WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court Information
Court of Appeal for Ontario
Date: 2018-11-20
Docket: C61365
Panel: Hoy A.C.J.O., Watt J.A. and Then J. (ad hoc)
Parties
Between
Her Majesty the Queen Respondent
and
Richard Kiefer Appellant
Counsel
For the Appellant: Boris Bytensky
For the Respondent: Christine Bartlett-Hughes
Heard: September 12, 2018
On appeal from: The convictions entered on October 16, 2015 by Justice Dale Fitzpatrick of the Superior Court of Justice, with reasons reported at 2015 ONSC 7028, [2015] O.J. No. 6861 (Sup. Ct.).
Overview
1The appellant was charged with counts of accessing child pornography and possessing child pornography between August 1, 2009 and July 30, 2010, contrary to ss. 163.1(4.1) and 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 as am.
2The materials recovered from the appellant's computers included images of children (male and female) performing oral sex on adult males; engaging in vaginal and anal intercourse with adult males; and masturbating adults. They also included a video of a child performing sexual acts with a dog and graphic comic representations of children performing sexual acts with adults.
3In his videotaped statement to police when he was arrested, the appellant admitted to downloading and viewing some of the material found on his computers. The appellant justified his accessing, possessing and viewing of the images of sexual abuse of children as research for a book he was writing, called Safe Haven.
4Section 163.1(6) of the Criminal Code provides a defence to the offences of accessing and possessing child pornography:
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.
5At trial, the appellant conceded that some of the material at issue constituted child pornography. The focus at trial was whether the Crown had disproved beyond a reasonable doubt that, in accessing and possessing the child pornography, the appellant had a legitimate purpose related to art. The appellant did not testify, but his statement to police was introduced in evidence by the Crown.
6The trial judge found that the appellant's initial, subjective purpose for accessing and possessing the child pornography may have been for a legitimate purpose related to art. But the trial judge was satisfied beyond a reasonable doubt that, subsequently, the appellant's subjective purpose for accessing and possessing the child pornography was "to satisfy [his] fascination and morbid curiosity" with the material. Accordingly, the trial judge concluded that the appellant's accessing and possessing of child pornography was for a purpose other than those listed in s. 163.1(6)(a), and the Crown had established beyond a reasonable doubt that s. 163.1(6)(a) had not been satisfied. This alone was sufficient to dispose of the appellant's s. 163.1(6) defence.
7The trial judge further found that, even if he had been left with reasonable doubt as to the appellant's subjective purpose in accessing and possessing the child pornography, there was no objectively verifiable connection between the appellant's conduct and his stated purpose for accessing and possessing the child pornography. As a result, the trial judge found the appellant guilty on both counts.
8The appellant appeals his convictions. For the reasons that follow, I would dismiss the appeal.
The Issues on Appeal
9The appellant's arguments on appeal can be distilled to the following:[1]
The trial judge erred in failing to consider whether the appellant had a "dual purpose" for accessing and possessing the child pornography. Section 163.1(6)(a) does not require that a legitimate purpose (such as art) be the only purpose for which the appellant accessed and possessed the child pornography;
Even if s. 163.1(6)(a) requires that a legitimate purpose be the only purpose for which the appellant accessed and possessed the child pornography, the trial judge made multiple errors in concluding that the Crown had proven beyond reasonable doubt that the appellant did not, from a subjective standpoint, have genuine, good faith reason for accessing and possessing the child pornography for a purpose related to art; and
The trial judge improperly considered evidence going to the appellant's subjective purpose in concluding there was no objectively verifiable connection between the impugned acts and the appellant's stated purpose.
10Before addressing these arguments, I will review the trial judge's reasons in more detail to provide a framework for my analysis.
The Trial Judge's Reasons
11In R. v. Katigbak, 2011 SCC 48, 3 S.C.R. 326, the Supreme Court outlined the applicable legal framework to the s. 163.1(6) defence.
12On the s. 163.1(6)(a) "legitimate purpose" prong of the defence, Katigbak requires the court to evaluate: (1) whether it is left with a reasonable doubt that the accused, from a subjective standpoint, had a genuine, good faith reason for accessing and/or possessing child pornography for one of the listed grounds; and (2) whether, based on all of the circumstances, a reasonable person would conclude that (i) there is an objective connection between the accused's actions and his or her stated purpose, and (ii) there is an objective relationship between his or her stated purpose and one of the protected grounds (in this case, art): Katigbak, at paras. 58, 60.
13On the s. 163.1(6)(b) "undue risk of harm" prong of the defence, the court must consider whether the accused's actions pose an "undue risk of harm to persons under the age of eighteen years." If the court is satisfied beyond a reasonable doubt that the accused's actions pose a significant risk of objectively ascertainable harm to children, the accused's s. 163.1(6) defence will fail: Katigbak, at para. 67.
14The trial judge adverted to Katigbak, and then considered the appellant's subjective purpose in accessing and possessing the child pornography.
15The trial judge first noted that there was some overlap in the period of time in which the appellant had viewed the child pornography and worked on his book. He then considered, at para. 64 of his reasons, the chapters of Safe Haven that the appellant had written by the time he was charged:
The first three chapters of Safe Haven are about a boy who does not get along well with his parents. Essentially, the character is paid little attention or affection by his parents. This boy eventually goes to a different world where he meets another character, Haven, who infers that she was sexually abused by her father, stating that "he always came home stinking drunk, and he always wanted special attention from me when he got home." This is the only reference to sexual abuse in the three draft chapters. Stating it as favourably to [the appellant] as possible, this fairly vague and singular reference to sexual abuse provides limited corroboration for his stated purpose of possessing and viewing child pornography as research to aid in the writing of Safe Haven. [Emphasis in original.]
16The trial judge noted that "the bare evidence" before him as to the appellant's subjective purpose was the appellant's statement to police that he viewed the child pornography as research to understand the dynamics of abuse "to be able to write about it": at para. 76.
17The trial judge had "some significant concerns about [the appellant's] overall credibility arising from his statement [to police]": at para. 68. First, nowhere in his statement to police had the appellant explained why the pornography he viewed was "necessary or even of assistance to be able to write about such sexual abuse": at para. 73. Second, there was no evidence the appellant had taken any notes as he viewed the child pornography or conducted any further research into child abuse in the course of preparing to write about the subject: at paras. 74-75. Third, the appellant's stated purpose for accessing and possessing the child pornography – namely, to understand the dynamics of abuse – was not credible in light of the 15 years the appellant had worked as a social worker, which provided him with real life experience as to the dynamics of child abuse, generally: at paras. 77-79. Fourth, in his statement, the appellant said that he thought the term "pthc" – a well-known child pornography search term that stands for "pre-teen hardcore" – meant "pathetic". In the trial judge's view, this was "simply unbelievable", as the appellant conducted many "pthc" searches and admitted a level of search sophistication and knowledge incompatible with the suggestion he believed "pthc" meant "pathetic": at paras. 80-81.
18The trial judge then reproduced what he characterized as the most adverse portions of the appellant's statement. The appellant stated several times that he had a "morbid curiosity" or a "fascination" with child pornography. He also said:
You know what? I – you want, I'll be honest about this. I'll be honest with you. Unfortunately, when you're dealing with stuff like abuse and, I think probably a crime scene officer would say the same thing, alright? Unfortunately, sometimes it becomes too interesting … and that's the problem with it, alright? That's, that's why I'm calling myself a fucken idiot because by rights I should've walked away from it. [Emphasis added.]
19The trial judge was prepared to accept the possibility that the appellant may have begun his investigation of child pornography with the subjective belief that he had a genuine, good faith reason to access and possess the child pornography – namely, as research to enable him to write his book. However, the trial judge interpreted the appellant's statements to the police as being an acknowledgement that he initially accessed the child pornography as research for his book, but that it was his "fascination" and "morbid curiosity" that compelled him to continue to access and possess the material: at paras. 84-85.
20The trial judge concluded, at para. 85, that:
[T]he combination of issues with [the appellant's] credibility, the limited corroboration of his stated purpose, and [the appellant's] statement that he was fascinated with the images and had a morbid curiosity about them combine to persuade me beyond a reasonable doubt that, as his investigation progressed, he did not subjectively believe that he had a genuine, good faith reason to possess and access child pornography. Instead, his possession and accessing was for a purpose other than those listed in section 163.1(6)(a). As such, I found that the Crown has established beyond a reasonable doubt that section 163.1(6)(a) has not been satisfied.
21The trial judge was also persuaded beyond a reasonable doubt that, in any event, the appellant did not have a genuine, good faith reason to possess either the video of a female child performing sexual acts with a dog, or the graphic comic images showing a child engaging in sexual acts with adults: at para. 86.
22The appellant had not explained in his statement to police how the video of the child engaging in a sexual act with a dog would assist him in understanding the dynamics of abuse. There were no references in the draft chapters of Safe Haven to sexual acts between children and animals: at para. 87.
23Moreover, the appellant's statement to police disclosed a personal basis, unrelated to any of the enumerated grounds under s. 163.1(6)(a), for his possession of the video, as the appellant had volunteered: "[y]ou wanna know what turns my crank? Bestiality. You'll find it on the damn thing … dogs and women." The trial judge concluded that this statement demonstrated the appellant's "personal interest in and attraction to sexual interactions between females and dogs, which is the very kind of sexual content displayed in this video": at para. 88.
24As to the comic images, the trial judge questioned how drawings or fictional images could assist the appellant in understanding "the dynamic power play that takes place". The appellant had also not offered any explanation for the graphic comics in his statement and did not suggest that the images were to be used in furtherance of his writing: at para. 89.
25The trial judge further concluded that, even if he were left with reasonable doubt as to whether the appellant had a subjective, good faith reason for accessing and possessing the child pornography, he was satisfied beyond a reasonable doubt that there was no objectively verifiable connection between the appellant's impugned conduct and his stated purpose of viewing the child pornography to understand the dynamics of abuse "to be able to write about it." The trial judge provided seven reasons for this conclusion, at para. 94, most of which also informed his credibility analysis:
There was no evidentiary basis to support the suggestion that the child pornography the appellant viewed was "necessary or even of assistance" in writing about child abuse, as the images and videos presented "nothing more than base sexual scenarios" devoid of "any insight in the dynamics of that abuse or the impact upon the victims."
The appellant made no notes with respect to the child pornography he viewed or his insights as to the dynamics of abuse.
The appellant did not undertake any other research into sexual abuse.
The three draft chapters of Safe Haven contained only a single and vague reference to sexual abuse.
There was no evidentiary basis to suggest that the video showing a female child engaged in sex acts with a dog would be instructive or otherwise assist the appellant in writing his book.
There was no evidentiary basis to support the suggestion that the graphic comic strip showing an adult engaged in sexual acts with a child would be instructive or otherwise assist the appellant in writing his book.
The appellant's statement to police that he accessed and possessed the child pornography to satisfy his "fascination" and "morbid curiosity" did not fit with his stated purpose for possessing the materials.
26In light of his conclusion that the appellant did not have a legitimate purpose for accessing and possessing the subject child pornography, the trial judge found it unnecessary to consider the 163.1(6)(b) "undue risk of harm" element of the defence: at para. 96.
27Thus, the trial judge was satisfied beyond a reasonable doubt that the appellant was guilty of the offences of accessing and possessing child pornography.
Analysis
1. Section 163.1(6) does not provide a defence to a person who accesses and possesses child pornography for a purpose other than a legitimate purpose
28The appellant argues that s. 163.1(6)(a) does not require that a legitimate purpose (such as a purpose related to art) be the only purpose for which an accused accesses and possesses child pornography. The appellant submits that the trial judge erred by failing to consider the possibility that he subjectively had a dual purpose for accessing and possessing the child pornography – namely, for the purpose of writing his book and for the purpose of satisfying his personal "fascination" or "morbid curiosity" with the material. He argues that a dual purpose for accessing and possessing child pornography should be permitted, as long as the primary purpose was a legitimate purpose. Since the appellant's primary purpose for accessing and possessing the child pornography was related to art, it should not matter if he was also fascinated by the child pornography, or enjoyed viewing it.
29In advancing this argument, the appellant relies on the text of s. 163.1(6)(a). He notes that the provision does not say that a legitimate purpose related to the administration of justice, science, medicine, education or art must be the "sole purpose" for which the accused accesses or possesses child pornography. He argues that the use of the indefinite article "a" – rather than the definite article "the" – before "legitimate purpose" in s. 163.1(6)(a) signals that the "legitimate purpose" need not be the sole purpose for accessing and possessing child pornography. The appellant further relies on this court's decision in Brown v. Durham (1999), 43 O.R. (3d) 223, leave to appeal granted [1999] S.C.C.A. No. 87, where this court recognized that a police stop conducted under the auspices of the Highway Traffic Act, R.S.O. 1990, C. H.8 for a purpose contemplated by the legislation and for another purpose may be lawful.[2] The appellant says Durham supports his argument that a dual purpose should be accepted under the "legitimate purpose" prong of the defence in s. 163.1(6).
30I reject this argument.
31As a preliminary matter, the trial judge found that while the appellant may have initially had a subjective, good faith reason for accessing and possessing child pornography, the appellant subsequently accessed and possessed child pornography for the purpose of satisfying his "fascination" and "morbid curiosity" with the material: at paras. 84-85. Assuming that the appellant initially had a legitimate purpose (i.e. a purpose related to art), he ceased to have one thereafter and continued to access and possess child pornography for a purpose that was not legitimate. On this finding of fact below, the appellant did not have a dual purpose; he had a singular, illegitimate purpose. The trial judge's factual findings are entitled to deference on appeal. Below, I conclude that there is no basis to interfere with that finding of fact. This is sufficient to dispose of the appellant's first argument.
32In any event, I do not agree that s. 163.1(6) provides a defence where an accused accesses and possesses child pornography for both a legitimate and an illegitimate purpose.
33First, I do not agree that the text of s. 163.1(6)(a) contemplates that the accused may have both a legitimate and illegitimate purpose. The indefinite article "a" is necessarily employed in s. 163.1(6)(a) because that subsection identifies several purposes for which a person may legitimately access and possess child pornography, provided that so doing does not pose an undue risk of harm to persons under the age of eighteen years. The definite article "the" could not have been employed in this context. The indefinite article "a" simply indicates that a person may invoke any one or more of the specified legitimate purposes. It does not signal that a person may invoke s. 163.1(6) where the person has another purpose, which is not legitimate.
34Further, Durham does not assist the appellant. In that case, the police learned that an "outlaw" motorcycle gang was planning a large function in a relatively remote area near a small community. The police established checkpoints and stopped anyone driving a Harley Davidson motorcycle or wearing the colours of the host, or one of the invited, gangs. The motorcycle gang members alleged that the stops at the checkpoints were unconstitutional.
35The trial judge found that highway safety concerns were one of the purposes for the stops, and the fact that there were other purposes for the stops in addition to highway traffic concerns did not render the stops unlawful.
36In considering whether the traffic stops were authorized by law, Doherty J.A., for the court, wrote, at pp. 236-238:
As long as the additional police purpose is not improper and does not entail an infringement on the liberty and security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the [Highway Traffic Act], I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stop and detention.
While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. [Emphasis added.]
37In this case, what the appellant characterizes as his "additional purpose" for accessing and possessing child pornography was not a legitimate purpose, and therefore, was an improper purpose.
38Second, the Supreme Court's framing of the legal test in respect of s. 163.1(6)(a) in Katigbak contemplates that an accused must have a singular, legitimate purpose in order to avail himself or herself of the s. 163.1(6) defence. On the subjective prong of the test, the court inquiries into whether the accused subjectively had "a genuine, good faith reason for possessing child pornography for one of the listed grounds" (emphasis added): Katigbak, at para. 58. On the objective prong of the test, the court asks whether "a reasonable person would conclude that (1) there is an objective connection between the accused's actions and his or her purpose; and (2) there is an objective relationship between his or her purpose and one of the protected activities" (emphasis added): Katigbak, at para. 60. Katigbak does not contemplate that an accused can have both a legitimate and illegitimate purpose, and come within the s. 163.1(6) defence.
39Third, and most importantly, the s. 163.1(6) defence cannot be read in a way that defeats Parliament's objective of criminalizing child pornography and protecting children from abuse. To interpret the statutory defence in s. 163.1(6) in the broad manner that the appellant advocates would go beyond protecting expressive freedom and would defeat Parliament's objective of criminalizing child pornography and protecting children from abuse: Katigbak, at para. 38. Accessing and possessing child pornography for the purpose of fulfilling a personal interest in the material is the very behaviour that Parliament has sought to criminalize.
40However, as discussed below, I accept that an accused may have a curiosity, fascination or other form of personal interest in child pornography, but ultimately access and possess child pornography for a legitimate purpose related to an enumerated ground in s. 163.1(6)(a). Whether an accused does so is a question of fact. Even then, a finding that the accused has a personal interest in child pornography will be an important consideration not only in assessing whether the accused subjectively had a genuine, good faith reason to access and possess the child pornography under the s. 163.1(6)(a) "legitimate purpose" prong of the defence, but also in determining whether the accused's actions pose an "undue risk of harm" under the s. 163.1(6)(b) prong of the defence.
41I now turn to the appellant's second argument.
2. There is no basis to interfere with the trial judge's conclusion that the appellant did not have a subjectively genuine, good faith reason related to art to access and possess the subject child pornography
42The trial judge concluded, beyond a reasonable doubt, that the appellant did not subjectively have a genuine, good faith reason related to art for accessing and possessing the child pornography at issue. The appellant attacks this conclusion, arguing the trial judge made multiple errors:
Section 163.1(6)(a) only requires that the appellant's purpose be related to art. It does not require that the impugned actions be necessary to create the art. Accordingly, in assessing the appellant's credibility, the trial judge erred in considering whether it was "necessary or even of assistance" for the appellant to view the child pornography in order to write Safe Haven.
The trial judge's finding that the appellant's belief that "pthc" meant "pathetic" was "unbelievable" is unreasonable. Since the appellant had admitted to downloading and viewing some of the materials in his police interview, he had nothing to gain from attempting to conceal his knowledge of what "pthc" actually stood for.
The fact that the appellant has a "fascination" with or "morbid curiosity" about child pornography does not mean that his purpose in accessing and possessing it was not related to art. The appellant's "fascination" or "morbid curiosity" could co-exist alongside his accessing and possession of child pornography for a purpose related to art.
In concluding that the appellant did not subjectively have a genuine, good faith reason to possess the video showing a child engaged in sexual acts with a dog, the trial judge misapprehended the evidence. In his statement to police, the appellant did not say that he was interested in bestiality involving children; rather, he admitted to a sexual interest in bestiality involving women. Further, there was no evidence that the appellant had viewed the video of the child engaged in sexual activity with a dog, or even was aware of its existence. And, in any event, the video did not depict bestiality. It depicted a young girl fellating a dog, whereas bestiality requires penetration and intercourse: see R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402.
The trial judge erred in holding that the appellant did not subjectively have a genuine, good faith reason for accessing or possessing the comic graphic images. Pornographic comic images are fully capable of representing the dynamics of abuse, and there was no basis for the trial judge's finding to the contrary.
43These arguments do not persuade me that there is any basis for this court to interfere with the trial judge's conclusion that the Crown had satisfied him beyond a reasonable doubt that the appellant did not have a subjective, genuine good faith purpose related to art in accessing and possessing the child pornography. I address each argument in turn.
44First, I agree that accessing or possessing child pornography need not be "necessary" to the accused's legitimate purpose related to the administration of justice, science, medicine or art, in order for the accused to come within the s. 163.1(6) defence. The term "related to" is a legislative expression of the broadest scope: see Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 39; CanadianOxy Chemicals v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 16; Canada (Information Commissioner) v. Royal Canadian Mounted Police Commissioner, 2003 SCC 8, [2003] 1 S.C.R. 66, at para. 25. The use of the term "related to" in s. 163.1(6)(a) evinces a legislative intent to capture conduct connected to the enumerated grounds in that subsection, but which may not be necessary to those enumerated grounds. Further, imposing a requirement that the accessing or possessing child pornography be "necessary" to the accused's stated purpose is particularly inapposite when it comes to art: it would be difficult to prove that any aspect of an artistic process is "necessary" to the end product. By including art as a protected ground under s. 163.1(6)(a), Parliament must be taken to have intended some artistic endeavors involving the accessing and possessing of child pornography to fall within the scope of the defence: Katigbak, at para. 70.
45However, in assessing the appellant's credibility, the trial judge did not require that the appellant's accessing or possessing the child pornography be necessary in order to write, or even of assistance in writing, Safe Haven for the appellant to invoke the defence in s. 163.1(6). In his interview with police, the appellant asserted a connection between accessing and possessing child pornography and his ability to write Safe Haven. He variously described his purpose as being:
[It's to] understand. It's to try to sympathize. It's to try to relate. It's not being used in the book. It's, it's to try to understand the power play that takes place.
You need to understand this is, this is my thought process and, if I'm wrong, a judge could smack me. I don't care. But you need to understand, to me what happens to the children, how that power place (sic), play takes place, how the manipulation happens to be able to write about. That's why. I'm an idiot. [Emphasis added.]
46With the appellant having explained his accessing and possessing child pornography as being part of his writing process for Safe Haven, the trial judge simply noted that the appellant had not explained why it was necessary or even of assistance to view the child pornography to be able to write about sexual abuse. The trial judge was entitled to consider the extent of the explanation provided by the appellant, among other factors, in evaluating the credibility of that explanation.
47Second, there is no basis to interfere with the trial judge's conclusion that the appellant's evidence that "pthc" meant "pathetic" was unbelievable. Considerable deference is owed to a trial judge's assessment of credibility. This court will defer to the trial judge's findings, absent palpable or overriding error or legal error in the trial judge's assessment of credibility: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. Luceno, 2015 ONCA 759, [2015] O.J. No. 5826, at para. 34; R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 17-19, 21.
48The trial judge explained that he found the appellant's statement unbelievable because the appellant had repeatedly used the term "pthc" – in combination with other suggestive search terms – to search for child pornography and because the appellant acknowledged a degree of sophistication in searching for child pornography incompatible with his statement that "pthc" meant "pathetic". This conclusion was available to the trial judge on the evidence before him.
49Third, I accept that an accused may have a "morbid curiosity" or "fascination" with child pornography, yet access and possess child pornography for a purpose related to art and successfully invoke the defence in s. 163.1(6). Whether the accused did so is a question of fact. However, a finding that an accused has such an interest will be an important consideration under both the s. 163.1(6)(a) "legitimate purpose" and s. 163.1(6)(b) "undue risk of harm" prongs of the defence.
50Under the s. 163.1(6)(a) "legitimate purpose" prong of the defence, the accused must have a subjective, genuine, good faith reason for accessing and/or possessing child pornography for a purpose related to one of the protected grounds: Katigbak, at para. 58. This is a question of fact. If an accused has a morbid curiosity or other form of personal interest in child pornography, the court might conclude that the accused ultimately did not have a genuine, good faith reason for accessing and/or possessing child pornography related to one of the protected grounds, and instead subjectively accessed and/or possessed the pornography for the purpose of furthering that personal interest.
51Under the s. 163.1(6)(b) "undue risk of harm" prong of the defence, the court must consider whether the accused's actions "pose an undue risk of harm to persons under the age of eighteen years." The question is whether the accused's actions pose an objectively ascertainable, significant risk of physical and/or psychological harm to children: Katigbak, at para. 67. Where an accused accesses and/or possesses child pornography for a legitimate purpose enumerated in s. 163.1(6)(a), but with a corresponding personal interest in the material, this may increase the risk of harm to children. In particular, accessing and/or possessing child pornography in this context risks reinforcing cognitive distortions in the viewer and possibly inciting future offending; contributing to the market for child pornography and the abuse of children in producing such pornography; and re-victimizing the subjects of the pornography by subjecting them to the sexualized gaze of the viewer: R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 86-92, 103.
52In this case, the trial judge was satisfied beyond a reasonable doubt that the appellant did not, from a subjective standpoint, have a genuine, good faith reason related to art for accessing and possessing the child pornography, for several reasons: the issues with the appellant's credibility; the limited corroboration of the appellant's stated purpose; and the appellant's stated fascination and morbid curiosity with the material. It was open to the trial judge to find that, even if the appellant may have had a subjectively genuine, good faith reason related to art for accessing and possessing child pornography at the outset, that reason was later supplanted and his continued accessing and possessing the child pornography was for the illegitimate purpose of satisfying his fascination and morbid curiosity with the material. I see no basis to interfere with this conclusion.
53The fourth and fifth alleged errors arise out of further findings made by the trial judge after he made a general finding that the Crown had established beyond a reasonable doubt that s. 163.1(6) had not been satisfied. I have concluded there is no basis to interfere with that finding. Accordingly, even if the trial judge made the errors alleged (and, as I explain below, in my view he did not), they would not alter the result on this appeal.
54As to the fourth alleged error, reading the appellant's statement as a whole, I am not persuaded that the trial judge misapprehended the appellant's evidence regarding his interest in bestiality.
55The first reference to bestiality in the appellant's statement is the following:
D/Cst. Mulholland: I mean when you're starting to access this stuff and the girls are starting to get to be a little bit older, is it start, starting to get to be enjoyable? I'm gonna guess, yes. Don't, don't shit me now.
[The appellant]: Um no that's – doesn't turn my crank to be honest with you. You wanna know what turns my crank. Bestiality. You'll find it on the damn thing. [Emphasis added.]
56Soon thereafter, a further exchange takes place:
D/Cst. Mulholland: Okay. So you're ah – I mean we're being honest man-to-man here. Your thing is more the bestiality thing?
[The appellant]: Yeah, like…
D/Cst. Mulholland: What? Dog and Women and that kinda…
[The appellant]: Yeah. Dog and women, yeah, yeah. [Emphasis added.]
57The "damn thing" in the first excerpted exchange was one of the appellant's computers, on which child pornography, including the video of the child engaging in sexual acts with a dog, was recovered.
58The discussion up to this point in the interview had focused on the child pornography found on the appellant's computers. The trial judge specifically referred to the appellant's evidence about "dogs and women" and carefully described the appellant's statement as demonstrating "a personal interest in and attraction to sexual interactions between females and dogs, which is the very kind of sexual content displayed in this video" (emphasis added): at para. 88. The appellant made his admission about bestiality before the interviewing officer, D/Cst. Mulholland, introduced the narrowing reference to "women". It was not unreasonable for the trial judge to infer that the appellant's interest in bestiality was broad and extended to "females" in the context of the discussion of bestiality in his statement.
59Further, a forensic analysis of the appellant's computers established that a file entitled "9 yr jenny suck little dog cock.mpg" had been stored in the "My Shared Folder" of a program on one of the computers used to access child pornography.[3] The evidence at trial was that in order for a file to be stored in the "My Shared Folder" location, it must be actively downloaded by the user, not simply viewed online through the program following a search. The file name would also have been visible to the user at the time of download.
60Based on the appellant's statement that depictions of bestiality could be found on his computers, the fact that the video of the child engaged in a sexual act with a dog was recovered from one of his computers, and the forensic evidence led at trial, it was reasonable for the trial judge to infer that the appellant was aware of the video. It was also reasonable for the trial judge to conclude that the appellant's subjective purpose in accessing and possessing the video was because of his personal interest in bestiality, not for a legitimate purpose related to art. The trial judge did not misapprehend the evidence in this regard.
61Similarly, I reject that there is any significance to the fact that the video of the child engaged in sexual acts with the dog did not include acts of penetration. The appellant is not legally trained. Lay definitions of bestiality are broader than the definition employed by the Supreme Court in D.L.W., upon which the appellant relies, in defining the essential elements of the offence bestiality under the Criminal Code.
62Fifth, comics are themselves a form of artistic expression, and often the domain of fantasy. In assessing the credibility of the appellant's stated purpose, it was not unreasonable for the trial judge to question how they would assist the appellant in his search for understanding of the real-life power dynamics and manipulation employed in the sexual abuse of children.
63Concluding, as I do, that there is no basis to interfere with the trial judge's finding that the appellant did not have a subjectively genuine, good faith reason related to art to possess and access the subject child pornography, it is unnecessary to address the appellant's argument that the trial judge erred in finding that that the appellant's action in possessing and viewing the child pornography cannot be objectively linked to his stated purpose.
Disposition
64I would dismiss the appeal.
Released: November 20, 2018
"Alexandra Hoy A.C.J.O."
"I agree. David Watt J.A."
"I agree. Edward Then J. (ad hoc)"
Footnotes
1The appellant narrowed his arguments at the oral hearing of the appeal.
2While leave to appeal to the Supreme Court was granted, the appellant ultimately discontinued the appeal.
3The forensic evidence could not directly establish that the video of the child engaged in sexual acts with a dog was the "9 yr jenny suck little dog cock.mpg" file. Nor could the forensic evidence establish that the appellant had viewed the video of the child engaged in sexual acts with a dog. But neither the offence of accessing child pornography, nor the offence of possession of child pornography, require the accused to actually view the subject pornography: R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448, at paras. 17-20; Criminal Code, s. 163.1(4.1)-(4.2).