What Are My Defences Against a Child Pornography Charge?

What Are My Defences Against a Child Pornography Charge?
By Vince Semenuk

Any visual or recorded material depicting someone under the age of 18 engaged in sexual activity or displaying their genitals is considered child pornography. Section 163 of the Criminal Code lists four child pornography offences involving producing, distributing, possessing and accessing it. The penalties vary depending on the charge and the circumstances, but upon conviction you will likely be facing jail time, not to mention the negative social stigma associated with the crime.

Those facing any child pornography charge need an experienced defence lawyer at their side. Here are some of the defences Dunn & Associates team members can build if you are facing trial.

Were Your Charter Rights Violated?

When carrying out investigations in the production, distribution and viewing of child porn, police must ensure they do not violate an accused’s rights as granted under the Canadian Charter of Rights and Freedoms. These include being free from unreasonable search and seizure and to have a timely trial after a charge is laid. If we can show the court one of your Charter rights were violated, we can argue that evidence should be excluded from consideration, which may lead to the case being thrown out.

That happened in Edmonton in 2020 when a man facing three child pornography-related offences and one count of voyeurism had his charges stayed after a provincial justice found the man’s Charter right to a timely trial – established by the Supreme Court in 2016 – had been violated.

The man had been charged in 2016, but there were delays in bringing the case to court. In his judgment, the trial judge wrote that the man’s “right to trial within a reasonable time, guaranteed by Charter s. 11(b) has been violated. I order that the proceedings against him be stayed."

The Images Were For a Legitimate Purpose

A person cannot be convicted of a child porn offence if they had a “legitimate purpose” for their action that involves the “administration of justice or to science, medicine, education or art,” states s. 163.1 (6) of the Code. It adds that a conviction should not be handed down in cases where there is not “an undue risk of harm to persons” under 18 and that it is a “question of law” whether any written material, visual representation or audio recording “advocates or counsels sexual activity” with a person under 18.

This defence only works in specific circumstances. That is shown in a 2020 Ontario Appeal Court decision where the judge rejected a man’s argument that his collection of child porn was being used for research. According to court documents, he claimed he wanted to train others on how “to recognize signs of sexual abuse among victims, prevent perpetrators from joining [youth] organizations, and to locate perpetrators already in these organizations.”

In dismissing his appeal, the court noted, “Parliament created the legitimate purpose defence because it recognized that the laws criminalizing possessing and accessing child pornography could impinge on the values guaranteed by the right to freedom of expression, including artistic creativity, education, or medical research."

You Did Not Possess the Child Porn

In legal terms, “possession” means that you had some level of control over something and you knew it was illegal. If the Crown can show that you accessed child porn on the internet, that may not be enough to lead to a conviction of possessing the image, though the lesser offence of accessing child pornography could still be prosecuted.

A 2017 Ontario Superior Court of Justice judgment discussed what constitutes control when it comes to online pornography. It stated: “To be properly found to be in ‘constructive possession’ of child pornography on their computer device, the Crown must establish that the person knowingly had images of child pornography on their computer, and intentionally stored the images there for their own use or benefit."

The Defence of Innocent Possession

This is another difficult defence to make, as it only applies if you possessed the child pornography for the purpose of delivering it to authorities or destroying it. A 2008 judgment from the New Brunswick Supreme Court sums up what has to be made out in this defence.

“An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics,” court documents read. “Assuming he does nothing further to indicate an intention to exercise control over it, he had not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think that a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession.”

‘I Thought He/She Was Over 18’ Defence Does Not Work

When people are charged with a child pornography offence, some might argue that H2 thought that the person depicted was of legal age. According to s. 172.1 (4) of the Code, “it is not a defence to say you thought [the person shown] was “at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.”

The court will have to decide what steps would have been reasonable in your situation if you make this defence.

What Are Mitigating or Aggravating Factors?

If you convicted of a child pornography charge, the court will consider a number of factors before imposing sentence. Aggravating factors, which may increase your sentence, are:

  • A criminal record for similar offences;

  • The size of the porn collection; and

  • The age of the children involved and the relative depravity and violence depicted.

Mitigating factors, which may reduce the sentence, are:

  • showing you are of good character;

  • demonstrating genuine remorse and seeking treatment and counselling; and

  • entering a guilty plea, saving court resources.

Why You Need Our Help

Anyone convicted of a child pornography offence is placed on provincial and federal sex offender registries and the court can impose restrictions that relate to contact with minors, internet use, attendance at parks and other public locations where minors may be found. The lawyers at Dunn & Associates can advise and defend you at every step of the way in your legal battle, ensuring you get fair treatment before the law. Contact us for a free consultation or call 403-233-0443.

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Child Pornography