Child Pornography Lawyer in Canada

What Child Pornography covers in Canadian criminal law

What the Crown must prove

The Crown carries the burden of proving every element beyond a reasonable doubt. A reasonable doubt on any one of them means an acquittal.

• The material meets the statutory definition in section 163.1(1)
• The accused possessed, accessed, distributed or made the material
• Knowledge of the nature of the material
• For possession, knowledge and control over the file, not merely its presence on a device
• Attribution of the conduct to the accused rather than to another user of the device or network

Penalties and consequences on conviction

• Mandatory minimum sentences on every count under section 163.1, on both summary and indictable elections
• Mandatory registration under the Sex Offender Information Registration Act
• Prohibition orders under section 161 restricting contact with young persons and use of the internet
• Mandatory DNA order and forfeiture of devices
• Severe collateral consequences for employment, licensing, immigration status and family law proceedings

Common defences

• Absence of knowledge, particularly for cached, thumbnail or automatically downloaded files
• Absence of control over files in unallocated space or deleted by the operating system
• Attribution: multiple users of a shared computer, open wireless network, or malware
• Section 8 Charter challenge to the information to obtain and to the reliability of the investigative software
• Challenges to IP address attribution and to the subscriber information production order
• The statutory defences in section 163.1(6) for legitimate purposes related to justice, science, medicine, education or art

Child pornography lawyer: frequently asked questions

Do deleted files still count as possession?

Not automatically. Possession requires knowledge and control. Files recovered from unallocated space, thumbnail caches or browser caches may show that material was once on a device without proving that the accused knew of them or exercised control over them, and forensic evidence on this point is frequently contested.

Is accessing the same as possessing?

No. They are separate offences. Accessing under section 163.1(4.1) requires knowingly causing the material to be viewed or transmitted, and it exists precisely because possession requires a degree of control that viewing in a browser may not establish.

Will my devices be returned?

Generally not. Forfeiture of devices used in the offence is standard on conviction, and even before trial the devices are held as exhibits. Applications for the return of property that contains unrelated business or personal data can be made, but they are rarely successful for the device itself.