Can I defend myself against a child pornography charge?

Susan Karpa Criminal Lawyer in CalgaryIf you have been charged or are being investigated, hiring a Calgary child pornography lawyer is important. I am available to discuss the defence strategy for addressing these charges, the potential consequences of a guilty plea, the specifics of a peace bond if it applies, and any other relevant aspects related to your case. Please reach out to us for a free consultation at 587-888-7149.

Is it illegal to possess child pornography just to destroy it?

You are not liable to be prosecuted for possession of child pornography if the only reason you took control of the child pornography was to immediately place it permanently outside of the control of someone else. For example, if you found an abandoned cell phone containing child pornography and you took the phone for the sole purpose of immediately turning it into the police, then you would not be liable to be convicted of possession of child pornography. Similarly, if you found a child pornography magazine in your partner’s possession and took it for the exclusive purpose of physically destroying it, then you should not be prosecuted for possession of child pornography. If at any point you use it for any other purpose – or even intend to do so – then you can be charged with possession of child pornography.

What if I did not know the person in the pornography was underage?

Not knowing that a person in a photograph, video or image was under the age of 18 years (or being depicted as under 18) may be a defence against a child pornography charge, but only if the accused took all reasonable steps to make sure that the person was at least 18 years old. To use this defence, you would have to have evidence proving you took every reasonable step.

Is it illegal to have child pornography of myself?

One defence to possession and making child pornography crimes is the “private use exception.”

Two things are allowed under this exception:

  1. Expressive material created and held by a single person and meant for their eyes only, such as personal journals and drawings.
  2. Consensual, private recordings of lawful sexual activity created and held exclusively for private use and with the consent of everyone recorded.

Non consensual sexual activity is not lawful, and the private use exception does not apply to it. For example, sexual activity with someone under 16 years of age is sexual interference (unless the close in age exception applies), which is a crime. Similarly, sexual activity between a 16- or 17-year-old and someone in a position of authority over them is sexual exploitation – another crime.

The private use exception cannot be used for the distribution of child pornography. As soon as someone sends the child pornography to someone else, they cannot rely on the private use exception and are liable for child pornography offences.

As soon as someone using the private use exception intends to use the child pornography for anything other than their own private use, they have committed a child pornography crime. Threatening to show the recording to others can be evidence of that intention used to prove an accused guilty.

A person in the recording has the right to demand that the recording be returned to them or destroyed at any time. Consent to record is not consent to keep the recording.

Is it child pornography if it is art, Educational, or Scientific?

This is a tricky question. Artistic creations, such as paintings, drawings, comic books, and short stories, are still illegal child pornography if they meet the definition of child pornography in the Criminal Code. However, the Code provides a “legitimate purpose” defence to child pornography crimes.

The legitimate purpose defence protects an accused from being convicted of child pornography crimes for actions that have a legitimate purpose related to the administration of justice or to science, medicine, education, or art, and do not pose an undue risk of harm to children. For example, prosecutors, defence lawyers, and judges viewing child pornography for a case are not liable for accessing child pornography.

However, if someone possessed child pornography for both legitimate and illegitimate purposes, then they would be guilty of possession of chid pornography. For example, if a researcher possessed child pornography for the legitimate purpose of making research materials, but intentionally sent it to someone unconnected to the research, then they are guilty of child pornography possession and distribution crimes.

Committing any of the four offences under section 163.1 of the Criminal Code constitutes a child pornography crime.