WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsections 486.4(1) and 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsections 486.4(1) and 486.4(3), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.4(3) Child pornography. — In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Brampton 10-5711

Date: 2012-09-05

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

A.W.

Before: Justice N.S. Kastner

Heard on: June 29, August 15, August 26, 2011; January 13, January 16, January 19, March 2, May 16, 2012

Defence Written Submissions: Received on June 26, 2012

Crown Written Submissions: Received on July 9, 2012

Defence Reply Written Submissions: Received on August 2, 2012

Reasons for Judgment: Released on September 5, 2012

Counsel:

Ms. Megan Ward — for the Crown

Mr. Jack McCulligh — for the accused A.W.

Kastner J.:

[1] Charge

[1] The accused is charged that on or about the 1st day of March 2010 he committed the offence of possessing child pornography contrary to section 163.1(4) of the Criminal Code of Canada.

[2] Essential Elements

[2] The essential elements for Crown to establish beyond a reasonable doubt are possession, knowledge, and that the item(s) in question constitute child pornography. The Crown must also rebut the statutory defences in s.163.1(6).

1: INTRODUCTION

[3] A.W. is a single gentleman who is now 59 years old, and at the time of the alleged offence was 57 years old. He is a dentist by profession. He was once a member and dancer in a Polish dance troupe in 1977, and he ultimately assumed supervisory and artistic direction of this dance group as an adult. He has been artistic director for approximately thirty years. The dance troupe performs in various venues, and trips are sometimes made outside the province and outside the country for competitions and entertainment venues. The children are housed in hotel rooms, together, and at times with Mr. A.W. He has at times shared a bed with a child from the dance group.

[4] This charge involves, inter alia, photographs taken on one such trip out of the province.

[5] The travelling children's dance troupe is comprised primarily of young prepubescent boys and girls, and there is no dispute in this case that the questioned pictures are of young boys below the age of eighteen years. The police interviewed a number of these boys, who were between the ages of eleven and fourteen at the time of the interview over one year after the photographs were taken. Thus they were approximately ten years old to thirteen years old at the time of the trip to Montreal Quebec and to Poland in 2009.

[6] The questioned photographs are taken of children under the age of eighteen years. Their age was clearly known to Mr. A.W., who is responsible for their well being when the dance troupe travelled. The impugned photographs were taken by Mr. A.W. ostensibly with a borrowed digital camera, and downloaded onto his computer. He also copied the Montreal pictures onto a compact disk, and in various files on his hard drive. He further cropped a couple of the photos, adjusting the focus of the subject matter, or at least eliminating background objects. It is not at issue that he knew of the photographs, as the author and downloader of them. Other photos of child nudity were taken by him on his own camera, and downloaded to the same computer. All photographs depicting child nudity are of young males.

2: ISSUES

[7] The only issue in this case is whether the photographs on Mr. A.W.'s computer, which were taken by him and classified by the police as child pornography, constitute child pornography as defined in the Criminal Code, and if so, whether a statutory defence is open to him.

3: BACKGROUND

[8] A.W. is the artistic director of a Polish Canadian folk dance company called L[…], based in Mississauga. He also supervises on trips the dance company takes both outside the province and outside the country. He began as a dancer, then choreographer. He has been artistic director for many years.

[9] A Crime Stoppers Tip was received by Peel Regional Police in September 2009 complaining of certain activities, which included seventeen names of young boys who are members of L[…]. The police interviewed all 17 boys and acquired certain information. The contents of the complaint and interviews with the boys are hearsay information, and are not admissible for the truth of their contents.

[10] A search warrant was obtained for the residence of A.W. in Toronto, and executed on Jan. 19, 2010. The police seized his computer, hard drive tower, SD cards for cameras, two cameras, and various compact disks. The photos that are subject to the charge here were found on a compact disk burned by the defendant on his computer, handwritten on the disk and entitled "Classique 2009", or "Montreal 2009". These photographs were taken by Mr. A.W., downloaded to his computer, and transferred to the compact disk four days later. Sometime after that, the pictures were copied to the flash drive.

[11] Mr. A.W. lives alone in the condominium apartment subject of the warrant. He is the sole administrator of the computer, which is not password protected. He testified that visitors and other board members of the dance company could access his computer, but it appears that it would be a rare activity. Sometimes people looked at his pictures when at a party at his home. He was also in the midst of renovations which could theoretically allow workers access to his computer.

4: POSITION OF THE PARTIES

[12] The Crown submits that the four photographs in question meet the definition of "child pornography" in the Criminal Code, stating that 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 18 years.

[13] The Defence submits that these photographs are not taken for a sexual purpose, nor depicting a sexual organ or the anal region as a 'dominant characteristic'.

5: DESCRIPTION OF THE PHOTOGRAPHS

[14] The photographs from the Montreal 2009 compact disk which are the subject of this charge are described by the Crown as follows:

Image 1

Single male child standing on bed in hotel room wearing black t-shirt, socks, no pants, and a strap around his penis. Boy's hands are on his hips. There is a second version of this photograph with the child back-facing so his buttocks are exposed. This child was identified as C.B., aged 10 years.

PY10010523HDD1 (computer hard drive) Exhibit 4, "child nudity" 4352, 39948, 39749; "child pornography" 29693

PY11081059 CD-R Montreal 2009 disk (Exhibit 1a) Classique 2009 116

Image 2

Two boys bending over on a bed in a hotel room, wearing pajamas, their pajama bottoms pulled down exposing their anal region. There are two versions of this photograph: cropped and not cropped. These children were identified as M.R., aged 13 years and C.B., aged 10 years. C.B. is wearing Spiderman pajamas.

PY10010523HDD1 (computer hard drive) Exhibit 4, "child nudity" 4349, 117099 (cropped)

PY11081059 CD-R Montreal 2009 disk (Exhibit 1a) Classique 2009 XXX (not cropped), Montreal Feb 2009 XXX (cropped)

Image 3

Two boys (the same boys as in Image 2) kneeling on all-fours on a bed in an apparent hotel room, wearing pajamas, their pajama bottoms pulled down exposing their anal region. There are two versions of this photograph: cropped and not cropped.

PY10010523HDD1 (computer hard drive) Exhibit 4

PY11081059 CD-R Montreal 2009 disk (Exhibit 1a) Classique 2009 010 (not cropped), Montreal Feb 2009 010 (cropped)

Image 4

Two boys standing side by side in a hotel room naked but with socks on. The boys have their arms around each other. There are several similar versions of this photograph, including one where the boys are front-facing, thus exposing their penises, and one where the boys are back-facing, and exposing their buttocks/anal region. These two boys were identified as M.R. and C.B.

PY10010523HDD1 (computer hard drive) Exhibit 4

PY11081059 CD-R Montreal 2009 disk (Exhibit 1a) Classique 2009 123, Classique 2009 124, Classique 2009 127 (front-facing image), Classique 2009 132-137

6: DEFINITION OF CHILD PORNOGRAPHY

[15] s.163.1(1) reads as follows:

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.

[16] None of the photographs complained of in this case involve depiction of a person under the age of eighteen years and engaged in or depicted as engaged in explicit sexual activity. The Crown argues that the images of the boys kneeling on the bed with their anuses exposed in Images 2 and 3 constitute explicit sexual activity. The Court finds that at best it is ambiguous, but that even if the showing of their buttocks is explicit, they are very unlikely to be "engaged in" explicit sexual "activity".

[17] Surely this section of the Code on a plain and literal reading is meant to capture photographs or videos of children actually performing, or made to appear as if performing, overtly sexual acts. There is doubt as to whether the Crown has established this.

[18] A stronger case can be made for the second alternative posited in subsection (a)(ii).

S.163.1(1)(a)(ii) means:

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.

This subsection is divided into four elements:

1. Person Under the Age of Eighteen Years
2. Depiction of a Sexual Organ or Anal Region
3. Dominant Characteristic
4. For a Sexual Purpose

7: ANALYSIS

7.1: Person Under The Age of Eighteen Years

[19] Mr. A.W. identified the two boys on the bed as M.R. and C.B. Although he said M.R. would be probably 14 years old at the time, and C.B. probably 12 years old, he adopted in cross-examination the Crown's suggestion that they were 13 and 10 years old respectively in February 2009 when the photos were taken.

[20] Therefore the Crown has established this essential element beyond a reasonable doubt.

[21] Even in the absence of this admission, the officer interviewed the children depicted in the images and was able to state their ages.

[22] One need only look to the images themselves to satisfy the proof of this element. As noted by the officer in charge of this case and outlined in paragraph 20 of the Crown's Written Submissions:

In the four specific images (and in the majority of the child nude images):

a. None of the children have pubic hair;

b. There is a buoyancy to the children's skin which is indicative of a young age;

c. There are no marks or blemishes on the children's skin which one would expect on adult skin (moles, scars, calluses, wrinkles, etc.);

d. In the images in which you can see the face of the males, there is no facial hair, and the facial structure is child-like;

e. Police Constable Armour recognized some of children in the images as those who she interviewed in the initial stage of the investigation, and confirmed their ages; and

f. In Images 2 and 4 the children are wearing pajamas that are child-like (Spider Man top and bottom).

7.2: Depiction of a Sexual Organ or Anal Region

[23] Images 2 and 3 show the anus of each of the two boys. They also incidentally depict the shaft of C.B.'s penis and portions of the testes.

[24] Image 1 clearly shows the penis and testicles of the ten year old boy, accentuated by the black strap outlining it.

[25] Image 4 shows both the penis and anal region of the two boys.

[26] Mr. A.W. testified that for two of the four pictures, he was taking photos of the "L[…] salute", which is a "bunch of boys mooning the camera". Thus, he posits that these photographs are not about the anal region or a sexual organ, but recording horseplay which is part of the tradition of this dance company.

[27] He also perhaps took the photo of C.B. changing for the performance, but was not sure if he cropped it. He admitted the purpose was to show a state of undress, but not specifically his penis.

[28] Regardless of purpose which is discussed infra, all the photos in question do depict either a sexual organ or anal region.

7.3: Dominant Characteristic

[29] The Supreme Court of Canada discussed the meaning of "dominant characteristic" and "sexual purpose" with regard to child pornography in R. v. Sharpe, 2001 SCC 2:

The objective approach should also be applied to the term 'dominant characteristic' in Section 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 18 years." The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its "dominant characteristic" as a 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 to cause sexual stimulation to some viewers. [50]

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 observer; see R. vs. Hurtubise, [1997] B.C.J. No. 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. [51]

[30] It is the position of the Defence that the dominant characteristic of Images 2 and 3 are not the exposed anuses of the children, and that the frontal nudity of Images 1 and 4 are not dominant characteristics. The Crown submits that they have met their burden of establishing that beyond a reasonable doubt.

[31] The Crown submits that it is not determinative in the objective assessment of whether the images dominantly depict a sexual organ/anal region for a sexual purpose is the view of any single viewer, including the view of the photographer and/or the possessor of the images. I agree. Even if believed, a possessor's evidence that he did not consider the images sexual is not determinative of the legal nature of the images.

[32] The objective assessment mandated by the Sharpe decision is the standard, and not a subjective assessment. This is so even when the possessor testifies that he took the image or held it for his own sexual gratification: see R. vs. R.R.K., 2010 ONSC 330.

[33] The test is how the reasonable person perceives the images, and the Court must look to the images themselves, as well as the context of the possession of the images.

[34] The defendant's evidence is inconsistent on whether the photographs were posed. He denies they were posed, but says the children were told to "do a L[…] salute", which one can describe as posed: "either I or somebody else said to do a L[…] salute or something".

[35] He stated that he cropped almost every picture on the computer, and adjusted lighting. This was a 'new toy' to play with.

[36] He denied his purpose was to show the shaft of C.B.'s penis, and said that he saw two kids mooning and took a picture.

[37] The Court finds that the Crown has established that the dominant characteristic of each of these four images is the depiction of a sexual organ or the anal region of a person under the age of eighteen years. The issue is better stated as to whether such depiction is for a sexual purpose.

7.4: For a Sexual Purpose

[38] The purpose of the Polish dance group is to promote Polish culture and to educate children and young adults in the fields of music and dance. Currently there are about 200 children in the group, from ages six to eighteen. At least once a year, the children's group goes to perform abroad. Mr. A.W. does not teach the entry level children, but does teach those about aged 9 to 11 years.

[39] The computer in the defendant's house was "95 percent group related" according to him, including a history of the group, photos of performances and trips, and business information for charitable reports. The inventory done by Peel Regional Police suggests that many personal photographs done by Mr. A.W. are on this computer, as well as personal email.

[40] Although the defendant suggested that "anybody technically could have access, or check something" on the computer, it was in his home. It was not a business office. Although the Board could have access to his computer, they did not regularly do so.

The context of the creation of the images

[41] The Crown submitted the following factors provide context of the images' creation:

(a) The police located numerous nude-child images that were taken by the defendant himself on his computer and disk. The images are all similar to each other, and include the four specific images referenced above;

(b) The defendant is not the biological parent of any of the children depicted in the images he took and possessed;

(c) The defendant took most or all of the child-nude photographs seen at the trial himself;

(d) The ages of the boys in the nude photographs taken by the defendant are around 10 to 13;

(e) All of the nude male children depicted in the photographs are the defendant's dance students. The defendant was the leader of the dance group and the children's dance teacher. The defendant held a position of trust towards the children and as their leader, the children were obliged to, and did, listen to his instructions;

(f) As the dance school leader, the defendant would often take the children on overnight out-of-town and out-of-country dance trips. While on the trips, the defendant was the person ultimately responsible for the well-being of the children, although some parents would attend;

(g) All of the child-nude photographs taken by the defendant (including the four specific images but excluding the obvious internet-downloads) were taken when the children were out-of-town or out-of-country, away from their parents, and while in the ultimate guardianship of the defendant;

(h) During the time spent in the hotels on the various trips the defendant – in addition to taking the offending photographs of the children - would make the children be naked together, make the children shower together, would sometimes sleep in the same bed as the children, would pull their pajama bottoms down to check to see if they were wearing underwear;

(i) The defendant waited until he was alone with the children before taking their photographs nude, and he did so in a surreptitious manner, by geographically distancing his conduct from the children's parents;

(j) The defendant acknowledged that he didn't think the children would show the parents the photographs;

(k) The children were never naked in Mississauga and no nude photographs of the children were taken in Mississauga, the home-base of the dance school, where the children were taught dance on a routine daily basis;

(l) There are no nude images of adults from the dance group, but there are many images of adults with the children in a regular everyday setting – tobogganing, swimming, etc.;

(m) There are no nude images of female children from the dance group even though there were more females than males registered in the dance company, and females also went on the out-of-town trips;

(n) The vast majority of the nude child images taken by the defendant were taken in hotel rooms, which the Crown submitted is a private and intimate setting. All four of the specific images were taken in hotel rooms;

(o) Many of the child-nude images taken by the defendant were taken with the children placed on a bed;

(p) Countless child-nude photographs taken by the defendant have the children posed and the defendant admitted to posing the children. Of the four specific images, all of them are posed;

(q) Countless nude-child photographs taken by the defendant are of the children totally naked; of the four specific photos, Image 4 shows the boys totally naked;

(r) Some of the photos taken by the defendant and retained on his computer are of children dressed only in underwear, lying on a bed, each clutching a teddy bear;

(s) The Defendant acknowledged that he took the photographs with a purpose to "embarrass them a little", and acknowledged that he took too many nude photographs, and that he should not have taken Images 2 and 3 at all; and

(t) The Defendant acknowledged that he would not want the photographs to "get into the hands of a stranger".

[42] The defendant took these photos. No parent took any of the nude or semi-nude children. C.B. and M.R.' mothers did not attend the Montréal trip. Although the position of the Crown is that the photos were taken surreptitiously, Defence counsel suggests that everyone in the group, including parents, were aware of photos being taken of the "L[…] salute". There is no evidence to support that contention. The Crown asks the Court to draw the inference that the lack of adults at the time of the photography indicates some degree of secrecy and prevention of mature intervention. It is not unreasonable to do so, but I recognize that some child may eventually show the photo to an adult. It is one factor among many for the Court to consider in an objective assessment of the purpose of these photographs.

[43] The Crown submits that the Court should consider that many of the nude child images taken by Mr. A.W. were taken with the children placed on a bed, which she asserts is a "symbol of sexuality and the most common place for sexual relations". Mr. McCulligh submits that it is only a piece of furniture in the hotel room, and bears no special significance, as it is capable of play as well as sexuality. Isolated on its own, the fact that some of these photos are taken on a bed bears diminished significance. However, the totality of circumstances ought to be considered.

[44] Of the approximately 120 photographs taken on the Montreal dance trip, 61 of those are of either a naked child, a child in underwear, or a child in a Speedo bathing suit. The number of photos in these categories, just over half, speak loudly to the likelihood of a sexual purpose. Thirty of those photos, or twenty–five percent of all the photos, were of naked children.

The context of possession of the images

[45] The Crown submitted a number of factors relevant to how the images were possessed contextually, as follows:

(a) The child-nude images taken and retained by the defendant were spread across three media sources, the defendant's computer and a disk to which they were burned, as well as a flash drive or USB;

(b) The child-nude images were interspersed among all other photographs on all the media;

(c) There was adult pornography interspersed on the computer;

(d) There were also child-nude images interspersed on the computer that had been downloaded from the internet, that existed in duplicate or triplicate or more, such as:

• A photograph of two babies at a strip club;
• A photograph of a little boy looking down a little girl's underwear; and
• Two photographs of one boy with another nude boy over his lap getting spanked.

(e) There were child-nude images interspersed on the computer that were source-unknown. One of these images was of a young male (perhaps pubescent age) walking up a set of stairs with other males in wet white underwear. The boy's underwear is transparent, and the boy is either reaching into the front of his underwear or looking down the front of his underwear. This particular image appears on the defendant's computer in a cropped fashion as well – all other people are cropped out, the body of the boy itself is cropped out, and the images that remains is clearly focused on the boy's transparent underwear with his hand near his penis. Constable Lancaster testified that the defendant cropped the image from its original full-size. The defendant in his evidence did not have a memory of this image.

(f) There are duplicates and even triplicates of the child-nude images of the dance students, with some of the images selectively being deleted;

(g) Images 2 and 4 were "cropped" by the defendant, meaning the background of the photographs, being the walls and a door of the hotel room, had been cropped out so as to focus on the children themselves; and

(h) None of the parents were provided copies of the photographs and he did not think the children would give the photographs to the parents, although they may have.

The images themselves

[46] Obviously the Court must look to the images themselves, in addition to the context of how they were taken and possessed, in order to determine whether they fall within the legal definition of child pornography.

[47] The Crown submissions accurately describe the images in further detail, as follows:

IMAGE 1

In this image, the young male subject is standing posed on a hotel bed. The defendant took the picture from slightly below, so the viewer is looking up at the boy. He is wearing a t-shirt and socks, but no pants or underwear. The photograph was thus taken either with selective removal of the bottoms, or in the middle of dressing/undressing. The boy is illuminated by the flash and the background of the room is darker. The boy is standing with his hands on his hips, slightly thrusting his hips out. There is a strap around the boy's penis which accentuates it. The boy's penis and testicles are clearly visible. The penis is at the physical centre of the image, and the boy takes up the majority of the physical space of the image. There is nothing else in the picture distracting the viewer's eyes away from the child's penis. There is a second version of this photograph where the child is standing with his back to the camera.

IMAGES 2 and 3

These images were taken in quick succession of each other. They are taken on a hotel bed, again an intimate location. They show two young boys doing the same pose as each other on the bed. In Image 2 the boys are both bent over with their pajama bottoms down, and in Image 3 the boys are both kneeling on all fours with their pajama bottoms down. Neither of the boys is looking at the camera – there is no attention at all on the face or smile of the boys. The boys, the Crown submits, were obviously instructed by the photographer (the defendant) how to pose for the photographs. In both of the photographs, the anus of one of the boys is visible, as well as a portion of the boy's testicles. One of the boys has his back slightly arched, thus extenuating the visibility of the boy's anal region. The photographer positioned himself immediately behind the boys so their anuses are at the level of the camera lens; assuming the bed is of standard height, this means the photographer was not standing when he took the photograph – he was either sitting himself or bending over to get the view that he did. Nor did the photographer take the images from afar – it appears that he was within a few feet of the boys' anuses. The defendant cropped both of these images before burning them to the CD-R Montreal 2009 disk, thus accentuating the anal regions of the photograph even further. There is nothing else of view in the photographs (especially the cropped versions) that distracts the eye of the viewer away from the boys' anal regions.

IMAGE 4

This picture is of two boys standing side by side in a hotel room naked but with socks on. The boys have their arms around each other. There are several similar versions of this photograph, including one where the boys are front-facing, thus exposing their penises, and one where the boys are back-facing, and exposing their buttocks/anal region. In both versions the boys are looking directly into the camera. The boys take up much of the physical space of the picture. The children are clearly posed. There is nothing else in the picture distracting the eye of the viewer away from the naked boys and more specifically, their genitals or anal region.

The evidence of A.W.

[48] In assessing the evidence of Mr. A.W., the Court notes it can accept all, part or none of it, as with any witness. In addition, the Court applies the formula suggested in R. v. W. (D.) when assessing credibility. Even if the Court rejects his evidence, it may nonetheless raise a reasonable doubt on the ultimate issue of whether the images are child pornography.

[49] Of course, even if the Court accepts that A.W. did not regard the images as sexual in his own mind, it does not follow that the images are not child pornography. The Court applies an objective assessment of the images themselves, and the entire context of their possession.

[50] Mr. A.W. testified that the L[…] Dance Group has "been his life" for the last 30 years. He has no children of his own and is not married, so that he looks at the children that he has taught and coached in the dance group as an extended family, almost as if they were children of his own. He stated that the greatest joy he has is going to a wedding where both bride and groom met at the dance group or some social function where there are tables of guests from L[…] of different generations:

The group is my life. I mean these kids come, you know, initially we were all older so they were friends. And then the group got younger and younger and they, like my own, own kids. Since I don't have my own kids, it's like my own extended family. And perhaps one of the greatest satisfactories [sic] is going to a wedding, you know, where you have people that you have met in the L[…] you see 8, 10 tables of ex-L[…] members and still dancing, still keeping together. And even our generation when we get together 95 percent of the people that we get together with are ex-L[…] members. So it is a group of people that, that know - the school or a few times have got together and stayed, stayed together to this age. Because there's, there's a bond that formed in that group, that - and existed to this day. And naturally they send their kids to the group and, and we're still waiting for the first grandchild to come into the group. But it's coming, unfortunate.

[51] Mr. A.W. testified he took and retained these photographs for four purposes, which are not sexual:

(a) To embarrass the children, but "not too much";

(b) To document the activities of the dance group;

(c) To teach the children how to be comfortable with themselves and each other; and

(d) To "have fun", for example by giving the L[…] salute

[52] The primary purpose of taking these pictures, according to the defendant, is for fun. It is difficult to discern whether this was fun at all for the subjects. The officer's hearsay evidence from interviewing the children is not admissible. Although A.W. said that he would not take any picture where he felt the children were uncomfortable, he also stated he would embarrass a child in order for him to ultimately be more comfortable with others. He also had a very fluid concept of what someone saying 'no' meant. To Mr. A.W., 'no' also often meant "wink, wink, allowed", even for a child.

[53] Notwithstanding his uncorroborated assertion of such familial bonds in the dance group, he is not in a position of parent to these young boys, nor does he have the right to document their prepubescent bodies by photographs. It is more than a stretch to suggest that he has implied consent of the parents to do so.

[54] If his purpose was truly to embarrass the children a little to make them comfortable changing in front of each other, there was no need to photograph any of that. I agree with Ms. Ward that his asserted purpose of embarrassment in this case does not further his position. Rather, it is an admission that he intended to violate the boys' integrity and privacy.

[55] Mr. A.W.'s testimony that he took these photos to document the activities of the group is rejected. The disproportionate numbers of the photographs of children naked, or semi-naked, seems to negate that stated purpose. He himself acknowledged that in hindsight he regretted taking so many because of "how it looks". He also admitted in his evidence that photos of the boys' penises were unnecessary for documentation purposes.

[56] The photos were not an accident, or spontaneous recording. They were posed and suggested. The photographer, here the defendant, would have to bend down to get close to the anal region of the boys in Images 2 and 3. They do not capture any other children in the room, or any reactions to this supposed horseplay.

[57] The Crown called some evidence that Mr. A.W. was cautioned by police in 2004 about his activities with children, or a complaint was discussed. I expressly limit the value of this evidence. It is not evidence of propensity. It is not admitted for the truth. It is not evidence of bad character. The only evidentiary purpose of this evidence possibly goes to the issue of mens rea, in that Mr. A.W. ought to have been very cautious post 2004 in his dealings with children. The Court ascribes very little weight to this evidence.

[58] The subjective assertion of Mr. A.W. that he had no sexual purpose in taking and maintaining these photographs does not bear up under scrutiny. Surely, a reasonable person in loco parentis, even if they took their photos as part of a stream of digital recording, would delete them prior to downloading them, or delete them from the computer. To do otherwise by burning a portable compact disk indicates an intention to keep them, and make them portable to share with others, or to ensure that they continue to be available even if the hard drive fails.

[59] More importantly, on Mr. A.W.'s own evidence, it is likely that he posed the boys, or at least asked them to give the "L[…] salute". One might ask why he would feel that it enhances the camaraderie of the group to do this in the hotel bedroom. The scenario was entirely different when members of the dance group might "moon" in front of a monument or landscape clearly identifying the country or place, such as at the Great Wall of China.

[60] It is important to consider these photographs in the context of the Montreal trip, and in the context of other photographs he downloaded to his computer. Although these photographs are few, the classification by Constable Armour, as confirmed by the technical experts, is a very conservative one. She only submitted these four photos as child pornography, whereas they were several other photos which might technically meet the Criminal Code definition.

[61] Aside from the oft pointed out pictures of naked babies at an ersatz strip club, and of a little boy looking down a little girl's underwear, which Mr. A.W. said were received by him by email as a joke, he has taken very suggestive child nude photos himself which indicate a prurient interest. For example there is a photograph of a naked little boy covered in sanitary napkins. There a number of photos of young males spanking other males with bare buttocks.

[62] The contextual analysis includes that of the pictures reviewed, there were approximately one hundred and fifty nine adult pornographic pictures, and hundreds of child nudity pictures. Almost four hundred pictures were ones reflecting complete nudity of children.

[63] One significant photograph located by Officer Lancaster was of two young males walking up a flight of stairs, wearing underwear and nothing else. The second male's right hand appears to be reaching between his legs, or looking into his underwear. One male's underwear is white and appears to be wet and clinging to him and one can see right through it. That photograph was cropped by the defendant to zoom in on the buttocks in the wet underwear. It had been viewed on multiple occasions, creating several thumbnail files.

[64] The Court adopts the submission of the Crown as to the reasons negating Mr. A.W.'s claim that the photographs were simply depicting the "L[…] salute" for fun.

[65] The defendant describes the "L[…] Salute" as a form of 'mooning' engaged by members of the dance troupe, either to a camera or to another person. In other words, it occurs when the dancers briefly reveal their buttocks by pulling their pants down. The Salute as described by the defendant does not happen that often – it occurs once in a while, not on every occasion that the dancers are together. The photographs taken and retained by the defendant are entirely different than a form of mooning. The photos depict totally naked or partially clothed children, sometimes engaged in other activities like brushing their teeth, revealing all of the children's sexual organs: buttocks, penises, and/or anuses/testicles. There are a high number of photographs (in other words, it is not an uncommon occurrence), and some of the photos (for example Images 2 and 3) are taken in succession of each other with slightly varying poses, not just one pose or 'salute'. The Defendant claimed that Image 2 and 3 are an example of the L[…] Salute even though the children are in one picture bending over, and in the other picture on all fours. The Crown submitted this claim defies logic – it is impossible that both boys being told to do the 'salute' engaged in the identical poses at the same time. The only way the boys could have ended up doing the same pose in succession is if they were told how to pose, not told to do the 'salute'. [para. 41 written submissions]

[66] The Court rejects Mr. A.W.'s evidence on this issue of the purpose he took these photographs. It is inconsistent and does not have the hallmark of logic or common sense. It does not raise a reasonable doubt.

[67] The Court comes to the conclusion on the basis of all of the evidence, including the entire context of the photographs for that excursion, and in relation to all the photographs downloaded by the defendant, that a reasonable person would be compelled to draw the inference that they were possessed for a prurient and decidedly unwholesome sexual interest.

[68] The Crown has thus established all the essential elements for a finding that these photographs were child pornography.

8: DEFENCES

[69] Section 163.1(6) reads as follows:

No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence.

(a) has a legitimate purpose related to the administration of justice or in science, medicine, education or art; and

(b) does not pose an undue risk of harm to persons under the age of eighteen years.

[70] The Sharpe decision in the Supreme Court of Canada illustrates the difficult balance the Courts must strike between the importance of freedom of expression and the need to protect children from abuse. Although the defences must be read liberally, it should not be read in a way that defeats Parliament's objectives of criminalizing child pornography and protecting children from abuse: see R. v. Katigbak, 2011 SCC 48.

[71] The plain wording of the section requires that the act alleged to be the offence have both a defined legitimate purpose and not pose an undue risk of harm to the child. It is to be read conjunctively.

[72] The defence relies on the case of R.L. v. R., 2009 QCCA 546. In that case, R.L. had placed surveillance tapes around his home for a legitimate disciplinary purpose to supervise the children, who according to the Court, continued to argue and fight. One of the cameras was positioned to record what took place on the sofa where the disputes between the children usually took place when the children were home alone. The children did not know there was a surveillance camera in the living room. In March, 2006 the Appellant started to watch the images recorded that day. It was around 11:00 p.m. and he had just returned from work. He saw his common law partner's daughter on the sofa in the living room masturbating and engaging in sexual activities with the dog. The Appellant held onto the tape and confronted the daughter with the Video that he had. He told her that she had to take responsibility for her actions and tell her mother about it herself. He gave her one month to do so and she agreed. The Appellant was eventually charged with possession of child pornography for the tape that he held onto that contained the pictures of the girl on the couch with the dog. The Quebec Court followed the broad interpretation of the defences advocated by the Supreme Court of Canada in R. vs. Sharpe, as s. 163.1(6) creates a defence for material that services a medical, educational or scientific purpose. In that case, the Court found that "the term education used in s.163.1(6) contemplates, among other things, the education that parents may want to impart to their children in specific circumstances" [at para.53]

[73] The present case is not one of a parent imparting education to a child. In that case, the parent hoped that this would make her assume responsibility and change her behaviour, as she had a history of behavioural problems. Moreover, the video and photos remained private, and the risk of images falling into a third party's hands was limited to people living in the apartment. In this case, the defendant put the photos on a disk and a flash drive. They were therefore instantly visible to anyone to whom he gave a disk, loaned a flash drive, or who accessed his photos at a party or other event.

[74] Mr. A.W. would regularly ask the children to shower together, "so that they relax with each other". He was also asked if he would ever pull down the pyjama pants of the children to check and see if they had underwear on, and he admitted he did so. That was odd behaviour for a dance teacher, and unrelated to any educative purpose. All the dances do not involve nakedness. That behaviour informs the issue of "legitimate purpose".

[75] None of these nude photos were likely taken when there were other adults in the room. The photos on the bed were likely directed by the defendant asking the boys to "do the salute" and to do it standing up also. The photo of the frontal nudity had no educative purpose, other than to "document" what happened on the trip. Surely the genitals could be cropped out of the picture if that was its intent. Instead, the cropping served to enhance the focus on the genitalia.

[76] The Court must consider whether it accepts that the defendant had a genuine good faith reason for possessing child pornography for one of the listed grounds. For reasons previously given, I reject the defendant's evidence as to his proffered reasons for possessing these images, and it does not leave me in any doubt.

[77] In the alternative, in assessing the legitimacy of purpose, I find the absence of an objective connection between his actions and his purpose, and no objective relationship between the accused's purpose and one or more of the protected activities. [see Katigbak, supra, at para. 59-61, and 63].

[78] It is unnecessary in the circumstances of this case to analyze the second component of risk of harm, since the Court is not in doubt that the purpose does not comport with s.163.1(6)(a).

9: CONCLUSION

[79] A.W. took the impugned photos when he was in a position of trust as the artistic director of a Mississauga Polish dance troupe with the primary responsibility for young boys and girls at a competition held in the province of Quebec. They depict nudity or partial nudity of a few of the boys who were approximately ten to thirteen years old at the time. They were taken in a hotel room in Montreal, likely in the evening since it appears that the boys had pyjamas partially on in two of the photographs. No other adult was present at the time.

[80] The four impugned photographs are extremely distasteful, and show a shocking lack of judgment on the part of a mature professional man who is in a teaching or mentoring role to these children. However possession of photos depicting child nudity is not per se illegal, unless they amount to child pornography as defined by the Criminal Code, and they are not possessed for one of legitimate purposes outlined in the section with due regard for undue risk of harm to the young people.

[81] Aside from the question of law involved in this case, the Crown case was largely unchallenged. Possession and knowledge are conceded, and readily proven by the Crown.

[82] The Court finds it difficult to place any degree of reliability to the credibility of Mr. A.W.'s evidence. He underplayed the number of pictures taken in Montreal, and added one to two years to the actual age of the subjects. He made broad sweeping statements that did not accord with logic and common sense. He was inconsistent on the posing of the young person, and his own role as director of the tableau.

[83] He was not able to say who was in the hotel room when the pictures were taken, and where they were located, only that "I know they were there because I would never be left alone with a child in a room".

[84] In addition, the nude pictures of children on his computer were all of children under the age of 14 years, and all males. Not all of them were of his dance students.

[85] In the result, I am not satisfied that other young people were present when the photographs were taken, or if they were, that they were not otherwise engaged in getting ready for bed, or other activities. Mr A.W. admits that the boys are "mooning the camera", rather than others. The positioning of the photo subjects in Images 2 and 3 are not consistent with momentary and brief lowering of pants to expose one's buttocks as a "moon"; rather, they are posed, and in such a way to expose the anal region and genitalia. Therefore, the exposure was not for fun with the children, but for the pleasure of the photographer.

[86] The Court further finds that the single frontal photo of the boy with his penis fully exposed was enhanced by the partial jock-style apparatus accentuating the genitals, and that the cropping, focus, and lighting served to highlight the genitals further.

[87] Contextually the photo of the two naked boys with their arms around each other is also posed and not spontaneous. It is taken in a hotel room, and made to appear suggestive. It appears to be temporal with the supposed L[…] salute photos of the same boys.

[88] The Court is satisfied that the defences afforded in s.163.1(6) have no application in the totality of circumstances in this case. There is no artistic merit in the photographs, nor does the photographer defendant assert that there is. His assertion that they may have some educative effect is farfetched, and is expressly rejected.

[89] Mr. A.W. says that he did not take the photos for a sexual purpose. It is difficult to posit any other rational purpose for taking the photos of not only the buttock area of children, but the explicitly exposed anal, scrotal and penile area of the young boys. On his own evidence, he asked the boys to pull down their pants and face the camera. He may have asked them to get on their hands and knees. This is not a random pictorial capturing of youthful high jinks.

[90] The lighting, focus, composition, and cropping of the full frontal picture of one of the boys belies any innocent purpose.

[91] The Court is satisfied beyond a reasonable doubt that the four photographs classified as child pornography by the police amount to child pornography within the definition in the Criminal Code, as clarified by appellate decisions. A.W. is found guilty of the offence for which he is charged.

Released: September 5, 2012

Signed: Justice N.S. Kastner