Canadian Criminal Law/Offences/Child Pornography

Making

 * 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

 * 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.

Possession

 * 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

 * 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.

Interpretation
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 16 engaged in explicit sexual activity.”

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

Making Available
Actus Reus The act of sharing a file through file-sharing software will make out the actus reus of making available. 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.

Mens Rea The mens rea requires one of the following:
 * 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”. However, this conclusion can be rebutted where steps were taken to delete or remove the contents of the shared file folder.

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

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."

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

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."

The court can consider the evidence visible to the user indicating file sharing, such as:
 * 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.

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

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.

Deleted files
Evidence of the quick removal of the child pornographic materials from the "shared folder" suggests an intention to prevent sharing.

Making
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."

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

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

Possession
There are three ways in which a file can get on a computer:
 * 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.

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

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. For that reason, it is not necessary that the accused actually have viewed the images/videos to be in possession of them. It is only necessary that the accused be aware of the underlying illegal nature of the file stored on the computer.

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

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

Knowledge
 * See generally, Canadian Criminal Law/Possession

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

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

Courts should look at indicators such as "ownership, access, and usage of the computers on which the electronic file is stored". 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.

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".

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

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

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

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

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.

Accessing
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".

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

Procedure
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.

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

Public Good Defence
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):

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". 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"

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). 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)."

"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.

Private Use Defence
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.

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."

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

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

This defence applies to distribution as well as possession.

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.”

The test requires:
 * 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:
 * 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

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

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

Innocent Possession
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.

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.

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.

Relevant Motions
Publication Bans Exclusion from Courtroom
 * s.486 - Media Ban
 * s.486.4(3) Order banning publication of information identifying persons under 18 involved in offence (Mandatory)
 * s 486(1) - Excluding the Public from Court

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

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.

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