Imagine one day the police are at your door with a warrant. A Justice of the Peace has authorized law enforcement to search your house and seize all electronic devices capable of connecting to the internet. You’re questioned and then quickly placed under arrest for possession and transmission of child pornography. The police release you on a recognizance with strict conditions that restrict your access to public places and limit your use of the internet. At your first court appearance you receive a copy of the police report in your case and read that multiple videos and images of child pornography were located on your computer. For the life of you, you cannot remember ever seeing anything close to what police allege was found. It could be that there are a variety of explanations and viable defences in your case. What follows is Aitken Robertson’s non-exhaustive list of common defences to child pornography charges.
The “Multiple Users” defence
Your computer may have had many users prior to being seized in the police investigation. There have been cases where the illicit online activity was actually carried out by the accused’s dorm roommate. Other cases have involved adolescent children roaming the internet unsupervised in their parents’ house. Could it be that your curious 15-year-old son was looking for girls in his age-group? Relevant considerations in a “multiple users” defence are: Was the computer secured with a password? If so, did anyone else also have the password? Did the computer have multiple accounts? Can the web browsing history be linked to a specific individual? For instance, did someone pay their Visa bill online using online banking while engaging in illegal activity? Is there a pattern of illicit activity? Does the activity occur at a time when someone is likely to be at their residence? For offences such as downloading or accessing child pornography, the Crown must prove that the activity at issue was indeed linked to a specific person or group of people. If it is difficult to identify who was using a household computer and when, then the Crown will have some difficulty proving its case.
The “Trojan Horse” defence
While relatively rare, it is possible that a hacker has planted illicit images on your computer. There are cases where ransomeware has been used to distribute a number of child pornography images or videos. The victim’s computer is then locked by the program. A demand for money usually ensues often coupled with a threat to go to authorities if the ransom is not paid. There are also cases of hackers placing images on people’s computers as a means of framing them. In these types of cases context is important. Was there clear motive to plant illicit images on someone’s computer? If the images were discovered by the victim, who did he/she notify? What was done with the images once discovered?
No knowledge of the illicit content
Many people buy refurbished computers and devices capable of connecting to the internet. Often these high end computers can be purchases inexpensively. What people often do not realize is that there could still be content located in “unallocated space”. This is storage space on a computer’s hard drive that is not associated with any particular file. These areas may have been used previously for files that had been deleted. When police seize a device they will often recover deleted files by “carving” unallocated/free space in order to prove that certain files used to exist on a computer. Files retrieved from unallocated space often do not have time stamps or other metadata that informs the investigator when a file was accessed or created or who owned the file. Without that key metadata it is difficult to determine when a file was created, where and when it was downloaded, where it was stored and who accessed it. If all illicit images are located in unallocated space and do not have metadata associated with them, there is a good chance the owner of the computer never had any interaction with the material at all. Given that knowledge is a key element of “possession,” the Crown must have evidence that child pornography not only existed on the accused’s computer but that the accused knew it existed.
Today a large portion of internet browsing is done on smart phones. Most people scroll through titles on a search engine quickly by flicking their thumbs across the screen. It is likely that everyone at one point has downloaded an image or taken a screen shot of something they did not intend to. It could be that an illicit image or video had been uploaded to a mainstream social media platform. If you were to scroll through videos or images on that phone and stumble across it before it had been deleted by the provider, it is certainly conceivable that your thumb could slide across the “download” icon without you knowing it.
Accidental downloads can also be a matter of selecting a file which appears not to have anything problematic in it. Peer to peer file sharing platforms such as Limewire and BitTorrent do not benefit from the same oversight as conventional websites. This is because the software essentially makes files stored on your hard drive available for others to download. Given that the files are shared privately, there is rarely any content monitoring. It is, therefore, very possible that a seemingly innocuous file with nothing unusual about its title could be replete with illicit material. The problem with peer to peer file sharing is you may not even discover problematic content until it is already downloaded and possibly even shared with others. This is because other peer-to-peer users can begin downloading your content even before a file has finished downloading on your computer. Similar to any other Criminal Code offence, the Crown must prove mens rea (the mental component) of possession offences beyond a reasonable doubt.
If you’ve been charged with a child pornography-related offence you need the help of a lawyer to identify which, if any, defences are available in your case. We’re here to help so give us a call at 1-800-668-1657 for a free consultation.