It also excuses possession where it is for the sole purpose of immediately destroying the materials or placing them beyond his control.[2]
By establishing this limited intention, there will be an absence of a blameworthy state of mind or blameworthy conduct. Mere technical findings of knowledge and control should not constitute possession.[3]
Innocent possession will generally not apply where the created and access dates of the deleted files show evidence that the user knowingly storing the files for a period of time before deleting them. Further evidence of selective deleting of files shows an intent to sort rather than destroy.[4]
- ↑
R v Loukas, 2006 ONCJ 219 (CanLII), , [2006] OJ No 2405 (Ont. C.J.), per M Green J - discussing drug possession
R v Chalk, 2007 ONCA 815 (CanLII), per Doherty JA, at para 24
- ↑ R v Braudy, 2009 CanLII 2491 (ON SC), per Stinson J, at para 92 citing Chalk, at para 23
- ↑ Chalk, supra, at para 24
- ↑ See e.g. Braudy, supra, at paras 93 and 94