What is possession of child pornography?
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What is possession of child pornography?
Possession of child pornography is a crime under section 163.1(4) of the Criminal Code. To be convicted of this crime, the crown prosecutor must prove beyond a reasonable doubt that the accused knowingly had possession of child pornography.
Possession in criminal law can be complicated – whether dealing with drugs, guns, stolen property, or child pornography. Possession requires some amount of control. For example, you do not possess a gun just because you looked at it for a while.
Downloading the file is the classic example, but there are other ways to possess child pornography. In one case, the Newfoundland and Labrador Court of Appeal decided that intentionally starting the downloading process and then cancelling the download before it was finished counted as possession of child pornography. Control – and therefore possession – starts when the download starts.
Like almost all crimes, possession of child pornography has a “mental element”. This means that the crown prosecutor must prove something about your state of mind to prove that you are guilty of the crime. In this case, the mental element is that you “knowingly” accessed the child pornography.
Knowingly possessing child pornography means two things. First, you know that you are possessing something. For example, if someone slips a USB drive into your pocket without you knowing, then you do not knowingly possess it. Second, you know what that something is. For example, if you intentionally download what you think is an innocent recipe for cookies but is actually child pornography, then you are not guilty of possession of child pornography.
Committing any of the four offences under section 163.1 of the Criminal Code constitutes a child pornography crime.