CITATION: R. v. Cristoferi-Paolucci, 2017 ONSC 207

COURT FILE #: CR-15-50000587

DATE: 20170303

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jordan Cristoferi-Paolucci

Defendant

Michael Wilson, for the Crown

Peter V. De Julio, for the Defendant

HEARD: November 17, 18, 21, 22, 23, 24, 28, 29, and December 1, 2016.

Mcwatt j.

1Jordan Cristoferi-Paolucci (Mr. Paolucci) has been charged as follows pursuant to the Criminal Code:

1. Between January 1 and August 8, 2012, communicate by means of a computer system with M. B., a person under the age of 18, for the purpose of making child pornography pursuant to s.172.1 (Count 1);

2. Between January 1 and August 18, 2012, did make child pornography, contrary to section 163.1(2)(a): (Count 2);

3. Between August 9, 2012 and May 29, 2013, did by means of telecommunication, communicate with A. P., a person under the age of 18, for the purpose of making child pornography contrary to s. 172.1(2)(a): (Count 8);

4. Between August 9, 2012 and May 29, 2013, did transmit sexually explicit material to A. P., a person under 18, for the purpose of facilitating an offence under s.163.1(2): making child pornography contrary to s.172.1(2)(a): (Count 9);

5. Between January 1, 2012 and May 29, 2013, did make child pornography contrary to s. 163.1(2)(a): (Count 10);

6. Between August 9, 2012 and May 29, 2013, did possess child pornography, contrary to s.163.1(4)(a): (Count 13);

7. Between August 9, 2012 and May 29, 2013, did access child pornography contrary to s.163.1(4.1)(a): (Count 14);

8. On April 1, 2013, did by telecommunication, communicate with A. P., a person under 18, for the purpose of committing an offence under s. 153(1.1)(a), sexual exploitation contrary to s.172.1(2)(a): (Count 15);

9. On April 1, 2013, while being in a position of trust or authority towards A. P., a young person, did invite A. P. to touch directly with his hand, the penis of Jordan Cristoferi-Paolucci contrary to s.153(1.1)(a): (Count 16);

10. Between January 1, and August 8, 2012, did by means of a computer system, communicate with M. M., a person under the age of 18, for purposes of making child pornography contrary to s.172.1(2)(a): (Count 17);

11. Between August 9, 2012 and May 29, 2013, did by means of a telecommunication, communicate with M. M., a person under the age of 18, for the purpose of making child pornography contrary to s. 172.1(2)(a): (Count 18); and

12. Between October 1, 2012 and May 29, 2013, did attempt to make child pornography, contrary to s. 163.1(2)(a): (Count 19).

THE ISSUES

2Mr. Paolucci does not deny the conversations he had with the 3 complainants in which he asked them to send images of their penises. Most of the conversations, if not all of them, are captured in text or digital messages between him and each of the men. That is also the case for the evidence of 10 similar fact witnesses, who recounted similar exchanges with the accused, but who were over the age of 18 years when the conversations took place. He admits the actus reus of the offences.

3Child pornography is defined in section 163.1(1) of the Criminal Code as the following:

163.1 (1) In this section, child pornography means

(a) a photographic, film, video or other visual representation, whether or not it

was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Making child pornography

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

Distribution, etc. of child pornography

(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

Possession of child pornography

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Accessing child pornography

(4.1) Every person who accesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Interpretation

(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.

4The accused, while not denying the incidents which make up the various child pornography charges happened, denies he attempted to or had the three complainants take pictures of their genitals for a sexual purpose. He maintains that the activity the Crown alleges was criminal is not. It, instead, is joking and “locker room” talk and activity.

5In the alternative, he relies on the defence of “private use” of the images he received from two complainants and tried to obtain from the third.

6Mr. Paolucci also maintains that the Crown has not proven the charges related to M. B. because there is a reasonable doubt that Mr. B. was under 18 years of age at the time of the alleged offences.

7In counts 8 and 9, Mr. Paolucci denies that he was in a position of trust over A. P. and that he sexually exploited him. Mr. Paolucci’s position is that the text messages support the fact that Mr. P. consented to sending the pictures and videos to the defendant, knowing exactly what he was doing when he did it. Mr. P. expected money or other consideration for the images he sent.

8Mr. Paolucci denies procuring Mr. P. to have illicit sexual intercourse.

THE FACTS

9The incidents took place in 2012 and 2013. During that time, the accused was a coach for the Etobicoke Thunder Elite U-19 competitive basketball team. During the same time period, he ran the Etobicoke Basketball Association’s (EBA) summer basketball training program known as the “Bolt” program and regularly acted as a referee for games played in that program.

10The three complainants in this matter, M. B., A. P. and M. M., were all players who were either coached by the accused or participated in the Bolt program.

The Three Complainants

i) M. B.

11M. B. was 15 years old when he first met the accused. He became 18 years old on August 18, 2012. Between January and August 2012, Mr. B. played basketball on a team coached by Mr. Paolucci. Mr. B. was 17 years old at the time. Mr. B. saw the accused as a role model. The two would spend time together with Mr. Paolucci often taking Mr. B. out and buying him meals.

12Sometime between January and the fall of 2012, the accused began to engage the complainant in text message conversations in which he would challenge Mr. B. about the size of his penis. Mr. B. refuted the accused’s assertion that he had a small penis. Mr. Paolucci then suggested the matter be resolved by way of a bet that could be satisfied by Mr. B. sending a photograph of his penis under specific conditions. Mr. B. initially refused. The accused persisted in his request for a period of approximately 1-2 months until Mr. B. finally relented and sent a photograph of his penis in a text message to satisfy the bet, end the persistent requests from the accused and obtain the money Mr. Paolucci promised to give him for the photograph.

13The accused claimed that the initial photograph did not meet the necessary parameters of the bet and demanded that Mr. B. send another photograph of his penis. He did.

14A few months later, Mr. Paolucci suggested another bet, insisting that Mr. B. send him a photograph of his penis in a flaccid state. Mr. B. complied with this request, sending the photograph in a text message.

15In satisfaction of another bet with Mr. Paolucci, the complainant then sent a photograph of his naked body from the neck down.

16In all, Mr. Paolucci compensated the complainant with volunteer hours that he needed to graduate, extra Nike gear and $400-$500 for working at the Bolt summer camp for which he would not ordinarily have been paid.

17After the initial photographs were sent, Mr. Paolucci began questioning Mr. B. concerning how far he could ejaculate and suggested a bet which would require him to send a video of himself ejaculating. Mr. B. refused.

18Despite having repeated contact in person, Mr. Paolucci never discussed these bets with Mr. B. during voice calls or during any face to face conversations. All discussions concerning Mr. B.’s penis, the sending of photos and the sending of videos occurred through text messages.

ii) A. P.

19A. P. met Mr. Paolucci when he was 15 or 16 years old when he played on a basketball team coached by the accused. Mr. P. would speak regularly with the accused about his basketball future and his goal to play for Team Ontario.

20In 2012, when Mr. P. was 16 years old, Mr. Paolucci began to meet with him socially outside of basketball. The accused took Mr. P. out for meals or to the movies.

21Sometime in 2012, while the complainant was still 16 years of age, the accused began to engage him in text message conversations in which he would repeatedly berate Mr. P. by suggesting that the boy’s penis was small. Mr. P. refuted the claim. Mr. Paolucci then suggested that the matter be settled by way of a bet by Mr. P. sending a photograph of his penis. In exchange for sending the photograph to him, Mr. Paolucci offered Mr. P. money.

22Mr. P. complied and sent a photograph of his penis to the accused in a text message, but Mr. Paolucci refused to accept it, claiming that it was insufficient to satisfy the bet. The accused then requested an additional photograph on which he imposed a number of conditions. Mr. P. complied once again. Mr. Paolucci paid Mr. P. for providing the images.

23The accused’s requests for pictures of the complainant’s genitals continued over the months that followed resulting in Mr. P. providing approximately 12-13 different photographs of his penis in return for some form of compensation.

24After receiving the photographs, the accused then began to suggest a new series of bets in which he requested that Mr. P. send videos of himself engaging in various specific acts with his penis. Mr. P., who was 17 years old at the time, sent videos depicting himself engaged in the following acts:

1. 2 videos in which he placed a bag containing ice on his penis and testicles and held it there for a period of time;

2. A video showing his penis going from flaccid to erect;

3. A video of himself engaged in masturbation to the point of ejaculation; and

4. A video of himself masturbating to the point of ejaculation using an artificial vagina provided to him by the defendant.

25Mr. Paolucci compensated Mr. P. for sending these videos by giving him money, restaurant meals, clothing items, and a cellular telephone worth around $900.

26Mr. Paolucci’s suggestions then went to proposing they grab each other’s penises to see who got erect first and two offers to masturbate or “jerk off” Mr. P. in satisfaction of a bet. Mr. P. declined these offers.

27Despite meeting in person on numerous occasions or speaking on the phone, the accused never discussed the bets with Mr. P.. All discussions concerning Mr. P.’ penis, the sending of photos, the sending of videos and the offers to perform sexual acts were done through text messages.

28After becoming concerned with the accused’s escalating sexual behaviour, Mr. P. reported the matter to supervisory staff of the basketball program. They notified the police.

29Sometime before Mr. Paolucci was arrested, Mr. P. called him and told him that the authorities had been informed of his activities. Mr. Paolucci deleted the text conversations at some point either before or after this call. They were, however, recovered by computer forensics.

iii) M. M.

30In 2012, when M. M. was 16 years old, the accused began to communicate with him via the social messaging application “Twitter”. In the initial communications, Mr. Paolucci invited Mr. M. to attend his basketball practices. Mr. M. accepted the invitation. As the relationship developed, they discussed Mr. M.’s future in basketball and the accused told the complainant that he could help him obtain a basketball scholarship for university.

31Later in 2012, when Mr. M. was 17 years of age, the accused began to engage him in sexually explicit text message conversations in which he challenged Mr. M. about the size of his penis. The accused then began a repeated series of requests for Mr. M. to send him a picture of his penis to satisfy a bet that his penis was not small. In exchange for the picture, Mr. Paolucci offered him money and clothing items. The complainant refused.

32At a later point, when Mr. M. was still 17 years of age, the accused sent him a photograph of a penis.

33Despite having repeated personal contact, Mr. Paolucci never discussed the bets with Mr. M. in person or in the context of a phone conversation. All queries and challenges concerning Mr. M.’s penis size were made by the accused through text messages.

The Similar Fact and Police Evidence

34The following similar fact evidence was admitted in the trial.

i) S. P.

35Mr. Paolucci was S. P.’s basketball coach in 2009 or 2010. After that time, the two remained in contact with one another and would sometimes go out socially. In 2011, Mr. Paolucci began questioning Mr. P. about the size of his penis during text communications. The defendant asked Mr. P. to provide him with a photograph of his penis and offered him money in exchange for doing so.

ii) P. S.

36P. S. met the accused while playing basketball with the EBA at the age of 16 or 17. The accused was one of his coaches. Mr. S. also participated in the Bolt summer program. In addition to contact related to basketball, Mr. S. also communicated with the accused over Facebook. In January or February of 2011, the defendant began to “chirp” Mr. S. concerning the size of his penis, which led to him challenging Mr. S.to send a photo of his penis to prove that it was bigger than his. Mr. S. declined to send the photo and ended the conversation. The following day, the accused told Mr. S. that he had been joking. The accused never discussed anything of this nature with Mr. S.in person.

iii) M. (M.) M.

37M. M. M. met the accused in 2010 through the EBA. Subsequent to that season, Mr. M. (M.) kept in touch with the defendant using Facebook. Sometime in 2011 or 2012, during the course of a Facebook conversation, the defendant started a discussion with Mr. M. (M.) concerning the penis of their acquaintance. Mr. M. (M.) told the defendant that he was not interested in the topic and ended the conversation.

38Approximately 3 to 5 months later, during another Facebook conversation, the accused challenged Mr. M. (M.) concerning the size of his penis. Mr. M. (M.) found the topic awkward and ended the conversation.

39Soon after the second conversation, the accused raised the topic of Mr. M. (M.)’s penis again on Facebook. Mr. M. (M.) declined to participate in the conversation and ended his communication with the accused. The topic of Mr. M. (M.)’s penis, or the penis of anyone else, was never discussed by the accused in person or through a voice conversation with Mr. M. (M.).

iv) R. R.

40R. R. was a player for the accused’s U-19 team in 2011 and 2012. In the summer of one of those years, Mr. Paolucci began a text message conversation with him in which he commented on Mr. R. masturbating. He then began to suggest that Mr. R. had a small penis. Mr. R. deflected the conversation, but the defendant continued to challenge him about the size of his penis. Mr. R. responded by telling the accused that he was not comfortable with the conversation and then ended it. The two never discussed the issue of Mr. R.’s penis in person.

v) R. I.

41R. I. met the accused in the spring of 2010. In the fall of 2012, he played on a basketball team coached by the accused. The two would sometimes communicate with one another using text messages.

42In September 2012, Mr. Paolucci began to challenge Mr. I. concerning the size of his penis and suggested a bet where he would pay money to Mr. I. if he could prove his penis was a certain size. Mr. I. rejected the suggestion. The accused persisted over a period of a few weeks in raising the subject of Mr. I.’s penis. Following these repeated requests, Mr. I., in a text conversation with the accused, compared the requests to the incident that occurred at Pennsylvania State University involving Jerry Sanduski. This comparison angered Mr. Paolucci.

43The accused never commented about Mr. I.’s penis in person or during a telephone conversation.

vi) D. C.

44D. C. met the accused at the University of Toronto when he was 18 years old. The two occasionally played basketball together and would go out to bars. During a text message conversation in 2012, Mr. Paolucci challenged Mr. C. about the size of his penis and repeatedly insisted that Mr. C. prove that his penis was a certain length by sending him a photo it. In exchange for this photographic proof, the defendant offered to give Mr. C. money. Mr. C. sent a photograph he took from the internet, but the accused was not satisfied with it. Mr. C. then sent a photograph of his own penis with an Italian soccer jersey in the background to prove it was his genitals in the image – as suggested by the defendant.

45In a subsequent text message conversation, Mr. Paolucci again requested a photograph of Mr. C.’s penis. In exchange for the second photo, the accused promised that Mr. C. would receive fellatio from a girl the accused identified to him on Facebook. Mr. C. complied and sent another photograph of his penis to the defendant.

46Apart from the issue of compensation, Mr. C. and the defendant never discussed the photographs or the challenge made by Mr. Paolucci in person or during any voice conversation.

vii) A. K.

47A. K. met Mr. Paolucci when he was in grade 6 or 7. At the time, Mr. K. was a player in the EBA’s basketball league where Mr. Paolucci worked as a referee. Mr. K.s’ father also assisted the accused in becoming a coach. Mr. K. was also a participant in the Bolt summer program. Over the years, Mr. K. developed a friendship with the defendant.

48In August or September of 2012, in the course of a Facebook conversation, the defendant challenged Mr. K. concerning the size of his penis. He bet Mr. K. that his penis was not of a certain length and offered to give him money if it was a certain size. Mr. K. initially declined to participate in the bet. The accused then proceeded to raise the issue during Facebook conversations in the months that followed.

49In December 2012, as a result of the accused’s repeated demands and an offer to pay the sum of $250, Mr. K. sent a photograph of his penis to Mr. Paolucci. The photograph was taken with Mr. K.s’ erect penis pictured next to a water bottle as per the instructions of the accused. Upon receiving that photograph, Mr. Paolucci suggested that it was not satisfactory and convinced Mr. K. to send a second photograph with his penis pictured next to a ruler. Both photographs were sent on the same day using the Blackberry Messenger Service.

50In late December of 2012 or January of 2013, the accused met with Mr. K. and paid him the sum of $170 for the photographs, claiming that he was short of rent money and was unable to pay the entire $250 that had originally been promised.

51After providing Mr. K. with the money, the defendant raised the prospect of “double or nothing bets” with Mr. K. in relation to photos of his penis. Mr. K. did not send any more photos to Mr. Paolucci. Apart from the issue of the payment of the $170, Mr. K. and the accused never had face to face or telephone conversation concerning the subject of Mr. K.s’ penis.

viii) P. F.

52P. F. met the accused when he was approximately 14 years old. At that time, Mr. Paolucci was a house league basketball coach. When Mr. F. was in grade 11, the accused acted as an assistant coach for a team on which Mr. F. played. Subsequent to that, Mr. F. participated in the Bolt summer program. Through this interaction, the two developed a friendship and maintained contact with one another outside basketball.

53At some point in 2012, when Mr. F. was 18 or 19 years old, in the midst a text message conversation, the accused began to challenge Mr. F. concerning the size of his penis. Mr. Paolucci suggested to Mr. F. that they have a bet where he would give money to him in exchange for photographic proof that his penis was a certain length. Mr. F. initially rejected the suggestion. The accused then persisted with his text message requests and insults of Mr. F. over a period of hours. In response, Mr. F. provided the accused with a photograph of his penis next to a purple ruler. The accused expressed dissatisfaction with the photograph and insisted that Mr. F. provide additional photos.

54Mr. F. recalled the accused suggesting these bets on at least two occasions between October of 2012 and March of 2013. During subsequent text message conversations, the accused asked him for further photographs of his penis, including a photograph of his penis in a flaccid state.

55In March of 2013, the accused provided Mr. F. with $150.00 in return for at least one of the photos of his penis. The conversations between the accused and Mr. F. concerning Mr. F.’s penis always occurred in text message form and never in person or during a voice conversation.

ix) L. I.

56L. I. met the defendant between 2008 and 2010 when he was a participant in the Etobicoke Basketball League. Mr. Paolucci coached him for at least one season. After Mr. I. stopped playing basketball for the accused, he maintained contact with him through Facebook. In late 2012 or early 2013, in the midst of one of these conversations, the accused challenged Mr. I. concerning the size of his penis. The defendant proposed a bet that Mr. I.’s penis was not over a certain length and offered to pay him a sum of money if it was. In satisfaction of this bet, Mr. Paolucci suggested that Mr. I. send him a photograph of his penis. Mr. I. declined the offer from the accused, telling him that he did not need money and was not going to send a picture. The matter was never discussed between the parties again.

x) R. B.

57R. B. met the accused in 2009 or 2010 when he was in grade 11. At that time, the accused assisted in coaching Mr. B.’s high school basketball team. At Mr. Paolucci’s invitation, Mr. B. participated in the Bolt summer program. The two became friends and maintained contact after Mr. B. moved on to university.

58In 2013, in the midst of a text conversation over Facebook, the accused began to challenge Mr. B. concerning the size of his penis. Feeling that the conversation was odd and uncomfortable, Mr. B. stopped the communication. Mr. B. identified two such incidents with Mr. Paolucci.

59Mr. B. indicated that this topic was never raised in person or during a phone conversation with the defendant.

Detective Constable Joel Manherz

60Detective Constable Joel Manherz testified that he arrested Mr. Paolucci on May 29, 2013 at his home while police executed a search warrant. A Dell laptop, a black iPhone, two hard drives and a Blackberry cellphone were seized. On the laptop and one external hard drive, police found the photos and videos Mr. P., Mr. B. and some of the similar act witnesses sent to Mr. Paolucci. The images were shown to the witnesses and complainants along with a compendium of text messages exchanged between each of them and the accused for identification purposes.

61The images had been deleted, but recovered forensically. So too were the text communications between Mr. Paolucci and the complainants.

The Defence Evidence

Mr. Paolucci

62Mr. Paolucci testified. He is 27 years old. He has a B.A. in Political Science and Criminology and a Masters of Criminology from the University of Toronto. He went on to Ottawa University Law School, graduated with a law degree and recently completed an LLM there. He is single and testified that he is not homosexual, but has a girlfriend who lives in Ottawa.

63Mr. Paolucci stopped playing basketball in Grade 11 or 12. He became a referee and used his income to pay for his university education.

64He began coaching house league basketball for the EBA in second year university and, shortly after, at the “Rep” level. He became a member of the EBA Board. After he got into law school in Ottawa, he returned to Toronto every Friday to coach on the weekends and returned to Ottawa every Sunday night to take his classes during the week.

65Mr. Paolucci testified that because he was away from Toronto, most of his communication with the players was by text, Facebook or other electronic means.

66He testified he was 6 and a half or 7 years older than Mr. P.. He met the complainant in May 2011 or 2012 when the boy was 15 or 16 years old. He was 21 or 22 years old and still living in Toronto. Mr. Paolucci would see A. at practices and they would go for lunch afterwards – mostly with other players, but sometimes alone.

67They stayed in regular contact and then Mr. P. joined his U-19 team when the accused was in his first year of law school in Ottawa.

68The defendant testified that the players treated him as a coach on the basketball court and as a friend otherwise. They all swore, watched the same T.V. shows and joked with each other throughout their conversations and other communications. Any requests he made to the complainants for pictures of their penises or suggestions that Mr. P. masturbate and they grab each other’s penis or perform fellatio were “high end” jokes to create shock value. Mr. Paolucci maintained that he got no sexual titillation from the photos or videos he received and, after looking at them, deleted them. He did not show them to anyone else.

69Mr. Paolucci admitted giving A. P. a “fleshlight” or artificial vagina that was disguised as a beer can, with which Mr. P. masturbated and then sent a video of the act to him. In cross-examination, the accused maintained that Mr. P. wanted the device and so he bought one for him as a joke.

70Mr. Paolucci confirmed that he knew A. P. was 16 or 17 years old and M. M. was also under 18 years old when he began talking to them about their penises and received the photos/videos he did from Mr. P.. The defendant testified he also knew M. B. was 17 going on 18 years old when he was communicating with him about his penis. He did not ask any of the complainants how old they were before asking for the images.

71The complainants all testified that it was Mr. Paolucci who raised the “penis talk” and bets. He testified that he could not recall if he raised the issue, but believed “the conversations were mutual”. He agreed later in cross-examination, however, that he could have raised the issue with each of them. He also accepted the Crown’s suggestion that it was he who set the parameters for the way the photos and videos were taken. He testified that he asked the images for shock value not believing the boys would actually send them. Mr. Paolucci testified that the images he got were made by the complainants on consent, but that the whole thing “did get a bit out of hand.”

72About the similar fact witnesses, the defendant testified that he never saw them in person because he was outside Toronto so any conversations he had were by text. He saw Mr. P. and Mr. B., but did not have conversations with them in person or on the phone about their penises - except in the form of “little quips”.

73Mr. Paolucci vehemently maintained that paying any of the complainants or any of the witnesses for their photos was not a “business transaction” or “straight deal” as the Crown suggested. They were, instead, “social challenges” and “these guys were into this because it was a social challenge”. He claimed he did not buy A. P. a $980 iPhone, but instead gave him a used phone and some cash.

74Mr. Paolucci testified that he was never interested in sexually explicit material. It was not his goal. He was living a busy life at school and travelling to Toronto every weekend and did not stop to think about the sexuality of the material he was asking the complainants to produce. He agreed his activity was childish and immature, but insisted that it was part of a locker room sport culture and was all consensual.

75In fact, Mr. Paolucci testified, it was Mr. P. and Mr. B. who wanted to send images at one point because they had spoken to each other about what was happening and were very much engaged in the challenge.

76About challenging Mr. P. to a bet to grab each other’s penises to see who would become erect first and offers to “jerk him off”, Mr. Paolucci maintained that he was just kidding.

77The defendant denied he had any power over the complainants and whether they played in any given game. He was referred by the Crown to a text with A. P., in which he told the boy that he would give him a “start” in a particular game during a text conversation with him asking Mr. P. for a video of his penis.

78Along the same line, the defendant denied he used his authority as a coach with Mr. B. when he asked him for a picture of his penis right after Mr. B. confided to him that he had been charged with robbery, was afraid he would be kicked off the team by the defendant and needed help from him to get a job.

79Mr. Paolucci denied that he deleted text conversations with A. P., M. B., M. M., P. F. and R. I. from his iPhone, but not other conversations he had with his parents and brothers because he had been warned the police had been contacted by Mr. P.. He maintained that he deleted material because his phone’s capacity was full. He acknowledged that he did not know the police could recover deleted conversations from the phone.

THE LAW

80The Supreme Court of Canada, in R. v. Sharpe, 2001 SCC 2, [2001] S.C.J. No. 3, upheld the constitutionality of s. 163.1(4) of the Criminal Code and set out the scope of the definition of child pornography and the defences available for such charges. At paragraph 122, McLachlin C.J. stated the purpose of the legislation as “to protect children from exploitation and abuse by prohibiting possession of material that presents a reasoned risk of harm to children.”

81In summarizing her conclusions, the Chief Justice wrote the following at paragraphs 128 to 129 of the judgment:

1. The offence prohibits the possession of photographs, film, videos and other visual representations that show or depict a person under the age of 18 engaged in explicit sexual activity. Visual representations of any activity that falls short of this threshold are not caught. Thus, representations of casual intimacy, such as depictions of kissing or hugging, are not covered by the offence.

2. The offence prohibits the possession of visual representations that feature, as a dominant characteristic, the depiction of a sexual organ or the anal region of a person under the age of 18 for a sexual purpose. Innocent photographs of a baby in the bath and other representations of non-sexual nudity are not covered by the offence.

3. The offence prohibits the possession of written or visual material that actively induces or encourages unlawful sexual activity with persons under the age of 18. Written description that falls short of this threshold is not covered by the offence.

4. Courts should take an objective approach to determining whether material falls within the definition of child pornography. The question is whether a reasonable person would conclude, for example, that the impugned material portrays “explicit” sexual activity, or that the material “advocates or counsels” sexual offences with persons under 18. Courts should also take an objective approach in determining the availability of any statutory defence.

5. The various statutory defences (i.e., artistic merit; educational, scientific or medical purpose; and public good) must be interpreted liberally to protect freedom of expression, as well as possession for socially redeeming purposes.

6. The guarantees provided in ss. 2(b) and 7 of the Charter require the recognition of two exceptions to s. 163.1(4), where the prohibition’s intrusion into free expression and privacy is most pronounced and its benefits most attenuated:

(a) The first exception protects the possession of expressive material created through the efforts of a single person and held by that person alone, exclusively for his or her own personal use. This exception protects deeply private expression, such as personal journals and drawings, intended solely for the eyes of their creator.

(b) The second exception protects a person’s possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted.

7. These two exceptions apply equally to the offence of “making” child pornography under s. 163.1(2).

8. Neither exception affords protection to a person harbouring any other intention than private possession; any intention to distribute, publish, print, share or in any other way disseminate these materials will subject a person to the full force of s. 163.1.

129 I would uphold s. 163.1(4) on the basis that the definition of “child pornography” in s. 163.1 should be read as though it contained an exception for: (1) any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and (2) any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use. The constitutional questions should be answered accordingly.

ANALYSIS

i) M. B. (Counts 1and 2)

82Mr. B. became 18 years old on […], 2012. He testified that he recalled specifically that he sent the photos of his penis and his nude body to Mr. Paolucci when he was 17 years old because it occurred before he tore ligaments in his leg and, as a result, could not play basketball for 8 to 9 months. That occurred in grade 12 in 2012.

83The Crown did not file any text conversations which occurred between the accused and the complainant before March 31, 2013. There is evidence on April 1, 2, and 8, 2013 about the bet Mr. Paolucci proposed to Mr. B. about the size of his penis and the terms of the bet that resulted in Mr. B.’s sending the various images in question. Mr. B. was 18 years old by that time.

84Mr. Paolucci testified that the first time Mr. B. sent him a photograph was in October, 2012 after a series of Facebook texts. The continuation of that conversation and his receipt of more photos was March 31 to April 8, 2013. Mr. B. was 18 years old throughout.

85Exhibit number 9, the Facebook texts, appears to support Mr. Paolucci’s testimony that the first receipt of the photos of Mr. B.’s penis was in October, 2012 and not before August 8, 2012.

86As a result, the Crown has failed to prove Counts 1 and 2 on the indictment. There shall be acquittals entered on those counts.

ii) A. P. (Counts 8, 9, 10, 13 to 16)

87It is clear on the evidence before me that A. P. was 16 or 17 years old (born […], 1996) during the relevant time period in Counts 8, 9, 10, 13 to16. The definitional component of the complainant’s age as under 18 years in ss. 163.1(1)(a)(i) and (ii) has been established by the Crown and the defence does not challenge this fact.

Were the Photos and Videos For a Sexual Purpose?

88The defence argues, however, that the images in the photos and the videos Mr. P. sent to the accused do not qualify as child pornography pursuant to s. 163.1(1)(a)(ii) of the Code – essentially because they were not “for a sexual purpose”.

89Mr. Paolucci testified that he is not gay. Therefore, he was not interested in the photos and videos for his or “a sexual purpose”. Instead, asking Mr. P. and the other men for pictures of their penises was a joke and meant for shock value and for his own entertainment. He maintained that the requests were outrageous and he wanted to see if the men would comply.

90Mr. Paolucci testified that he did not to turn his mind to the inappropriateness of the material he was asking for in spite of the fact that he was called a pedophile in one of the texts sent to him by Mr. P. in the spring of 2013. The defendant laughed off the suggestion and countered it by telling Mr. P., “then why did you send it, idiot”. In an earlier encounter in September 2012, with R. I., the witness had compared the accused’s asking for a picture of his penis with Jerry Sanduski’s behaviour in the “Penn State sex scandal”. This appeared to anger the defendant, but he did not stop his requests. He continued in the same activity with the other witnesses. He was refused by some and sent photos by others. One would expect that with the objections made by some of the complainants and witnesses, the accused would have questioned the appropriateness of his activity. His evidence, that he did not, lacks credibility.

91In addition, his position that he asked for the images from Mr. P. and the 10 witnesses for shock value, not believing that they would send them, is not believable in the context of all the evidence in the trial as it relates to the counts involving Mr. P.. The fact that he never communicated personally or in groups about the bets and he did not stop after obtaining a first image, but continued to press for more, is not consistent with his claim that this was all just a joke. I find, instead, it was a campaign to acquire photos and videos of young men’s genitals and certain sexual acts. He was successful with Mr. P..

92In any event, the legal definition in s. 163.1(1)(a)(ii), of what “child pornography” is, does not depend on Mr. Paolucci’s intended use for the material he got from Mr. P.. At paragraph 50 to 51 of Sharpe, the court set out the test to be applied in deciding whether the images and videos were, in fact, child pornography.

4. “Dominant Characteristic” and “Sexual Purpose”

50 The objective approach should also be applied to the term “dominant characteristic” in s. 163.1(1)(a)(ii), which targets possession of visual material whose “dominant characteristic” is “the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years”. The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region. The same applies to the phrase “for a sexual purpose”, which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers.

51 Family photos of naked children, viewed objectively, generally do not have as their “dominant characteristic” the depiction of a sexual organ or anal region “for a sexual purpose”. Placing a photo in an album of sexual photos and adding a sexual caption could change its meaning such that its dominant characteristic or purpose becomes unmistakably sexual in the view of a reasonable objective observer: see R. v. Hurtubise, [1997] B.C.J. # 40 (QL) (S.C.), at paras. 16-17. Absent evidence indicating a dominant prurient purpose, a photo of a child in the bath will not be caught. To secure a conviction the Crown must prove beyond a reasonable doubt that the “dominant characteristic” of the picture is a depiction of the sexual organ or anal region “for a sexual purpose”. If there is a reasonable doubt, the accused must be acquitted.

93There is no doubt, in this case, that all the photos and videos from Mr. P. fall within the definition of “child pornography”. The materials were visual – photos and videos. The “dominant characteristic” of them was the depiction of Mr. P.’ penis for a sexual purpose. The photos included (as set out in Exhibit 3):

1, # 16, # 25 – his erect penis;

2 – his squeezed testicles;

3 – both testicles;

4 and # 5 – his erect penis while he sat;

6 and # 7 – his naked body from neck down in a shower with an erection;

8 - his flaccid penis and testicles;

9, # 11, # 17, # 19 and # 20 – his erect penis beside a yellow ruler;

10 – the tip of his penis in front of a towel;

12 – a close-up photo of the top/tip of his flaccid penis;

13 – his penis with his pants pulled partially down as he lay on his bed;

14 and 18 – his flaccid penis;

15 – Mr. P.’ nude body with his pants pulled down;

24 – Mr. P.’ penis inside a rubber vagina.

94Any reasonable viewer, looking at these photographs objectively and in context would see their dominant characteristic as the depiction of Mr. P.’ penis.

95Mr. Paolucci denies the images he asked for from A. P. were intended to cause sexual stimulation in him, but they can be reasonably perceived as intended to cause sexual stimulation to some viewers.

96I find that Mr. Paolucci’s insistence that the images were not for a sexual purpose lacks credibility. In Exhibit # 7, page 6, he asked Mr. B. for pictures of his penis and sent him a photograph of a kneeling female with her pants down around her knees and exposing her vagina. The picture was sent by the accused to convince Mr. B. to send photographs of his penis. The female’ photograph is clearly sexual. I believe that Mr. Paolucci saw the photograph as sexual. The fact that he sent that picture is evidence that makes his denial of his sexual purpose unbelievable.

97If the context in which the photographs Mr. P. sent to the accused is taken into consideration, they satisfy the definition of child pornography. The videos Mr. Paolucci demanded from the complainant were a further step up in sexual content from the photographs and can hardly be said to be anything but child pornography and, objectively, for a sexual purpose. The videos included 2 with Mr. P. placing bags of ice on his penis and testicles for a period of time; a video showing Mr. P.’ penis going from flaccid to erect; a video of Mr. P. engaged in masturbation to the point of ejaculation (even though he used a squirt bottle to simulate the ejaculation); and a video of Mr. P. masturbating himself to ejaculation using the artificial vagina provided by the accused. The videos of masturbation are explicit sexual activity and are child pornography.

98All the materials, in context and viewed objectively, were child pornography.

99Mr. P. was a reliable witness. He was asked about the conversations he had with Mr. Paolucci that led up to his sending the photos and videos before he was taken through the actual texts which lay out how the offences took place. He and the text evidence confirmed that it was Mr. Paolucci who initiated the bets and the sending of the pornographic images. He candidly admitted that he did it for the money, meals, movies, the iPhone and other items he received from Mr. Paolucci.

Was Mr. Paolucci in a Position of Trust/Authority Over Mr. P. and Does The Defence of “Private Use” Apply?

Position of Trust

100Mr. Paolucci acknowledged that he had two relationships with Mr. P.. He was his coach on the basketball court and his friend off the court. He agreed that he had a relationship with Mr. P.’ father.

101Mr. P. testified that he met the defendant when he was 16 years old. Mr. Paolucci talked to him about basketball and the complainant’s future in it. The accused would take him to Wendy’s and McDonald’s and they would discuss Mr. P.’ desire to play for Team Ontario – made up of the top 12 players in the province. Mr. Paolucci told Mr. P. he knew the coach of Team Ontario well and was on the OBA board for basketball. The defendant offered to put him on his U-17 team so he could watch over him and personally train him in order for him to achieve his goal to play for the province, for Team Canada and at university level.

102After the U-17 season wrapped up, the defendant and Mr. P. continued to communicate in person and by texts. Mr. Paolucci made plans for Mr. P. to play on his U-19 team – 2 years up from his age group. He would have started on the team in September, 2013. Mr. Paolucci was arrested, however, on May 29 that year. It was in the lead up to the U-19 season that Mr. P. made and sent the photos and videos that are at the heart of the charges.

103Mr. P. looked at the accused as his mentor, a coach with connections that could enhance his future in basketball – and as someone who would reward him financially and in other ways if he gave him images of his penis. Mr. Paolucci would drive the complainant to and from games and practices. He would show interest in him and his development and invited Mr. P. to visit him in Ottawa when he moved there for law school. Mr. Paolucci was in grade 10. Mr. Paolucci was in university.

104In R. v. Audet 1996 CanLII 198 (SCC), [1996] S.C.J. No. 61, the Supreme Court of Canada dealt with the issue of a complainants’ consent to sexual activity with a teacher when the accused teacher was in a position of trust or authority over her. Mr. Paolucci contends, and Mr. P. agrees, that the photos and videos were created and sent consensually by Mr. P.. In Audet, the court found, in similar circumstances to this case, that consent is vitiated where the accused was acting from a position of trust or authority over the complainant. A finding that an accused was in such a position turns on the facts of each case. It is clear on the facts before me that Mr. Paolucci had such a position of authority over Mr. P.. The circumstances of their relationship and the evidence in the text conversations support the finding.

105Exhibit # 1, dated March 8 to May 3, 2013 – three weeks before Mr. Paolucci was arrested and 4 months before Mr. P. was to start on the accused U-19 team, the two engaged in the following summarized texts which demonstrate the authority Mr. Paolucci exercised over the complainant and the nature of the exploitation that took place in the relationship:

1. In Ex. 1A, Mr. Paolucci refers to having spoken to the complainants’ dad about Mr. P. leaving early from basketball event.

2. In Ex. 1B, Mr. Paolucci tells the complainant he is upset with his behaviour at a hotel during a tournament and that he is “now definitely not playing tomorrow” and that it is a “tough start” for Mr. P.. Mr. Paolucci is exercising clear authority as a coach in the communication.

3. In Ex. 1C, Mr. Paolucci appears to be dangling future university playing time over Mr. P.’ head. The accused explains that he is doing things for the good of the team and not for his own interests. He tells Mr. P. that he is the youngest on the team and may not get playing time if he keeps “kissing it away” and it will be a long season for the complainant. Mr. Paolucci also identifies a specific university that the complainant should aim to attend. Mr. P. responds on a couple of text lines with “okay” or “yes, coach”.

4. In Ex. 1E, the accused dressed the complainant down in the most glaring example of the position of authority he had over him. Mr. Paolucci, after reviewing a game tape in which Mr. P. had committed some game foul, berates the young man about how he embarrassed him in front of parents and referees because of his actions. The defendant accuses the boy of not caring for the team or him, calls him immature and easily influenced and encourages him not to spend time with M. B.. Mr. P. responds by telling Mr. Paolucci that he had to earn his trust back. The accused reaffirms their close relationship and how that could get Mr. P. more “starts” in games and possibly playing for Team Ontario and a university scholarship. After that, the accused begins a conversation about the size of the complainants’ penis.

5. At Ex. 1J, Mr. Paolucci does not allow Mr. P. to go to a basketball tournament in Washington, D.C. and promises the boy that he will get a “start” in today’s game. The text conversation transitions into the accused’s asking for photos and videos of the complainants’ penis.

6. In Ex. 1AA, the accused and complainant speak about Mr. P.’ upset that M. B. is also involved in the penis size bets and is being compensated for providing photos to Mr. Paolucci. The defendant reminds Mr. P. that he has been compensated with an iPhone.

7. At Exhibit 1BB, after chastising the complainant for smoking “weed” with Mr. B., the accused begins text talk of Mr. P.’ penis and the bets about its length;

8. At Ex. 1CC, the accused refers to the complainant getting a “free phone” from him and then takes issue with Mr. P. spending time with Mr. B. in practices. Mr. Paolucci criticises Mr. P. and calls him a “tool”. He then threatens that the complainant will “see what’s going to happen” if he spends more time with M. B.. The climax of this text comes when Mr. P. threatens the accused about the images and videos he has been requesting.

The “Private Use” Defence

106In R. v. Barabash [2015] S.C.J. No. 29, the Supreme Court of Canada dealt with the private use exception outlined in Sharpe as a defence to the offence of making or possessing child pornography contrary to s. 163.1 of the Code. The exception requires a determination that the sexual activity depicted in the images is lawful, that the sexual activity is consensual and the recordings of it are held exclusively for private use.

107In this case, the Crown does not challenge the fact that Mr. P. consented to the taking and sending of the photos and images or that Mr. Paolucci held and viewed them exclusively for his private use. The Crown maintains, and I agree, that the activity Mr. P. engaged in was unlawful. He was a child. Any consent he gave to the activity was vitiated by the defendant’s relationship as a person in authority over him.

108The relationship was exploitative as set out in s.153 of the Code. Mr. P. was 16 or 17 years old. The accused was about 6 ½ years older. The relationship evolved as part of Mr. P.’ wanting to play basketball at an extremely high level. He counted on Mr. Paolucci as a coach, a mentor and someone with connections in the basketball world who could help him achieve his goals. Mr. Paolucci had the ability to limit or expand Mr. P.’ court time. He knew the complainant’s father and had an influence on Mr. P. regarding who he should associate with, how hard he should work in school to get to the university level of play and how he should behave in general.

109The relationship was exploitative, but what made it even more so was the fact Mr. P. got money and property from the accused to do what he did. That fact, I find, made him all the more vulnerable. At one point in his testimony, the complainant candidly admitted that Mr. Paolucci “had what he wanted and he had what Mr. Paolucci wanted”. This was an additional financial dependency on the accused.

110The private use exception does not apply in this case because the Crown has proven beyond a reasonable doubt that the sexual conduct – even with the complainants consent – was unlawful.

Counts 8, 9, 10, 13, 14, 15,16

111The defendant is guilty of Count 8. He communicated with A. P. by way of his cellphone. The complainant was under the age of 18 years. The accused communicated with the complainant in order to have Mr. P. make child pornography.

112In Count 9, the complainant testified that Mr. Paolucci sent him pictures he claimed were of his own penis. Mr. P. did not save any of them. He also sent Mr. P. photos of what the accused claimed were his testicles, which he boasted were “golf balls”. But, in sending the photos, the accused did not ask for anything in return. As a result, although I believe Mr. P., there is not enough evidence to prove that Mr. Paolucci sent the images for the purpose of facilitating the commission of an offence pursuant to s. 171.1(2)(a) of the Code –the transmission of child pornography. The accused is found not guilty of Count 9.

113Mr. Paolucci is guilty as a party in directing Mr. P. to make child pornography as alleged in Count 10. It is clear that he possessed the child pornography and is guilty of Count 13. The accused accessed the images and is guilty of Count 14.

114Mr. Paolucci is charged, in Count 15 on the indictment, with communicating with Mr. P. to facilitate sexually exploiting him. In Exhibit 1Y, the accused poses a multi stage bet. The first is for Mr. P. to go from a soft to hard penis in one minute. The next stage involved Mr. P. being allowed to use the defendant’s car if the accused “jerked” the complainant off. The bet also involved the two grabbing each other’s penises and the “first one to get hard” was gay. The accused proposed that the first one to “bust”, or to ejaculate, would lose the bet. The complainant refused. The accused testified that this text was part of his joking. Mr. P. also agreed the two were joking. Even though I do not believe Mr. Paolucci was joking, all of the other evidence related to this count leaves me with a reasonable doubt about his guilt of it. He is not guilty of Count 15.

115In Count 16, Mr. Paolucci is accused of inviting Mr. P. to touch his penis. The texts set out that Mr. Paolucci discussed grabbing Mr. P.’ penis while Mr. P. grabbed his. The complainant testified, and I accept that, on 3 occasions, the two did grab each other’s’ penises as part of a “game”. The event arose while Mr. P. was in the accused’s car in a parking lot. Mr. P. asked the accused to buy him some food. Mr. Paolucci suggested they play the game. The accused was in the driver’s seat and Mr. P. was in the passenger’s seat. The game involved grabbing each other’s “balls” and holding them for 3 seconds. Nothing would happen if Mr. P. lost the bet. The accused testified that he was joking about the game – “at the high end”.

116Mr. Paolucci was in a position of trust over A. P.. The complainant was young person. I have already stated that I do not believe Mr. Paolucci’s evidence that the game he proposed was meant as a joke. I have already found the complainant to be a credible witness. The accused invited Mr. P. to grab his penis for a promise of food. I find that this offence was the accused participating in a calculated and escalating pattern of behaviour and, on all of the evidence, I am convinced beyond a reasonable doubt that Mr. Paolucci is guilty of Count 16.

iii) M. M. (Counts 17, 18, 19)

117The complainant testified that Mr. Paolucci initiated 3 or 4 text conversations with him about his penis size after they had first talked about basketball. Even after the complainant initially called the conversations “gay”, Mr. Paolucci brought the topic up again the next day. The first time, the accused promised the complainant Nike gear from his team if the complainant sent him a picture and his penis turned out to be bigger than the defendants’. At one point after not getting a picture, Mr. Paolucci asked the complainant, “Have you thought about it – the Nike gear?” Mr. Paolucci would also talk about his girlfriend and finally sent the complainant a picture of a male on a toilet with his erect penis between spread legs, asking Mr. M. if his penis was bigger than the one in the photo. The complainant deleted the photograph.

118Mr. Paolucci did not deny the text conversations or sending the complainant the picture. He maintained that it was all a joke and Mr. M. was “in on it”.

119In Count 17, although there is evidence the accused and the complainant used Twitter to communicate, there is no evidence a computer facilitated the conversations. The Criminal Code was amended on August 9, 2012 to include the use of cellphones in the definition of “by use of a computer system”. This charge, however, requires proof that the two communicated by a computer system, which definition does not include a cell phone. There is insufficient evidence for me to find that the Crown has proven the charge beyond a reasonable doubt. There shall be an acquittal entered.

120Count 18 covers a time frame of August 9, 2012 to May 29, 2013, in which the Crown alleges the same offence as alleged in Count 17 – communicating with the complainant for the purpose of making child pornography. The accused and the complainant communicated by way of cell phones, which is an included method in the term “by means of telecommunication”. Mr. M. was born on […], 1996 and was 16 or 17 at the time of the conversations. It is not necessary for the charge to be proved that child pornography is produced. That the complainant refused Mr. Paolucci’s requests to make and send the image does not matter. For the reasons previously set out related to Mr. P., I find that the image the accused asked for would constitute child pornography. They are exactly the same as those requested of the similar fact witnesses, but these were pictures of the erect penis of a child. The defence of private use does not apply. Mr. Paolucci and Mr. M. were not friends. The accused was only ever a basketball coach to the complainant. There was also no consent by Mr. M. to send an image. All the essential elements of the offence have been proved beyond a reasonable doubt. Mr. Paolucci intentionally communicated with Mr. M. for the prohibited purpose of making child pornography. He is guilty of Count 18.

121Count 19 alleges that Mr. Paolucci attempted to make child pornography. He had the intent to communicate with Mr. M. for the purpose of making child pornography. He did the same things with the complainant as he did with the similar fact witnesses, some of whom sent images of their penises. He was persistent, challenging Mr. M. several times on the size of his penis. He offered him Nike gear to send a photograph. He sent him an image of an erect penis in order to goad him into sending a picture of his own. I find that, pursuant to s. 24(1) of the Code, he did those things for the purpose of carrying out his intention to make child pornography. He is, therefore, guilty of Count 19.

DISPOSTIONS

122Mr. Paolucci is not guilty of Counts 1, 2, 9, 15 and 17. He is guilty of Counts 8, 10, 13, 14, 16, 18, 19.

McWatt, J.

Released: March 03, 2017

CITATION: R. v. Cristoferi-Paolucci, 2017 ONSC 207

COURT FILE #: CR-15-50000587

DATE: 20170303

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Jordan Cristoferi-Paolucci

REASONS FOR JUDGMENT

McWatt J.