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 subsection 486.4(1) 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 subsection 486.4(1), 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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.

486.6 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

Ontario Court of Justice

Date: 2017-12-11

Court File No.: Kitchener info # 16-8352

Between:

Her Majesty the Queen

— and —

A.R.

Before: Justice Scott Latimer

Heard on: November 29, 2017

Reasons for Judgment released on: December 11, 2017

Counsel:

Jonathan Thompson — counsel for the Crown

Bruce Ritter — counsel for the defendant

Reasons for Judgment

LATIMER J.:

[1] Charges and Plea

[1] A.R. has been charged with two related criminal offences – that he made and possessed child pornography contrary to section 163.1 of the Criminal Code. The Crown has elected summarily and he has pleaded not guilty to both offences. The information is particularized that he:

(1) … between the 5th day of October, 2014 and the 6th day of October, 2014, … did have in his possession child pornography to wit: written material that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code, contrary to section 163.1(4) … ;

(2) … between the 5th day of October, 2014 and the 6th day of October 2014, … did make child pornography, to wit: written material that advocates or counsels sexual activity with a person under the age of 18 years that would be an offence under the Criminal Code, contrary to section 163.1(2) of the Criminal Code of Canada.

[2] Trial Focus

[2] The parties have focused the trial on a single issue – whether the Crown can prove beyond a reasonable doubt that the written communications created by the defendant meet the s. 163.1(1)(b) Code definition of child pornography. The Crown's case consisted of an agreed statement of facts that included the communications at issue. The defence called no evidence. Both parties filed binding and relevant jurisprudence on what constitutes written child pornography in Canada. I am grateful for their conduct and the level of advocacy they have brought to this proceeding.

I. Introduction

[3] In Canada, visual, aural and written material are all capable of constituting child pornography. Section 163.1(1) of the Code provides a variety of definitions depending on the media at issue. In the present case, given the particularization of the charges and the evidence adduced, the relevant definition is found in s. 163.1(1)(b):

163.1(1) In this section, "child pornography" means

(b) any written material… that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act

[4] The evidence in this case depicts the defendant electronically communicating with another person via a computer, or other like digital device. By necessity, he knowingly created and possessed a written record of his communication with this other person. The agreed statement of facts satisfied all elements of the offences save one – were his communications "child pornography"?

II. Facts

[5] The entirety of the evidence in this case is contained in exhibit #1. I have reviewed this document, and the attached Schedule "A", multiple times. What follows is a summary of the evidence contained in those documents.

[6] A.R. was a thirty-three year old married man living in the Waterloo region. He lived with his wife of six years and his two young step-daughters, identified as eight and eleven years old in the Agreed Facts. On October 5, 2014, he responded to a classified ad posted on Craigslist, a commonly known and publicly accessible website where computer users post classified ads or otherwise correspond electronically. The content of the classified ad read as follows:

Subject: Lets see how far will you go!! – w4m

Generous guy looking for a girl into daddy-daughter roleplay and ageplay

[7] The defendant and the poster of the ad – referred to by the pseudonym MM – subsequently communicated by email for approximately twenty-four hours over a two-day period. MM self-identified as someone in Kitchener who "loves incest roleplay and age play". He said he "currently ha[s] a few friends that I see for this and thankfully they are as kinky as I am. I prefer daddy-daughter roleplay but I am pretty much open too anything taboo". Eight minutes later, the defendant responded:

Nice. I love incest I live the family play and daddy daughter is my fav. I do like also mom and son and young. Ur friends. Do they play incest or is it all real family play

[8] The defendant said that he would like to chat more with MM. He asked for his age. MM responded to the question about incest, stating that, "… in practice its pretty much all roleplay and fantasy. How about you"? The defendant responded:

I haven't found someone that enjoys the same as me. So I am looking to share someone or roleplay or meet a family and talk about it. Where in kitchere are u. Are u attached or single. M or f.

[9] MM said he was male and provided his particulars. The defendant responded that he was thirty-three, married, and living in Kitchener with his wife and his two step-daughters, aged six and nine. The communication progressed quickly into a discussion about incest, "taboo" and age-play. MM explained "ageplay" to mean "roleplay with people pretending to be different ages then what they actually are". He advised he had a female friend who liked to pretend to be "younger when doing daddy daughter roleplay". The defendant said that he had never done role-play but "would love to try". MM elaborated that his friend was an eighteen year old "red head in Guelph" who liked to pretend that she was six years old. The defendant responded, "Mmm nice".

[10] The role-play discussion continued. The defendant told MM that his fantasy was "family taboo. So like father daughter or brother sister or uncle niece. Things like that. The idea of it I find hot". He confessed a prior attraction to his sister, and asked if MM had ever experienced anything similar. MM responded:

Nope, my family does not attract me all that much, although maybe my niece when she gets older. Whats your sister like.

[11] The defendant asked about the niece. He was told she was 8 and a "cute little brunette". The defendant asked what would be the youngest age MM would "play with". MM wrote back:

I am not sure, I really don't have a limit they would just have to be old enough to enjoy it. If I am forced to pick an a number I usually choose something like 11, but I am flexible in that regards, how about you.

The defendant said he agreed with MM – "they would have to enjoy it and ask about it. I would say 10 to 12. But I am open to it". He wrote that he would consider sex with his stepdaughters, if they were curious and could be quiet about things. He wrote that he would "have to do things slow with them", and described his stepdaughters to MM – "The oldest is 9 and blond hair nice ass. The youngest is a red head cute bum and both skinny".

[12] MM approved, and asked for photos of the girls. The defendant said that he would send some along, but needed something in return – photos of MM's niece and his "role play girl". MM sent pictures of both, and the defendant replied in kind. The "role play girl" is depicted in her underwear facing away from the camera, with her buttocks featured prominently in the photo. She appears to be eighteen years of age or older. The "niece" photo depicts a prepubescent girl fully dressed and smiling into the camera. The defendant wrote that both girls looked "very hot", and emailed back two children; one purporting to be a daughter, the other a niece. These girls are also prepubescent; I would estimate their ages to be somewhere between six and nine years old. The photographs are classic childhood images – the girls are fully dressed, smiling for the camera. In one, a young girl is playing a guitar at home for an audience.

[13] After receiving the photos, MM wrote back that they look "amazing" and "very nice". The following exchange is significant and relied upon heavily in the Crown prosecution theory:

The defendant: Ty. Would love to have fun with them both or have them just rub my cock. Till I explode all over their tiny hands. But I know that won't happen.

MM: you never know anything can happen, in the meantime the fantasy is fun

The defendant: I know. Sounds fun. What else have u two done for rp.

MM: she acts like shes six, and we play with each touching feeling and oral. I dont penetrate her. Not really anything complicated as far as scenarios goes.

[14] This is the last communication between the parties. Their total contact was for less than twenty-four hours. The majority of the exchange occurred between 11:29 a.m. and 2:03 p.m. on October 6, 2014, in relatively quick succession. The written material contained in these messages lay dormant until 2016, when MM was arrested during an investigation into the sexual abuse of a seven year old child. That investigation unearthed the defendant's email correspondence and led the police to his door. A search warrant was executed and several digital devices were seized and examined. The defendant's children were interviewed and the authorities were satisfied that neither demonstrated any "worrisome behaviour or signs of sexual abuse".

III. How Does the Law Define Written Child Pornography?

A. Statute

[15] Section 163.1(1) of the Criminal Code contains an exhaustive definition of what amounts to child pornography in Canada. Two distinct subsections refer to written material – (1)(b) and (1)(c). Only the former definition is presently relevant – any written material… that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

B. Jurisprudence

[16] The constitutionality of section 163.1(1) was addressed by the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, 150 C.C.C. (3d) 321. John Sharpe was charged on two occasions with possessing photos and writing said to constitute child pornography. He argued that the law violated his constitutional right to free expression. A majority of the Supreme Court upheld the provision after reading out two problematic applications, both relating to privately created and preserved materials, that could not be saved by section 1 of the Charter. In a comprehensive decision, Chief Justice McLachlin affirmed, inter alia, the proper interpretation of child pornography as it relates to written materials.

[17] The express language of the section refers to written material that counsels or advocates the commission of sexual crimes against children. The Court found that Parliament's intention in drafting the legislation was to criminalize content that "actively promote[d] the commission" of such offences: Sharpe, at paras. 54-56. The determination of whether written material "counsels or advocates" such conduct should be assessed by jurists on an objective basis:

… it seems reasonable to conclude that in order to meet the requirement of "advocates" or "counsels", the material, viewed objectively, must be seen as "actively inducing" or encouraging the described offences with children. Again, Parliament's purpose of capturing material causing a reasoned risk of harm to children may offer guidance. The mere description of the criminal act is not caught. Rather, the prohibition is against material that, viewed objectively, sends the message that sex with children can and should be pursued. [emphasis added.]

[18] The Court identified various harms visited upon children by child pornography. These harms range from the obvious – abuse related to the production and dissemination of the material – to the more insidious; increasing the risk of future abuse and exploitation by creating cognitive distortions and "banalizing the awful, and numbing the conscience… [making] the abnormal seem normal and the immoral seem acceptable": Sharpe, at paras. 86-94; see also, R. v. Levin, 2015 ONCJ 290, at para. 100.

[19] Subsequent authorities have clarified the proper judicial interpretation of counselling or advocacy in the s. 163.1(1)(b) context. The inducement necessary to make out the offence need not be overt, it can be found in language that is subtle or implied: R. v. Beattie (2005), 75 O.R. (3d) 117, at paras. 21-23 (C.A.); R. v. Missions, 2005 NSCA 82, 196 C.C.C. (3d) 253, at para. 29.

[20] The Court of Appeal in Beattie allowed an appeal from an acquittal on the basis of a trial judge's failure to identify the various methods through which language may achieve an inducement. Justice Laskin, writing for the Court, explained as follows:

… the trial judge's approach does not recognize that active inducement or encouragement may come from a message that is implicit in the stories themselves. Material that describes sex with children as enjoyable, normal and beneficial, and the children as willing may send the message that sex with children can and should be pursued. An entirely different business – the advertising industry – uses implicit messages all the time to persuade customers to buy a company's products. [emphasis added.]

IV. Analysis

[21] A.R. is presumed innocent and bears no burden of proof in this trial. The exclusive burden rests with the Crown to prove, beyond a reasonable doubt, that he made and possessed child pornography in the circumstances particularized in the information before me. He can only be found guilty if I am satisfied to this exacting standard that his written communications meet the s. 163.1(1)(b) definition of child pornography. For the reasons that follow, I am satisfied that the Crown has proven its case against the defendant.

[22] At the outset, I note that the written material in question is not in story format, as was the case in Sharpe, Beattie and the vast majority of the related jurisprudence. The present material was produced and contained in electronic form through the defendant's conscious decision to communicate over his computer with another individual. The email correspondence, created by the defendant and MM, is written material of a different kind. It is a not a standalone document created by a single person; it is a narrative willingly created by two men communicating over a medium that recorded and transmitted their written words across the Internet. From a strictly factual perspective, this is written material that was not expressly contemplated in 2001 in Sharpe.

[23] At the risk of understatement, the Internet has brought with it profound change. The present facts are but one example – two citizens meet through an online bulletin board that promotes a shared interest. Having met, they can correspond anonymously about anything they choose, including topics that civil society would likely consider distasteful, taboo or inappropriate. Predilections previously kept in the shadows are given light by the Internet's promise of seeming anonymity. In this case, two men discussed sexually-based role-play, where adults pretend to be children, and their shared fascination with sexually abusing prepubescent family members.

[24] That fact that this material is the product of communicative acts, rather than an individually prepared story or document, does not remove it from the ambit of s. 163.1(1)(b) of the Code. I did not understand Mr. Ritter to suggest otherwise. The applicable test remains the same – do the defendant's written words, in the context of this particular communication, counsel or advocate unlawful sexual activity with a person under eighteen years of age? Do they actively induce or encourage such activity?

[25] As stated, I am satisfied beyond a reasonable doubt that the defendant's words, when viewed objectively, induce or encourage unlawful sexual activity with children. I say so for the following reasons:

(1) Disjunctive Statement Regarding Role-Play and Actual Contact

The conversation between MM and the defendant has two discrete but related threads. It involves a discussion of role-play, adult interaction where one of them pretends to be a child, as well as sexual acts involving actual children. MM's niece and the defendant's stepdaughters are expressly identified. Early in the communication, on p. 2, the defendant writes that he hasn't found someone who enjoys what he enjoys, and that he is "looking to share someone or roleplay or meet a family and talk about it." This disjunctive statement – that both role-play and actual contact with a child are pleasurable – is consistent with the broader tenor of the defendant's written communication. I conclude that the objective implication is that both avenues are equally worthy of pursuit.

(2) Active Encouragement of Criminal Sexual Activity

The focus of my inquiry is not on whether the defendant was expressing an actual intention to abuse his stepdaughters, but whether his chosen words "actively encourage criminal sexual activity" in general: Beattie, at para. 25. I find that they do. The defendant's words, at the top of p. 7, indicate that "family taboo… father daughter or brother sister or uncle niece… I find hot". MM tells the defendant, on p. 8, that his niece is "8, cute little brunette". The defendant then writes, "Nice. What would be the youngest ubwould play with"? MM responds perhaps eleven, but what is most important is that that they be "old enough to enjoy it". The defendant writes, "Same. They would have to enjoy it and ask about it. I would say 10 or 12. But I am open to it".

(3) Sexual Objectification and Goal-Oriented Language

The defendant's written statements continue on p. 10, where they indicate that sexual contact with the identified children – ages six and nine – is a goal worth striving for, as long as the children remain quiet about the activity. The girls are sexually objectified at the bottom of the page as "blond hair nice ass… red head cute bum both skinny". After sending their photos, the defendant's written words on p. 14 describe having "fun with them both or have them just rub my cock. Till I explode all over their tiny hands. But I know that won't happen". I find the defendant's written material, by this point in the communication, constitutes child pornography. I have no doubt in that regard, nor does any doubt accrue from the fact that his words include the statement, "I know that won't happen". Objectively viewed, the material created by the defendant is actively encouraging the reader to engage in illegal sexual activity with children under the age of eighteen. It is of some relevance that MM, the person to whom the language is immediately directed, writes back that "you never know anything can happen", to which the defendant responds, "I know. Sounds fun".

(4) Transmission of Photographs

The transmission of photographs during the exchange is a relevant consideration. The inclusion of photographs injects stark reality, and three real children, into the defendant's discussion about the perceived benefits of child sexual abuse. I find that such inclusion objectively enhances the surrounding language's inducement of child sexual abuse: R. v. C.C., 2016 ONSC 4524 at paras. 3, 12.

(5) Context of Communication with Like-Minded Individual

Further, the context at play is not simply the photos that were shared, or the words that were uttered, but the fact that both occurred during a communication where the defendant's interlocutor was himself partial to child sexual abuse. I find that the manner in which the defendant's words were created and transmitted – during a conversation about the benefits of sex with children – is relevant to my determination of whether those words "actively encourage" sexual crimes against minors. While the test is objective it can, and in my view does, take into consideration the particular context in which the written material resides.

(6) Duration of Communication

I have also considered the total length of the communication – approximately twenty-four hours. This period, while not exceedingly lengthy, does not detract from the fact that a written record was created – by both men but my particular focus is on the defendant's contribution – that actively encouraged sexual acts with children.

V. Disposition

[26] In totality, having reviewed and scrutinized the entirety of Schedule A and Exhibit #1, I am satisfied beyond a reasonable doubt that the defendant's written material, intentionally created during an anonymous online exchange, sends the message that sex with children can and should be pursued. In Sharpe, the Chief Justice wrote that "the clandestine nature of incitement, attitudinal change, grooming and seduction associated with child pornography" contributes to the harm caused to children, rather than reducing it. Sharpe, at para. 26. I am satisfied that the conclusion I have reached in this case fits harmoniously with the legislative purpose behind the s. 163.1 criminal prohibition. The defendant will be found guilty of making and possessing child pornography.

Released: December 11, 2017

Signed: Justice Scott Latimer

Footnotes

[1] At the time of the allegations, section 163.1(2) of the Code – the make child pornography provision - was a hybrid offence. It has since been amended to straight indictable: see Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s.7.

[2] In these reasons I have endeavored to reproduce the original text of the communication – contained in Schedule A to Exhibit #1 - which contains multiple spelling and grammatical errors.

[3] The actual word in the email, found on p. 10 of Schedule A, is "quite". Given the surrounding sentence, I interpret "quite" to be a misspelt "quiet".

[4] Paragraph 9 of the Agreed Facts indicates that the children were in fact the defendant's stepdaughters.

[5] Pages 4 to 14 of Schedule A to the Agreed Facts.

[6] The parties agree that the Sharpe exception has no application to the present facts.

[7] The emphasis is mine.

[8] Again, my emphasis.