Accessing Child Pornography

Accessing Child Pornography

The offence of accessing child pornography is outlined in section 163.1(4.1) of the Criminal Code. It indicates that a person is guilty of accessing child pornography if they look at child pornography online, but do not download it.

Child pornography material is any film, photo, video, or other visual representation, whether created electronically or by hand that shows a child engaged in sexual activity or where the dominant characteristic of the depiction is sexual in nature, or where the depiction focuses on the sexual organs or anus of a child.

Child pornography material can also be written descriptions, drawings, or audio recordings that counsel or advocate for sexual contact with children or that describes sexual activity of any kind with a child.

Example

Person A clicks on a photo of child pornography online but does not download the photo.

Person A logs into a Zoom room that is filled with other users who are sharing pornography material. Several individuals share child pornography material while person A is in the Zoom room and person A watches it.

Cases

R. v. Doucette, 2017 ONSC 371

In R. v. Doucette, the offender was convicted of two counts of accessing child pornography after he accessed written fiction material that contained explicit descriptions of the sexual abuse of a young boy. The second count related to the offender accessing Zoom rooms in which other users displayed pornography, some of which was child pornography, for other users to see. The offender admitted to watching some of the child pornography material.

R. v. John Harold Porter, 2016 ONSC 5589

In R. v. John Harold Porter, the offender was convicted of accessing child pornography material online after an internet hosting company in the UK noticed suspicious activity on a website it hosted. Upon further investigation the company found that an IP address in Ontario, Canada had been accessing child pornography material and forwarded the information to authorities who eventually arrested the Mr. Porter.

Offence Specific Defences

Material does not meet the Definition of Child Pornography

An individual charged with child pornography may argue that the material in question does not meet the definition of child pornography.

For example, an individual takes a photo of their naked child taking a bath. The photo does not focus on the child’s genitals or anus and was innocently taken by the child’s parent. This may not meet the definition of child pornography.

Additionally, if the individual(s) depicted in the images are not under the age of 18, the material will not meet the definition of child pornography.

Public Good

An individual charged with child pornography may argue that they possessed or accessed the material for a legitimate purpose related to the administration of justice.

For example, a lawyer legitimately in possession of child pornography material seized from a client in a child pornography investigation may use this defence.

Private Use

The defence of private use can be used when an individual under the age of 18 has taken a photo of video of themselves that would otherwise be considered child pornography material. If the material remains in the possession of the person depicted in the photo and the photo does not depict illegal sexual activity, this defence can be used.

For example, a sixteen year old person takes a naked photo of themselves. The photo remains in their possession and does not depict illegal sexual activity. If charged, this young person could use the defence of innocent possession.

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