Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

(Sealing Order)

Criminal law - Offences - Possession of child pornography - Defences - Artistic merit and educational purposes - Public good - Legitimate purpose - Undue risk of harm - Information - Whether the Court of Appeal was correct in its interpretation of the former public good defence - Whether the Court of Appeal was correct that the “legitimate purpose” in the current defence permitted the general weighing and determination as to whether the purpose was socially acceptable or justifiable - Whether the Court of Appeal was correct that “undue harm” as used in the language of the defence should operate in favour of a defendant only rarely - Whether the Court of Appeal erred in finding that the appellant’s actions had the effect of fuelling the market for pornography - Whether the Court of Appeal was correct that an aspect of the harm caused was that the children were re-victimized by the appellant’s possession - Whether the Court of Appeal was correct that balancing the appellant’s possession against the question of “undue harm” led to the conclusion that there was no reasonable doubt on the section 163.1(6) issue of the defence - Whether the Court of Appeal erred in holding that the Information was not defective - Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(6).

The appellant was charged with one count of possession of child pornography for materials collected over a seven-year period between 1999 and 2006. At trial, he admitted that the images and videos collected constituted child pornography but he relied on the statutory defence to possession of child pornography found at s. 163.1(6) of the Criminal Code. He argued that his intention was to create an artistic/educational exhibit that would raise awareness of the effects of child pornography and sexual abuse on children, and he maintained that he was collecting images to educate himself about “what was out there” and to inspire his creativity in connection with the project. The trial judge acquitted the appellant on the basis that he could rely on the statutory defence at s. 163.1(6) of the Criminal Code, as it existed prior to and after its amendment on November 1, 2005. The Court of Appeal for Ontario held that the trial judge erred in her interpretation and application of the pre-amendment and post-amendment s. 163.1(6) defences. The Court of Appeal allowed the appeal, set aside the acquittal and registered a conviction for possession of child pornography.