This past week, the Ontario Superior Court of Justice departed from a long line of Ontario jurisprudence and held that copying extant child pornography, or downloading it and transmitting to disks, does not constitute the offence of making child pornography.
In R. v. Pellech, Justice Dunnet concluded that the offence of making child pornography required some kind of substantive change, which causes the initial child pornography to take on a new form and in essence to become a completely separate and new work.
In the Pellech case, the accused was said to have copied child pornography files from his computer and stored them on disks in an attempt to free up more space on his hard drive. The question for the court to decide was whether this transfer of files from one location to another amounted to an crime under s. 163.1(2) of the Criminal Code of Canada which makes it an offence to print, publishes or possesses for the purpose of publication any child pornography.
Justice Dunnet concluded that that the transfer of images and videos from hard drive to disk did not constitute making child pornography because “there was no evidence that by moving or copying the images to disks, the initial child pornography became a completely separate and new work. Rather, this was a simple transfer from one medium to another in an effort to maintain a collection of child pornography images.”
Her ruling was a departure from other Ontario cases which previously concluded that downloading child pornography from the internet and transmitting it to disks constituted the offence of “making” within the meaning of s. 163.1(2) of the Criminal Code. See for example: R. v. Mohanto,  O.J. No. 5840 (C.J.), R. v. B.W.,  O.J. No. 5727 (C.J.), R. v. Horvat,  O.J. No. 1673 (S.C.) and R. v. Dittrich,  O.J. No. 1617 (S.C.).
While her decision is not binding on other Superior Court judges in Ontario, one would expect her persuasive reasons to be followed in future court cases on the issue.