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Charged with Possession of Child Pornography – Do I have a Defence?

Facing charges of child pornography is certainly a cause for concern. Nevertheless, the Aitken Robertson team is equipped to handle such sensitive matters. By relying on their legal knowledge and extensive practical experience, the lawyers at the firm work closely with you to tackle your case and reach the best resolution possible.

The Law

For the purposes of the Criminal Code, under section 163.1(1), Child Pornography refers to

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii)the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act. 

As evidenced above, Child Pornography captures a broad-range of activities that meet the definition. Possessing, making, distributing and/or accessing child pornography of any person under the age of 18 is a criminal offence under the Criminal Code of Canada.

Defences

The Criminal Code states that it is not a defence that an accused believed that the subject shown in the visual representation was depicted as being 18 years of age or more. It is a potential defence where the accused can show that he or she took all reasonable steps to ascertain the age of the subject and took all reasonable steps to ensure that, where the subject was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.

It is a defence if an accused can show that he or she had a legitimate purpose in committing the impugned act. For example, it is a legitimate purpose if the act committed related to the administration of justice or to science, medicine, education or art and did not pose an undue risk of harm to persons under the age of eighteen years. 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. 

What does Legitimate Purpose Mean?

According to the Supreme Court of Canada in R. v. Katigbak, the Parliament’s use of the word “legitimate” connotes its intention that the connection between the impugned activity and the stated purpose be both subjectively and objectively verifiable. That is, based on all the circumstances: (1) there is an objective connection between the accused’s actions and his or her purpose; and (2) there is an objective relationship between the accused’s purpose and one or more of the protected activities (administration of justice, science, medicine, education, or art).

What Constitutes Possession?

Simply viewing in a web browser an illegal image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Neither does creating a “favourite” or an “icon” on one’s computer. To commit the offence of possession, one must knowingly acquire the underlying data files and store them in a place under the user’s control. It is the underlying data file that is the stable “object” that can be transferred, stored, and possessed. The automatic caching of a file to the hard drive does not, without more, constitute possession. In order to establish possession, the prosecutor must be able to show that the file was knowingly stored and retained through the cache. When a warrant to search for evidence of possession is sought, it must be shown that there are reasonable grounds to believe that the alleged offender possesses (or has possessed) digital files of an illegal image and that evidence of that possession will be found in the place to be searched at the time the warrant is sought.

Let Aitken Robertson Handle your Case

While we just threw a lot of legal jargon your way, it is our job as your lawyers to challenge the prosecution’s case against you. We take every step necessary to advance your case and defend your Charter rights. It is important to go through the facts surrounding your case at the earliest opportunity so that no important detail is overlooked. We have a frank discussion with you and let you know what to expect as your court case unravels through the criminal courts. As we service a wide geographical area, call Aitken Robertson’s office location that best suits your jurisdiction and get a free consultation today. If you have been charged in the Cornwall area, our Kingston and area lawyer, Virginia Dolinska, would be happy to assist you.

Yasmine Al-Zaman

Yasmine’s patience, compassion and understanding allow her to work collaboratively and effectively with her clients. She appreciates the level of fear and confusion most people feel when confronted with the legal system. With that in mind, Yasmine puts her best foot forward to offer quality legal services.

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