Her Majesty the Queen v. Katigbak [Indexed as: R. v. Katigbak]
100 O.R. (3d) 481
2010 ONCA 411
Court of Appeal for Ontario,
Moldaver, Simmons and Blair JJ.A.
June 8, 2010
Criminal law -- Child pornography -- Defences -- Accused collecting thousands of images of child pornography involving actual sexual abuse of real children intermixed with adult pornography acknowledged retained for personal enjoyment -- Accused claiming collected child pornography for planned exhibition that would raise awareness of effects of child pornography and sexual exploitation of children -- Trial judge erring in finding that accused could rely on statutory defences and finding accused not guilty -- "Artistic merit" and "educational purpose" defences in pre-2005 amendment of s. 163.1(6) of Code not applying as materials themselves had neither artistic merit nor educational purpose -- Post- amendment defence also not applying -- Post-amendment legitimate purpose/harm based defence narrower and more restricted than pre-amendment defences to enhance protection given to children -- Accused collecting large number of images over seven years and storing them insecurely and irrespons ibly -- Risk of harm undue when balanced against nebulous and unrealistic nature of accused's alleged project -- Crown appeal against acquittal allowed and conviction substituted -- Criminal Code, R.S.C. 1985, c. C-46, s. 163.1(6).
Criminal law -- Indictment and information -- Accused arguing for first time on appeal that Information defective because charged with single count of possessing child pornography between 1999 and 2006 -- Perhaps preferable if counts divided into pre- and post-2005 amendments but Information not defective by reason of fact that defences to charge changed in 2005 -- Accused suffering no prejudice by manner in which Information drafted.
The accused was charged with possession of child pornography between 1999 and 2006. He admitted that the 628 images found on his computer hard drive constituted child pornography, as did 30 video clips he possessed depicting pre-pubescent children. The images included the vaginal and anal penetration of children (including babies) by adults. These images of child pornography were intermixed with images of adult pornography that he acknowledged keeping for his personal enjoyment.
The only issue was whether he was entitled to rely upon the defences contained in s. 163.1(6) of the Criminal Code as they existed at the relevant times. The accused testified that his ultimate goal was to create a gallery exhibition that would present the issue of child exploitation and pornography from the perspective of the exploited child. He claimed that collecting child pornography would allow him to determine what was "out there" and to explore his own emotional response to viewing the material. The trial judge found that the accused could rely on the defences of "artistic merit" and "educational purpose" which existed before the November 2005 amendment to s. 163.1(6) of the Code and also on the post-amendment defence of legitimate purpose/no undue risk of harm. The accused was acquitted. The Crown appealed.
Held, the appeal should be allowed. [page482]
The accused was not entitled to rely on the pre-November 2005 "artistic merit" and "educational purpose" defences as those defences were not applicable if the material possessed was devoid of any objective artistic merit and did not have an educative purpose, as was the case here. The pre-amendment defence did not extend to a consideration of the purpose underlying the possession. The "public good" defence was not seriously put in play at trial and did not assist the accused in any event. The accused was not engaged in "research", and the images that he possessed had no value in themselves.
The accused was not entitled to rely upon the defence provided by s. 163.1(6) of the Code as it currently exists in relation to his possession of material after the 2005 amendments. Parliament intended the amendment to s. 163.1(6) to strengthen the consideration to be given to the protection of children. The legitimate purpose/no undue harm defence is narrower and more restricted than the pre-amendment defences. The defence may be triggered where the otherwise culpable act serves an acceptable or justifiable -- i.e., a "legitimate" -- purpose relating to one of the enumerated spheres of valued activity, but then only if the act does not pose an undue risk of harm to children. What makes the act acceptable or justifiable, and therefore worthy of protection in law, in the "legitimate purpose" component of the analysis, is its objectively verifiable connection with the purpose and the ultimate worthy goal. If the act truly contributes to the goal and serves a legitimate purpose, the analysis then turns to "undue risk of harm". Although the evidence in this case did not appear to support the conclusion that the accused really had the purpose or intention he professed to have, it would be unfair to set aside the trial judge's finding that he did have that purpose as the Crown had opted not to attack that finding on appeal. Her finding that the purpose was legitimate was rooted in that finding of fact. Regardless, the trial judge erred in her analysis of the "no undue risk of harm" part of the defence. A risk of harm under s. 163.1(6) is "undue" when society would find the risk of harm inappropriate, unjustifiable, excessive or unwarranted in the circumstances of the case. The accused collected a great many images over a period of seven years and stored them insecurely and irresponsibly. The images depicted actual abuse of real children. It would be a rare circumstance where the possession of child pornography depicting the actual sexual abuse of real children would not constitute an undue risk of harm to children even where the purpose underlying that possession may in some logical way contribute to the advancement of art or artistic education. The accused acknowledged that his downloading became redundant and that he could have accessed the images he needed to evoke the emotional response he sought within a couple of hours whenever he was ready to create his exhibit. Beyond doodling in a notebook, he took no steps toward creating the exhibit. When the level of harm was weighed against the accused's stated purpose of gathering ideas for an artistic/ educational project that was not being actively pursued and had little realistic prospect of being started, much less completed, the risk posed by the accused's act of possession was "undue".
The Information charging the accused with a single count of possession of child pornography from 1999 to 2006 was not defective by reason of the fact that the defences to that charge changed in 2005. The accused did not raise this issue until the appeal. While it may have been preferable to divide the counts into pre-and post-amendment periods, the accused suffered no prejudice. The accused's alleged rationale for collecting the images remained the same throughout the period and the elements of the offence were unchanged; only the statutory defences were altered. Although it was not certain exactly when some of the images came into the accused's possession, the only way in which he could have been prejudiced was if the post-amendment defences were broader than the pre-2005 defences and he was denied reliance on the broader defence for items that [page483] he possessed before 2005. However, that was not the situation. He was allowed to rely on the wider defence for items he possessed before 2005. As the 2005 amendments narrowed the defences, there can be no argument that the accused should have been able to rely upon the pre-2005 defences for material that he possessed after the narrower defences post-amendment were in force.
APPEAL by the Crown from an acquittal entered by Botham J. of the Ontario Court of Justice on November 7, 2008 on a charge of possessing child pornography.
Cases referred to R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452, [1992] S.C.J. No. 15, 89 D.L.R. (4th) 449, 134 N.R. 81, [1992] 2 W.W.R. 577, J.E. 92-353, 78 Man. R. (2d) 1, 70 C.C.C. (3d) 129, 11 C.R. (4th) 137, 8 C.R.R. (2d) 1, 15 W.C.B. (2d) 159; R. v. Hawkins (1993), 1993 CanLII 8587 (ON CA), 15 O.R. (3d) 549, [1993] O.J. No. 2572, 66 O.A.C. 46, 86 C.C.C. (3d) 246, 26 C.R. (4th) 75, 20 C.R.R. (2d) 362, 21 W.C.B. (2d) 386 (C.A.) [Leave to appeal to S.C.C. refused (1993), 17 O.R. (3d) xvi, [1994] 1 S.C.R. viii, [1993] S.C.C.A. No. 538, 72 O.A.C. 239n, 87 C.C.C. (3d) vi]; R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 2001 SCC 2, 194 D.L.R. (4th) 1, 264 N.R. 201, [2001] 6 W.W.R. 1, J.E. 2001-294, 146 B.C.A.C. 161, 88 B.C.L.R. (3d) 1, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, 86 C.R.R. (2d) 1, 48 W.C.B. (2d) 287, consd Other cases referred to Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, [2007] S.C.J. No. 22, 2007 SCC 22, 281 D.L.R. (4th) 125, 362 N.R. 111, [2007] 8 W.W.R. 1, J.E. 2007-1068, 75 Alta. L.R. (4th) 1, 409 A.R. 207, [2007] R.R.A. 241, 49 C.C.L.I. (4th) 1, [2007] I.L.R. I-4622, 157 A.C.W.S. (3d) 299, EYB 2007-120167; R. v. Kelly, 1992 CanLII 62 (SCC), [1992] 2 S.C.R. 170, [1992] S.C.J. No. 53, 92 D.L.R. (4th) 643, 137 N.R. 161, [1992] 4 W.W.R. 640, J.E. 92-911, 9 B.C.A.C. 161, 68 B.C.L.R. (2d) 1, 73 C.C.C. (3d) 385, 14 C.R. (4th) 181, 16 W.C.B. (2d) 365; R. v. Koh (1998), 1998 CanLII 6117 (ON CA), 42 O.R. (3d) 668, [1998] O.J. No. 5425, 116 O.A.C. 244, 131 C.C.C. (3d) 257, 21 C.R. (5th) 188, 40 W.C.B. (2d) 515 (C.A.); R. v. McIntosh (1995), 1995 CanLII 124 (SCC), 21 O.R. (3d) 797, [1995] 1 S.C.R. 686, [1995] S.C.J. No. 16, 178 N.R. 161, J.E. 95-457, 79 O.A.C. 81, 95 C.C.C. (3d) 481, 36 C.R. (4th) 171, 26 W.C.B. (2d) 201; R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, 182 D.L.R. (4th) 1, 249 N.R. 201, [2000] 4 W.W.R. 21, J.E. 2000-264, 142 Man. R. (2d) 161, 140 C.C.C. (3d) 449, 30 C.R. (5th) 1, 49 M.V.R. (3d) 163, 44 W.C.B. (2d) 479; R. v. Towne Cinema Theatres Ltd., 1985 CanLII 75 (SCC), [1985] 1 S.C.R. 494, [1985] S.C.J. No. 24, 18 D.L.R. (4th) 1, 59 N.R. 101, [1985] 4 W.W.R. 1, 37 Alta. L.R. (2d) 289, 61 A.R. 35, 18 C.C.C. (3d) 193, 45 C.R. (3d) 1, 14 W.C.B. 141; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, 2000 SCC 31, 185 D.L.R. (4th) 577, 254 N.R. 201, [2000] 10 W.W.R. 1, J.E. 2000-1234, 82 Alta. L.R. (3d) 1, 261 A.R. 201, 144 C.C.C. (3d) 385, 34 C.R. (5th) 1, 97 A.C.W.S. (3d) 64, 46 W.C.B. (2d) 450; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 2(b), 7 [as am.] Criminal Code, R.S.C. 1985, c. C-46, ss. 163 [as am.], (3), (5), 163.1 [as am.], (1) [as am.], (4) [as am.], (6) [as am.], (a), (b), (7), 581 [as am.] Authorities referred to Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) House of Commons Debates, No. 007 (October 13, 2004) at 1519 (Hon. Paul Macklin) Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Edited Evidence, No. 22 (February 22, 2005) at 0925 and 1020 (Hon. Irwin Cotler) [page484]
Christine Bartlett-Hughes, for appellant. David E. Harris, for respondent.
The judgment of the court was delivered by
BLAIR J.A.: --
Introduction
[1] This is not a constitutional case. However, the tensions between two important, and sometimes competing, values in Canadian society underlie the issues to be determined. Those values are the protection of children from sexual abuse and exploitation through child pornography (a s. 7 Canadian Charter of Rights and Freedoms protected value), and the right to freedom of thought and expression (a s. 2(b) Charter-protected value). The tensions between them arise from the need to determine the meaning and scope of the child pornography defences found in s. 163.1(6) of the Criminal Code, R.S.C. 1985, c. C-46 -- as those defences existed in their different forms before and after the amendments on November 1, 2005. That is what this appeal is about.
[2] Mr. Katigbak was charged with one count of possession of child pornography, collected over a seven-year period between 1999 and 2006.
[3] At trial, he admitted that the 628 images and 30 video clips found on his computer hard drive constituted child pornography, as defined in s. 163.1(1) of the Code. The only issue was whether he was entitled to rely upon the defences contained in s. 163.1(6) as they existed at the relevant times. Prior to November 2005, the relevant portions of the defences would have arisen where the possession of child pornography had "artistic merit" or an "educational purpose"; there was also a "public good" defence imported from the obscenity provisions of s. 163. Following the decision in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, which had interpreted the then s. 163.1(6), Parliament amended the Code. The defences were recast in the form of a two-part, legitimate purpose/harm-based test requiring that the act of possession have a "legitimate purpose relating to art or education" and that it "not pose an undue risk of harm to persons under the age of eighteen years". [page485]
[4] The trial judge resolved those issues in favour of the respondent and acquitted. The Crown appeals.
[5] For the reasons that follow, I would allow the appeal, set aside the acquittal and register a conviction on the offence charged.
Facts
[6] The facts as found by the trial judge are not seriously in dispute.
[7] The respondent, who was 31 years old at the time of trial, is a photographer and has artistic interests. He has a bachelor's degree in Psychology, earned in 2001. He worked for several years at Japan Camera and later at Pentax Canada until he was eventually laid off. In 2007, he started his own photography business.
The child pornography seized
[8] On April 19, 2006, the police attended at the respondent's residence and, with his permission, seized his computer and an external hard drive. It is agreed that 628 images stored on the hard drive were images of child pornography, as defined in the Criminal Code. Sixty-one of these images were duplicates; 567 were unique images. All are images of real children and real abuse. In addition to these images, there were 30 video clips portraying pre-pubescent children that were also agreed to be child pornography.
[9] The images comprised a wide variety of child pornography. There are images of children engaging in sexual activity with other children. There are images of adults (both male and female) engaging in such activities with children. There are images of penetration of children (including babies) both anally and vaginally and of children posing in various forms of genital exposure. These images are graphically described in the Crown's factum. I do not find it necessary to describe them more fully here. Suffice it to say, they are repulsive in the extreme to anyone who cares about children and the protection of children.
[10] In addition, the evidence disclosed that there were more than 46,000 images of adult pornography stored on the respondent's computer. He admitted that 11,200 of these images were accessible by any computer user with a minimum of effort. The adult pornography images were accessed, at least partially, for his "personal entertainment". He conceded that the child pornography images were intermingled -- "clumped together" -- with the images of adult pornography in the way that they were stored on the computer. [page486]
The explanation and defence
[11] The respondent gave an explanation for his possession of the child pornography, however. He testified that he started working on a child abuse project because he was not completely satisfied with the commercial type of photography he was doing. He wanted to do something of deeper meaning and with a greater artistic challenge. He was from a large family and had strong feelings for family and the protection of loved ones. His ultimate goal was to create a gallery exhibition that would present the issue of child exploitation and pornography from the perspective of the exploited child. Collecting child pornography, he said, would allow him to determine what kind of child pornography "was out there" and to explore his own emotional response to viewing the material.
[12] Mr. Harris has succinctly summarized the respondent's explanation of his project -- and his defence -- at para. 9 of his factum:
In summary, the images were collected not to use directly themselves, as the Respondent realized he could not show anything graphic in a public exhibition. The images were gathered to research what child pornography looked like and then explore his emotional response to it. The ultimate goal was a gallery exhibition which would look at child exploitation and pornography from the standpoint of the child. He wanted the viewer to put themselves into the shoes of the child to understand the stress and fear and anger they would feel. The viewer would walk away with a better understanding of what was happening to the child. The environment in the gallery would be very dark, with children's choirs and children singing a cappella and nursery rhymes in the background. He was going to acquire children's dolls and child mannequins to display as part of the exhibit.
[13] The trial judge accepted this explanation. Her findings are not directly challenged on appeal.
Other evidence
[14] The respondent relied upon the evidence of a friend and one-time co-worker, Stacey Tyler, together with certain entries in three notebooks he produced, in support of his explanation.
[15] Ms. Tyler testified that in the course of their friendship, she and the respondent talked about different artistic projects they wanted to work on. One was a project that had to do with "society and sort of [the] evil aspects of society". In particular, she testified that she recalled a discussion with the respondent on an occasion when they were passing by a store window containing a collection of undressed children's mannequins. They talked about wanting to photograph them and about their [page487] disturbing nature. However, although child abuse was a "theme" they discussed, the respondent never explicitly talked to her about a project relating to sexual abuse of children, nor did he ever mention that he was collecting child pornography as part of such a project.
[16] The respondent produced three notebooks from the years 2000, 2001 and 2003, containing various doodles, sketches and notes from his university classes, shopping lists, schedules and other items.
[17] The 2000 notebook includes several notations suggesting possible projects, including projects featuring child abuse and child pornography. For example, one notation stated: "how do you do a show on child porn? (you can't show it) maybe do a documentary . . . models should show a broken spirit, fear, helplessness, show a child w/ an adult in the background (looming) or doing up his pants after the abuse has occurred". In another place, the respondent wrote: "How do you show the mental state of the victim. Maybe instead of showing actual abuse taking place, show an implication of what is going to happen."
[18] In the 2001 notebook, under a question about how to protect children, the respondent drew a child holding a sign with the word "target". The words beside this image are "Kids holding signs: e.g. target, use me, victim, nobody, freebee . . .". There is also a sketch indicating that a child could be depicted as a "small" subject against a large dark background.
[19] In the 2003 notebook, there are four pages of notes containing ideas for depicting images of child sexual abuse. The notations refer to using mannequins and to children being treated as material objects. For example, "show fear and oppression". There are notes about using sepia tones, a montage and out-of-focus and enlarged eyes of the victim to show fear. And statements like: "Viewers should be too saddened to cry; too shocked to be angered . . . Analogies: meat, materials, anything that is owned, image of a meat market . . . Nothing should be very (blatantly) visible, images should encourage the viewers' imagination to run wild w/ fear and compassion. . . . Images should express the emotions that the victim goes through . . . involving the viewer, it should be psychologically traumatizing, force the viewers to think (& take a stand)."
[20] The respondent has never taken any further positive steps to create or to present any such exhibition. He was financially unable to rent the space to do so, he said. [page488]
Analysis
Child pornography crimes and the defences existing before and after November 1, 2005
[21] Section 163.1(4) of the Criminal Code makes it a crime to possess any child pornography. The crime has not changed, although the sanctions for it and the defence available have. [^1]
[22] Section 163.1 has consistently featured an exemption for certain conduct that would otherwise be an offence under the section. As it relates to the arts and education, at least, the defence is designed to balance the competing societal values referred to above, namely, the protection of children from exploitation and abuse, and freedom of thought and expression. The importance of the latter value cannot be gainsaid and is eloquently summarized by Chief Justice McLachlin in Sharpe, at para. 25:
The right conferred by s. 2(b) of the Charter embraces a continuum of intellectual and expressive freedom -- "freedom of thought, belief, opinion and expression". The right to possess expressive material is integrally related to the development of thought, belief, opinion and expression. The possession of such material allows us to understand the thought of others or consolidate our own thought. Without the right to possess expressive material, freedom of thought, belief, opinion and expression would be compromised.
[23] At the same time, however, the Supreme Court recognized the importance of protecting children in society. At para. 22, the Chief Justice said:
Nevertheless, freedom of expression is not absolute. Our Constitution recognizes that Parliament or a provincial legislature can sometimes limit some forms of expression. Overarching considerations, like the prevention of hate that divides society as in Keegstra . . . or the prevention of harm that threatens vulnerable members of our society as in in Butler . . . may justify prohibitions on some kinds of expression in some circumstances. Because of the importance of the guarantee of free expression, however, any attempt to restrict the right must be subjected to the most careful scrutiny.
[24] The nature and scope of the s. 163.1(6) defences changed with the amendments that came into effect on November 1, 2005. These amendments are the primary focus of this appeal. However, since the time frame of the indictment spans a period both before and after November 2005, the provisions of the [page489] defences, as they existed both before and after the amendment, are relevant. I set them out here:
Pre-November 2005
163.1(6) Where the accused is charged with an offence under subsection (2) [making or publishing] (3) [distribution] (4) [possession] or 4.1 [accessing], the court shall find the accused not guilty if the representation or written material that is alleged to constitute child pornography has artistic merit or an educational, scientific or medical purpose.
(7) Subsections 163(3) to (5) apply, with such modifications as the circumstances require, with respect to an offence under subsection (2), (3), (4) or (4.1). . . . . .
163(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good. . . . . .
(5) For the purposes of this section, the motives of an accused are irrelevant. (Emphasis added)
Post-November 2005
163.1(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence (a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (b) does not pose an undue risk of harm to persons under the age of eighteen years. (Emphasis added)
[25] In short, Parliament replaced an artistic merit/ educational purpose test focusing on the nature of the materials possessed and embracing a public-good component stripped of motive, with a two-part legitimate purpose/harm- based test.
[26] For convenience, I shall from time to time refer to the enumerated categories in s. 163.1(6)(a) -- the administration of justice, science, medicine, education and art -- as the enumerated "spheres of valued activity". I choose this phrase because the spheres of activity, or categories chosen to found a basis for the child pornography defence, are amongst those that society considers to be of sufficient value or worth to justify counterbalancing the importance of protecting children in appropriate circumstances. [page490]
Issues
[27] The issues raised on the appeal are these: (1) Did the trial judge err in concluding that the pre-November 2005 defences of "artistic merit" or "educational purpose" extended beyond the nature of the material possessed to the possessor's intention underlying the possession? (2) Did the trial judge err in concluding that the respondent was entitled to the benefit of the present s. 163.1(6) defence because his possession of child pornography: (a) had a "legitimate purpose" related to art or education; and (b) did not pose an undue risk of harm to persons under the age of 18? (3) Is the Information defective?
The Pre-November 2005 defences
[28] Respectfully, the trial judge erred in her interpretation and application of the pre-amendment s. 163.1(6) defences.
[29] The respondent admits to having had possession of child pornography during the period 1999--November 2005. He relies, however, on the "artistic merit" and "educational purpose" defences as they existed at that time. But there are two reasons why he may not do so: (1) the materials he possessed had, themselves, neither artistic merit nor an educational purpose; (2) the public good defence now raised on appeal was not seriously put in play at trial and does not assist him in any event.
Artistic merit/educational purpose
[30] The trial judge erred in her interpretation of the "artistic merit" and "educational purpose" defences existing prior to November 2005. She rejected the Crown's argument that the defences were restricted to the possession of material which itself had artistic merit or an educational purpose, concluding instead that the defences extended to a consideration of the broader purpose underlying its possession. This interpretation failed to give effect to the clear language of s. 163.1(6)(a), as it then existed. Moreover, it was contrary to the interpretation given to that provision by the Supreme Court of Canada in Sharpe.
[31] The trial judge acknowledged that the Crown's interpretation was supported by the language in the section and by the [page491] reasoning of the majority decision in Sharpe. "However", she was resolute that "any consideration of the scope of the statutory defence of artistic merit has to be made in the context of the values it exists to protect" -- in this case, the value of freedom of thought and expression. After citing the Sharpe defence of the need to protect and nurture society's freedom of thought and expression, [^2] she concluded:
The statutory defence contained in s. 163.1 provides a moral exemption or justification for otherwise criminal behaviour. The need to preserve societal values such as the free exchange of ideas and the nurturing of artistic or creative thought requires that the defence be construed liberally. The application of the statutory defence was not restricted by the court to situations where the material in question had been created for one of the enumerated purposes. The moral exemption was also said to apply to scenarios where objectively pornographic material is possessed for a legitimate purpose, such as criminal investigations or psychological research.
[32] There are a number of difficulties with this conclusion, in my opinion.
[33] First, while it is true that the defences provided in s. 163.1 are to be liberally construed, [^3] the defences cannot be considered in isolation and out of context. Yes, their purpose is to protect the highly valued notion of freedom of thought and expression in our society. And, yes, that protection is extremely important as the Chief Justice's statement in Sharpe underscores. But s. 163.1 provides defences to a number of criminal offences relating to child pornography -- in this case, possession of child pornography. The defences must be viewed in this context, in my view, and not in isolation, focusing solely on the importance of freedom of thought and expression, as, respectfully, the trial judge appears to have done here. As the Chief Justice said [at para. 22], "freedom of expression is not absolute".
[34] Although the trial judge underlined "[t]he need to preserve societal values such as the free exchange of ideas and the nurturing of artistic or creative thought" (a pressing s. 2(b) value under the Charter), she paid scant attention to society's interest in ensuring the protection of children from sexual exploitation and abuse (an equally pressing s. 7 value guaranteeing life, liberty and security of the person), as I see it. The competition between these values is not only pertinent to the "public good" exercise under the pre-November 2005 provision and the "undue risk of harm" provision in the current legislation; it must inform [page492] the interpretation of the statutory defences as well. Otherwise, there is a risk that the pursuit of a liberal construction of the defences will become an invitation to eviscerate the offence.
[35] Secondly, while the defences provided in s. 163.1 are to be liberally construed, they must still be construed in light of what they say and the interpretation given to them in the jurisprudence.
[36] Prior to the November 2005 amendment, s. 163.1(6) provided that "the court shall find the accused not guilty if the representation or written material . . . has artistic merit or an educational . . . purpose" (emphasis added). There is no reference to the purpose for which the material is possessed. Sharpe makes it clear that the artistic merit defence is supported where the material has "[a]ny objectively established artistic value, however small" (at para. 63). Yet with respect to the defence of "educational, scientific or medical purpose", the majority stated that the defence relates to "the purpose the material, viewed objectively, may serve, not the purpose for which the possessor actually holds it" and went on to observe that "arguably few medical, educational and scientific works would fall within" the defence (at para. 68; emphasis added). Here, the images possessed did not themselves have an educational purpose. I agree with Ms. Bartlett-Hughes that Sharpe does not interpret the defences of artistic merit and educational purpose to exempt child pornography that may be useful to a person who may be contemplating a future artistic/ educational endeavour, however ill-defined that contemplated endeavour may be.
The public good
[37] Finally, the trial judge's reference to the moral exemption "[applying] to scenarios where objectively pornographic material is possessed for a legitimate purpose, such as criminal investigations or psychological research" is a reference to the passage in Sharpe dealing with the public good defence, not with the artistic merit or educational purpose defences. It was this reference that led Mr. Harris to submit on behalf of the respondent that the trial judge's considerations with respect to the pre-November 2005 defences were more appropriate to the "public good" defence, as it then existed, than to the artistic merit or educational purpose defences. Indeed, he acknowledged that the artistic merit defence pertained only to the representation or writing itself and that the trial judge "perhaps somewhat inconsistently" found that the pre-2005 artistic merit defence was available. He also conceded that "in this case, no defence was available arising [page493] from the material in and of itself, only from the nature of the act of possession". [^4]
[38] The trial judge mentioned the public good defence in her reasons, but only in a passing sense by implication, through a footnote reference to Sharpe in relation to her "moral exemption" comment cited above. In fairness to the trial judge, the respondent made no specific submissions based upon the public good defence. I would not give effect to this argument -- raised now, for the first time, on appeal -- in any event.
[39] Mr. Harris submits that, while the artistic merit and educational purpose defences related only to the impugned materials, in and of themselves, the public good defence could relieve against culpability depending on the act of possession. Section 163(3) of the Criminal Code, as it read prior to the November 2005 amendments, provided:
163(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.
[40] This defence was incorporated into s. 163.1 by the former s. 163.1(7). It has received little jurisprudential consideration, but was discussed briefly in Sharpe. There, McLachlin C.J.C. gave examples of possession of child pornography that could serve the public good. These included "possession of child pornography . . . by researchers studying the effects of exposure to child pornography, and by those in possession of works addressing the political or philosophical aspects of child pornography" (at para. 70). Mr. Harris submits the respondent's ultimate purpose in possessing the images here -- i.e., the creation of an art exhibit educating the public on the evils of child abuse -- was akin to those purposes. The respondent was a "researcher" studying the effects of exposure to child pornography and addressing the political and philosophical aspects of child pornography, he argues. Or, at least, there was a reasonable doubt that he was. Given the embedded societal value of freedom of thought and expression and the imperative to construe the s. 163.1 defences liberally, Mr. Harris contends that the public good defence supported the respondent's acquittal with respect to the pre- November 2005 possession and, as well, with respect to the post-November 2005 possession if the "public good" defence is more favourable to the respondent. I shall deal with [page494] this latter point later in these reasons when addressing the "defective Information" argument.
[41] But the respondent was not engaged in "research", and the trial judge wisely made no such finding, in spite of the respondent's attempts to cast himself in that light. "Research" is defined in Webster's Encyclopedic Dictionary [^5] as "a systematic search for facts; scientific investigation" (emphasis added), and in The Oxford English Dictionary [^6] as "the act of searching (closely or carefully) for or after a specified thing" and as "a search or investigation directed to the discovery of some fact by careful consideration or study of a subject; a course of critical . . . inquiry" (emphasis added). To interpret what the respondent was doing as "research" would be to dilute the term of its meaning. Moreover, the images possessed by the respondent were not "works addressing the political or philosophical aspects of child pornography" as contemplated in Sharpe. They had no value in themselves, and the defence did not seek to ascribe any to them. As I understand Mr. Harris' submission, it was the art exhibit that was going to address the political or philosophical aspects of child pornography.
[42] The evidentiary details discussed in the section of these reasons dealing with "legitimate purpose", and outlined in para. 67 below, also bear upon the public good question, and tend to neutralize any argument that the respondent would be entitled to succeed on that basis. Of particular significance is the respondent's admission that where his downloading of the scores of images became repetitive, he persisted only in order to "feel like [he] was doing something to keep the project going". That admission underscores the conclusion that the respondent's act of possession here extended well beyond what could reasonably be said to serve the public good.
[43] Accordingly, I am satisfied that the respondent was not entitled to rely upon the defences provided by s. 163.1 of the Code as it existed prior to the amendments in November 2005.
The post-November 2005 defence
[44] I am equally satisfied that the respondent was not entitled to rely upon the defence provided by s. 163.1(6) of the Code as it presently exists. The trial judge was mistaken in her interpretation [page495] and application of the "legitimate purpose" part of that test, in my view, but, for reasons that I will explain, I would not allow the appeal on that ground. That is not the end of the analysis, however. The trial judge erred in her application of the "no undue risk of harm" part, and, since the two components of the s. 163.1(6) defence are conjunctive, the acquittal must be set aside on that basis.
The genesis of the November 2005 amendments
[45] Before turning to an analysis of the trial judge's treatment of the post-November 2005 defence, however, it may be helpful to consider the history and purpose of the amendments made at that time.
[46] The November 2005 amendments to the child pornography provisions of the Criminal Code were Parliament's response to the decision of the Supreme Court of Canada in Sharpe. In that decision, the court upheld the constitutional validity of the then provisions respecting child pornography, subject to the carve-out of two exceptional circumstances that in the court's view could not be constitutionally captured by the provisions. [^7] In doing so, however, the majority ruled, at para. 63, that "artistic merit" encompassed materials displaying "[a]ny objectively established artistic value, however small" (emphasis added), and that a community tolerance standard was not to be used to assess that threshold. These conclusions sparked considerable public controversy, and many felt that the court had unjustifiably weakened the protection provided by the child pornography sanctions in the Code.
[47] Parliament reacted. After several abortive attempts, it enacted the November 2005 amendments. Instead of resting the defences on the "artistic merit" or "educational (scientific or medical) purpose" of the materials themselves (as in the previous provisions) as well as the "public good", Parliament settled on a two-part legitimate purpose/harm-based defence, i.e., the act alleged to constitute the offence must (a) have a legitimate purpose related to the administration of justice or to science, [page496] medicine, education or art; and (b) must not pose an undue risk of harm to persons under the age of 18 years.
[48] Some measure of the purpose behind the amendments may be gleaned from external materials such as the parliamentary debates at the time of their passage through the House and the Senate, and by considering the problem that Parliament sought to overcome: see Reference re Firearms Act, 2000 SCC 31, [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, at paras. 17 and 21; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, [2007] S.C.J. No. 22, at para. 27. For example, on second reading in the House, the Hon. Paul Harold Macklin (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada) stated: [^8]
Bill C-2 addresses an issue that is foremost on the minds of many Canadians, namely the protection of children against abuse, neglect and exploitation . . . Bill C-2 proposes much welcomed criminal law reforms and addresses five main issues . . . [the Parliamentary Secretary went on to outline those issues, including that the Bill "strengthens current provisions banning child pornography" and "further protects children from sexual exploitation by people who take advantage of their vulnerability. He then continued:] . . . . .
Canada's criminal laws against child pornography are already among the toughest in the world. Bill C-2 proposes further reforms that will make these laws even tougher. Bill C-2 proposes the following child pornography reforms . . . . . . . .
It will make the commission of any child pornography offence with intent to profit an aggravating factor for sentencing purposes, and it replaces the existing defences of artistic merit, education, scientific or medical purpose and public good with a two-part harm-based legitimate purposes defence.
Under this proposed reform, a defence would only be available for an act that has a legitimate purpose related to the administration of justice, science, medicine, education or art and does not pose an undue risk of harm to children. (Emphasis added)
[49] The Minister of Justice, the Hon. Irwin Cotler, addressed the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparation on the amendments. In his remarks, he stressed on a number of occasions that, in his view, the outcome of the Sharpe case would have been different had the proposed amendments been in place at the time. He said: [^9] [page497]
Finally Mr. Chairman, Bill C-2 proposes this [two]-pronged, harms-based, legitimate-purpose defence in a manner that will only be available for an act that has a legitimate purpose related to the administration of justice, medicine, education, or art, and as I said does not pose an undue risk of harm to children. Under this test it will not be enough to show some artistic value, as was the situation in the Sharpe case. . . . . .
The harm-based rationale in this legislation of the undue risk of harm to children, which was not present in the Sharpe case, along with the broadened definition of the offence and the narrow and more clear characterization of the defence, the two together, would have changed the outcome in the Sharpe case. (Emphasis added)
[50] For the government of the day, therefore, it appears that the rationale behind the amendments was (a) to respond to the decision in Sharpe; (b) to toughen the laws against child pornography in several respects, and in particular, for purposes of this appeal; [and] (c) to narrow the defence available. While these statements are not determinative, they are helpful in assessing Parliament's intention. As the Supreme Court of Canada said, in Reference re Firearms Act, at para. 17:
A law's purpose is often stated in the legislation, but it may also be ascertained by reference to extrinsic material such as Hansard and government publications: see Morgentaler, supra, at pp. 483-84. While such extrinsic material was at one time inadmissible to facilitate the determination of Parliament's purpose, it is now well accepted that the legislative history, Parliamentary debates, and similar material may be quite properly considered as long as it is relevant and reliable and is not assigned undue weight: see Global Securities, supra, at para. 25; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 35; and Doré v. Verdun (City), 1997 CanLII 315 (SCC), [1997] 2 S.C.R. 862, at para. 14.
[51] In one sense -- as the trial judge wondered during argument -- it might be suggested that the November 2005 amendments broadened, rather than narrowed, the defence available under s. 163.1(6) because now, even if (as is the case here) an accused is found to be in possession of child pornography without any pretext of artistic merit or educational purposes in itself, an accused person is nonetheless entitled to rely on the purpose of his or her possession to escape culpability. I reject that proposition, however.
[52] The suggestion is clearly contrary to the intention of Parliament and, as well, in my view, to the language of the new provision. By qualifying the word "purpose" with the word "legitimate", Parliament signalled that it was putting limits on the defence. The goal of strengthening the child pornography laws and narrowing the defence available was to be accomplished by [page498] ensuring that any artistic value or educational purpose, however slight, would no longer suffice as a defence but, instead, a "legitimate" purpose relating to one of the enumerated spheres of valued activity had to be raised.
[53] In addition, Parliament responded to the Supreme Court's rejection of the community tolerance standard relating to art by adding the "no undue risk of harm" criterion. This was in keeping with Chief Justice McLachlin's suggestion that legislation which did not seek to catch all material that might harm children but "only material that poses a reasoned risk of harm to children" was constitutionally permissible: Sharpe, para. 34. The art of judging is not generally suited to the exercise of attributing community "value" to artistic/ educational works or endeavours. But judges are adept at assessing "harm".
The contours of the present s. 163.1(6) defence
[54] The object of s. 163.1(6) is to provide a defence to conduct that would otherwise be culpable in the context of child pornography. The defence is available in circumstances where countervailing considerations relating to one of the spheres of valued activity -- in this case, art and education and the core value of freedom of thought and expression underpinning them -- warrant such protection. For convenience, I repeat what s. 163.1(6) says :
163.1(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence (a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and (b) does not pose an undue risk of harm to persons under the age of eighteen years. (Emphasis added)
[55] As I read this provision, the defence may be triggered where the otherwise culpable act serves an acceptable or justifiable -- i.e., a "legitimate" -- purpose relating to one of the enumerated spheres of valued activity, but then only if the act does not pose an undue risk of harm to children. What makes the act acceptable or justifiable, and therefore worthy of protection in law, in the "legitimate purpose" component of the analysis, is its objectively verifiable connection with the purpose and the ultimate worthy goal. If the act truly contributes to that goal and serves a legitimate purpose in this sense, the analysis then turns to "undue risk of harm".
[56] I am led to this interpretation for a number of reasons. [page499]
[57] The starting point in attributing meaning to the language of legislation is the oft-cited principle of statutory interpretation, first articulated by Driedger, in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), that:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See Sharpe, para. 33; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21; R. v. McIntosh (1995), 1995 CanLII 124 (SCC), 21 O.R. (3d) 797, [1995] 1 S.C.R. 686, [1995] S.C.J. No. 16, at para. 21.
[58] To this I add the important principle of statutory interpretation that the provisions of a statute are not to be interpreted in a fashion that renders them mere surplusage: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, at para. 28; R. v. Kelly, 1992 CanLII 62 (SCC), [1992] 2 S.C.R. 170, [1992] S.C.J. No. 53, at para. 43. Parliament's use of the words "legitimate" and "undue risk" must therefore be given meaning.
[59] Ascribing the foregoing structure and sense to s. 163.1(6) is in my view consistent with the wording of the amendment, the scheme and object of the Criminal Code, and the intention of Parliament in enacting it.
The wording of the amendment
[60] In its ordinary sense, "legitimate" is said to be something that is lawful, justifiable, proper or conformable to a recognized standard sanctioned by the laws of reasoning. [^10] Hence the foregoing characterization of legitimate as something that is "justifiable" and, I would say, "acceptable" (conformable to a recognized standard . . .). At the next level of the analysis, "undue" has been defined as meaning "inappropriate", "unjustifiable", "excessive" or "going beyond what is . . . warranted or natural". [^11] This is consistent with Justice Wilson's observation in R. v. Towne Cinema Theatres Ltd., 1985 CanLII 75 (SCC), [1985] 1 S.C.R. 494, [1985] S.C.J. No. 24, at p. 524 S.C.R., that harmful and dehumanizing material (here, it is conduct) which contributes to "a process of moral desensitization", while in some circumstances acceptable, "must . . . be [page500] controlled when it gets out of hand, when it becomes 'undue'" (emphasis added).
The scheme and object of the Act
[61] The overriding object of the Code is to govern and sanction the conduct that society sees fit to criminalize in a manner that complies with the Canadian Constitution. Reflecting society's abhorrence of crimes that abuse and exploit children, one of the most vulnerable groups in society, this criminalization includes conduct relating to child pornography (making, distributing, possessing and accessing child pornography are all crimes).
[62] Recognizing the clash that may arise between these offences and other core values in Canadian society (in this case, freedom of thought and expression), however, Parliament has developed a scheme that provides a statutory defence to such charges in some circumstances. While the shape of that defence has changed with the November 2005 amendments, it remains still an important statutory bulwark against the unconstitutional infringement of the s. 2(b) Charter value. At the same time, though, Parliament has determined that not all acts relating to education or the arts (or the other enumerated spheres of valued activity) in this context will be immune from prosecution in the interests of buttressing freedom of thought and expression -- only those that serve a legitimate purpose will be, and then, only those that do not pose an undue risk of harm to minors.
The intention of Parliament
[63] Finally, through this scheme as described, Parliament has demonstrated its intention to control the evils of child pornography as effectively as possible while concurrently respecting the value of freedom of thought and expression. This is in keeping with the statements made during the parliamentary debates, referred to earlier. It is also in keeping with the view, expressed above, that the s. 163.1(6) defence, while it is to be liberally construed, must not be construed in a manner that renders the child pornography offences essentially inoperative.
Application of the principles to this case
[64] Here, there is no mystery about the otherwise culpable act or about the respondent's stated purpose or intention. The act is the possession of images of child pornography collected indiscriminately in significant numbers over a period of seven years, and stored in the haphazard and insecure fashion described above. The respondent's stated purpose or intention was to create an artistic/educational exhibit that would raise [page501] awareness of the effects of child pornography and sexual abuse on children; in this regard, he said he was collecting the images to educate himself about "what was out there" and to inspire his creativity in connection with the project. The trial judge concluded this was a "legitimate purpose" and went on to determine, as well, that the respondent's acts of possession posed no undue risk of harm to children.
The trial judge's narrow approach to "legitimate purpose"
[65] The Crown opted not to attack the trial judge's finding that the respondent had the purpose or intention he said he had, but argued on legal grounds that the purpose was not a "legitimate" one.
[66] I confess to having serious reservations about the trial judge's finding that the respondent had the purpose or intention he espoused, and all the more so with respect to her conclusion that that purpose or intention constituted a legitimate purpose. On the totality of the evidence here, viewed in light of the s. 163.1(6) rubric outlined above, it seems to me that a reasonable observer would have little difficulty rejecting the respondent's expressed purpose or intention as unreasonable. Had the trial judge assessed the evidence relating to the possession of the pornographic images in light of the s. 163.1(6) framework described above, as she should have, I believe she would have concluded differently.
[67] In this respect, I refer in particular to the following uncontested facts: -- that a total of 628 images of admitted child pornography were stored on the respondent's computer, together with 30 video clips portraying pre-pubescent children and teenagers; -- that the images were of actual abuse of real children; -- that 61 of the images were duplicates (and therefore unnecessary, even on the respondent's version, to further his purposes); -- that many of the images and depictions of sexual activity between children and adults were generic in nature, in the sense that they involved similar images of similar sexual acts, and were therefore unnecessary to provide additional insight with respect to the respondent's emotional and creative responses; [page502] -- that indeed the respondent conceded that some of his downloading had become redundant; -- that some of the child pornography images were stored in a fashion that "clumped [them] together" with the additional 11,200 accessible pictures of adult pornography also found on the respondent's computer and which, he acknowledged, were viewed for his own "personal entertainment"; -- that the images were stored on his computer in an exceedingly unsecure fashion, making them readily accessible to his father and brother with whom he lived, as well as to many others who frequented the residence; -- that the images were collected indiscriminately, and stored, over a period of seven years; -- that the respondent found it necessary to download and store the images at all, given his concession that it would only take him "a couple of hours" to access sources on the Internet -- which, presumably, could evoke the emotional response he sought -- when ready to begin the creation of the exhibit; -- that no steps were taken to bring his ill-defined idea to fruition, other than the doodling in his notebooks, between 2000 and 2003; the respondent said he couldn't afford to rent space for the exhibit, but where were his sketches, drawings and outlines that would have to be precursors to the space rental phase?
[68] In view of all this evidence, which the trial judge did not address in any meaningful way, I question whether any reasonable observer could conclude the respondent either had the purpose or intention he professed to have or that he had possession of the images for a "legitimate" purpose related to art or education. Perhaps there was some minimal connection in his mind -- to create some ill-defined art exhibition at some unknown point in time -- but on any objective view of the evidence, he did not have possession of these images in this fashion for that purpose. In short, his acts of possession belie the legitimacy of his purpose.
[69] Were it not for the Crown's concession with respect to the purpose finding -- reiterated in the face of specific questions from the court during argument -- I would have seriously considered setting aside that finding. However, and even though we are not bound by that concession, given that the [page503] respondent prepared for and argued the appeal on the basis that it had been made, principles of fairness to him militate against doing so. The trial judge's "legitimate purpose" conclusion is rooted in that finding. Accordingly, in these particular circumstances, I would be reluctant to set aside the acquittal on "legitimate purpose" grounds.
[70] One further observation may be in order, nonetheless.
[71] Trial judges must take a hard look at the facts when the legitimate purpose defence is put forward. Duelling and important societal interests are at stake. Trial judges must be careful not to be drawn easily into accepting beguiling explanations -- wrapped in the compelling trappings of freedom of thought and expression -- that on their face may evoke some connection to an otherwise commendable goal. On an objective review of the evidence, those explanations may prove to be merely a facade for some other underlying purpose with no actual connection to art or education (or science or medicine).
[72] I repeat that there were many images here -- a good number of them duplicates and/or merely generic -- collected indiscriminately over a period of seven years, and stored in an insecure and irresponsible manner, with nothing to indicate they were related to a project of any kind. The images depicted actual abuse of real children. At least some of these images were "clumped together" with an inordinate number of adult pornography images that were admittedly accessed by the respondent for his own "personal pleasure". No consequential steps were taken to pursue the respondent's proposed child abuse exhibition. The respondent admitted that his downloading may have become redundant and that he could have accessed the images he needed within "a couple of hours" whenever he was ready to create his exhibit. To hold in these circumstances that these acts of possession served a legitimate purpose related to art or education would be to provide a licence to anyone to collect and store an indefinite number of child pornography images in a totally indiscriminate manner over an indefinite period of time on the slightest pretext of their connection to some ill-defined, and perhaps never to be attempted, artistic/educational project. That is not what Parliament intended.
[73] That said, I do not propose to interfere with the trial judge's decision on the legitimate purpose component of the s. 163.1(6) defence for the reasons set out above. The two-part defence is conjunctive, however, and in my view the respondent fails on undue risk of harm grounds. The trial judge erred in holding otherwise.
[74] I turn to that issue now. [page504]
Undue risk of harm
[75] Even if the respondent's acts of possession had a "legitimate purpose related to . . . art or education", they will not be protected if they posed an "undue" risk of harm to children. As I have already observed, the scheme of the s. 163.1(6) defence demonstrates Parliament's acceptance that some risk of harm may be justified in light of the constitutional imperatives in favour of freedom of thought and expression (and other values sought to be preserved by the defence). But that risk of harm must not be "undue".
[76] In the "undue risk of harm" part of s. 163.1(6), Parliament has sought to balance -- and has directed the courts to weigh in individual cases -- the value of protecting children from the destructive effects of sexual abuse and child pornography, on the one hand, against the value of freedom of thought and expression, on the other hand. Given the ordinary meaning of "undue" referred to above, the purpose and object of the legislation and the intention of Parliament, I would say that the risk of harm is "undue" in this context when society would find that risk of harm inappropriate, unjustifiable, excessive or unwarranted in the circumstances of the case. To adapt the observation of Wilson J. in Towne Cinema, the risk of harm must be controlled as undue "when it gets out of hand".
[77] Here, the trial judge recognized the need to strike the foregoing balance. Early in her reasons, she observed that "the scope of the defence itself has been narrowed since the court must balance the inherent risk posed by the possession of child pornography against the actions of the accused". She also recognized the inherent societal risks of harm flowing from the possession of child pornography, citing Sharpe, and stating:
Although the legislation as it existed at the time of the Sharpe decision did not incorporate the balancing test that now exists, the court was alive to the inherent societal risks flowing from the possession of child pornography. The court concluded that possession of child pornography increases the risk of harm by sensitizing those who view the materials to the abuse of children and perhaps making them more likely to engage in child abuse. Pedophiles may become aroused and more likely to offend. The materials can be used to groom future victims and finally that there is a risk that the purchase of such materials fosters the continued production of them, leading to the ongoing abuse of children. See Sharpe, paras. 86-94.
[78] However, the trial judge failed to give effect to those risks when it came to determining undue risk of harm in this case. She rationalized this by relying on a distinction drawn by this court in [page505] R v. Hawkins (1993), 1993 CanLII 8587 (ON CA), 15 O.R. (3d) 549, [1993] O.J. No. 2572, 86 C.C.C. (3d) 246 (C.A.), leave to appeal denied (1993), 17 O.R. (3d) xvi, [1994] 1 S.C.R. viii, [1993] S.C.C.A. No. 538. The distinction differentiates between the evidentiary requirements for finding that a limitation on a constitutional right may be justified by the potential harm caused by the exercise of that right (where the Crown must demonstrate a reasonable apprehension of harm) and the Crown's requirement to prove at trial that the actions of a specific defendant pose an undue risk of harm so as to disentitle him to a statutory defence (a reasonable doubt exercise).
[79] Concluding, correctly, that the final determination has to be made in the context of the evidence at trial, the trial judge closed her reasoning on the undue risk of harm issue with this statement [at para. 36]:
In assessing whether the actions of Mr. Katigbak posed an undue risk of harm to persons under the age of eighteen, I have considered the circumstances of the offence. The works possessed by Mr. Katigbak were not purchased by him so the makers of the materials did not profit from his viewing of them and the market for such material was not encouraged by his actions. There is no suggestion that his interest in the materials was motivated by any sexual interest. The risk that he would become desensitized to the issue of child abuse or more likely to offend sexually has to be far less in this situation than where the material is collected for the purpose of arousal. It was not his intention that the images themselves would ever be distributed or even replicated in his exhibit; rather he sought to demonstrate the feelings of helplessness and fear experienced by the victims. This in my mind negatives the concern that the victims are being re- victimized by a viewing of the images. Finally, there was no suggestion that the artistic project was to be sexual in nature which would reduce the concern that it would provide sexual gratification for others or desensitize others to the issue of child abuse.
[80] There are several difficulties with these conclusions. First, some of them are simply wrong and/or irrelevant. Secondly, while I accept the Hawkins distinction referred to above, it does not follow that jurisprudential findings in constitutional cases are of no assistance, and the trial judge's conclusions ignore the strong statements made by the Supreme Court of Canada in Sharpe about the various risks and dangers of child pornography, some of which she, herself, had earlier acknowledged. Thirdly, the trial judge appears not to have given effect to the principle that the harm flowing from particular material may be inferred from the nature of the material itself or from the material and other evidence: see R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452, [1992] S.C.J. No. 15, at para. 59; R. v. Hawkins, at p. 263 C.C.C.
[81] The trial judge's conclusion that "[t]he works possessed by Mr. Katigbak were not purchased by him so the makers of the [page506] materials did not profit from his viewing of them and the market for such material was not encouraged by his actions" is partially irrelevant and clearly wrong. So, too, is the notion that because the respondent did not intend to distribute the images or replicate them in his exhibit, the concerns about re-victimization of the children through his downloading and viewing of the images were "negatived".
[82] It seems to me that whether he paid for the downloaded images does not detract from the actual harm caused, and it is simply not correct to say that the makers of the materials do not profit from his downloading and possession of the images just because he did not pay for them. The number of "hits" is important in the world of cyberspace. Each act of downloading and possession fuels the demand for the creation of more child pornography, whether or not the images or materials are purchased or traded. Similarly, while the respondent's intention not to distribute or replicate the images may have avoided redoubling the victimization, it did not diminish the re-victimization of the actual children involved through the very process of downloading and possessing the images. These unsupportable findings were central to the trial judge's conclusion with respect to undue risk of harm.
[83] It is well established that possession fuels the market and re-victimizes the children in question. As McLachlin C.J.C. noted in Sharpe, at para. 92:
The fifth and final harm -- the abuse of children in the production of pornography -- is equally conclusive. Children are used and abused in the making of much of the child pornography caught by the law. Production of child pornography is fuelled by the market for it, and the market in turn is fuelled by those who seek to possess it. . . . The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone. (Emphasis added)
[84] These findings were made by the Supreme Court of Canada based on the social science evidence presented in the Sharpe case. In the absence of evidence that the social science has changed, I do not think they can be rejected outright, which is what the trial judge effectively did. Indeed, this court observed in R. v. Koh (1998), 1998 CanLII 6117 (ON CA), 42 O.R. (3d) 668, [1998] O.J. No. 5425 (C.A.), at para. 37, that "judicial notice is permissible where previous [page507] courts have proven a certain fact". The Crown is surely not required to lead social science evidence in every child pornography proceeding to establish what the Supreme Court of Canada has already accepted is the case. The Crown retains its onus, and must disprove the defence and establish guilt beyond a reasonable doubt. However, as Butler and Hawkins show, it may rely on reasonable inferences that harm flows from certain conduct and on inferences that may be drawn from the very nature of the materials or images in question themselves or the materials and other evidence.
[85] Here, the trial judge swept aside the jurisprudential findings asserted in Sharpe; made findings herself that were clearly wrong, as discussed above; and failed to consider other important factors, such as the length of time over which the images were possessed, the indiscriminate and insecure fashion in which they were stored and kept, and the risks these factors posed for further harm to the children exploited and abused in the materials he possessed. Had she not fallen into error in these ways, she might well have come to a different conclusion with respect to the "undue risk of harm" part of the s. 163.1(6) test.
[86] An examination of the egregiously pornographic images of actual abuse and exploitation of actual children in this case, alone and in conjunction with the jurisprudence and other factors referred to above, leave little doubt in my mind that the images and the respondent's acts relating to their possession pose an undue risk of harm to children. To repeat, there were many images, collected and stored indiscriminately, insecurely and irresponsibly, over a period of seven years. There was a very real risk that other members of the respondent's family, and friends who came to visit, might access the images on his computer. Those images depicted actual abuse of real children, something the law recognizes as inherently harmful. At least some of the images were "clumped together" with an inordinate number of adult pornography images that were admittedly accessed by the respondent for his own "personal pleasure". The respondent acknowledged his downloading became redundant and that he could have accessed the images he needed to evoke the emotional response he sought within "a couple of hours" whenever he was ready to create his exhibit.
[87] When this level of harm is weighed against the respondent's stated purpose of gathering ideas for an artistic/ educational project that was not being pursued actively and, realistically, had little prospect of being started, much less completed, I have little difficulty in concluding that the risk posed by the respondent's act of possession in these circumstances was inappropriate, [page508] unjustifiable and unwarranted -- in a word, "undue". Reasonable members of society would not find his act of possession acceptable in all of the circumstances in the balancing exercise that the trial judge was required to conduct under s. 163.1(6).
[88] The trial judge's analysis was not helped by the disproportionate weight she appears to have attributed to the value of freedom of thought and expression. Freedom of thought and expression is undoubtedly a core societal value. But it does not trump all other values: Sharpe, at para. 22. Nor is it sufficient, on its own, to justify elevating the purposes underlying the respondent's act of possession in these circumstances to the level necessary to afford him a defence under s. 163.1(6) of the Code. I am satisfied that Parliament intended by its amendment to strengthen the consideration to be given to the protection of children in the interpretive exercise of defining the scope of the defence provided by s. 163.1(6). The constitutionality of that choice is not at issue here.
[89] The trial judge was very deferential to the freedom of thought and expression considerations underlying the defence. But, it would be a rare circumstance, in my opinion, where the possession of child pornography depicting the actual sexual abuse of real children -- even where the purpose underlying that possession may in some "logical" way contribute to the advancement of art or artistic education -- would not constitute an undue risk of harm to children and therefore be justified under s. 163.1(6). I say this notwithstanding, and without seeking to derogate from, the very high importance of freedom of thought and expression in our society. To permit the purposes articulated by the respondent -- and accepted by the trial judge -- to constitute a defence in the context of s. 163.1(6), in the circumstances here, would be to flout the recognized risks to society that Parliament has attempted to regulate by creating the child pornography offences and make a mockery of the child pornography provisions.
[90] I would set aside the trial judge's findings with respect to undue risk of harm and, with that, the acquittal as well.
The Information was not defective
[91] Finally, the respondent raises the argument -- for the first time, on appeal -- that the Information should be quashed because it is defective. It is defective, he submits, because the single count in it charges the offence of possession of child pornography over a lengthy seven-year period and the defences available to him changed substantially during that time. He should have been charged with one count of possession during the period preceding the November 2005 amendments and with [page509] another count charging possession for the period following the amendments until the point of seizure. An amendment of the Information on appeal will not rectify the problem, he concludes.
[92] I would not give effect to this submission.
[93] Section 581 of the Criminal Code requires that each count in an indictment in general apply to a single transaction. The count is to contain sufficient detail of the circumstances of the alleged offence in order to give the accused reasonable information with respect to the act or omission to be proved and to identify the transaction to which it refers.
[94] Here, the count in the Information did exactly that: the respondent was charged with "[having] in his possession child pornography to wit, graphic computer images" over a seven-year period ending on May 12, 2006. The essential elements of that offence did not change over the years.
[95] The available defence did change, and it is true that the Information did not differentiate between possession before and after the November 2005 amendments. It is also true that the evidence at trial did not establish precisely when the respondent came into possession of which images, and therefore what images -- and how many -- were in his possession prior to the amendments.
[96] However, there is no dispute that the respondent was in possession of child pornography during the entire seven-year period covered by the Information or that he was in possession of all 628 images and 30 video clips at the end of the period covered by the Information. Nor is there any dispute that the images he possessed -- or some but not all of them -- constituted child pornography as defined in s. 163.1(1). All of them fell into the child pornography category. That, too, is admitted. And there is nothing in the evidence to suggest that the respondent had any different purpose or objective in mind in the pre-November 2005 period than in the period thereafter. In short, nothing about the defence differed in the two periods.
[97] While it may have been preferable for the Crown to have charged him with two counts of possession -- one before November 1, 2005 and one for the possession thereafter -- I am unable to appreciate how the respondent was prejudiced by the Information as it stands. He and the Crown both proceeded at trial on the premise that he was entitled to the pre-amendment defences for the period ending October 31, 2005 and to the post-amendment defence for the subsequent period. He was tried on that basis. Because there is no dispute over the pornographic nature of any of the images -- whenever possessed -- and because there is no suggestion that Mr. Katigbak's purposes or objective changed over the entire seven-year period, the only [page510] prejudice to him would be if the post-amendment defence were more favourable to him and he was deprived of the right to rely on that defence for the pre- amendment period.
[98] That is not the case, however. For the reasons articulated earlier, I have concluded that the post-amendment legitimate purpose/harm-based defence is narrower and more restricted than the pre-amendment "artistic merit/educational purpose/public good" defences, and therefore less favourable to the respondent overall, and he received the benefit of the more favourable latter defences for the pre-amendment period. Moreover, I can think of no basis upon which he would be entitled to seek the benefit of the pre-amendment defences for the post-amendment period of possession. He was accordingly subject to the legitimate purpose/harm-based provisions of the Code with respect to the child pornography he admittedly possessed during the latter period.
[99] I am not persuaded, therefore, that the Information as charged was defective. If it were, the defect could readily be remedied by an amendment as described above without any prejudice to the respondent.
Disposition
[100] For the reasons set out above, I would accordingly allow the Crown's appeal, set aside the respondent's acquittal and register a conviction on the offence charged. I would remit the matter to the trial judge for sentencing.
Appeal allowed.
Notes
[^1]: The section also criminalizes a variety of other conduct in relation to child pornography - for example, production, publication, distribution and accessing - but they are not at issue on this appeal.
[^2]: See infra, para. 22.
[^3]: See R. v. Sharpe, at para. 60.
[^4]: See respondent's factum, paras. 27 and 29(i).
[^5]: The New Webster's Encyclopedic Dictionary of the English Language, Canadian Edition, s.v. "research".
[^6]: The Oxford English Dictionary, 2nd ed., s.v. "research".
[^7]: The exceptions involved the possession of material that one would not normally think of as "child pornography" and that raise little or no risk of harm to children, namely: (1) written materials or visual representations created and held by the accused alone, exclusively for personal use; and (2) visual recordings, created by or depicting the accused, that do not depict unlawful sexual activity and are held by the accused exclusively for private use: Sharpe, paras. 99 and 128-29. The exceptions are not relevant here.
[^8]: House of Commons Debates, No. 007 (October 13, 2004) at 1519 (Hon. Paul Macklin).
[^9]: Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Edited Evidence, No. 22 (February 22, 2005) at 0925 and 1020.
[^10]: See The Oxford English Dictionary, 2nd ed., s.v. "legitimate"; and The Shorter Oxford Dictionary on Historical Principles, 6th ed., s.v. "legitimate".
[^11]: The Oxford English Dictionary, 2nd ed., s.v. "undue"; The Shorter Oxford English Dictionary on Historical Principles, 3rd ed., s.v. "undue".