Possession and Access of Child Pornography

• < Criminal Law
• < Offences
• < Child Pornography (Offence)

Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election	Hybrid / Indictable summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	6 months incarceration
Maximum	2 years less a day incarceration
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	1 year incarceration
Maximum	10 years incarceration (poss'n/access) 14 years incarceration (make/distr.)
Reference
Offence Elements Sentence Digests

Offence Wording

s. 163.1
[omitted (1), (2) and (3)]

Possession of child pornography

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Accessing child pornography

(4.1) Every person who accesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Interpretation

(4.2) For the purposes of subsection (4.1) [accessing child pornography], a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
[omitted (4.3), (5), (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

---

Proof of the Offence

Proving possession of child pornography under s. 163.1(4) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit possessed images, videos or texts the images, videos or texts were child pornographic the culprit knew or was wilfully blind to the nature of the materials

Proving accessing of child pornography under s. 163.1(4.1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit obtained access to materials, either through a computer or otherwise the materials accessed were child pornographic the culprit knew or was wilfully blind to the nature of the materials

Possession

The minimum requirements to prove personal possession of a file requires:

1. physical contact with the file;
2. knowledge of the criminal character of the file; and
3. a degree of control over the file.

As with all forms of possession, the Crown must prove knowledge and control.

While constructive possession requires:

1. the accused have knowledge of the character of the object;
2. the accused knowingly puts or keeps the object in a particular place; and
3. the accused intends to have the object in the place for his "use of benefit" or that of another person.

Where an accused acknowledges ownership or physical possession of a computer then personal possession is at issue.

Subject matter of possession

Possession of child pornography requires "possession of the underlying data files in some way". "Simply viewing images online" is not sufficient.

What is being "possessed" to make out the offence is simply the file itself, not the image or depiction found within the file.

Possession concerns the control of the underlying file and not the image or video depicted. For that reason, it is not necessary that the accused actually have viewed the images/videos to be in possession of them. It is only necessary that the accused be aware of the underlying illegal nature of the file stored on the computer.

The accused begins their possession at the time that they initiate the download, not at the point where the download is complete.

"Cached" files

The automatic storing of files as part of the computer's "cache" alone does not amount to possession. A person cannot be expected to know about the files that are stored there. There may however be "rare cases" where possession can be found in cache files.

Internet Browsing is Not Possession

Simply accessing websites or viewing images onscreen does not make out possession of those images.

Physical Contact

It is usually sufficient for the Crown to prove physical contact by establishing "that the material was on a computer with which the accused had contact, or to which the accused had access." Mere possession of a computer, however, is not sufficient to establish all elements of personal possession.

This element has been made out by inference where discs containing the files were found in a desk drawer of the accused's locked bedroom.

Knowledge

The elements of knowledge consist of two branches. The "accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is."

The element of knowledge requires that the accused be aware of the "criminal character of the item". This does not require that the accused be aware that the files meet the legal definition of child pornography, rather it only requires that they know of the "nature and contents" of the file.

The fact that a file was found on a computer does not lead inexorably to the conclusion that the user knew of the existence of the file, that it was ever viewed, that the user intended to view it, intended to save it, or did anything to cause it to be saved.

Where the accused has viewed the materials, he becomes imbued with the knowledge of the files' contents. Knowledge can be inferred on the basis of circumstantial evidence.

It has been suggested that there is no real difference between knowing what is in a person's car or in his computer such that knowledge of the contents can be inferred for both.

Factors in Inferring Knowledge

Factors in favour of knowledge include:

• the accused's ownership of the computer
• history of the accused's frequent use of the computer
• elaborate filing system of the files
• presence of the files on the computer for an extended period of time
• concealing the files in cryptic or obscure folder names or locations
• use of secure wiping software
• the use of settings that delete records of the user's activities
• presence of user-created links to the folders containing the files
• evidence of the accused's interest in the materials
• websites visited from internet history
• the accused level of computer skills
• use of search terms indicative of child pornography
• the number of child pornography files present on the computer
• evidence of child pornography on other devices owned or possessed by the accused, as well the number of devices total
• the presence of children's belongings
• file names suggestive of child pornography

Factors in favour of unknowing possession include:

• the existence of a previous owner of the computer
• multiple persons with access to the computer, in light of their familiarity with computers
• evidence of misleading files names causing inadvertent downloading
• automated downloading while web-browsing
• pop-up sites, spyware, viruses

Courts should look at indicators such as "ownership, access, and usage of the computers on which the electronic file is stored". Knowledge in some cases can be inferred by simply establishing that the accused was the owner of the computer or even the last person to use the computer.

Evidence can include links or icons on the desktop of the computer.

While the existence of a previous owner is a factor to consider, it is not necessary for the Crown to disprove the existence of a previous owner to establish knowledge.

Evidence of other people accessing the computer weighs against knowledge.

The larger the number of transactions involving the files, the number of files present, the number of devices containing the files, the manner in which they were stored, and their file names will make inadvertent downloading less likely.

While indicative file names can be misleading, when the number of files is large, the inference of knowledge will be stronger.

Evidence of the accused's interest in child pornographic subject matters, either through forensic evidence or by external evidence such as a statement will tend towards establishing knowledge.

User-created links found on the desktop that connected to folders containing child pornography was sufficient evidence to infer knowledge.

Evidence of attempts to conceal the user's activities, such as with wiping software or setting that automatically delete the user's internet history.

Where the internet browsing history is adduced, the Crown should also present evidence of the contents of the website to strengthen the inference.

A person can be aware that they possess a computer or a storage device without being aware of their contents.

File Location

Signs of attempts to conceal the files will be a factor in favour of intentional acquisition of files.

The presence of an organized collection of child pornography images was enough to infer knowledge.

Files that are in the unallocated clusters (having been deleted) may make the ability to infer knowledge diminished.

Evidence of Means of File Acquisition

The question of how the files came to be on the computer is a major area of inquiry, particularly where possession is not well established by other evidence.

There generally are three relevant ways in which a file can get on a computer:

1. the accused downloaded it knowingly;
2. the accused downloaded it unknowingly;
3. a third party downloaded it, either knowingly or unknowingly.

Files can get on a computer from previous owner, another user, accidental download based on misleading file names, downloaded while web-browsing, pop-up sites, and spyware. The courts should be cautious of these considerations, however, as inadvertent download does not eliminate the possibility of knowledge after the fact and where the evidence of inadvertence is limited, the presumption of the users intent will apply and establish knowledge.

In some cases, the lack of evidence of file acquisition can raise a doubt on guilt as other persons may be responsible for putting the files on the computer.

Physical Location

The location in which the device was found can lead to an inference of knowledge. The intimate nature of the bedroom will create a stronger inference of knowledge.

Control

The Crown must show either physical contact or control.

Control over a computer file refers to the "power or authority over the item, whether exercised or not."

Evidence of control can consist of evidence of downloading, copying, moving, storing the files, organizing the files in a user-created filing system, or accessing and creating data on separate occasions.

Control can be inferred by the same evidence from which knowledge can be inferred. In a similar sense, there is no principled distinction between a car and a computer. Inferences may be drawn of control and knowledge.

Control can be based on the duration for which the files were present on the hard drive.

Accessing

Accessing is a separate offence from possession. It was created to "capture those who intentionally viewed child pornography on the [inter]net but where the legal notion of possession may be problematic".

Accessing requires "knowingly causing child pornography to be viewed by, or transmitted to, oneself."

The definition of accessing excludes the possibility of "inadvertent viewing" where the user opens the file unaware of its criminal character.

The manner in which a file is stored can be suggestive of accessing rather than possession. For example, a file stored in a cache (stored as "temporary internet files") is indicative of accessing, either inadvertently or inadvertently, by the user.

The mere fact that a file was stored as a temporary internet file does not infer that the accused knew of the presence of the file, viewed it, or intended to save it.

Evidence of browsing child pornographic sites, the saving of a "favourite" link to a child pornographic site, and indicators of frequent downloading of child pornographic materials is sufficient to establish accessing.

Evidential Issues

In the absence of direct evidence, the court may draw an inference of guilt from the circumstances of the discovery of the child pornography.

An intention to download CP files can be inferred by the number of CP files found in the shared directory of the file-sharing program.

Possession (as well as accessing) can be inferred by factoring in evidence such as:

• the internet search history;
• the number of images present at any given time;
• number of locations the images were found;
• the duration of existence;

An admission by the accused that he viewed child pornography is not determinative to accessing or possessing. The judge must consider its weight and degree of consistency with the forensic evidence. The Crown should attempt to link the admission with the forensic evidence.

An accused can be found guilty of having accessed and possessed child pornography only where “he knew that at least one of the files that he downloaded showed a person under the age of 18 engaged in explicit sexual activity.”

Determining Acquisition of Files

See above under "Knowledge"

Time of Possession and Access

When a file is created or accessed a time and date stamp is frequently recorded.

The time and time stamp may be unreliable where the user failed to corrected set the internal clock on the computer or where the clock has been intentionally changed to falsify the time and date stamp.

The time of the access or possession is not essential for the Crown to prove, unless defence present evidence that relies upon the dates of the information such as alibi evidence. A judge would err to acquit simply due to lack of evidence with respect to time.

Shared Access to Computer

Where there is evidence that multiple people had access to the computer containing the files at issue, the level of computer competency of each person is significant. It assists in evaluating the reasonableness of other person being capable of downloading or planting the files on the computer without the accused being aware.

Where the evidence simply suggests that other people may have had access to the computer without anything further, such as corroboration with forensic evidence, can be dismissed as speculation.

Deleted Files

An accused does not possess a file where he believes that it has been permanently deleted.

The fact that a file is deleted does not alter or end the possession of the file. However, the ability to make the inference of knowledge of deleted files is less than files readily visible to the user.

Generally, "it does not matter for the purpose of criminal possession how briefly one is in possession of the object".

Where a file has been deleted but not overwritten, the Crown should establish that the accused knew that the files were still accessible and knew how to access them.

A judge may infer knowledge of deleted files based on indicators such as:

• ownership of the computer
• access to the computer
• usage of the computer

Procedural Issues

Section 163(1)(a) [corrupting morals] can be a lesser included offence of s. 163.1(4).

Difference Between Possession and Accessing

Accessing is considered an "entirely separate and distinct" offence from possession.

See Also

• Definition of Child Pornography
• Distribution, Making Available, and Making Child Pornography
• Child Pornography Defences
• Prosecuting Sexual Offences