What are my defences against a child pornography charge?

Any visual or recorded material that depicts someone under the age of 18 engaged in sexual activity or displays their genitals is considered child pornography. Also included is anything that encourages sexual activity with those under 18.

Section 163 of the Criminal Code lists four offences dealing with child pornography. They can be summed up as making, distributing, possessing and accessing child porn. The penalties vary depending on the charge and the circumstances but a period of incarceration will follow a conviction, not to mention the stigma attached to this charge. If you are facing any child pornography charge, you need an experienced defence lawyer to help you develop your court strategy. The common defences are listed below.

‘Child pornography was for a legitimate purpose’ defence

Section 163.1 (6) of the Code states that a person cannot be convicted if they had a “legitimate purpose” for the child pornography that involves the “administration of justice or to science, medicine, education or art.” This section adds that a conviction should not be handed down in cases where there is not “an undue risk of harm to persons” under 18. A subsection adds 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.

A 2020 Ontario Court of Justice judgment involves a man who claimed he had a legitimate purpose for collecting child pornography. According to court documents, he said he was “conducting research so that he could create a training program to train volunteers of youth-serving organizations. He wanted to train volunteers to recognize signs of sexual abuse among victims, prevent perpetrators from joining these organizations, and to locate perpetrators already in these organizations.”

He also argued that he took measures to ensure that there was no “undue risk of harm to persons under the age of eighteen years,” the judgment reads.

The trial judge rejected those arguments and found the man guilty of possessing and accessing child pornography. The man’s appeal was dismissed with the court noting that “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.”

It adds that in weighing this defence, the court must consider “whether the appellant has left the court with a reasonable doubt that he had a subjective, genuine, good faith reason for possessing the child pornography for an educational purpose.”

‘I thought he/she was over 18’ defence

The first instinct that many people have when charged with a child pornography offence is to claim that they thought that the person depicted was over the age of 18. This is a difficult defence to raise. According tos. 172.1 (4) of the Code, “it is not a defence … that the accused believed that the person referred … 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 were reasonable in your situation to determine the age of the person involved.

‘I did not have control over the child pornography’ defence

The concept of possession requires that you have some level of control over the illegal material. If you accessed the pornography 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 is still a possibility.

A 2017 Ontario Superior Court of Justice judgment delves into the idea of what constitutes control. “In order for a person 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,” court documents state.

“In other words, the Crown must prove that the accused: (1) had knowledge of the character of the child pornography images; (2) knowingly put or kept the images on his computer device; and (3) intended to maintain the images on his computer device for his ‘use or benefit’ or that of another person. Such proof will establish that the accused had the requisite knowledge of the nature of the images and intentionally exercised the necessary measure of control over those images.”

‘My Charter rights were violated’ defence

If the police violated the rights granted under the Canadian Charter of Rights and Freedoms when investigating the charge against you, that can be used as a strong defence. Section 8 of the Charter guarantees that we all have a right to be free from unreasonable search and seizure. If that has happened, I will be able to argue in court that any evidence that the police gathered should be excluded from trial.

‘Innocent possession’ is not a defence

A news report notes that a former social worker for Alberta Children's Service was sentenced to 18 months in jail for accessing and possessing over 3,000 images of child pornography after the court rejected his ‘innocent possession’ defence.

The man had been a social worker for 30 years, and he acknowledged his actions constituted a “serious and grave offence, not only to these children depicted in the images, but to society as a whole,” the story states. 

The Court of Queen's Bench judge who heard the case said he would “not impose a stricter sentence” after finding no evidence [the man] had broken the trust of the children under his care as a social worker, according to the story.

"It's not appropriate or fair to escalate the sentence because he was working helpfully and constructively with children," said the judge, adding that the man’s admission of guilt was "the very first step to healing, to rehabilitation." 

The man was given an 18-month sentence for accessing child pornography concurrently with a six-month sentence for possessing child pornography, followed by 18 months of probation. 

What are the mitigating or aggravating factors with this charge?

If you are found guilty of one or more of the four child pornography charges included in s. 163 of the Criminal Code, the court will consider a number of factors before imposing sentence. A Superior Court of Justice judgment outlines the common mitigating and aggravating factors. Aggravating factors, which may increase the sentence, are:

• a criminal record for similar or related offences;
• whether there was also production or distribution of the pornography;
• the size of the collection;
• the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);
• the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and
• whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.

Mitigating factors, which may reduce the sentence, are:

• the age of the offender;
• the otherwise good character of the offender;
• the extent to which the offender has shown insight into his problem;
• whether he has demonstrated genuine remorse;
• whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;
• the existence of a guilty plea; and
• the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

Why you need my help

Anyone convicted with any a child pornography offence is placed on provincial and federal sex offender registries and will be imprisoned for at least six months. The court can also impose restrictions that relate to contact with minors, internet use, attendance at parks and other public locations where minors may be found. These are serious charges. Contact me for a free consultation and tell me your side of the story, we so can craft your best defence.