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CHILD PORNOGRAPHY - POSSESSION VS ACCESSING


R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253  Can LII

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On September 5, 2002, a computer technician arrived unannounced at the accused’s house to install a high-speed Internet connection the accused had ordered.  The accused lived with his wife and two children, aged three and seven, but was alone that day with his younger daughter.  When the technician opened the accused’s Web browser, he noticed several links to both adult and child pornography sites in the taskbar’s “favourites” list, including two that were labelled “Lolita Porn” and “Lolita XXX”.  He also saw a legal pornographic image, but he could not remember afterwards if it was on the browser’s home page or on the computer desktop.  In the room, he noticed home videos and, on a tripod, a webcam that was connected to a videotape recorder and was pointed at the toys and at the child.  Unable to finish his work on that day, the technician returned the following morning and noted that everything had been “cleaned up”:  the child’s toys had been placed in a box, the videotapes could no longer be seen, the webcam was pointed at the computer user’s chair and the computer hard drive had been “formatted”.  ...


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Per McLachlin C.J. and Binnie, Fish and Abella JJ.:  The ITO is limited to allegations of possession of child pornography contrary to s. 163.1(4) of the Criminal Code and does not involve allegations of accessing child pornography pursuant to s. 163.1(4.1).  


Merely viewing in a Web browser an illegal image stored in a remote location on the Internet does not establish the level of control necessary to find possession.  Neither does creating a “favourite” or an “icon” on one’s computer.


In order to commit the offence of possession, as opposed to the offence of accessing of child pornography, one must knowingly acquire the underlying data files and store them in a place under one’s control.  It is the underlying data file that is the stable “object” that can be transferred, stored, and possessed.  


The automatic caching of a file to the hard drive does not, without more, constitute possession.  While the cached file might be in a “place” over which the computer user has control, in order to establish possession it must be shown that the file was knowingly stored and retained through the cache.   


An ITO seeking a warrant to search for evidence of possession, rather than accessing, must therefore provide reasonable grounds to believe that the alleged offender possesses (or has possessed) digital files of an illegal image, and that evidence of that possession will be found in the place to be searched at the time the warrant is sought.  Here, the search and seizure of the accused’s computer infringed his right under s. 8 of the Charter.  Even when corrected and amplified on review, the ITO was insufficient to permit any justice of the peace, acting reasonably, to find adequate grounds for the search.  The ITO did not allege the distinct and separate offence of accessing child pornography and, stripped of its defects and deficiencies, all that really remained were two Internet links, seen four months earlier in the “Favourites” menu of a Web browser on a computer that was subsequently formatted, deleting both links. The prior presence of the two “Lolita” links supports a reasonable inference that the accused browsed a Web site that contained explicit images of females under the age of 18, but this does not suffice to establish possession.

Jim O'Neil, LL.B.

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