Posession of Child Pornography
Possession of Child Pornography - S. 163.1(4) of the Criminal Code of Canada
Summary of the Offence
What is a charge pursuant to the Criminal Code?
Child pornography is addressed under Section 163 of the Criminal Code of Canada. The Code covers four subheadings of offences relating to child pornography:
- Accessing child pornography
- Possessing child pornography
- Distributing child pornography
- Making child pornography
This summary relates specifically to the possession of child pornography under s. 163.1(4) of the Criminal Code.
Section 163.1(1) defines child pornography as:
- (a) A photographic, film, video, or other visual representation (whether made by electronic or mechanical means) that:
(i) depicts a person under the age of eighteen engaged in explicit sexual activity, or
(ii) has as its dominant characteristic 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 eighteen years of age.
- (c) Any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under eighteen years of age.
- (d) Any audio recording whose dominant characteristic is the presentation or description, for a sexual purpose, of sexual activity with a person under eighteen years of age.
How Serious is the Offence?
Possession of child pornography is a hybrid offence. This means that the Crown can choose to proceed by indictment or summarily, depending on the circumstances.
A summary offence is generally less serious in terms of both the nature of the crime and the severity of the sentence. In contrast, an indictable offence typically involves more serious crimes and more severe sentences.
Elements of the Offence
Section 163.1(4) outlines the offence of possession of child pornography. To secure a conviction, the Crown must prove the following beyond a reasonable doubt:
The Guilty Act (Actus Reus)
The minimum requirements for proving possession of a file include:
- Physical contact with the file
- Knowledge of the criminal nature of the file
- A degree of control over the file
R v Morelli, 2010 SCC 8 (CanLII) and R v Garbett, 2010 ONSC 2762
The Crown must prove knowledge and control. Possession requires holding the underlying data files in some way—simply viewing images online is not enough (R v Morelli, at para 14). What is “possessed” is the file, not the image or depiction within the file (R v Morelli, at paras 24-26).
The accused need not have actually viewed the images/videos to be in possession (R v Daniels, 2004 NLCA 73 (CanLII)). Possession begins when the download is initiated, not when it is complete (R v Daniels).
The Crown can prove physical contact if the material is on a computer the accused had access to (R v Braudy, 2009 CanLII 2491 ONSC).
The Guilty Mind (Mens Rea)
The Crown must prove that the accused either:
- Intended to download the child pornography; or
- Knew or was willfully blind as to the content of the material.
Actual knowledge is not required, but the accused must be aware of both having custody of the material and its nature (R v Morelli, at para 16).
Possession cannot be assumed merely because a file was found on a computer. It must be proven that the accused knew of the file’s existence and its contents (R v Garbett, 2008 ONCJ 97 at para 24).
For example, files automatically stored in a computer's “cache” do not constitute possession if the user is unaware of them (R v Morelli, at para 36).
Possible Defences
- Lack of Knowledge
This defence may apply if the accused did not know the person depicted was under 18. If the accused can show that all reasonable steps were taken to ensure the person was at least 18, the defence may succeed.
- Lack of Control:
This defence may apply if the accused did not have the required level of control over the material to constitute possession.
- Applicable Charter Arguments:
The Charter of Rights and Freedoms protects your rights before and after an arrest. Any violations of these rights by law enforcement may support a defence. If there are Charter violations surrounding the arrest, it may be possible to have evidence excluded.
Possible Punishment If Convicted of Possession of Child Pornography
- If Proceeded by Indictment:
The offence carries a mandatory minimum sentence of 1 year imprisonment, with a maximum penalty of 10 years. - If Proceeded Summarily:
The maximum sentence is up to 2 years less a day imprisonment and a $5,000 fine.
Possession of Child Pornography - S. 163.1(4) of the Criminal Code of Canada
Summary of the Offence
What is a charge pursuant to the Criminal Code?
Child pornography is addressed under Section 163 of the Criminal Code of Canada. The Code covers four subheadings of offences relating to child pornography:
- Accessing child pornography
- Possessing child pornography
- Distributing child pornography
- Making child pornography
This summary relates specifically to the possession of child pornography under s. 163.1(4) of the Criminal Code.
Section 163.1(1) defines child pornography as:
- (a) A photographic, film, video, or other visual representation (whether made by electronic or mechanical means) that:
(i) depicts a person under the age of eighteen engaged in explicit sexual activity, or
(ii) has as its dominant characteristic 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 eighteen years of age.
- (c) Any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under eighteen years of age.
- (d) Any audio recording whose dominant characteristic is the presentation or description, for a sexual purpose, of sexual activity with a person under eighteen years of age.
How Serious is the Offence?
Possession of child pornography is a hybrid offence. This means that the Crown can choose to proceed by indictment or summarily, depending on the circumstances.
A summary offence is generally less serious in terms of both the nature of the crime and the severity of the sentence. In contrast, an indictable offence typically involves more serious crimes and more severe sentences.
Elements of the Offence
Section 163.1(4) outlines the offence of possession of child pornography. To secure a conviction, the Crown must prove the following beyond a reasonable doubt:
The Guilty Act (Actus Reus)
The minimum requirements for proving possession of a file include:
- Physical contact with the file
- Knowledge of the criminal nature of the file
- A degree of control over the file
R v Morelli, 2010 SCC 8 (CanLII) and R v Garbett, 2010 ONSC 2762
The Crown must prove knowledge and control. Possession requires holding the underlying data files in some way—simply viewing images online is not enough (R v Morelli, at para 14). What is “possessed” is the file, not the image or depiction within the file (R v Morelli, at paras 24-26).
The accused need not have actually viewed the images/videos to be in possession (R v Daniels, 2004 NLCA 73 (CanLII)). Possession begins when the download is initiated, not when it is complete (R v Daniels).
The Crown can prove physical contact if the material is on a computer the accused had access to (R v Braudy, 2009 CanLII 2491 ONSC).
The Guilty Mind (Mens Rea)
The Crown must prove that the accused either:
- Intended to download the child pornography; or
- Knew or was willfully blind as to the content of the material.
Actual knowledge is not required, but the accused must be aware of both having custody of the material and its nature (R v Morelli, at para 16).
Possession cannot be assumed merely because a file was found on a computer. It must be proven that the accused knew of the file’s existence and its contents (R v Garbett, 2008 ONCJ 97 at para 24).
For example, files automatically stored in a computer's “cache” do not constitute possession if the user is unaware of them (R v Morelli, at para 36).
Possible Defences
- Lack of Knowledge
This defence may apply if the accused did not know the person depicted was under 18. If the accused can show that all reasonable steps were taken to ensure the person was at least 18, the defence may succeed.
- Lack of Control:
This defence may apply if the accused did not have the required level of control over the material to constitute possession.
- Applicable Charter Arguments:
The Charter of Rights and Freedoms protects your rights before and after an arrest. Any violations of these rights by law enforcement may support a defence. If there are Charter violations surrounding the arrest, it may be possible to have evidence excluded.
Possible Punishment If Convicted of Possession of Child Pornography
- If Proceeded by Indictment:
The offence carries a mandatory minimum sentence of 1 year imprisonment, with a maximum penalty of 10 years. - If Proceeded Summarily:
The maximum sentence is up to 2 years less a day imprisonment and a $5,000 fine.
