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

86 O.R. (3d) 721

Court of Appeal for Ontario,

Doherty, Feldman and MacPherson JJ.A.

September 13, 2007

Criminal law -- Pornography -- Private use -- Accused and his 14-year-old girlfriend videotaping their sexual activity -- Trial judge acquitting accused of child pornography charges after finding that "private use" exception was available to him -- Trial judge failing to explicitly reject complainant's allegation that accused threatened to show videotapes to others if she did not obey his rules -- Issue being central to case as threats would render "personal use" exception unavailable -- New trial being ordered -- Trial judge not erring in holding that giving up exclusive possession of material does not necessarily render "personal use" exception unavailable.

The 28-year-old accused had a sexual relationship with a 14- year-old girl. They decided to videotape some of their sexual activity. When the relationship ended, the accused gave the videotapes to a friend for "safekeeping". The complainant claimed that the accused threatened to get someone to slice her breasts and face if she did not obey his rules. She also claimed that after they broke up, the accused told her that if she did not follow his rules, he would show the videos to her family and friends or put them on a website. The accused was charged with five offences: uttering a threat, criminal harassment, and making, possessing and distributing child pornography. He was acquitted on all charges. The trial judge found that the complainant consented to the sexual activity that was filmed, and that the accused's creation and possession of the videotapes fell within the "private use" exception to the pornography charges. The Crown appealed the acquittals on two of the charges: possession and distribution of child pornography.

Held, the appeal should be allowed.

The trial judge rejected the complainant's claim that the accused had threatened to have a third person slash her. However, she did not explicitly reject the complainant's claim that the accused had threatened to show the videos to others. The physical threats and the threats to show the videotapes to others were not so clearly linked that it could be presumed that the trial judge's explicit rejection of the complainant's testimony concerning the physical threats could be extended into the rejection of her testimony about the threats to show the videos to others. There was a significant difference in the nature of the two categories of alleged threats. While she rejected the complainant's testimony relating to the alleged physical threats, the trial judge found much of the complainant's testimony to be credible. Whether the threats about showing the videotapes to others was actually made was, factually, at the heart of the case and had to be considered along with all of the evidence of the accused's actions in order to determine whether the "private use" exception applied. If the threats were, in fact, made, they rendered the "private use" exception unavailable. The trial judge should have resolved that issue, and did not do so. A new trial was necessary.

The trial judge did not err in rejecting a "bright line" definition of the "private use" exception. Although the exception should be applied with genuine caution, it goes too far to equate it in an absolute fashion with exclusive possession. It is a factual question whether giving up exclusive possession results in a loss of strict privacy. Questions such as to whom was the material given, what was the purpose or reason for the transfer, what terms or conditions were agreed upon when [page722] the material was given up, what control did the accused maintain over the material, was the material in fact viewed by anyone other than the consensual participants, would be relevant, all in the context of the credibility of the accused and others.

APPEAL by the Crown from the acquittal on charges of possession and distribution of child pornography by Leitch J. of the Superior Court of Justice, dated February 22, 2006.

Cases referred to R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 88 B.C.L.R. (3d) 1, 194 D.L.R. (4th) 1, [2001] 6 W.W.R. 1, 86 C.R.R. (2d) 1, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, [2001] SCC 2, consd Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 163.1, 264(3) [as am.], 264.1(2) [as am.]

Jennifer Woollcombe, for appellant. Craig McLean, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] The respondent, Dobieslaw Dabrowski, was charged with committing five criminal offences -- uttering a threat by telephone contrary to s. 264.1(2) of the Criminal Code, R.S.C. 1985, c. C-46; criminal harassment (s. 264(3)); and making, possessing and distributing child pornography, in the form of a videotape (ss. 163.1(2), (4) and (3)). All of the charges related to a relationship the respondent had with a young schoolgirl.

[2] Following a one-week trial in which the respondent and the complainant both testified, the trial judge, Leitch J., acquitted the respondent on all charges. The Crown appeals the acquittals on only two of the charges -- possession and distribution of child pornography.

B. Facts

(1) The parties and events

[3] The respondent had a four- or five-month relationship with a schoolgirl in 2004. She was 14 years old at the time. The respondent was 28, although he lied to his young partner, saying he was 19.

[4] The relationship quickly became sexual. The partners decided to videotape some of the sexual activity. Sometimes they [page723] were alone when the filming took place; on other occasions, some of the respondent's young male friends were present during the filming.

[5] After several months, the relationship ended. The respondent gave the videotapes to one of his young friends for "safekeeping". Eventually, the complainant's family found out about the tapes and the complainant went to the police.

[6] The respondent was charged with five offences, three relating to the tapes and two relating to the threats the respondent allegedly made to the complainant after their break- up.

(2) The trial decision

[7] The trial judge acquitted the respondent on all charges. With respect to the three pornography charges, she reviewed the wording of s. 163.1 of the Criminal Code. She then turned to a consideration of the decision of the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 150 C.C.C. (3d) 321, which created two exceptions to the offences prescribed therein. McLachlin C.J.C. described the second exception in this fashion at paras. 75 and 76:

Yet problems remain. The interpretation of the legislation suggested above reveals that the law may catch some material that particularly engages the value of self-fulfilment and poses little or no risk of harm to children. . . . . .

The second class of material concerns privately created visual recordings of lawful sexual activity made by or depicting the person in possession and intended only for private use. Sexually explicit photographs taken by a teenager of him- or herself, and kept entirely in private, would fall within this class of materials. Another example would be a teenaged couple's private photographs of themselves engaged in lawful sexual activity. Possession of such materials may implicate the values of self-fulfilment and self-actualization, and therefore . . . reside near the heart of the [Charter] s. 2(b) guarantee . . . [T]his material poses little risk of harm to children. It is privately created and intended only for personal use. It depicts only lawful sexual activity.

(Emphasis added)

[8] The trial judge determined that, in spite of alcohol consumption, the complainant had the capacity to consent to engage in the sexual activity that was filmed. She further held that the complainant did consent to the activity.

[9] On the "private use" component of the second Sharpe exception, the trial judge reasoned:

The Crown submits that by the very fact that the tapes were given to Sean Forde, Mr. Dabrowski has made them available to another person which causes the tapes to fall outside the Sharpe exception. In my view the requirement that the tapes be created for private use does not mean that the [page724] tapes have to remain in the creator's actual possession. As set out in s. 4(3) of the Criminal Code, possession may be actual or it may be attributed by operation of law in the three circumstances set out in s. 483(a)(ii). Specifically, a person is in possession of an item when he knowingly has it in the actual custody or possession of another. The item is therefore in the actual possession of one person and attributed to the other.

There was no evidence that the tapes were made available or put in public viewing. The only evidence is that they were given to someone for safe keeping who did not watch them, who was asked not to watch them or show them to anyone, who did not have a camera to play them on, or copy them and who hid them. The fact that the tapes were not erased is evidence I have considered, but that evidence in the context of the other evidence I have outlined is not sufficient to satisfy me that the tapes were not created for private use. I am not satisfied that the video tapes were created or possessed with anything other than the intention for personal use.

[10] The Crown does not appeal the acquittals on the uttering a threat, criminal harassment or making child pornography charges.

[11] The Crown does appeal the acquittals on the possession and distribution of child pornography charges. Although it does not contest the trial judge's conclusions on the consent issue, relating to both capacity and the fact of consent, the Crown challenges the trial judge's conclusion on the "private use" component of the second exception in Sharpe. The Crown's challenge is two-pronged: (1) the trial judge's interpretation of "private use" is too expansive -- the Sharpe exception does not reach this case where this respondent gave the tapes to a young friend; and (2) the trial judge did not resolve a crucial factual question, namely, whether the respondent threatened to show the videos to the complainant's family and friends if she did not comply with his rules in certain areas.

[12] The Crown submits that if it is successful on the first ground of appeal, the appropriate remedy is that this court enter convictions on the possession and distribution charges; if it is successful on only the second ground of appeal, the proper disposition is an order for a new trial.

C. Issues

[13] The Crown frames the issues in this fashion:

(1) The trial judge erred in concluding that the respondent's possession of the videotapes fell within the second exception to s. 163.1 in Sharpe, having regard to the fact that he gave the tapes to Sean Forde; and

(2) The trial judge erred in failing to appreciate that the respondent's threats to show the videotapes to the complainant's family and friends rendered the second Sharpe exception unavailable. [page725]

D. Analysis

[14] In my view, this appeal can, and should, be resolved on the basis of the second issue.

[15] The issue of the respondent's alleged threats directed towards the complainant was, of course, central to the first two charges in the indictment, uttering a threat and criminal harassment.

[16] The substance of the complainant's allegations giving rise to these charges was that the respondent had threatened, if the complainant did not obey his rules, to get someone to slice her breasts and her face so that other men would not be interested in her. He underlined this threat by telling the complainant that he had arranged with other girls to stab his former girlfriend when she disobeyed him.

[17] The trial judge dealt with these alleged threats in a detailed fashion. Although she rejected the respondent's testimony and found the complainant's testimony credible on many issues, the trial judge doubted her testimony about the threats of potential physical harm:

I am not satisfied beyond a reasonable doubt that the Crown has proved the essential elements of count one and count two as described above. Threats of the nature described by [the complainant] are not consistent with her evidence that their break up was mutual. Her evidence regarding the threats and harassment is inconsistent with her evidence that she still cared for him and had feelings for him. I do not accept the Crown's submissions that this relationship should be assessed as one would an ongoing violent domestic relationship. Her e- mails are inconsistent with her being threatened and harassed. Her repeated contact with him is inconsistent with her being threatened and harassed. Her explanation that she sent the e-mails and contacted him to stay on his good side is not credible when she testified at the same time she believed that he would act on his threats.

Accordingly, the trial judge acquitted the respondent on the uttering a threat and criminal harassment charges.

[18] An allegation that the respondent threatened the complainant about use of the videotapes was an important, but not the central, issue on the three pornography charges. In her oral reasons, the trial judge described the complainant's testimony about these threats:

She testified that after they broke-up Mr. Dabrowski told her that if she didn't follow his rules, such as not going to basketball games, or all ages clubs, he would show the videos to her family and friends or put them on a website, and he said that more than once, but not as often as the other threats I have described. She said she believed him and it scared her because she didn't want anyone else to see them. [page726]

[19] Unfortunately, in reasons that are otherwise comprehensive and clear, the trial judge said nothing more about these alleged threats.

[20] The respondent submits that this omission is of no consequence. He points to the fact that the evidence relating to threats of physical harm to the complainant and threats to show the videotapes to others was often linked during the trial. For example, in the re-examination the complainant testified:

Q. Okay. And when you say, "So that nothing would happen", what were you concerned might happen?

A. That the threats suddenly would, he would follow through with them.

Q. Okay. And, specifically, which threats?

A. About him showing the videotapes to my friends and family and making a website or getting me cut up or beat up.

The respondent submits that, in light of this linkage, it can be presumed that the trial judge's explicit rejection of the complainant's testimony concerning the threats of physical harm can and should be extended into an implicit rejection of her testimony about the threats of showing the videos to others.

[21] I acknowledge that there is merit in this submission. However, in the end I cannot accept it for several reasons.

[22] First, in my view there is a significant difference in the nature of the two categories of alleged threats. A threat to get third parties to physically harm a partner in a relationship and a threat to show a videotape of consensual sexual activity to third parties are quite different threats. I do not think that a detailed analysis of, and clear conclusion relating to, the former should lightly be extended to the latter.

[23] Second, the trial judge comprehensively and emphatically rejected the respondent's testimony. On the other hand, she found much of the complainant's testimony to be credible, although she rejected her testimony relating to the alleged physical threats. In light of this combination of credibility assessments, again I hesitate to imply that the trial judge reached a firm conclusion about the second category of alleged threats.

[24] Third, whether the threats about showing the videotapes to others were actually made is, in my view, a crucial fact in terms of the legal analysis of s. 163.1 of the Code. This is clear from what McLachlin C.J.C. said in Sharpe at para. 118:

I reiterate that the protection afforded by this exception would extend no further than to materials intended solely for private use. If materials were shown to be held with any intention other than for personal use, their possession would then fall outside the exception's aegis and be subject to the full [page727] force of s. 163.1(4). Indeed, such possession might also run afoul of the manufacturing and distributing offences set out in s-ss. 163.1(2) and 163.1(3).

[25] For these reasons, I conclude that the trial judge did not make a finding about whether the respondent threatened to show the videotapes to the complainant's family and friends.

[26] The respondent contends that the absence of a finding by the trial judge on the threat issue is not a fatal omission because the trial judge acquitted him on a different basis, namely, her interpretation of the "private use" component of the second exception in Sharpe.

[27] I do not accept this submission. In my view, the threat issue is, factually, at the heart of this case and has to be considered along with all of the evidence of the actions of the respondent in order to determine whether the "private use" exception applies in this case. Accordingly, the trial judge should have resolved it so that the required legal analysis could have taken place against the backdrop of findings on all of the important factual circumstances.

[28] It follows that a new trial will be necessary. To assist the judge presiding at the new trial, I make this observation. In this appeal, the Crown submitted that there should be what I would call a "bright line" definition of the "private use" exception: "[P]ossession must mean physical possession, and must be exclusive possession to the extent that it includes only those with a legal right to possess the material. . . . There is no justifiable reason for permitting an individual to 'share' possession of the material with anyone else for any reason" (Crown factum, paras. 50 and 51).

[29] The trial judge rejected this "bright line" submission. In my view, she was right. Although the "private use" exception should be applied with genuine caution, it goes too far to equate it in an absolute fashion with exclusive possession. Such an equation would render unlawful such activities as placing these videotapes in a safety deposit box or turning them over to a lawyer or other trusted person for safekeeping.

[30] In my view, there is an evidentiary connection between holding relevant material in "strict privacy" and maintaining exclusive possession. It is a factual question whether giving up exclusive possession results in a loss of strict privacy. Each case must be assessed on its own facts. Questions such as to whom was the material given, what was the purpose or reason for the transfer, what terms or conditions were agreed upon when the material was given up, what control did the accused maintain over the material, was the material in fact viewed by anyone other than the consensual participants, would be relevant, all in the context of the credibility of the accused and others. [page728]

E. Disposition

[31] I would allow the appeal and order a new trial on the charges of possession and distribution of pornography. The acquittals on the other three charges stand.

Appeal allowed.