Court Information

Date: October 12, 2016

Court: The Ontario Court of Justice

Parties: Her Majesty the Queen v. Christiaan Grobbelaar

Before: The Honourable Madam Justice G. Sparrow

Location: Toronto, Ontario

Courtroom: 122b, Old City Hall

Appearances

Counsel for the Crown: Ms. J. Gibson

For Mr. Grobbelaar: Self-represented

Reasons for Judgment

Sparrow, J.

Introduction

The accused is charged with two counts of making child pornography and possession of child pornography on or about December 15th, 2015. He is self-represented.

The majority of the testimony reported in this case was given on a Charter voir dire argued by the Crown, the accused and amicus curiae appointed for that purpose only.

Ultimately, the Charter application pursuant to s. 8, 9, 10(a) and 10(b) was dismissed and all evidence offered by the Crown was admitted. Reasons for the dismissal, dated July 15, 2016 are quite lengthy and contain a full summary of the events that occurred on the date in question.

The voir dire was what is commonly referred to as blended, except for the accused testimony on the voir dire which was entered for Charter findings only.

Factual Background

Staples Incident

The relevant testimony can be summarized as follows. Paul Premraj, a manager at a Staples outlet on Eglinton Avenue, testified that he had received a complaint from a customer about another customer making copies of inappropriate pictures in the copy centre. Mr. Premraj approached the accused who appeared to be covering up his copies with some dark brown paper and said he needed to see the copies. The accused began putting his papers in a carrying bag. Premraj said that he saw two pictures, one of a child naked from the waist up and another of a child's buttocks.

The accused then put everything in his bag, including a stack of copies that were also covered in papers in the scanning bin. The accused left the store. Mr. Premraj followed him to an Eglinton Avenue bus, took down the bus number and reported the incident to police, including the fact that he saw photos of naked children. He provided the bus number. In cross-examination, Mr. Premraj said the photos were more bordering towards paedophilia.

Police Apprehension

P.C. James Atkinson testified that he had received a radio call saying that Staples personnel had seen a man in his sixties copying pictures of naked children. He saw the bus stopped at a bus stop close to the store and pulled up behind it. He got on the bus and approached the accused, the only person in the bus who matched the description given. The accused agreed to get off the bus and followed Atkinson off to a scout car where Atkinson told him about the complaint.

Atkinson testified that at the scout car, he asked the accused if he could see what was in the bag. The accused said sure and removed some of the pictures and together, they spread some of them on the trunk of the car. There was ultimately some debate about exactly what occurred, but Atkinson ultimately at roadside saw the pictures.

He said that there were photocopies and prints of nude children, a large collection. He arrested the accused for possession of child pornography, read him his rights to counsel and the standard caution.

Accused's Statement

On the way to the station, the accused in a somewhat rambling fashion made a lengthy statement, much of it about his upbringing in South Africa. In certain relevant passages, he states:

"The women in the little town that I grew up in, like they used to make all their underwear from an flower. If you see cotton underwear like that, which they wear every day for years, all you see is the yellow stains on their pants. So I saw this young girl on the swing and she had these beautiful white panties on and I thought Jesus, I could snatch them."

(The accused disagrees with use of the word snatch.)

"I was so worried about the fact that I had suddenly become interested in children, in the girl's panties, that I came back and said to myself, 'there's only one way to get rid of this here is you have to choose, you live like that.' At that age, they used to say sixteen is jail bait, that's what they used to call them. I decided I was going to write stories about a fifteen year old girl and to get that out of my system and I truly believe that in South Africa you know, you got it out of your system by looking at any girl that you wanted to look..."

"So I deliberately wrote about fifteen year old girls and then I found that after about a year of being interested in fifteen year old girls, I wanted to get to fourteen. It wasn't exciting anymore, so I got down to fourteen. I skipped thirteen because it was an unlucky number and I stayed for a long time at fourteen and then went down to twelve."

It is clear from that excerpt that the accused immigrated to Toronto from South Africa.

In cross-examination about these parts of his statement, the accused stated that he was shocked by his own interest in the white panties that he described.

Evidence at Trial

The Images

On the trial proper, the Crown entered the Ikea bag which the accused had on the bus and which was full of images. The accused agreed that there are between fifty and one hundred images in the bag, all of which appear to be of naked women or girls. Some are contained in magazines, including ones called "Barely legal" and "Finally legal."

Detective Constable Michelle Bond, the officer in charge who has been with The Child Exploitation unit for six years, testified in-chief that she went through all of the images in order to determine which ones constituted child pornography. She said that some were clearly pictures of adults, others were of girls who appeared to be teenagers whose exact ages were difficult to determine.

She ultimately isolated five pictures of girls who were clearly under the age of eighteen, appearing to her by the faces to be very young, to be used as exhibits. The same face was used repeatedly in the images. These images were filed as a group, Exhibit 6, reflecting police exhibit numbers 1 to 5. All of them have a picture of a very young girl's head taped to an image of a pubescent or pre-pubescent looking body, clearly reflecting naked breasts and genitalia in a prominent fashion.

Accused's Explanation of Image Creation

In cross-examination, the accused explained how he prepared the pictures. He acknowledged that he had used the face of a little girl cut from a Sears catalogue on all five images. He agreed that the images of the bodies were altered by photocopying a real picture, then using coloured pencils on the copy to change features, generally making the naked body looking younger. For example, in the first image, police number 5-1, he agreed that through photocopying and pencilling he had flattened the breasts in the original picture, rouged in pink nipples and added pubic hair. He acknowledged that the face appeared to be that of a girl under twelve.

Another picture features a very young girl's face attached to a flat chested torso in a training bra, which he said he found in a Sears catalogue and kept because "he liked it." Nipples were drawn in. He denied that he found it sexually arousing. He explained that he whited out the pubic hair on the adult body image. He said that he drew in panties pulled down on another image because girls take them off to have sex.

In four of the five photos, the same little girl's face was used, the torsos are naked except for the one with the training bra and the pubic hair and genitalia are prominent.

Accused's Testimony Regarding Purpose

The accused addressed his reason for making the pictures in wide-ranging, rambling and often incoherent testimony both in-chief and in cross-examination. Initially, he stated that the pictures were made to demonstrate "self-resonance imaging", which is to be used to keep women interested in sex. He also described their relationship to the field of epigenetics which is defined in the Oxford dictionary as follows:

"The study of changes in organisms caused by modification of gene expression rather than alteration of the genetic code itself."

He stated that by 2045, women will be able to reproduce without sex, in effect cloning themselves so that the same face will pass through generations. Isaac Newton predicted that this would happen by 2060. Women will be able to experience orgasms by use of electronic helmets. A photo of a woman wearing a helmet or mask-like structure was produced from the Ikea bag.

He stated that he is not encouraging women and men to have sex, but he is "encouraging the process."

He also stated that women are starting to look more like men, particularly models with narrow hips, such as Twiggy from the 1960s. Some women want to become men. He is interested in helping transsexuals. He said that eventually Christ and Mohammed will arrive and men and women will go their separate ways. These developments will be reflected in a future book. His last book which addressed epigenetics and other topics regarding human development remains in manuscript form.

The accused also addressed:

1. The use of the process in implanting genes to effect a transformation
2. The fact that women want to stay "forever young", apparently related to the photographs in cloning
3. The need to teach women to masturbate properly
4. The development of the DNA chain from a double helix to a quadruple helix which will effectuate some of these changes

When asked how these topics relate to the photos, the accused's answer could best be described as a reference to cloning and staying young.

Legal Analysis

Crown's Submissions

In a nutshell, the Crown argues that all elements of both offences have been made out and that the defences and exceptions discussed in R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 do not apply.

Accused's Submissions

The accused argues that these images fall within the defence of scientific purpose and the defence of public good as described in Sharpe. He also argues that the pictures are not child pornography as the bodies are adult bodies with the young girl's head added.

The Dominant Characteristics and Sexual Purpose Test

In Sharpe, at page 50, the Supreme Court of Canada defines the "dominant characteristics" and "sexual purpose test" as follows:

"The objective approach should also be applied to the term dominant characteristic in s.163.1(1)(a) 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 would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers."

At paragraph 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 unmistakeably sexual in the view of a reasonable objective observer."

See R. v. 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's a reasonable doubt, the accused must be acquitted."

Court's Application of the Test

In my view the Crown has proved that the five photos selected from the bag must meet both tests referred to above. The depiction of the child's sexual organs, breasts and pubic areas are clearly dominant. The accused has admitted to adding colour and detail to these in scanned drawings and changing the details slightly with each scan.

In my view, the Crown has proved sexual purpose. The purpose of causing sexual stimulation for some viewers is the logical inference to be drawn, given the nature of the images. These are not pictures of naked children in bathtubs, they are photos of young girl's faces attached to naked adult bodies pieced together carefully to suggest child sexuality.

It is clear from Sharpe that the sexual purpose test is an objective one, i.e.: would the images be reasonably perceived as intended to cause sexual stimulation in some viewers. However, in my view, the accused's testimony is relevant to the sexual purpose determination. He stated that emphasis on youth is increasing and that these images are part of his work intended to explain the changing nature of sexuality and reproduction.

Although his explanation of his work is difficult to follow, he repeatedly referred to changes in female bodies that create appeal and by images reflecting these changes. His testimony supports the argument that they are reasonably perceived as intended to cause sexual stimulation.

In addition, it should be noted that the accused himself in his statement refers to his own attraction at some point to younger girls seen in their white panties in South Africa. His comments, in my view, confirm his interest in producing images for the purpose of sexual stimulation which support the argument of reasonable perception of sexual purpose.

Composite Images as Child Pornography

With respect to the accused's argument that the pornography is not child pornography, the bodies are adult bodies, in my view the attachment of a child's head to altered images of an adult body constitutes child pornography.

Defences

Scientific Purpose Defence

After reviewing Sharpe, in particular, the discussion of the defences of artistic merit, education or scientific purpose or public good, the accused submitted that his work would fall within that scientific purpose defence. As stated in paragraph 66, the accused can only invoke these defences if he points to facts capable of supporting them.

The defences described in paragraphs 68 and 69 are as follows:

"Section 163.1(vi) creates a defence for material that serves a medical, educational or scientific purpose. This refers to the purpose the material viewed objectively may serve, not the purpose for which the possessor actually holds it. How the material was produced or is possessed is obviously relevant to this determination."

"While arguably few medical, educational and scientific works would fall within s.163.1(I), Parliament has made it clear that if they do, possession of them is legal. Procedural aspects of the defence of artistic merit would apply to this defence."

The court goes on to say that the defence of possession for scientific purpose should be determined liberally and in accordance with Parliament's intent. In my view, the accused has not successfully raised this defence.

He testified that he wants to discuss changes in sexuality and reproduction in a book or manuscript, yet he did not explain how these photos were going to be used in the process or why the faces of preteens added to altered adult bodies were demonstrative of his vague theories.

His first book, he acknowledged, remains somewhere in manuscript form. He did not say how his work would be published. He contradicted himself at times suggesting that he wished to encourage heterosexuality, at other times to assist transsexuals and at other times to recognize that normal sexual activity would eventually end with cloning.

In my view, he simply did not successfully raise this defence nor, in my view, did he raise a defence of public good.

Public Good Defence

He argued that the scientific theories he testified about are for the public good but he did not relate the images to this vague and somewhat rambling submission.

Public good is defined at paragraph 70 in Sharpe as follows:

"Public good has been interpreted as necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, art or other objects in general interest... Examples of possession of child pornography which could serve the public good include possession of child pornography by people in the justice system for purposes associated with prosecution, by researchers studying the affect of exposure to child pornography and by those in possession of works addressing the political or philosophical aspects of child pornography."

Once again, in my view this defence has not been raised.

Constitutional Exception for Private Expression

Given that the accused is self-represented, I have also considered whether one of the constitutional exemptions or exceptions discussed in Sharpe might apply. The possible relevant one reads at paragraph 129(vi) of Sharpe as follows:

"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."

In my view, on the accused's testimony, these images are not deeply held private expressions. First, he was making copies of them in a store in a way in which members of the public saw them and, more importantly, he stated that they were part of a work in progress to discuss the future of sexuality and reproduction, testimony which is not in keeping with the concept of deeply held private expression.

Verdict

In my view, the Crown has proved the essential elements of the offence beyond a reasonable doubt. No defences apply and the exception discussed in Sharpe does not apply. He was clearly in possession of these images.

Regarding the making count, it has been decided that making does not require the proof of the purpose of publication. See R. v. Barrow, 1995 O.J. No. 1820 and R. v. Davies, 2012 O.J. No. 284 (Ont. S.C.).

It is clear that he made these images by the processes described earlier in this judgement. So he will be found guilty on both counts.

Adjournment

... MATTER CONTINUES WITH SUBMISSIONS ...

... MATTER ADJOURNED ...

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

I, Janice Young, certify that this document is a true and accurate transcript of my recordings in the Ontario Court of Justice held at 60 Queen Street West, Toronto, Ontario taken from recording 4811-122b-20161012-093550-6-SPARROG.dcr