Child Pornography Lawyers Toronto: Defending CSAEM Charges

Attacks step 1

Judged objectively, the material does not show explicit sexual activity, its dominant characteristic is not a sexual depiction of a sexual organ, or it does not advocate or counsel sexual offences against children. Where the people shown are adults, the question is also whether they are depicted as under 18.

On a making charge, believing the person was 18 or older is a defence only if you took all reasonable steps to confirm their age, and all reasonable steps to ensure that, if they were 18 or older, the image did not depict them as under 18 (s. 163.1(5)).

Attacks step 2

Files can arrive through automatic downloads, shared accounts, synced cloud folders, bulk downloads, or a device used by others. Forensic evidence about when a file was created, opened, or moved is often the heart of the case.

Attacks step 3

Shared computers, family devices, and remote storage raise real questions about who had control. Viewing online is not possession, and owning a device is not consent to what someone else put on it.

A complete statutory defence

No one can be convicted if the act had a legitimate purpose related to the administration of justice, science, medicine, education, or art, and did not pose an undue risk of harm to persons under 18 (s. 163.1(6)). The two requirements are separate.

There must be an objectively verifiable connection between what you did and your stated purpose, and an objective relationship between that purpose and one of the protected activities. For example, a reasonable person might see a connection between the act and the treatment of sex offenders, and a relationship between that purpose and science or medicine. The defence does not apply where the material was accessed or possessed for both a legitimate purpose, such as research, and an illegitimate one.

The second half of the statutory defence

This step comes into play only once a legitimate purpose is found. It is read purposively, balancing freedom of expression against the risk of harm to children. “Undue risk of harm” means a significant risk of objectively ascertainable harm, physical, psychological, or both, as in the law of obscenity, not the community’s moral views.

What you did, and its consequences, are questions of fact decided on the evidence at trial, and the judge must make findings about the degree of risk, viewed objectively. Expert evidence is not always needed, but it can help show whether there is a link between the conduct and a risk of harm to young people.

Two constitutional exceptions

The Charter (ss. 2(b) and 7) requires two exceptions to the making and possession offences, where no one can be prosecuted: explicit material created by one person and held by that person alone, exclusively for their own personal use; and visual recordings created by or depicting the person who holds them, that do not depict unlawful sexual activity, are held only for private use, and were created with the consent of everyone involved.

The exceptions protect private possession only, never sharing. A recording of sexual activity falls in the private-use category when the recorded activity is lawful, the recording is controlled by a participant or by the person who made it, and all participants knew of and consented to the recording. Lawfulness is enough: the absence of abuse or exploitation in fact is not an element of the exception, though it may matter to the charge itself.

The Crown must first prove knowing possession and that the material meets the definition. The defence then only has to point to evidence that raises a reasonable doubt that the exception applies. The statutory defences of artistic merit, educational, scientific, or medical purpose, and public good should be read generously, to protect freedom of expression and possession for socially redeeming purposes.

Held only to destroy or report it

No one should be criminally liable for brief possession that is “innocent”: held only to hand the material to the authorities or to destroy it. Taking control of contraband, knowing what it is, but solely to destroy it or otherwise permanently get rid of it, is not criminal possession.

Attacks the evidence itself

Police usually need a warrant to get your subscriber information from an internet provider, and an IP address itself attracts a reasonable expectation of privacy. A computer or phone search needs specific authorization in the warrant. At the border, officers need reasonable suspicion before searching a traveller’s phone or laptop. Where the warrant was weak or the search went too far, the evidence may be excluded, and without the files the Crown often has no case.