Innocent Possession: Difference between revisions
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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> | ||
R v Loukas, [http://canlii.ca/t/1nlj4 2006 ONCJ 219] (CanLII), [2006] O.J. No. 2405 (Ont. C.J.) | R v Loukas, [http://canlii.ca/t/1nlj4 2006 ONCJ 219] (CanLII), [2006] O.J. No. 2405 (Ont. C.J.){{perONCJ|M Green J}} - discussing drug possession<br> | ||
R v Chalk, [http://canlii.ca/t/1txps 2007 ONCA 815] (CanLII) at para 24<br> | R v Chalk, [http://canlii.ca/t/1txps 2007 ONCA 815] (CanLII){{perONCA|Doherty JA}} at para 24<br> | ||
</ref> It also excuses possession where it is for the sole purpose of immediately destroying the materials or placing them beyond his control.<ref>R v Braudy [http://canlii.ca/t/228vp 2009 CanLII 2491] (ON SC) at para 92 citing Chalk, at para 23</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>R v Braudy [http://canlii.ca/t/228vp 2009 CanLII 2491] (ON SC){{perONSC|Stinson J}} at para 92 citing Chalk, at para 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>R v Chalk, [http://canlii.ca/t/1txps 2007 ONCA 815] (CanLII), 227 CCC (3d) 141 at 24</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>R v Chalk, [http://canlii.ca/t/1txps 2007 ONCA 815] (CanLII), 227 CCC (3d) 141{{perONCA|Doherty JA}} at 24</ref> | ||
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.<ref> | 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.<ref> | ||
See e.g. Braudy at para 93 and 94</ref> | See e.g. Braudy{{supra}} at para 93 and 94</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 19:02, 28 November 2018
- < 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] O.J. 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
- ↑ R v Chalk, 2007 ONCA 815 (CanLII), 227 CCC (3d) 141, per Doherty JA at 24
- ↑ See e.g. Braudy, supra at para 93 and 94