A single click can turn into a police file. People ask whether charges are possible if illegal material ends up on a device without their knowledge. The short answer is yes, police can lay charges. The Crown still has to prove what you knew and controlled before a court can convict.

Under section 163.1 of the Criminal Code, it is illegal to possess, access, make, distribute, import, or export child pornography. Penalties reach up to 14 years for some offences, with mandatory minimums that vary by charge and election. 

“Accessing” is defined in the Code as knowingly causing the material to be viewed by, or transmitted to, yourself. That wording ties the offence to knowledge, not pure accident. 

What Courts Say About “Knowledge” and “Control”

For possession, the Supreme Court has said the Crown must prove you knew about the files and had control over them. Mere links or stray web artifacts are not the same as knowing acquisition and storage. 

For making material “available,” the Supreme Court confirmed the offence is complete once a person knowingly makes files available to others. Wilful blindness can count as knowledge when someone suspects their sharing software is offering illegal files but chooses to ignore the risk. 

Can You Be Charged If You Did Not Know?

Yes. Police often lay charges first and sort out intent later through forensics and interviews. A conviction is another matter. The Crown still needs proof that you knew what the files were and had control, or that you knowingly caused the images to be viewed. 

Common Real-World Scenarios

Here are a few real-world scenarios that are more common than you might realize:

Mislabeled or bundled downloads

Peer-to-peer software can pull hidden files along with legitimate content. If you never opened the files, deleted them quickly, and your search history shows no interest in illegal material, those facts can support lack of knowledge. Device forensics and logs matter. 

Drive-by or auto-cache artifacts

Browsers may cache thumbnails or fragments without a deliberate save. Without proof that you knew about the content and exercised control, possession is harder to prove. 

Accessing may still apply if the Crown shows you knowingly caused the images to load. 

Shared devices and open Wi-Fi

If others had access to your computer or network, the Crown must still connect knowledge and control to you. Distinct user accounts, remote access records, or IP misuse can raise reasonable doubt. 

Search, Seizure, and Your Rights

Even when files exist, unlawfully obtained evidence can be excluded. In R. v. Morelli, the Supreme Court scrutinized the warrant process and excluded evidence after Charter breaches. Technical defences often turn on how police obtained and handled the data. 

What To Do If Police Contact You

Do not explain or “clear things up” before you get legal advice. Preserve the device in its current state. Do not run cleanup tools. Make a list of anyone with access to the device or network. 

A solid defence examines timestamps, file paths, caching, P2P settings, and user activity, then measures that against the legal tests in section 163.1 and the case law above. 

The Bottom Line

You can face charges even if you say the download was unintentional. A conviction requires proof of knowledge and control for possession, or proof that you knowingly caused the material to be viewed for accessing. 

The stakes include mandatory minimums and long-term consequences, so early, focused legal help is key. 

Need guidance now? Contact Jerry Steele at Steele Law for confidential advice and a defence strategy tailored to the digital evidence in your case.