Ontario Court of Justice

Date: 2019-06-28

Court File No.: Brampton 3111 998 17 703

Between:

Her Majesty the Queen

— AND —

Dhanesh Ramlogan

Before: Justice A. R. Mackay

Heard on: May 28, 30, 2018 and February 7, March 6 and June 4, 2019

Reasons for Judgment released on: June 28, 2019

Counsel:

Shanna Ferrone — counsel for the Crown

Paula Locke — counsel for the defendant Dhanesh Ramlogan

MACKAY J.:

Overview

[1] Mr. Ramlogan is charged with possession of child pornography contrary to section 161.1(4) of the Criminal Code. As a result of the execution of a search warrant on his home on January 17, 2017, police seized a number of computers and external hard drives. In an earlier ruling I found that the warrant was properly issued. A forensic search revealed that the hard drives contained what police believed to be child pornography.

[2] The Crown, Ms. Ferrone, is not proceeding on items that were found on a computer tower hard drive given the files were inaccessible and would require special software to access. Ms. Ferrone fairly conceded that it would be difficult to prove that Mr. Ramlogan would have control over those files. The remaining four movies, however, are still in accessible space where Mr. Ramlogan could access or move them. Ms. Locke did not argue that the Crown failed to establish control and knowledge with respect to these movies.

[3] The Crown submits that the movies found on the defendant's hard drive meet the definition of child pornography as defined in section 163 the Criminal Code. Defence has conceded that one of the movies meets the definition. Unlike many child pornography cases, the movies in question are of children that are clothed, there are no sexual acts depicted nor any explicit photos of the genital organs or of the anus in these movies.

[4] The central issue to be decided is whether three of the movies possessed by Mr. Ramlogan constitutes child pornography within the meaning of the Criminal Code.

The Law with respect to the definition of child pornography

[5] The relevant section that applies in this case is section 163.1 (1) (ii) of the Criminal Code. It states:

In this section, child pornography means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;...

Dominant Characteristic

[6] In order to find Mr. Ramlogan guilty of the offence, I must be satisfied beyond a reasonable doubt that the visual images in question depict, as their "dominant characteristic", "a sexual organ or anal region of a person under the age of eighteen years", for a "sexual purpose."

[7] The Supreme Court in R. v. Sharpe interpreted what is meant by the terms "dominant characteristic" and "sexual purpose" as set out in subsection 163.1(1) (a)(ii). The Court held that:

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 I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers.

[8] The Supreme Court also determined that Parliament's clear and unequivocal purpose in drafting section 163.1 was to protect children from abuse and exploitation associated with child pornography. However, it recognized that "the primary definition of 'child pornography' does not embrace every kind of material that might conceivably pose a risk of harm to children, but rather targets blatantly pornographic material".

[9] In determining whether a sexual organ is the dominant characteristic of the material, the court can look to the context in which the images were taken, along with the images themselves.

[10] In R. v. Way, Justice Thorburn set out factors to be considered in deciding whether the "dominant characteristic is the depiction of the child's sexual organ or anal region":

In determining whether the dominant characteristic is the depiction of the genital or anal area, I considered the following three factors:

i. First, the number of images of the genitals and or anal region;

ii. Second, the characteristics of the images. This includes:

a. the clarity of the image; b. the proximity of the genital area or anal region to the camera; c. the duration of the depiction of the genital and anal region; d. the camera angle; e. whether the camera zooms in on the genital or anal region; f. whether the focus on the genital area or anal region seems to be a deliberate intention to emphasize the genitals or anal region; and g. whether there are captions or other methods used to highlight the genital and anal regions.

iii. Third, the context in which the images are taken. This includes:

a) the significance of the images to the film as a whole including the plot, visual representations or music; b) the apparent purpose of the depiction of the genitals and /or anal region; and c) if they are part of a larger collection, the context of the collection as a whole.

The determination of whether the dominant characteristic is the depiction of the genital or anal area is based on the image not on what was in the mind of the person in possession or the maker of the image. (R. v. Sharpe (supra) and R. v. Chaisson at p. 31 (unreported) MacDougall J. (S.C.J.))

[11] Section 163.1 does not require that the sexual organ or anal region of the child be exposed. Nudity, or the lack thereof, is an important element of context, but it is not determinative. Given compelling evidence of a "dominant prurient purpose", a depiction of a child who is not naked can be pornographic.

[12] A child who is clothed to some degree can still depict a sexual organ or anal region. In Rudiger the Court gave the following examples: a wet bathing suit or the wearing of translucent material of an undergarment can easily adhere and reveal a child's sexual organs. So too can the position a child is placed in, "such as a photo of a young girl in underwear with a clear sexual caption attached to it that depicted the child with her legs splayed so that the focus is on her genitals, is clearly sexual to a "reasonably objective viewer".

[13] In R. v. Rudiger, the appellant had surreptitiously filmed children and focused in a significant way for a lengthy part of the footage on the genitals and buttocks of young girls. While the child was wearing shorts or a bathing suit, the outline of her genitals was clearly visible. In many other instances, though again clothed, the cleavage of a child's buttocks is the object of focus. Justice Boith found that there was no question that the depictions were for a sexual purpose and that the "dominant characteristic or purpose" was "unmistakably sexual in the view of a reasonable objective observer."

[14] The following are a number of examples of where a child wearing underwear was found to be child pornography. It is important of course to note that pictures of children dressed in underwear without more would not likely meet the definition in the Code. In R. v. Wanamaker, the Court dealt with thousands of images of both partially clothed and scantily clothed girls. However, it appeared that the pictures were focused on the genitals and were sexually explicit. There were also pictures of naked girls, one posing and displaying her labia. In another image one girl is helping take off the top of another.

[15] In R. v. M.B. the Court of Appeal recently reviewed images of children in diapers to determine if they met the definition of child pornography. The following was their assessment:

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

[16] R. v. Brandridge dealt with an image a child sleeping, showing a male's penis hovering over her, making it look like he was about to enter her mouth.

[17] In the sentencing case of R. v. C. (D.), reference was made to some of the child pornographic images which included some where organs were visible either because the clothing in this case was wet or "see through".

[18] R. v. Y, was a sentencing after conviction where child pornography was found to include a 16 year old girl depicting her breast with a bra on and a no – bra image.

[19] In R. v. Way the Court found a collection of boys at a nudist camp to come within the definition of child pornography. However, the court made a distinction between two sets of films. The films made earlier in time, were shorter, contained less nudity and had fewer close up images of the nude boys and the activities were never sexualized. However, films made after 2007 had lengthy nude scenes that highlighted the genitals and buttocks with the camera coming in close range in poses that emphasized the boys' genitals. In some clips, they posed with objects such as whipped cream, toothpaste and foil which were used to focus on the genitals and make the images more sexual.

Sexual Purpose

Whether the Depiction is for a Sexual Purpose

[20] If the Crown establishes beyond a reasonable doubt that the dominant characteristic of the image or images is the depiction of the genitals or anal region, the court must then consider whether, taken as a whole, the image or images are likely to stimulate a sexual interest in the viewer.

[21] The phrase "sexual purpose" has been interpreted by the Supreme Court as meaning "reasonably perceived as intended to cause sexual stimulation to some viewers". The factors pointing to a sexual purpose can overlap with those that demonstrate "dominant characteristic" so long as both characteristics are proved by the Crown beyond a reasonable doubt.

[22] It is clear from R. v. Jarvis that a sexual purpose can be found despite lack of nudity or sexually suggestive clothing or poses. Mr. Jarvis was a high school teacher who was charged with voyeurism and not child pornography. He used a camera that was concealed inside a pen to make video recordings of female students. The Court of Appeal found that this was an overwhelming case of videos focused on young women's breasts and cleavage. The trial judge was not satisfied that the videos had been made for a sexual purpose and he acquitted Mr. Jarvis. The Court of Appeal was unanimously of the view that the trial judge had erred in law in failing to find that Mr. Jarvis had made the recordings for a sexual purpose. However, the Court found that the students did not have a reasonable expectation of privacy, and affirmed the acquittal. The Crown then appealed to the Supreme Court of Canada on this discreet issue.

[23] The Court of Appeal reiterated the test set out in Sharpe: whether the image would be reasonably perceived as intended to cause sexual stimulation is based on the image and "must be assessed on the totality of the evidence".

[24] A review of the case law would suggest that there are a number of general factors a court may rely upon in determining whether or not the material in question evidences a sexual purpose, including:

a. The nature of the material;

b. The quantity of the material;

c. The circumstances in which the material was created; and,

d. The overall context of the material.

[25] The Court of Appeal in M.B. spoke about the "restrained" interpretation in Sharpe, and was in agreement with the prudence of this approach. The Court stated at para. 13:

A trial court's analysis of which depictions fall under the definition of "child pornography", including under s. 163.1(1) (a)(ii) of the Criminal Code, necessarily remains a fact and context-driven exercise, which, absent error, is entitled to deference from an appellate court.

[26] R. v. Way and R. v. Schacter set out the following specific factors that the courts have referred to which can lead to the determination that the photos in question exhibit a sexual purpose.

1. Context: whether the images are part of a series of sexual materials, how many other photos were found, what is depicted in the other photos, what does the "album" of photos found suggest?

2. Sexual Caption: a photo that otherwise might seem innocent can be captioned to suggest it is unmistakably for a sexual purpose.

3. Nudity.

4. Sexual contact or sexual activity.

5. Angle of the camera: is it pointing down on women's breasts.

6. Lack of biological connection.

7. All of the photos depict the same sex.

8. Background of the photo.

9. Existence of a watermark or logo indicating where the photo originated.

10. Posing in provocative ways.

11. Whether there are indicia of sexual stimulation of the person depicted or sexual interest by that person in another person;

12. Whether the activities engaged in are associated with sexual activities;

13. Whether the images include the use of items commonly used for sexual pleasure;

14. Whether the images appear to have been obtained surreptitiously or under protest;

[27] The determination of whether images would be reasonably perceived as intended to cause sexual stimulation to some viewers is also based on the image not on what was in the mind of the person in possession or the maker of the image.

Images of child pornography found when child was clothed

[28] In R. v. Meikle there were 500 images of the sexualized poses with the legs spread, the hips thrust out towards the camera in a provocative manner - they were, in some pictures, lying on their backs with their legs spread or on their hands and knees with their buttocks spread - all of these, clearly the focus is on either the genital area or on the anal area, and it is clear the manner which these photos were taken that that is where the viewer's eye is meant to be directed.

[29] In R. v. Schacter the Court reviewed a couple of the images that were representative of the overall collection. Justice Chapman ultimately found they met the definition under s. 163.1(1):

The first image identified in Exhibit 5B, is that of a prepubescent male, approximately 12 years old, wearing a black bikini brief Speedo bathing suit. The male is leaning back on his right elbow, his right leg appears to be in a pool and the left leg is bent up. The child's legs are slightly separated and the outline of the boy's penis is evident against his left leg. This same image appears in nine different places on the accused's USB devices.

Image 32, described on page 10 of Exhibit 5(b) and found on an USB drive located in the accused's home, contains an image of a prepubescent male, based on the absence of body hair and the lack of muscular development in his thighs, dressed in a white shirt, blue shorts and white underpants. The boy, who is sitting with his legs splayed, is only visible from the navel area to just above his knees. The child's underwear is clearly visible through the bottom of his shorts and he is experiencing an erection. The erection, which is outside of the shorts, is pushing against the underwear and the outline of the head of the boy's penis is visible.

Position of the parties

Defence's position

[30] Ms. Locke submits that there is a myriad of images of children that fall between innocent pictures of a baby in a bathtub to clear examples of child pornography that would not be captured by s. 163.1 of the Code. Counsel argues that the movies in question did not capture the sexual organ or the anal region enough to demonstrate that the dominate purpose of the film was for a sexual purpose. In addition she argues that it is not enough for a child to be put in a sexualized pose, the image or film must focus primarily on a sexual organ or anal region to meet the definition of child pornography as set out in the Criminal Code. It is Ms. Locke's position that the objective observer has to be able to discern the sexual organs clearly. She submits that movies do not focus on the sexual organs, rather the videographer pans over these areas only from time to time.

Crown's position

[31] It is Ms. Ferrone's position that the movies clearly meet the definition of child pornography. She submits that the movies have a dominant prurient purpose; she points to the fact that there is a deliberate angling of the camera and zoning in on the genitalia at various junctures throughout the movies; much of the running time of the videos is of close ups of the child's pelvic region, buttocks region. It is clear that the dominant purpose is to draw the viewer's attention to the genital organs for a sexual purpose.

[32] In response to defence counsel's argument that many of the cases of children in underwear or swimsuits can be distinguished as they refer to images of boys wearing bathing suits where the genitals are clearly delineated, Ms. Ferrone points out that the female body is made differently and would not be so clearly obvious but should result in a finding regardless of an inability to see the sexual genitals as it amounts to the same thing.

Analysis

The Images

[33] The same general theme is present in the three movies. Each movie contains several different clips of a young Asian girl in different outfits and, in most cases, eventually a clip of the child wearing a swimsuit. The girls appear to be between the ages of 6 to 8. The swimsuit the girls are wearing appear to be women sized suits, with larger tops. Only soft instrumental music can be heard, there is no speaking, only one girl is in each movie or clip. No one else is in the movie although on one occasion a man can be seen at the side taking a picture of the girl. Various backgrounds are depicted in the movie: including a swimming pool, a classroom setting, and a bedroom. On occasion the child is posing provocatively in ways that are not age appropriate. The poses are more akin to a swimsuit model but these are infrequent. Mostly the children appear to do what they feel like. The girl in some clips, plays with a ball, pillow. One very odd clip however, depicted a girl in a bikini wearing shoes with a heel, attempting to sit on a bicycle. In another clip a girl is wearing a large pair of underwear that say "kiss me". In one scene a girl does the splits with her leg on a fence. Very often, the videographer pans the entire body of the girls up and down, sometimes stopping at the lower region. However, in none of the pictures can you make out the sexual organs as occurred in other cases, where the bathing suit was wet or see through.

[34] The camera is never in close proximity to the sexual organs or the anal area. However, some shots were taken from below the buttocks and angled upwards. There was, on occasion, some zooming of the buttocks and the area of the pelvis.

[35] There is no artistic merit in the films. They are mostly mundane activity of a child playing by herself.

[36] The girls do not touch themselves and do not do anything that is sexually suggestive in the films. There are no sexual captions that could be discerned as any captions were not written in English.

[37] Mr. Ramlogan's video interview was introduced into evidence. He readily admitted to downloading child pornography images and movies. He advised that he knew it was wrong and for this reason he would frequently move whatever he had downloaded to external hard drives. He explained that he would sometimes forget about whatever he had moved and sometimes he would delete it.

[38] Mr. Ramlogan was not presented with the movies in question to make comments on them. However, he did refer to watching in the past Japanese movies where the children were mostly posing and modeling.

[39] It is clear to me that the movies appear to serve one purpose: to normalize and utilize the objectification of children as sexual objects for the purpose of sexual gratification. I am satisfied that given the collection of the clips in the movies, that the movies could be perceived as being intended to cause sexual stimulation to some viewers. However, 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.

[40] While I believe that the movies could possibly meet the definition of child pornography in s. 163.1(1) (ii) of the Criminal Code, I am not satisfied beyond a reasonable doubt that a reasonable viewer looking at the movies objectively and in context would see the movies' "dominant characteristic as the depiction of the child's sexual organ or anal region". Mr. Ramlogan will therefore be found not guilty of possession of child pornography with respect to the three movies I have reviewed. However, given his counsel has conceded the movie I have not viewed meets the definition of child pornography, he will be found guilty of that offence.

Released: 28 June 2019

Signed: Justice A. R. Mackay