What are the best defenses to a child pornography charge?

By Last Updated: July 26, 2022

best defenses to a child pornography chargeDefending child pornography offences in Canada is very difficult, and the best defences to your charge will depend on the specific circumstance of your case. However, one way of defending a child pornography charge is to rely on the statutory defence set out in section 163.1(6) of the Criminal Code.

According to this section, you cannot be convicted of a child pornography offence if the material in question meets two criteria:

  1. It was produced for a legitimate reason related to the administration of justice, or if it is related to science, medicine, education or art.
  2. It does not pose an undue risk of harm to persons under the age of 18 years.

When determining whether the material was made for a legitimate purpose, the court will look to see whether there is an objectively reasonable connection between the material and the alleged purpose. Even if the court finds that the pornography was made for a legitimate purpose, they can still find that the material is unlawful if it poses an undue risk of harm to individuals under 18. The material will pose an undue risk of harm if a reasonable person looking at the material would determine that it creates an objectively ascertainable risk physical or psychological harm to children.

Another common defence to a child pornography charge is to argue that you did not know that the person depicted was under the age of 18 years. However, this is not always an easy defence to raise. In accordance with section 163.1(5) of the Criminal Code, you can only use this defence if you can demonstrate that you took all reasonable steps in the circumstances to ensure that the person was at least 18 years of age. A failure to do so can ultimately result in your conviction for this offence.

If you have been charged with possession of child pornography, you can sometimes argue that you did not have the level of control required to be found guilty of a possession offence. Because in law the concept of possession requires that you have at least some control over the item in question, you can argue that simply viewing pornography stored in a location on the Internet is not enough for you to be found guilty of possessing the images. However, bear in mind that you can still be found guilty of the lesser offence of accessing child pornography.

Lastly, one of the most effective ways to defend a child pornography charge is by arguing that the evidence against you was unlawfully obtained. This can be done by making a Charter motion, or an argument that the evidence was gathered in violation of the rights guaranteed to you by the Canadian Charter of Rights and Freedoms. In Canada, section 8 of the Charter guarantees that we all have a right to be free from unreasonable search and seizure. Sometimes when the police are investigating a crime, they will take actions that deliberately or accidentally violate your section 8 Charter rights. If this is the case, you can then argue that any evidence that the police gained during the violation should be excluded from trial. In this way, much, if not all of the evidence against you can be excluded from your trial and you could potentially be acquitted of the offence.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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