Court Information

Date: November 6, 2020

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: M.M.

For the Crown: P. Santora For the Defendant: C. Assie

Heard: August 11, 12 and 14, 2020

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] The accused, M.M., got married to M.O. in July of 2018. He was 31 years old at the time. In early August 2018, M.O. was looking through M.M.'s phone and discovered sexually explicit photos and videos of 15-year-old M.G. (her husband's "cousin"), as well as sexually explicit conversations between M.G. and M.M. M.O ended the marriage, made a copy of this material and went to the police. M.G. is not a blood-cousin of M.M. but rather the foster daughter of M.M.'s aunt, D.M.

[2] During these conversations, which took place over several weeks in July of 2018, M.G. sent M.M. pictures of her naked breasts and explicit videos of herself masturbating. The conversations, some further details of which will be set out below, include the parties telling each other of their love for one another, references to their dreams of having sex with each other, as well as plans to in fact have sex with each other.

[3] There is no evidence that M.M. and M.G. ever had sex with each other.

[4] As a result, M.M. stands charged with five criminal offences:

1. Making child pornography;
2. Possessing child pornography;
3. Accessing child pornography;
4. Counselling M.G. to touch herself for a sexual purpose, contrary to s. 152 of the Criminal Code; and
5. Communicating with M.G. contrary to s. 172.2 of the Criminal Code, for the purpose of arranging the commission of sexual exploitation contrary to s. 153(1).

B. THE ISSUES

(a) Introduction

[5] Only M.O. testified at trial. The parties agree that the conversations that were filed as exhibits are indeed between M.G. and M.M., and that the photos and videos are of her. Mr. Assie concedes that M.G.'s statements in the conversations are sufficiently reliable to be accepted for their truth. He also concedes that the pictures and videos of M.G. constitute child pornography as defined in s. 163.1(1) of the Criminal Code and that M.M. did indeed possess them. He also concedes that M.M. did arrange to have sex with M.G.

[6] The principal issues to be decided are:

1. Was M.M. in a position of trust towards M.G?
2. Did M.M. ever counsel M.G. to touch herself sexually?
3. Has the Crown proven beyond a reasonable doubt that the arrangement was to have sex after M.G. turned 16 years of age and before she turned 18?
4. Do the written sexual fantasies in the conversations meet the definition of child pornography in s. 163.1(c) under the Criminal Code?
5. Does M.M. enjoy the private use exception to the possession of child pornography?

(b) Was M.M. in a position of trust towards M.G?

(i) The text messages

[7] Apart from the fact that M.M.'s aunt (D.G.) is M.G.'s foster mother (which was testified to by M.M.'s former wife, M.O.), the sole source of information as to the nature of the relationship between M.M. and M.G. is the hundreds of pages of texts between the two between April 18 and July 25, 2018. Yet the messages in evidence do not tell the whole story of their communications during this interval. The text messages demonstrate that M.M. and M.G. also conversed through other media.

[8] The early exchanges can best be described as friendly banter. Nothing out of the ordinary is said by either of the parties until June 4 when M.M. apologizes to M.G. for something he said to her the night before, presumably on some medium other than the text conversations before the court. It is clear from the context that M.M. expressed his strong feelings for M.G., who tells M.M. that he shouldn't be sorry for what he said. He tells her that he doesn't want "things to get weird" between them. She says that she doesn't think it's weird and has known about his feelings for her for a while. He says: "it's not fair to you. It's not something that can be pursued."

[9] She tells him that to some extent she feels the same way about him, but reminds him that he is her cousin, although not by blood. She asks him why he feels the way he does, and he tells her that he has always felt strongly about her and that he loves her because of how wonderful she is in many regards.

[10] M.G. is clearly not troubled by his love for her. In fact, she confesses her love for him. He again apologizes for bringing it up and they seem to resolve to go back to "business as usual" as he puts it on June 4. A vague plan to get together is hatched. There is no mention of sex.

[11] The two agree that they will meet for lunch on June 18, although it is unclear whether they did in fact get together on that day.

[12] On June 18 he texts her and mentions sex in a context unrelated to her. She responds by saying "sex is beautiful and amazing". He says nothing in the texts in response to this.

[13] It is apparent that they got together between June 18 and June 29, because on the latter day he asks her why she has been distant since their get together. She assures him that she has not been pulling away from him.

[14] By June 29 it is apparent that they agree that they should keep their feelings for each other a secret from her brother and his aunt. She confesses to telling others how cool she thinks he is, but not that they have "feelings for each other".

[15] On June 29 he tells her he wants to kiss her, although he knows it's wrong. She replies that she wants to kiss him too "in a romantic way". She confesses that she's had a crush on him for at least three years.

[16] In the early morning hours of June 29 M.G. tells M.M. that she was masturbating when someone named Nana walked in. It appears that this message was sent to him by mistake and she feels awkward. In the ensuing conversation he insinuates that he is good in bed and she says that she is too. He eventually tells her that she needs "a serious one on one with my tongue". He then says, "Listen I know it's weird to hear, butttt we both kinda want it". She tells him that she feels tingly and they begin to discuss what she is wearing. A long string of sexually flirtatious texts follows.

[17] Later in the morning of June 29 he again tells her he loves her and that he knows that "this isn't something we can make happen". She tells him that she thinks they should keep things the way they are, and he agrees, although he confesses that "there's a lot of me that wants there to be more." He tells her how good the sex would be between them and that his love for her is eternal.

[18] In the early morning hours of July 4 M.M. sends M.G. a long missive declaring his love for her. He alludes to the first time they met, which was at least three years earlier when she came to his parents' home for dinner. He acknowledges knowing that she had a hard upbringing and says that he has always wanted her to see him as an example of how there are good people in the world. He refers to having "been there for her" and "helping her through hard times". He wants her to see him as "a beacon of hope". He wants her to be able to have "total trust in someone" and to look to him for "help and guidance". He realizes that he had been a role model for her as she grew up and that he had wrongly said some things to her that fuelled her crush on him.

[19] He admits knowing that his love for her is wrong because of the difference in their ages and their family ties. He doesn't want their platonic relationship to change. Rather, he wants her to be able to continue to look up to him for help and guidance.

[20] A long telephone conversation followed delivery of this missive. It is clear from later texts that she told him about her family and that it made him angry at them. She describes parts of the conversation as "emotional".

[21] M.G. tells M.M. on July 4 that she had asked her foster mother to make M.M. her god-father. He says that his aunt had indeed asked him to be M.G.'s god-father two years earlier and that he had agreed, yet had never "signed the papers". He suggests (although perhaps in jest) that if he does become her god-father and her foster mother dies, she would then move in with him.

[22] The two profess their love for each other in the ensuing days. She asks him why he's getting married if he doesn't love his fiancée. He tells her he does love his fiancée, but in a different way. He also reveals to M.G. that his sex life with his fiancée is not satisfying. Much friendly chit chat follows. She asks him to be the DJ at her eventual 18th birthday party. He agrees.

[23] On July 11 she sends him some photos of some minor injuries to her body. The photos are not pornographic. He tells her that he is always happy to receive more pictures.

[24] On July 12 she recounts an incident where her foster mother got upset with her and threatened to not let her go to M.M.'s wedding. M.M. tells M.G. that he needs her at the wedding and would be very disappointed if she didn't come.

[25] On July 12 she tells him that she had dreamed of having sex with him and that it was "Fucking heaven". He tells her he must go but can't wait for that night. He then graphically describes how they will have sex once they do.

[26] A long conversation ensues where they again say how much they love one another while discussing how awkward his upcoming wedding will be with her in attendance. She tells him that she would leave it all behind for him and that he is all she has in life. She says she loves him because when no one else was, he was there for her. She calls him her best friend and tells him that she feels she can tell him anything. He responds by telling her that he is "so fucking in love with" her and that while he loves her, he wants "to fuck the shit out of her at the same time". He asks her: "can we fuck soon? Please and thank you". The conversation then turns to where and how they will eventually have sex, but without any reference to when.

[27] It is apparent that she did indeed attend his wedding and there is much discussion of how awkward it was for them both.

[28] On July 14 he writes her another long message telling her that he loves her and that she is his best friend and that he will always be there for her.

[29] On July 17 their conversation is mostly focused on the plan for M.M. to visit M.G. at her cottage. He reminds her that they can't be together, but they should take advantage of whatever opportunities they have.

[30] On July 17 M.G. sends M.M. several pictures of her partially clothed breasts. M.M. did not solicit these pictures. He does ask her, however, what her breasts look like without her bra and she then sends him pictures of her bare breasts. He tells her he "wants to fuck them". He then asks for a side view of her breasts. She does not send any such photos, but their sexually flirtatious conversation continues for quite some time, culminating in him describing a fantasy he had just had about having sex with her, again without reference to when this imagined sex takes place.

[31] She sends him more unsolicited photos of her naked breasts on July 18. He asks her what prompted her to do this and she answers, "the cottage". He then describes having sex with her, and because there is reference to all this happening while his aunt is nearby at the cottage, it is clear to me that he is describing the sex he wants to have with her on the coming long weekend.

[32] On July 21 he sends her a picture of his penis. The following day she sends him several pictures of her naked breasts. They both proclaim their love for each other. On July 23 he sends her two more pictures of his penis. Later that day she complains to him about one of her male friends. She reminds M.M. that he is the only person she trusts. He tells her that she "will always have" him.

[33] There are no texts after July 25.

(ii) The law

[34] The leading authority as concerns when an accused is in a position of trust towards someone is R. v. Aird, 2013 ONCA 447 where, at paragraphs 28-29 the Court said this:

The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section: to protect a young person who is vulnerable to an adult because of the imbalance in their relationship. With this purpose in mind, the courts have identified several considerations relevant to an assessment of whether a relationship of trust exists. They include:

• The age difference between the accused and the young person;
• The evolution of their relationship;
• The status of the accused in relation to the young person;
• The degree of control, influence or persuasiveness exercised by the accused over the young person; and
• The expectations of the parties affected, including the accused, the young person and the young person's parents.

No one consideration is determinative. But each one may play a role. At bottom, "trust", wrote La Forest J. for the majority in Audet, at para. 35, must be "interpreted in accordance with its primary meaning: '[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.'"

[35] Then, in paragraph 34, the Court goes on to say:

Positions of trust and authority are related concepts. But they are different concepts and provide separate routes to the offence of sexual exploitation. An accused not in a position of authority towards a young person may nonetheless be found to be in a position of trust. Blair J. made this point in P.S., at para. 37:

I take a "position of trust" to be somewhat different than a "position of authority". The latter invokes notions of power and the ability to hold in one's hands the future or destiny of the person who is the object of the exercise of the authority: see, R. v. Kyle (1991), 68 C.C.C. (3d) 286 (Ont. C.A.). A position of trust may, but need not necessarily, incorporate those characteristics. It is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached.

[36] There is a wealth of jurisprudence interpreting Aird: R. v. D.E., [2009] O.J. No. 1909 (S.C.J.); R. v. D.M., 2019 ONSC 3911, [2019] O.J. No. 3512; R. v. R.C.S., [2018] O.J. No. 2925; R. v. R.T., 2017 ONSC 2625, [2017] O.J. No. 2206.

[37] Applying the test set out in Aird, and with guidance from the jurisprudence of the trial courts in this province, it is clear to me that M.M. was in a position of trust toward M.G.

[38] M.M. is significantly older than M.G. and by his own admission, became a role model for her years earlier when, in his words, "[she] was just a child". He knew she looked up to him and had been looking to him for emotional support since she was a child.

[39] That M.G. wanted M.M. to be her god-father, and that he was prepared to be that for her demonstrate that the relationship between them was not that of an equal friendship between cousins, nor one characterized by mutual mature love and desire. The communications between them, especially his long missive to her on July 4, demonstrate that he knew he had a significant degree of influence on her and that he knew that a sexual relationship between them was wrong.

[40] These are the characteristics of a relationship of trust as contemplated in the legislation.

(c) Did M.M. ever counsel M.G. to touch herself sexually?

[41] M.G. is the first to bring up the subject of her touching herself. While M.M. certainly indulges in conversations with M.G. about masturbation, it cannot be said that he ever counselled her to do so. He is thus not guilty of this charge.

(d) Has the Crown proven beyond a reasonable doubt that the arrangement was to have sex after M.G. turned 16 years of age and before she turned 18?

[42] This issue is important in the determination of whether M.M. is guilty of arranging to commit the offence of sexual exploitation, which according to s. 153(1) can only be committed against a "young person", which for the purpose of that section is defined in 153(2) as "a person 16 years of age or more but under the age of eighteen years". Given the way the Crown has drafted the information, the Crown has undertaken to prove this particular offence and must thus lead sufficient evidence to prove all the essential elements of the offence beyond a reasonable doubt, including that M.G. would have been over 16 and under 18 at the time of the arranged offence. It is important to note that M.M. is not charged with arranging to commit any other offence, such as having sex with M.G. before she turned 16 years of age (sexual assault per s. 150.1(1)).

[43] M.G. was planning a cottage weekend to celebrate her 16th birthday, which, according to what she told M.M. on July 17th, 2018, was "20 days away". i.e. on Monday, August 6.

[44] M.M. was planning to meet M.G. at the cottage for the long weekend of August 4-6. The conversations make clear that it was their intention to have sex that weekend. It is unclear whether the plan was to have sex early in the weekend, before she turned 16, or later that long weekend, after she turned 16 on the Monday.

[45] There were other general references and fantasies about sex between them, but it cannot be said that there was ever any arrangement to have sex other than on the weekend just described.

[46] While I am convinced that M.M. did indeed arrange to have sex with M.G. on the long weekend, I am left with a reasonable doubt as to whether that sex was to take place after she turned 16 and became a "young person" as defined in s. 153(1). As a result, M.M. must be acquitted of Count 5, the luring offence under s. 172.2, even though I have found him to be in a position of trust toward M.G.

(e) Are the written sexual fantasies in the conversations child pornography as defined in s. 163.1(1)(c)?

[47] According to s. 163.1(1)(c), for M.M.'s messages to M.G. about his fantasies involving sex with her to constitute child pornography the Crown must prove two things beyond a reasonable doubt: (1) that the dominant characteristic of the communication is the depiction, for a sexual purpose, of sexual activity and (2) that it is a depiction of sexual activity with a person under the age of eighteen years that would be a criminal offence.

[48] The first question that must be answered is whether the dominant characteristic of any of the texts is the depiction of sexual activity.

[49] There are many texts that are quite explicit and that clearly meet the "dominant characteristic" test. However, most of these texts do not specify when the sexual activity depicted was to take place. Rather, they are a written record of M.M.'s fantasies about sex with M.G. that are general in nature, divorced from the plan to get together at the cottage. They refer to the occasion when he and she will eventually have sex for the first time, without reference to when that will be. It cannot be said that these explicit depictions involve a person under 18 years of age. They were created by M.M. when M.G. was under 18, and they memorialize fantasies that M.M. had when M.G. was under 18, but the Crown has failed to prove that the fantasies depict sex between M.M. and M.G. when M.G. is under 18, i.e. when such sexual activity would be a criminal offence.

[50] There are also, however, explicit texts, the dominant characteristic of which is the depiction of sexual activity between M.M. and M.G. that are specifically about the sex they were planning on having during the cottage weekend. The texts in question were created by M.M. on July 19 and are found at pages 482 and following. M.G. sends M.M. several pictures of her breasts and M.M. asks what got her into the mood to do so. She replies, "the cottage", after which he and she communicate quite explicitly about the sexual encounter they will have there. The context of these communications makes clear that this fantasy, for want of a better description, is about the cottage weekend, which was to take place two years before M.G.'s 18th birthday. Even though the texts themselves do not refer to M.G.'s age, it is essential to examine the context in which these texts were created by M.M.: R. v. McSween, 2020 ONCA 343 at para 74. M.M. knew that M.G. was only 15 years old and the texts were written about sex with her.

[51] I have found that the Crown has succeeded in proving that M.M. was in a position of trust toward M.G. It is thus sufficient for the Crown to prove that M.M.'s pornographic messages either depict sex between them when M.G. is under 16, since sex between M.G. and M.M. would then be a sexual assault, or depict sex after she turns 16 and before she turns 18 at which time such sex would amount to sexual exploitation on his part. Either way, these texts depicting sexual activity on the cottage weekend depict sex between them that would be a criminal offence and are thus child pornography.

[52] The Crown has thus succeeded in identifying some texts from M.M. to M.G. that meet the two-pronged definition in s. 163.1(1)(c).

(f) The private use exception

[53] In 2001 the Supreme Court in R. v. Sharpe, [2001] 1 S.C.R. 45, addressed the constitutionality of Canada's child pornography legislation and ruled that a private use exception must be read into the legislation to save its constitutionality. Section 163.1 is to be read as incorporating an exception for the possession of:

1. Self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and

2. Private recordings of lawful sexual activity: i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.

[54] The Court went on to say at paras. 115-118:

The first category would protect written or visual expressions of thought, created through the efforts of a single individual, and held by that person for his or her eyes alone. The teenager's confidential diary would fall within this category, as would any other written work or visual representation confined to a single person in its creation, possession and intended audience.

The second category would protect auto-depictions, such as photographs taken by a child or adolescent of him- or herself alone, kept in strict privacy and intended for personal use only. It would also extend to protect the recording of lawful sexual activity, provided certain conditions were met. The person possessing the recording must have personally recorded or participated in the sexual activity in question. That activity must not be unlawful, thus ensuring the consent of all parties, and precluding the exploitation or abuse of children. All parties must also have consented to the creation of the record. The recording must be kept in strict privacy by the person in possession, and intended exclusively for private use by the creator and the persons depicted therein. Thus, for example, a teenage couple would not fall within the law's purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another.

These two exceptions would necessarily apply as well to the offence of "making child pornography" under s. 163.1(2) (but not to printing, publishing or possessing for the purpose of publishing); otherwise an individual, although immune from prosecution for the possession of such materials, would remain vulnerable to prosecution for their creation.

I reiterate that the protection afforded by this exception would extend no further than to materials intended solely for private use. If materials where shown to be held with any intention other than for personal use, their possession would then fall outside the exception's aegis and be subject to the full force of s. 163.1(4). Indeed, such possession might also run afoul of the manufacturing and distributing offences set out in ss. 163.1(2) and 163.1(3). (Emphasis added)

[55] The Supreme Court re-iterated this exception, and its limitations in R. v. Barabash, [2015] S.C.J. No. 29 at para. 26.

[A]s this Court held in Sharpe, "[t]he recording must be kept in strict privacy by the person in possession, and intended exclusively for private use by the creator and the persons depicted therein" (para. 116; see also para. 118). The moment such privacy is breached, the recording falls outside the ambit of the private use exception. This ensures that cases such as R. v. L.W. (2006), 208 O.A.C. 42, where the accused distributed consensually made images of himself and his 15-year-old girlfriend after their relationship ended, would not fall under the private use exception. (Emphasis added)

[56] The video and the photographs of M.G. were created by her and depict only her. As long as she did not share them with anyone, she could never have been prosecuted for possession or making child pornography. That protection does not extend to M.M. who played no role in their creation.

[57] As concerns the messages he created describing sex between them, in my opinion, the reasoning behind the rule in Sharpe applies to s. 163.1(1)(c) even though that section did not exist at the time. These messages would not have been child pornography if M.M. had held on to them and never distributed them, but he lost that protection when he sent them to M.G., even though they are about her.

[58] Accordingly, M.M. is guilty of possessing and making child pornography.

C. CONCLUSION

[59] The findings of fact and analysis set out above lead to the following conclusions.

[60] M.M. is guilty of possessing child pornography, to wit, the photos and videos he received from M.G. that depict M.G.'s breasts and vulva, as well as the explicit text messages he created that are discussed above.

[61] M.M. is not guilty of counselling M.G. to touch herself.

[62] M.M. is guilty of making child pornography.

[63] M.M. is not guilty of luring.

[64] The Crown is not pursuing a conviction for accessing child pornography, and that count is thus dismissed.

Released on November 6, 2020

Justice Russell Silverstein