The accused was in a consensual transactional sexual relationship with a female above the age of consent (16), but below the age of 18. During the relationship the female would send the accused images of herself. The relationship was discovered by a parent and police investigated ultimately charging the accused with possession of child pornography.
Nature of the Argument
The defence was a very particular interpretation of the law. The accused was provided the images, but he could not be proven to have possessed them, even though they were in the cache of his computer. Viewing Child pornography is a distinct offence and an accused cannot be convicted of that offence if he is charged with possession of child pornography.
Ruling of the Court
In this case, there is no evidence before me that that the Accused – at any point in the transactional arrangement between him and the Complainant – intended or planned to subsequently access the pornographic materials he received from the Complainant for viewing at a future date.
Neither is there any evidence before me in this case that he did anything to deliberately or knowingly download the CSAM materials received from the Complainant through the Snapchat application into any file or folder for storage and future use.
…absent clear evidence that the accused individual knows that the CSAM material has been automatically downloaded into the cache folder and intends to subsequently access or retrieve the material that is now available in the cache folder for viewing in future.
…merely browsing a website or viewing images onscreen does not constitute possession….
…the accused might have accessed child pornography, for which he has not been charged by the Crown in the within proceedings, I find him not guilty of possessing child pornography, contrary to s 163.1(4) of the Criminal Code of Canada.