Innocent Possession

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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]

  1. ↑ 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
  2. ↑ R v Braudy 2009 CanLII 2491 (ON SC), per Stinson J at para 92 citing Chalk, at para 23
  3. ↑ R v Chalk, 2007 ONCA 815 (CanLII), 227 CCC (3d) 141, per Doherty JA at 24
  4. ↑ See e.g. Braudy, supra at para 93 and 94

See Also

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