SELECTED CASE LAW
In 2010 BCCA 313, Mr. D was convicted of possessing and accessing child pornography.
Mr. D’s wife found pornography on their home computer of girls who appeared to be “just old enough to be legal.” At a later date, their two daughters found an icon on the family computer called “Teens”, when they clicked on it, they found a picture of a naked girl. They then looked at the history of the computer’s internet searches and found in it a pornography site with a girl they thought was around 12-14 years old on it. They told their mother about this and she con-fronted Mr. D, who apologized and said he wouldn’t do it again. Mr. D later moved out of the home.
Sometime later, the girls’ mother found sexual online conversations between one of the daughters and males. The mother was concerned her daughter’s sexual conversations were connected to the girl finding the sexual content on the family computer.
At a later date, Mr. D came to the home to use the computer. His wife was worried he was deleting content from the computer so she took it to a computer company to examine the hard drive. Many pornographic images were discovered, as well as evidence of someone visiting websites for teen pornography, and the computer was turned over to the police. 140 images were identified as potentially being child pornography, the Crown agreed that 10 were not and the trial judge found that two were not. None of the images had been intentionally saved on the computer, but had been saved by the computer when pornographic websites or ads had been accessed.
Mr. D appealed the conviction.
First, he argued that the trial judge had not properly analyzed the images to determine if they were child pornography or not. However, the judge identified and applied the tests for deter-mining if a person is under 18 in the images, for identifying explicit sexual activity, and deter-mining the dominant characteristic and sexual purpose of the images. The appeal court did not find the trial judge had made a mistake in his analysis of the images.
Second, Mr. D argued that there was not sufficient evidence to show he was in control of the child pornography. Although the images had been saved by the hard drive of the computer, there was no evidence Mr. D had intentionally saved them or could access them. Mr. D was aware that images would be automatically saved on his hard drive, but he could not access them without special software and so they were not available for his use. He was acquitted of possession of child pornography.
Third, Mr. D argued that there was not sufficient evidence to show he knowingly accessed child pornography. The images that were on the hard drive were not associated with any email Mr. D sent, website he subscribed to, or purchase he had made. They had been unintentionally downloaded. Further, there was evidence that someone visited teen pornography websites, but there was no evidence that Mr. D accessed child pornography from them at the times in question. Despite the large number of images that had been unintentionally downloaded, there was no clear evidence that Mr. D had accessed child pornography. The images could not be linked back to any particular website. Further, there wasn’t enough evidence to show the images the wife and daughters had found on the computer were, in fact, child pornography. He was ac-quitted of accessing child pornography.
He was acquitted of both convictions.
Criminal Offence(s): Child Pornography Offences