Canadian Criminal Law/Offences/Child Pornography

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Child Pornography
s. 163.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
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 90 days jail (poss'n/access)
6 months jail (make/distrib.)
Maximum 18 months jail
Indictable 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 days jail (poss'n/access)
1 year jail (make/distrib.)
Maximum 5 years jail (poss'n/access)
10 years jail (make/distrib.)
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence


Legislation[edit]

s. 163.1
...
Making child pornography
(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten 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 not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.

Distribution, etc. of child pornography
(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten 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 not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.


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 five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.


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 five years and to a minimum punishment of imprisonment for a term of six months; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

Interpretation
(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
...
Question of law
(7) For greater certainty, for the purposes of this section, it is a question of law whether any written material, visual representation or audio recording advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17.


CCC

Proof of Offence[edit]

Making[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused did the act of making, printing, publishing or possessing for the purpose of publishing materials
  5. the accused specifically intended to perform the impugned act
  6. the materials were child pornography
  7. the accused knew or was wilfully blind to the materials being child pornographic

Making available or Distribution[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that the material in question constituted child pornography;
  5. that the child pornography was actually made available by the accused (make available) or actually distributed by the accused (distribute); and
  6. that the accused had the intent to make child pornography available to others.[1]


Possession[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused possessed images, videos or texts
  5. the images, videos or texts were child pornographic

Accessing[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused obtained access to materials, either through a computer or otherwise
  5. the materials accessed were child pornographic
  6. the accused knew or was wilfully blind to the nature of the materials

The essential elements are in bold.

  1. R. v. Johannson, 2008 SKQB 451 at para. 34
    R. v. Spencer, 2011 SKCA 144 at 87 (mens rea)

Interpretation[edit]

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.”[1]


  1. R. v. Pressacco, 2010 SKQB 114

Child Pornography Defined[edit]

See Canadian Criminal Law/Offences/Child Pornography/Definition of Child Pornography

Making Available[edit]

Actus Reus
The act of sharing a file through file-sharing software will make out the actus reus of making available.[1] Making available is made out by a person who downloads the file "which is thereafter publicly accessible through file sharing". The only overt act required is that of downloading the file using file sharing software that can make it accessible. There is effectively no difference between this and making the file accessible on a website.[2]

Mens Rea
The mens rea requires one of the following:[3]

  1. proof of actual intent on the part of the accused to make computer files containing child pornography available to others using a file sharing program;
  2. actual knowledge on the part of the accused that file sharing programs make files available to others; or
  3. proof of wilful blindness. Wilful blindness can be satisfied with proof the accused’s file sharing program had actually made child pornographic files available to others coupled with a suspicion on his part that it had done so but where no steps were taken to determine if his suspicion was true.

Awareness of the ability of a peer-to-peer client to share files downloaded onto a computer can constitute “making available”.[4] However, this conclusion can be rebutted where steps were taken to delete or remove the contents of the shared file folder.[5]

The mens rea can be proven an actual intention to make the materials available.[6] Familiarity with how peer-to-peer software works on its own is not sufficient to establish actual intent.[7]

The mens rea is made out if the crown proves wilful blindness "by proving the accused’s file sharing program had actually made child pornography files available to others and the accused had actual suspicion that it had done so, but had made a conscious decision not to determine whether his suspicion was in fact an actuality."[8]

Recklessness has been used as a basis to prove mens rea.[9]

The mens rea does not require actual knowledge. It merely requires "the accused's awareness that the downloaded child pornography could be made available to others by his use of a file sharing program." [10]

The court can consider the evidence visible to the user indicating file sharing, such as:[11]

  • notifications when the program is installed and each time it is started up;
  • visual indicators that show whether or not others are downloading files from the user’s computer at any given moment;
  • any statements on the users screen identifying the software as a file-sharing program

It can be inferred that any message or notification from the software when the user starts the program was read by the user.[12]

The court can also consider the accused's experience and familiarity with computers generally. R v Jeffrey, 2012 SKPC 12 (CanLII) at para. 76 to </ref>

Evidence that some files were moved from the shared folder to another folder will suggest an intent to share the remaining files in the folder.[13]

Deleted files[edit]

Evidence of the quick removal of the child pornographic materials from the "shared folder" suggests an intention to prevent sharing.[14]

  1. R v Benson 2010 SKQB 459 at para. 30
  2. R. v. Spencer, 2011 SKCA 144 at para. 80
  3. R v Lorenz, 2012 SKQB 293 (CanLII)
  4. R. v. Johannson, 2008 SKQB 451
    c.f. Pressacco at para. 30 (judge refused to infer intention "from his knowledge of the operation of file-sharing")
  5. Pressacco at para 33
  6. R v Lamb 2010 BCSC 1911 at para. 74,75 - suggests that actual knowledge is necessary
  7. R. v. Pelich, 2012 ONSC 3611 at para 102
  8. R. v. Spencer, 2011 SKCA 144 at para 87 ("the Crown could also satisfy the knowledge requirement of the mens rea element of the s. 163.1(3) “makes available” offence on the basis of wilful blindness by proving the accused’s file sharing program had actually made child pornography files available to others and the accused had actual suspicion that it had done so, but had made a conscious decision not to determine whether his suspicion was in fact an actuality.")
  9. R. v. Rivet, 2011 ONCA 122 -- offender was sophisticated computer user and understood the file sharing system. he failed to change the settings until after the police were able to download CP from his machine
  10. R. v. Spencer, 2011 SKCA 144 at para. 87
  11. e.g. R v Jeffrey, 2012 SKPC 12 (CanLII) at para. 74
  12. R v Johnannson, 2008 SKQB 451 at para. 45-46
  13. See R v Lamb at para. 74
    R. v. Smith, 2011 BCSC 1826 (CanLII) at para. 182
  14. R. v. Pelich, 2012 ONSC 3611 at para 104

Making[edit]

The "making" of child pornography requires the "creation of novel child pornography, that is, an instance of child pornography that is different from existing instances."[1]

By contrast, some older decisions have stated that downloading and then transmitting child pornography to disks amounts to making.[2]No cases post-2008 have agreed with this proposition however.

The "maker" is the person who “directs or controls production of novel child pornography”[3]

  1. R v Keough, 2011 ABQB 48 at 232
    R. v. Pelich, 2012 ONSC 3611 at para. 132
    R. v. Davies, 2012 ONSC 3631 (CanLII) - rejects copying files as "making"
  2. See R. v. Mohanto, [2002] O.J. No. 5840 (C.J.)
    R. v. B.W., [2002] O.J. No. 5727 (C.J.)
    R. v. Horvat, [2006] O.J. No. 1673 (S.C.), 2006 CanLII 13426, aff’d on other grounds, 2008 ONCA 75
    R. v. Dittrich, [2008] O.J. No. 1617 (S.C.), 2008 CanLII 19217 (ON SC)
  3. R v Barabash 2012 ABQB 99 at 114
    R v Hewlett, 2002 ABCA 179

Possession[edit]

There are three ways in which a file can get on a computer:[1]

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


Actus Reus
Possession of child pornography requires "possession of the underlying data files in some way". "Simply viewing images online" is not sufficient.[2]

The act of possessing a file begins at the moment the downloading begins.[3]

Mens rea
As with all possession, the crown must prove knowledge and control.

Possession concerns the control of the underlying file and not the image or video depicted.[4] For that reason, it is not necessary that the accused actually have viewed the images/videos to be in possession of them.[5] It is only necessary that the accused be aware of the underlying illegal nature of the file stored on the computer.[6]

The accused begins their possession at the time that they initiate the download, not at the point where the download is complete.[7]

The automatic storing of files as part of the computer's "cache" alone does not amount to possession.[8]

Knowledge

See generally, Canadian Criminal Law/Possession

Where the accused has viewed the materials, he becomes imbued with the knowledge of the files' contents.[9]

Knowledge can be inferred on the basis of circumstantial evidence.[10] Evidence can include links on the desktop of the computer.[11]

Courts should look at indictators such as "ownership, access, and usage of the computers on which the electronic file is stored".[12] Also considering the ways files can get on a computer without the user's knowledge, for example from previous owner, another user, accidental download based on misleading file names, downloaded while web-browsing, pop-up sites, and spyware.[13]

Inadvertent or Accidental Downloading
It is not necessary for the crown to establish intentional downloading to establish possession.

However, where there is evidence of intentional downloading, the Crown can rely on the presumption that "one intends the consequences of one's actions".[14]

In order to rely upon inadvertence the defence must adduce some evidence supporting this, rather than simply speculating.[15]

Control
Control over a computer file refers to the "power or authority over the item, whether exercised or not."[16]

Control can be inferred by the same evidence from which knowledge can be inferred.[17]

Deleted files
The fact that a file is deleted does not alter or nullify possession of the file.[18]However, the ability to make the inference of knowledge of deleted files is less than files readily visible to the user.[19]

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.[20]

  1. R. v. Panko, 2006 ONCJ 200 (CanLII)
  2. R v Morelli, 2010 SCC 8 at para. 14
  3. Morelli at para. 23
  4. R. v. Morelli, 2010 SCC 8 at 19
  5. R. v. Daniels, 2004 NLCA 73 at 12 to 14
  6. R v Beaver 1957 CanLII 14 (SCC), [1957] S.C.R. 531
  7. R. v. Daniels, 2004 NLCA 73 at 10-14
  8. R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253 at 36
  9. see R. v. Garbett, [2008] O.J. No. 917 at para. 47 (Ont. Ct. J.))
    Also R. v. Braudy, 2009 CanLII 2491 (ON SC) at para. 51
  10. e.g. R. v. Grey 1996 CanLII 35 (ON CA), (1996), 28 O.R. (3d) 417 (C.A.)
  11. eg. R. v. Panko, [2007] O.J. No. 3826 (S.C.J.) at para. 61
  12. R. v. Braudy, 2009 CanLII 2491 (ON SC) at para. 52
    citing R. v. Tresierra, [2006] B.C.J. No. 1593 at paras. 7 and 8 (B.C.S.C.)
  13. Braudy at para. 53
  14. R v Missions 2005 NSCA 82 at para. 21
    R v Braudy at para. 55
  15. R. v Jenner 2005 MBCA 44 (CanLII), (2005), 195 C.C.C. (3d) 364 at para. 21 (Man. C.A.)
  16. R. v. Chalk, 2007 ONCA 815 (CanLII) at para. 19
    see also R. v. Daniels 2004 NLCA 73 (CanLII), (2004), 191 C.C.C. (3d) 393 (N.L.C.A.), at para. 12, the ability to determine "what will be done with the material."
  17. Braudy at para. 89
    see Tripp, 2007 NBPC 32 at para. 15.
  18. R v Benson, 2012 SKCA 4 at 14 to 17
  19. R v Tripp, 2007 NBPC 32 (CanLII), [2007] N.B.J. No. 336 at para. 23
    R v Tresierra, 2006 BCSC 1013 (CanLII), [2006] B.C.J. No. 1593 at paras. 51-56
    R. v. Braudy, 2009 CanLII 2491 (ON SC)
  20. R. v. Davies, 2012 ONSC 3631 (CanLII)

Accessing[edit]

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".[1]

Accessing requires "knowingly causing child pornography to be viewed by, or transmitted to, oneself."[2]

  1. R v Morelli at para 25, 26
    citing R. v. Panko 2007 CanLII 41894 (ON SC), (2007), 52 C.R. (6th) 378
    R. v. Weir, 2001 ABCA 181
    R. v. Daniels, 2004 NLCA 73
  2. R. v. R.D., 2010 BCCA 313, 289 B.C.A.C. 133

Procedure[edit]

During a trial, where the accused has formally admitted to the nature of the images or videos being child pornography, the Crown is not entitled to still lead evidence of the images, requiring the judge to view them all. Instead, it is entirely in the discretion of the court to review the exhibits during trial.[1]

  1. R. v. Haimour, 2010 ABQB 7 considered but not ruled on in R. v. Haimour, 2011 ABCA 143 at para. 13

Defences[edit]

There are three categories of statutory defences. All the defences should be “liberally construed”.

s. 163.1
...
Defence
(5) It is not a defence to a charge under subsection (2) 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.
...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7.


CCC

Public Good Defence[edit]

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):

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.

...
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7.


CCC

This statutory defence was created in 2004. Prior to that 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"[1]. 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"[2]

The defence set out in s.163.1(6) involves two phases.

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).[3] 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)."[4]

"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]

  1. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45 at para 70
  2. Sharpe at para 70
  3. R v Katigbak, 2011 SCC 48 at 57, 58
  4. Katigbak at para 60
  5. see R.L. v. R., [2009] R.J.Q. 669 (Que.C.A.), esp. para. 53

Private Use Defence[edit]

Sharpe at para 75, created a constitutional exemption for the class of materials that are for private use. Private use materials are where the materials depict lawful sexual activity made by or depicting the person in possession and is intended for private use only.[1]

The exemption is based on the Charter rights under s. 2(b) and 7 as such materials "may be of significance to adolescent self‑fulfilment, self‑actualization and sexual exploration and identity."[2]

The interpretation of “private use” is not a strict “bright line” and can include passing on materials for safe-keeping.[3]

The only persons who can possess CP under the private use exception is the “creator and the persons depicted therein.”[4]

This defence applies to distribution as well as possession.[5]

However, Sharpe summarizes the exception as protecting “person’s possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted.”[6]

The test requires:[7]

  1. materials depict lawful sexual activity
  2. the materials were made with the consent of the persons depicted,
  3. was held for private use.

To put it another way, third-party possession of private use materials is illegal when it is: [8]

  1. without the consent of all persons recorded,
  2. obtained by fraud or deception,
  3. a result of coercion, threat, or extortion,
  4. results in the loss of control of the private use material,
  5. in exchange for any form of consideration, or
  6. otherwise exploitive or abusive.

The defence does not cover the distribution of private use materials[9]

Child participants in private use materials will be aged 14 to 17 years old.[10]

  1. ??
  2. R v Sharpe 2001 SCC 2, [2001] 1 SCR 45 at 109
  3. R. v. Dabrowski, 2007 ONCA 619
  4. Sharpe at para 116
  5. R. v. Keough, 2011 ABQB 48 at 282
  6. Sharpe at para. 128]
  7. R. v. Barabash, 2012 ABQB 99 at para 162
  8. Keough at para. 71
  9. R. v. Schultz, 2008 ABQB 679 at paras. 86-88
  10. R. v. Keough, 2011 ABQB 312 at para. 121

Accidental Download[edit]

Accidental download can be rebutted by way of evidence regarding the amount of child pornographic materials and the manner that it was stored.[1]

  1. e.g. R. v. Smith, [2008] O.J. No. 4558 (S.C.) at para. 28 - judge dismisses first-time accidental download claim

Innocent Possession[edit]

The doctrine of "innocent possession" is a potential defence to possession of child pornography. It is an exception to criminal liability where the control over the files was for the sole purpose of immediately destroying the materials or placing them beyond his control.[1]

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.[2]

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.[3]

  1. Braudy 2009 CanLII 2491 (ON SC) at para. 92 citing Chalk, at para. 23
  2. R. v. Chalk, 2007 ONCA 815, 227 C.C.C. (3d) 141 at 24
  3. See e.g. Braudy at para. 93 and 94

Relevant Motions[edit]

Publication Bans

Exclusion from Courtroom

History[edit]

Section 163.1 was enacted in 1993 (S.C. 1993, c. 46, s. 2) to add offences related to child pornography.[1]

On July 23, 2002, the offence of accessing child pornography was added as well as the forfeiture provisions.

On July 20, 2005, Bill C-2 amended s.163.1 to include mandatory minimum penalties and change the definition of child pornography for written and audio materials.[2]

On November 1, 2005, in response to the decision of R v Sharpe, s. 163.1(6) was amended to remove the common law public good defence and add the a defence on the basis that the acts "(1) had a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (2) did not pose undue risk of harm to persons under the age of eighteen."

On August 9, 2012, this section was amended to increase the penalties as follows:

  • Making: Summary 90 days increased to 6 months
  • Distribution: Summary 90 days increased to 6 months
  • Possession: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  • Accessing: Indictable 45 days increased to 6 months / Summary 14 days increased to 90 days
  1. R. v. Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326
  2. See Legislative History of Bill C-2

See Also[edit]