Her Majesty the Queen v. Beattie [Indexed as: R. v. Beattie]

75 O.R. (3d) 117

[2005] O.J. No. 1302

Docket: C41354

Court of Appeal for Ontario

Doherty, Laskin and Armstrong JJ.A.

April 8, 2005

• Application for leave to appeal to the Supreme Court of Canada was dismissed November 10, 2005 (McLachlin C.J.C., Binnie and Charron).

Criminal law -- Child pornography -- Accused possessing written materials which didn't explicitly counsel or advocate committing sexual offences against children but may have sent implicit message -- Advocating or counseling may be done explicitly or implicitly -- Material stating that children want sexual experiences with adults and that adults who love and understand children have sex with children -- Trial judge erred in failing to consider whether material implicitly sending further message that sex with children can and should be pursued -- Crown appeal from acquittal allowed and new trial ordered -- Criminal Code, R.S.C. 1985, c. C-46.

The accused was charged with possession of child pornography contrary to s. 163.1(4) of the Criminal Code. He was found in possession of 33 stories which described, in graphic language, sexual activities between adults and children. Under s. 161.1(1)(b) of the Code, written material will come within the definition of child pornography if it "advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act". The trial judge found that the stories did not actively induce or encourage sexual activity with children by sending the message that sex with children can and should be pursued. The accused was acquitted. The Crown appealed.

Held, the appeal should be allowed.

Written material may "advocate or counsel" sexual activity with children implicitly as well as explicitly. The stories in question did not explicitly advocate or counsel having sex with children. However, the stories sent two messages: children want and enjoy sex with adults; and those adults who know and love children the most and are most responsible for their upbringing routinely have sex [page118] with them because sex is good for them. The trial judge failed to consider whether the two messages combined explicitly sent the further message that "sex with children can and should be pursued", and therefore actively encouraged criminal activity.

APPEAL by the Crown from an acquittal by Haines J. of the Superior Court of Justice on December 18, 2003 on a charge of possession of child pornography.

R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 88 B.C.L.R. (3d) 1, 194 D.L.R. (4th) 1, [2001] 6 W.W.R. 1, 86 C.R.R. (2d) 1, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, [2001] SCC 2, apld Other cases referred to R. v. Cassidy, 1989 25 (SCC), [1989] 2 S.C.R. 345, [1989] S.C.J. No. 87, 36 O.A.C. 1, 61 D.L.R. (4th) 480, 100 N.R. 321, 42 C.R.R. 193, 50 C.C.C. (3d) 193, 71 C.R. (3d) 350 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 163.1(1), (4), 676(1) [as am.]

Christine Bartlett-Hughes, for appellant. Joseph Di Luca, for respondent.

The judgment of the court was delivered by

LASKIN J.A.: --

A. Introduction

[1] On August 15, 2001, the police entered the home of the respondent John Beattie. They seized a three-ring binder containing 33 stories describing, in graphic language, sexual activities between adults and children under the age of 14. Mr. Beattie was charged with a single count of possessing child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46. He pleaded not guilty.

[2] The sole issue at trial was whether the stories met the statutory definition of child pornography, as elaborated on by the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3. This expanded definition required the Crown to prove that the stories "viewed objectively" actively induced or encouraged sexual activity with children by sending the message "sex with children can and should be pursued". The trial judge concluded that the stories had not met the definition in Sharpe and he therefore dismissed the charge.

[3] The Crown appeals. Under s. 676(1)(a) of the Code, it may appeal only on a question of law. The Crown's main submission is that the trial judge erred in law because he failed to appreciate [page119] that the message "sex with children can and should be pursued" may be delivered implicitly as well as overtly. The Crown contends that by describing sexual activities with children as normal and enjoyable, and children as willing participants, these stories endorse sex with children and therefore meet the Sharpe requirement of active inducement or encouragement. Alternatively, the Crown submits that even if the trial judge correctly applied the Sharpe definition, its application to the facts raises a question of law reviewable by this court. The Crown asks that we enter a conviction or order a new trial.

B. The Stories

[4] The trial judge did not expressly examine the stories individually. Nonetheless, he described them generally in these words:

The stories describe criminal sexual encounters between adults and children that include episodes of fellatio, cunnilingus and intercourse accompanied in some instances by the ingestion of semen, urine and feces. They are extremely graphic and in most cases the children are described as willing participants who enjoy and benefit from the experience. A recurring theme is the introduction of pre- pubescent girls to the full spectrum of sexual activity by their fathers.

[5] Although I accept the trial judge's description, a more detailed review provides a better context for assessing the merits of the appeal. In her factum, Ms.áBartlett-Hughes for the Crown has summarized the stories under four categories.

[6] The first category consists of stories suggesting that fathers can give their daughters a positive initiation to sexual activity. For example, the story "My Daughter Jenny" is about sexual relations between a divorced father and Jenny, his ten-year-old daughter. The father describes Jenny as being in control of the sexual activity between them, as unafraid to try new things, as wanting more sex, and as experiencing pleasure and orgasms. At one point in the story, the father comments on their sexual activity:

It was one thing to give and receive oral pleasure to each other, but now I was talking about shoving my fat, hard cock inside my little girl's tight virgin pussy. My mind was spinning as my lust fired back"What better way for a girl to lose her virginity than to her loving Daddy? Better him than some horny uncaring and incompetent boy in the back seat of a car."

[7] Jenny responds by saying: "Mmmmmmm ... Daddy, I never felt anything so good in my life."

[8] In another story"Hannah by Horny Daughter", the narrator and his wife decide that, for their daughter's ninth birthday, he will have intercourse with her. The wife comments that "I don't think anything can compare to the feeling of a father taking [page120] his daughter's virginity." Hannah is enthusiastic. She has an orgasm and then her father teaches her to perform fellatio. He depicts her as enjoying it. At the end of the story, as Hannah is being put to bed, she asks if she can do it again.

[9] The second category of stories depicts sex between children and adults as normal and desired by both. For example, in the story "Jeni and Erika", the narrator is the father of Jeni, a 13-year-old girl. He describes his daughter asking to have sex with him in these words:

I opened my eyes to see my daughter laying at my side, her eyes wide with a look of steamy sex. "I am still a virgin, and I always wanted you to be my first" Jeni said"but I was always afraid to ask. Will you fuck me now daddy? Will you take my cherry?"

[10] In another story"The Littlest Girl Scouts", the narrator, an admitted pedophile, leads a girl scout meeting for his wife. He describes supervising 13 girls -- including his two daughters -- all between eight and ten years of age. The narrator comments that "each of these kids seem so anxious to go one better than the next". When he suggests that they take their wet panties off, they do. After discussing the appropriateness of masturbation, they all start to masturbate. One young girl becomes frustrated because she is not getting wet, so the narrator shows her how to do it. Eventually, she says"I think it's happening ... Wow ... I really like it." Another young girl performs cunnilingus on the narrator's daughter, causing him to ejaculate on a girl named Sandy. Sandy then says "This has been the best Brownies meeting ever ... Can we do it again next time?"

[11] The third category of stories describes sex between adults and children as normal and more prevalent than many people expect. In "Ashleen and Mandy", the narrator is the uncle of two girls, Ashleen, aged 13, and Mandy, aged eight. In the story, the narrator describes how he takes care of his two nieces. He first has sex with Ashleen, whom he depicts as thoroughly enjoying it. When she begins to masturbate, he takes her to a female doctor, who admits to licking Ashleen's vagina during the medical examination. The doctor then discloses that sexual activity with children is common:

"You'd be surprised how many other girls I see here who are fucking their guardian or daddies." She spun a framed photo showing the doc, an older guy and 4 children. "This is my family, my kids and their grandfather. He's also their father." I looked at her questioningly. She went on"Oh, it was difficult. He wasn't but 16 years older than me. We started our affair when I was 6 after my mother died. I am an only child, I thought it would keep daddy and I together. It did until he died." She wiped a tear and went on"It wasn't easy for either of us, I got pregnant the first time at 13, so now you [page121] know why I insisted on getting Ashleen on birth control. We had to move around quite a bit in the early years, so's not to look suspicious. We were able to spread the remaining kids over the next 15 years. I was a good student, and being familiar with sex early, I decided to make medicine, especially women's medicine my life's work."

[12] About a year later, the narrator begins having sex with Mandy. In a postscript, Mandy reveals that she has stopped using birth control pills so that she can have the narrator's child.

[13] The fourth category of stories describes children engaging in sex combined with violence against them or against other children. In "Raping Veronica and Pam", the narrator describes abducting two 13 year-old girls, tying them up, forcing a baseball bat one-third of the way into Pam and beating her breasts with another bat. The narrator then forces Veronica to perform sexual acts, including intercourse, by threatening to hurt Pam. The narrator describes both children as enjoying the acts and the pain, moaning with pleasure, and wanting more.

[14] None of the 33 stories explicitly counsel or advocate committing sexual offences with children. Overall, however, these stories send two explicit and clear messages to the objective reader of them. First, they send the message that children want and enjoy sex with adults. Children encourage sex with adults -- even their fathers -- by becoming precocious, flirtatious, even manipulative. They are sexually insatiable and ready for repeated sexual encounters. And they enjoy sexual activity even when it is painful and violent.

[15] Second, these stories send the message that although society seemingly disapproves of sex between adults and children, those adults who love children the most and understand them the best (their parents) and those adults who are responsible for their well-being (their parents and doctors) routinely have sex with children. According to the stories, adults do so because they appreciate that children not only enjoy but benefit from sexual activity. I will return to the stories' two messages when I discuss the trial judge's reasons.

C. The Definition of Child Pornography

[16] Section 163.1(4) makes possession of child pornography an offence. In criminalizing possession, Parliament recognized the links between possession of child pornography and harm to children. However, the scope of the offence turns on how Parliament chose to define child pornography. It separately defined visual representations and written material, the latter -- which is in issue in this appeal -- more narrowly. Section 163.1(1)(b) states [page122] that only written material that "advocates" or "counsels" sexual offences with children under the age of 18 is child pornography.

[17] In Sharpe at para. 56, McLachlin C.J.C. pointed out that in the criminal context"advocates" and "counsels" have stronger meanings than they have in ordinary parlance. She elaborated on the statutory definition of child pornography in these terms:

[I]t seems reasonable to conclude that in order to meet the requirement of "advocates" or "counsels", the material, viewed objectively, must be seen as "actively inducing" or encouraging the described offences with children. Again, Parliament's purpose of capturing material causing a reasoned risk of harm to children may offer guidance. The mere description of the criminal act is not caught. Rather, the prohibition is against material that, viewed objectively, sends the message that sex with children can and should be pursued.

[18] Thus, the central question on this appeal is whether the trial judge committed a legal error in applying the definition of "advocates" or "counsels" in Sharpe.

D. Analysis

[19] The Crown acknowledges that the trial judge referred to the paragraph from McLachlin C.J.C.'s reasons in Sharpe, where she discussed the meaning of "advocates" or "counsels". It also acknowledges that the 33 stories do not explicitly advocate or counsel sex with children. But the Crown submits that the trial judge failed to appreciate that the message prohibited by s. 163.1(1)(b) may be given implicitly as well as explicitly. The Crown argues that the trial judge failed to consider whether the stories actively induced or encouraged sex with children by describing it as a normal, commonplace and positive experience most children want and benefit from. The Crown submits that in applying Sharpe, the trial judge did not consider whether the stories implicitly send the message that sex with children can and should be pursued. I agree with the Crown's submission.

[20] The trial judge relied heavily on the retrial in Sharpe, where Shaw J. acquitted the accused on two counts of possession of child pornography, consisting of written material. Shaw J. concluded that the material "glorified" sexual acts with children, but did not actively encourage the commission of those acts. He accepted that "where written material is simply a thinly disguised exhortation to seduce children or to otherwise make them prey to sexual crimes, such writing may well advocate or counsel such crimes", but held that the writing he reviewed did not do so. Instead"these writings simply describe morally repugnant acts".

[21] In acquitting Mr. Beattie, the trial judge accepted Shaw J.'s analysis and the submissions of Mr. Beattie's counsel that to [page123] fall within the scope of s. 163.1(1)(b), the material must overtly promote the commission of sexual offences with children. This is the critical part of the trial judge's reasons:

[Counsel for Mr. Beattie] contends the material must be overt in promoting the commission of sexual offences in order to fall within the reach of s. 163.1(1)(b) of the Criminal Code.

I agree with the submissions of counsel for Mr. Beattie and adopt the analysis of Justice Shaw in Sharpe. It is not enough that the material, in addition to describing the event, characterizes the criminal sexual activity as enjoyable and the child participants willing. In my view that does not equate to active inducement or encouragement.

[22] The trial judge's reasons suggest that because the stories are not accompanied by the express statement "you should commit criminal sexual acts with children", they do not actively induce or encourage the commission of sexual offences with children and are therefore not child pornography. His reasons suggest that to make out active inducement or encouragement, more is required than the description of sexual activity as enjoyable and of the children as willing participants. I do not agree with this approach. In my view, the trial judge's approach reflects two errors.

[23] First, the trial judge's approach does not recognize that active inducement or encouragement may come from a message that is implicit in the stories themselves. Material that describes sex with children as enjoyable, normal and beneficial, and the children as willing may send the message that sex with children can and should be pursued. An entirely different business -- the advertising industry -- uses implicit messages all the time to persuade customers to buy a company's products.

[24] Second, even if the trial judge was correct in saying that the message "children enjoy criminal sexual activity" cannot be equated with active inducement, the stories do not just send this message to the objective reader. As I said earlier, the stories send two messages: children want and enjoy sex with adults; and those adults who know and love children the most and are most responsible for their upbringing routinely have sex with them because sex is good for them. The trial judge considered the first message but took no account of the second. Yet, this second message is central to the question whether the stories amount to child pornography.

[25] In my view, the trial judge was obliged to consider whether the two messages combined implicitly send the further message that "sex with children can and should be pursued", and therefore actively encourage criminal sexual activity. The trial judge's failure to do so amounts to an error of law. [page124]

[26] Because I have concluded that the trial judge erred in law in his application of the Sharpe definition of "advocates" or "counsels", I do not propose to consider the Crown's alternative submission that even the correct application of the definition of child pornography to undisputed facts raises a question of law alone. That leaves the issue of the appropriate remedy.

E. Remedy

[27] The Crown asks that we set aside the acquittal and either enter a conviction or order a new trial. In my view, the appropriate remedy is a new trial. Where, in acquitting an accused, a trial judge errs in law, this court is justified in substituting a conviction only if the trial judge has made "all the findings necessary to support a verdict of guilty". See R. v. Cassidy, 1989 25 (SCC), [1989] 2 S.C.R. 345, [1989] S.C.J. No. 87, 50 C.C.C. (3d) 193, at p. 354 S.C.R., p. 200 C.C.C. As the trial judge did not make the findings necessary to support a conviction, there must be a new trial. The 33 stories in question should be reassessed by a trial judge in the light of these reasons.

[28] I would allow the Crown's appeal, set aside the acquittal and order a new trial.

Appeal allowed.