Criminal Law Notebook

Child Pornography Defences

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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), 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

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

Note up: 163.1(6)

The defence set out in s.163.1(6) involves two elements, but of which must be independently satisfied.[1]

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).[2] 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)."[3]

The test has been articulated as requiring consideration of: [4]

  • 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

"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.[5]

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.[6]

Harm to Persons

The harm to be considered includes physical, psychological, or both.[7]

Public Good Defence (Pre-November 1, 2005)

Sections 163.1(6) and (7) came into force on November 1, 2005.[8] 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"[9]. 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"[10]

See also

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

  1. ↑ R v Katigbak, 2011 SCC 48 (CanLII), per McLachlin CJ and Charron J, at para 56
  2. ↑ Katigbak, ibid., at paras 57, 58
  3. ↑ Katigbak, ibid., at para 60
  4. ↑ R v Jeffrey, 2012 SKPC 12 (CanLII), per Agnew J, at para 31
  5. ↑ see RL v R, 2009 QCCA 546 (CanLII), per Dutil JA, esp. para 53
  6. ↑ R v Blencowe, 1997 CanLII 12287 (ONSC), , [1997] OJ No 3619 (ONSC),, per Watt J
  7. ↑ Katigbak, supra, at paras 66 to 67
  8. ↑ 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
  9. ↑ R v Sharpe, 2001 SCC 2 (CanLII), per McLachlin CJ, at para 70
  10. ↑ 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), per Fish J, at paras 15 to 38
  2. ↑ R v Missions, 2005 NSCA 82 (CanLII), per Roscoe JA, at para 21
    R v Braudy, 2009 CanLII 2491 (ONSC), per Sinson J, at para 55
  3. ↑ R v Jenner, 2005 MBCA 44 (CanLII), , 195 CCC (3d) 364, per Monnin JA, at para 21 (Man. C.A.)
    Missions, supra, at para 21
  4. ↑ R v Pelich, 2012 ONSC 3611 (CanLII), per Dunnet J, at para 72
    e.g. R v Smith, 2008 CanLII 59107 (ONSC), , [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 (NLPC), per Porter J
  8. ↑ R v Garbett, 2010 ONSC 2762 (CanLII), per Tulloch J, at para 64

Innocent Possession/Possession With Intent to Destroy

See Also

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