TORONTO — The criminal charge of possessing child pornography does not include a lesser offence of accessing the lewd images, Ontario's top court ruled on Wednesday.
In acquitting a man convicted of a possession charge, the Court of Appeal rejected prosecution arguments that it should instead convict him of accessing child porn.
"It is possible to possess child pornography without accessing it," the Appeal Court said. "The elements of the offence of accessing are not intrinsically embraced within the offence of possession."
The prosecution had argued that it is "legally impossible" to possess child pornography without at some point accessing it. However, on looking at the two charges — separate under the Criminal Code — the Appeal Court disagreed.
As an example, the court cited a situation in which someone downloads child pornography onto a memory stick and then hands it off to someone who knows what's on it.
"He would have knowledge of the contents of the memory stick and control over those contents; therefore the elements of possession would be satisfied," the Appeal Court ruled. "He would not be guilty of accessing child pornography because he has not viewed the images on the memory stick nor has he transmitted them to himself."
In this case, the man who can only be identified as M.N. was initially convicted of possession based on images found on a computer's Internet cache — temporary storage files created when accessing websites. He shared the device with his common law spouse, and their 14-year-old daughter used it occasionally as well.
Evidence at his trial in Peterborough, Ont., was that M.N. and his spouse discovered child pornography on the computer in February 2007 and they decided to call the police, who found 55 images in the temporary Internet files folder.
M.N. admitted to sometimes viewing adult porn, but not to accessing child pornography. His daughter testified she sometimes used the computer to access adult pornography and, on one occasion, a child pornography site popped up.
What's now not disputed is that Ontario court judge Rhys Morgan who initially heard the case didn't understand the evidence from an expert witness about how images can appear in the cache. As a result, Morgan rejected M.N.'s contention that he didn't know about the child pornography and hadn't downloaded it and convicted him of possession in 2009.
M.N. appealed, but the summary conviction appeal judge, Superior Court Justice Hugh O'Connell, also failed to understand the expert evidence and dismissed the appeal in 2013.
Although M.N. had already served his six-month jail term, he turned to the province's top court in April still seeking an acquittal.
The prosecution agreed there was not enough forensic evidence to prove that M.N. knowingly possessed porn. Nevertheless, it argued against an acquittal, saying accessing child pornography was included in the possession offence for which M.N. had been convicted.
Alternatively, the prosecution called on the Appeal Court to amend the charge against to align with evidence that M.N. had illegally accessed child pornography and order a new trial.
In rejecting the prosecution's inclusion arguments, the Appeal Court also said it would not be in the interests of justice under the circumstances to amend the charge.
"To do so would prejudice the appellant," Justice Karen Weiler wrote for the Appeal Court. "Accordingly, I would grant leave to appeal, allow the appeal, and enter an acquittal for the offence of possession of child pornography."
