Large File Downloads of Unlawful Images and Moral Culpability


With advances in software and computer technology, greater amounts of data may be downloaded from the internet with increasing ease and rapidity.  One consequence of this is, in my experience, a general increase in the sheer number of images that those caught with unlawful pornography have in their possession. 
More and more in child pornography cases, the unlawful pornographic images were not individually downloaded, but rather as part of large files (batch files: compressed files capable of containing multiple images, sometimes tens of thousands).  Downloading this way takes little effort on the offender’s part to amass a large collection. In some cases, it is reasonable to infer that the individual has only viewed a small part of that collection.

Yet, the size of an offender’s collection of child pornography has figured prominently in sentencing decisions, largely because it is a useful means by which to gauge an offender’s level of culpability. 

The question arises: is the fact that the unlawful images were downloaded in batch files a relevant consideration on sentence, potentially lessening the moral culpability of the offender?

In R. v. Garcia, 2016 ONCJ 550 (CanLII), the Court  noted that the size of the collection seems relevant for two reasons.  First, the larger the collection of materials, the greater the number of children victimized in the creation of the images and videos that an offender exploited to satisfy his deviant interests.   And, second, the size of the collection provides insight into the offender’s behavior.  It speaks to whether or not the offender’s possession was a momentary surrender to a deviant curiosity or the result of a sustained and deliberate effort with plenty of time for reflection and reconsideration.  Obviously, the offender who views this material and despite witnessing the suffering of the children victimized in its creation persists in collecting more and more of it, is far more culpable than the person who downloads a single image and almost immediately proceeds to delete it.

The Court in R. v. Garcia accepted that the downloading of unlawful imagery in larges batches may be a relevant factor in sentencing.

However, in that case the Court held that the significance of batch file downloading was lessened by the fact that the offender’s substantial collection of child pornography was amassed over a period of four-months, allowing plenty of time for reflection and reconsideration.  This, the Court found, would allow the offender to appreciate the ghastly nature of that which he was participating in.  Nevertheless, the offender continued to persist even after the nature of what he was participating in would have been abundantly clear to him.

See R. v. Garcia, 2016 ONCJ 550 (CanLII)

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