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(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider:

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

Court of Appeal for Ontario

Date: 2019-03-27

Docket: C64894

Judges: Watt, Huscroft and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

M.B. Appellant

Counsel: William Thompson and Samara Secter, for the appellant Lisa Joyal, for the respondent

Heard: January 28, 2019

On appeal from: The conviction entered by Justice Richard T. Knott of the Ontario Court of Justice, dated July 12, 2017.

Reasons for Decision

[1] Grounds of Appeal

The appellant appeals from his conviction for the offences of possession and importation of child pornography under s. 163.1 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Primary Issue

In this appeal, the primary issue is whether the impugned images meet the definition of child pornography in s. 163.1(a)(ii) of the Criminal Code, which reads as follows:

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,

(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;

[3] Facts at Trial

The appellant was stopped by the Canada Border Services Agency ("CBSA") as he drove his transport truck into Canada. During his search of the appellant's truck, CBSA Officer Tristan Garrah located the appellant's laptop and an external hard drive. His investigation of the laptop revealed numerous images of children and those of adults in diapers. The appellant admitted to Officer Garrah that he is an "infantalist" with a fetish for adults in diapers but claimed he has no sexual interest in children wearing diapers. The appellant's statement to Officer Garrah was admitted into evidence at trial on consent. The appellant did not testify or call any evidence.

[4] Crown Evidence - Forensic Report

At trial, also on consent, the Crown filed the CBSA forensic report of Digital Forensic Examiner, Reney Pharand, with respect to the appellant's laptop and external hard drive. Officer Pharand reported finding on the laptop and drive "thousands of images of adults in diapers or adults dressed as children or babies" and "thousands of images of children in diapers", including baby diaper advertisements.

[5] Crown Evidence - Detective Testimony

The sole Crown witness, Detective Constable Chris Barkey of the Ontario Provincial Police, testified about his review of the images on the appellant's laptop and drive. In addition to "a significant amount of images and videos that focused on adults wearing or utilizing diapers", D.C. Barkey noted about 13,483 other images to be of "investigative interest" because they depicted "children in diapers in various stages of dress". He testified that there were 787 images, of which 600 were unique, that he believed constituted "child pornography". During his evidence, he specifically reviewed 23 images of children in diapers and testified as to the age of the individuals in the photographs; what the focal point and dominant characteristic of the photographs were; and whether the individuals in the images were posed in a sexual or "unnatural" manner.

[6] Trial Judge's Findings

The trial judge applied "an objective approach" and determined that the 23 images of the children had as their dominant characteristic the depiction, for a sexual purpose, of their sexual organs and/or anal regions. As a result, he concluded that the Crown had proven beyond a reasonable doubt that the images met the definition of "child pornography" under s. 163.1(1)(a)(ii) of the Criminal Code.

[7] Grounds of Appeal

The appellant raises two principal grounds of appeal:

i. The trial judge erred in his interpretation of "child pornography" by failing to exercise the restraint required to avoid over-criminalization of images that are not prohibited as "child pornography". As a result, the trial judge erred in finding that the images depicted the children's "sexual organs or anal regions" because they were not visible or delineated in the bulky diapers the children wore in the photographs. That the focus of the images may have been on those areas is not sufficient to criminalize their depiction.

ii. The trial judge erred in relying on and adopting the inadmissible opinion evidence of D.C. Barkey with respect to the images.

[8] Court's Assessment

We are not persuaded by these submissions. We see no error in the trial judge's conclusions.

[9] Correct Legal Test Applied

There is no issue that in considering the images, the trial judge applied the correct objective approach of "whether a reasonable viewer, looking at the depiction objectively and in context, would see its 'dominant characteristic' as the depiction of the [children's] sexual organ or anal region" and "the same applies to the phrase 'for a sexual purpose'": R. v. Sharpe, 2001 SCC 2, at para. 50.

[10] Factual Findings

Further, having reviewed several of the images referenced by the trial judge in his reasons, we see no error in his factual observations and findings.

[11] Analysis of Specific Images

With respect to the depiction of the sexual organs or anal regions for a sexual purpose, in particular, we note the following: the shape of the children's sexual organs and anal regions through the indentation of their diapers is clearly visible in many of the images, and the children are posed in a sexualized manner; the female child's pre-pubescent breasts are visible in image 1 in which the child is clad only in a diaper and posed in a sexualized manner across a bed. All of the children in those photos are clearly well under the age of 18 but also clearly beyond the age of children who ordinarily wear diapers. The principal focus of those photographs is the depiction of the children's diapered groin areas. Image 7, primarily focussed on a male child's naked buttocks and sexual organs, ostensibly during a diaper change, also properly fits within the definition of child pornography. Given the image's primary visual emphasis and its placement among the other pornographic images, this photograph cannot be viewed objectively as a "family photo" but rather assumes from this context the dominant characteristic of the depiction of the child's sexual organs and anal region for a sexual purpose: Sharpe, at para. 51.

[12] Evidence of Detective Barkey

Nor do we agree that the trial judge impermissibly relied upon D.C. Barkey's evidence concerning the images reviewed at trial. In our view, D.C. Barkey's evidence was not proffered as expert opinion evidence nor was it understood as such. In that respect, we note that there was no objection to D.C. Barkey's evidence; rather, the appellant's trial counsel sought to elicit the officer's agreement to a suggested description of the images and then referenced this evidence in closing submissions. More significantly, the trial judge's reasons do not indicate that he improperly delegated his fact-finding role to D.C. Barkey. The trial judge reviewed the images and came to his own conclusions.

[13] Restrained Interpretation

In Sharpe, while advocating a "restrained" interpretation, the Supreme Court also cautioned against fixing the "precise content" of the kinds of depictions that are caught under the definition of "child pornography". We agree with the prudence of this approach, given the myriad different depictions that may constitute "child pornography". A trial court's analysis of which depictions fall under the definition of "child pornography", including under s. 163.1(1)(a)(ii) of the Criminal Code, necessarily remains a fact and context-driven exercise, which, absent error, is entitled to deference from an appellate court.

[14] Disposition

We see no such error in this case. The appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

L.B. Roberts J.A.