Possession of Child Pornography
The offence of possession of child pornography is outlined in section 163.1(4) of the Criminal Code. It states that a person is guilty of possessing child pornography if they have child pornography stored or saved on a device. This includes files saved on a smartphone.
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.
Examples
Person A downloads images and videos that constitute child pornography onto their computer.
Person A draws a photo in which the main depiction is the sexual organs of a child.
Cases
R. v. Inksetter, [2018] ONCA 474
In R. v Inksetter, the offender was found in possession of more 1.2 million images of child pornography. Law enforcement officials deemed it to be one of the worst collections of child pornography ever discovered in Ontario. The offender was convicted of possession of child pornography as well as make available child pornography for sharing the material with other individuals.
R. v. Ditchesson, [2021] ONCA 480
In R. v. Ditchesson, the offender was arrested after being found in possession of over 7,500 images of child pornography. The material included children aged 3-14 engaging in sexual acts. The offender was convicted of possession of child pornography.
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.
Innocent Possession
The defence of innocent possession can be used where an individual possesses child pornography material for the sole purpose of destroying it or surrendering it to law enforcement.
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.
More Legal Information
Law Newbie™ is a free legal assistant developed by our criminal lawyers to help you understand the law.
In criminal cases, there are very strict rules governing what evidence can be used and how it can be used.
The rights enjoyed of all those within Canada are contained in the Canadian Charter of Rights and Freedoms.
Criminal procedure is the process by which an accused person is arrested and brought through the justice system.
Sentencing refers to the punishment that is ordered when an individual is found guilty of a criminal offence.
Offences in Canada are listed in the Criminal Code. They include crimes related to people, vehicles and weapons.