Court of Appeal for Ontario

Citation: R. v. Campbell, 2015 ONCA 346

Date: 2015-05-15

Docket: C54947

Before: Watt, Pepall and Benotto JJ.A.

Between:

Her Majesty the Queen (Respondent)

and

Lorne Campbell (Appellant)

Counsel:

Jonathan Bliss, for the appellant

Melissa Adams, for the respondent

Heard: April 30, 2015

On appeal from the conviction entered by Justice Ramez Khawly of the Ontario Court of Justice on May 13, 2011, and the sentence imposed on May 13, 2011.

Endorsement

[1] The appellant was convicted of knowingly violating a condition of his Long Term Supervision Order that he not view or possess pornography.

[2] Between 2:30 and 4:30 a.m., the appellant and another resident were observed watching Latin Lovers 2 on cable television at the half-way house where both resided. The security guard who was on duty that night testified that the two men were watching pornography. The other resident also described the programme as pornographic, as did the appellant’s parole officer.

[3] At trial, the Crown called the security guard, the other resident, and the appellant’s parole officer as witnesses. The appellant did not testify.

[4] A DVD of the programme was made an exhibit at trial. It was one hour and twenty minutes in duration, was divided into two episodes, and was segmented into scenes. The language of the DVD was Spanish. There were no subtitles. The DVD was fast forwarded in open court and paused to view the segments that the Crown alleged were pornographic.

[5] The trial judge concluded that the programme was pornographic and that the appellant had knowingly viewed pornography in violation of a condition in his Long Term Supervision Order.

[6] In this court, the appellant advanced two grounds of appeal.

[7] First, he submitted that the trial judge erred by not watching the entire DVD and therefore failed to consider the context of the programme. He does not take issue with the trial judge’s definition of pornography. Rather, he submits that the trial judge failed to consider whether the evidence, as a whole, satisfied that definition.

[8] We disagree with the appellant’s submission. The DVD was played in open court. The dialogue of the DVD was Spanish. There was no evidence that the appellant spoke or understood Spanish. There were no subtitles. While the DVD was fast forwarded in open court and paused to view the segments that the Crown alleged were pornographic, the trial judge saw the entire programme.

[9] We do not accept that the trial judge erred in viewing the DVD in the manner in which he did. He considered the context and based on his review, it was open to him to determine that it constituted pornography within the meaning of the condition included in the Long Term Supervision Order.

[10] Second, the appellant submits that even if one accepts that the programme constituted pornography, the trial judge erred in applying an objective standard of mens rea.

[11] Again, we disagree. In his reasons for conviction, the trial judge found that the appellant knew he was watching pornography. There was ample evidence in the record to support this finding including, in particular, the evidence of the security guard, and the appellant’s flipping of the channels to try and disguise the fact that he was watching the programme. Moreover, the conditions of the Long Term Supervision Order had been reviewed with the appellant and he had acknowledged his understanding of the conditions. We would not give effect to this ground of appeal.

[12] While the appellant included an appeal from sentence in his notice of appeal, he advanced no submissions on sentence in either his factum or oral argument. In any event, we see no reason to interfere with the sentence.

[13] The conviction appeal is therefore dismissed. Leave to appeal sentence is refused.

“David Watt J.A.”

“S.E. Pepall J.A.”

“M.L. Benotto J.A.”