ONTARIO COURT OF JUSTICE
DATE: February 11, 2025
INFORMATION No.: 23-23107633
BETWEEN:
HIS MAJESTY THE KING
— AND —
JEREMY GOODENOUGH
Before Justice J. Miller
Heard on January 14, 2025
Reasons for Judgment released on February 11, 2025
Ms. L. Ducharme ....................................................................................... counsel for the Crown
Ms. S. Rouble ......................................................................................... counsel for the Accused
REASONS FOR JUDGEMENT AT TRIAL
Miller J.
INTRODUCTION
[1] Mr. Jeremy Goodenough is before me on one information number 23-23107633 that alleges he, on or about the 1st day of November 2023, committed the offence of possessing child pornography contrary to s.163.1(4) of the Criminal Code.
[2] The accused pleaded not guilty, and this matter proceeded to trial in front of me on January 14, 2025.
[3] I heard from two witnesses in this case. The Crown called a single police officer who seized a doll from the residence of Mr. Goodenough on November 1, 2023. This doll is the alleged child pornography in this case, with the Crown alleging it meets the legal definition of child pornography and that Mr. Goodenough was knowingly in possession of it.
[4] The defence also called a single witness, Mr. Goodenough, who took the stand and admitted possession of the doll but disputes that it meets the legal definition of child pornography. If it does, he says he did not avert to the qualities of the doll that could make it child pornography, and thus, he is not guilty of possession of child pornography. Finally, Mr. Goodenough also argues that should the Court find that the elements of the offence are proven beyond a reasonable doubt, he shouldn’t be convicted because one of the Sharpe exceptions applies.
[5] Several critical legal principles must be considered to resolve the issues in this case.
THE LAW
The Presumption of Innocence and Proof Beyond a Reasonable Doubt
[6] The first and most important principle in any criminal case is that, like any person accused of a criminal offence in Canada, Mr. Goodenough is presumed innocent of these charges, and the Crown must prove his guilt beyond a reasonable doubt. The burden never shifts and remains with the Crown throughout.
[7] A reasonable doubt is not based upon sympathy or prejudice but upon reason and common sense that is logically connected to the evidence or the lack of evidence. A reasonable doubt is not an imaginary or frivolous doubt. The Crown does not need to prove the offence to an absolute certainty since that would be an unrealistically high standard.[^1] Finally, the beyond-a-reasonable doubt standard applies to the evidence as a whole, not individual pieces of it.
[8] Because the accused testified in this matter, I must apply the Supreme Court of Canada’s principles in R. v. W.(D.).[ ^2] In that case, the Court encouraged a specific reasoning process to ensure that a trial court does not accidentally reverse the burden onto the accused at any point during a criminal trial.
[9] The principles, simply put, are as follows:
- First, if I believe the evidence of the accused in this case, which is a denial of the offences, I must find him not guilty.
- Second, even if I don’t believe the accused’s evidence, if I am left in reasonable doubt by his evidence, I must also find him not guilty.
- Finally, even if I totally reject the accused’s evidence, I must still determine whether on the evidence I have accepted, the Crown has met their high onus of proving the offences beyond a reasonable doubt.
[10] There is no formulaic way to apply the W.(D.) test. While evidence given by witnesses must be assessed on the whole of the evidence in a case, a judge must start somewhere to explain their conclusions in a matter. The judge is not required to proceed in the step-by-step manner laid out in W.(D.). However, they may do so.[^3]
The Assessment of Witness Testimony
[11] Critically, I must be mindful of the essential principles related to assessing the credibility of witness testimony. When assessing credibility, I am focused on whether the witness is being honest.
[12] In weighing credibility, I consider whether what the witness says makes sense and accords with common sense and logic. Is the witness internally and externally consistent? Do they have an apparent motive to lie? Does other material evidence support or contradict the witness' evidence? These are but some of the considerations that come into play.
[13] Apart from assessing credibility or whether I believe the witness is genuinely being honest, I must also focus on the important issue of reliability. When assessing reliability, I must assess the witness' ability to observe, recall and recount events accurately. Generally, a witness who lacks credibility cannot give reliable evidence. An unreliable witness, however, may still be credible.
[14] In weighing the evidence of the witnesses, I have considered what I view to be objective measures of reliability, such as the plausibility of the evidence, whether it was internally and externally consistent, and the witnesses' ability to recall events.
[15] I have assigned little weight to the demeanour of the witnesses as it can be an unreliable indicator of credibility or reliability.[^4]
[16] Applying these principles, I may accept some, all, or none of what any witness says.
[17] In making my findings, I can rely on common sense assumptions based on my life experiences and acquired knowledge of human behaviour. However, I am to exercise caution about making ungrounded assumptions that are not based on the evidence. If they are obviously untrue and plainly observable, they constitute a palpable and overriding error warranting appellate review.[^5]
The Elements of the Offence
[18] Possession of child pornography requires that the Crown prove beyond a reasonable doubt:
i. the material in question is child pornography
ii. the accused “possessed” it; and
iii. the accused knew or was wilfully blind as to the nature of the pornography.[^6]
[19] As the accused agreed he was in possession of the doll on the date of the offence at the outset of this trial, and admitted to being in possession of it when he testified, I need only concern myself with the law related to elements i. and iii. above.
The Definition of “Child Pornography”
[20] Section 163.1 of the Criminal Code defines the term “child pornography” as follows:
163.1 (1) 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; or
(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
What is a Visual Representation?
[21] In R. v. Sharpe, the Supreme Court noted that “visual representation” was a broad term and included any non-textual representation that could be perceived visually. The Court provided drawings, paintings, prints, computer graphics and sculptures as examples.[^7]
[22] Numerous cases, considering the breadth described in Sharpe, have determined that dolls constitute a “visual representation” for the purposes of s.163.1(1) of the Criminal Code.[^8]
Determining the Dominant Characteristic
[23] In Sharpe, the Supreme Court of Canada determined that the proper approach to determining the dominant characteristic of the visual representation required a qualitative assessment of it based on what an objective, reasonable person would perceive.[^9]
Determining if it is for a Sexual Purpose
[24] In Sharpe, the Court similarly determined that the assessment of whether the visual representation depicts for a sexual purpose is determined objectively. Would a reasonable person perceive the material as being intended to cause sexual stimulation to at least some viewers?[^10]
What is a “Sexual Organ”?
[25] In Sharpe, the Supreme Court decided not to definitively determine what constituted a sexual organ other than to suggest a more restrained approach such that it wouldn’t include things such as eyes and lips.[^11]
[26] However, it is noteworthy that Parliament did not use the term “genital organ”, which is used in other sections of the Criminal Code, which suggests it was not intended to be restricted to only genitals. It seems indisputable that however broad or narrow the definition may be, it does include a human’s external genital organs, the penis and scrotum, as well as the vulva.[^12]
Determining if the Person Depicted is Under the Age of Eighteen
[27] In Sharpe, the Supreme Court stated that a determination related to the age of the person depicted requires an objective assessment. This will be met if the evidence shows that the person depicted is, in fact, under the age of eighteen, or if a reasonable person looking at the representation would perceive the person as being under the age of eighteen.[^13]
[28] When the section uses the term “person”, as alluded to above in the law governing what “visual representations” are covered by the section, it is not limited to just actual flesh and blood human beings. The term captures both actual and imaginary people.[^14]
What Does it Mean to “Know the Nature” of an Item
[29] When the Court speaks of knowing the nature of an item or its character, it is not suggesting that the evidence needs to prove that the accused knew the item meets a legal definition, such as child pornography. A mistaken belief about whether an item meets a legal definition or not constitutes an error of law, which s.19 of the Criminal Code expressly prohibits as a defence.
[30] Instead, what this language means is that the accused must be aware of, or willfully blind to, the general quality of the thing that might make it child pornography.[^15]
[31] Wilful blindness is a state of deliberate ignorance and may substitute for actual knowledge. It occurs when a person is subjectively aware of the need for some inquiry but deliberately refrains from it to remain ignorant.[^16]
The Sharpe Exceptions
[32] In Sharpe, the Supreme Court of Canada determined that Parliament meant the child pornography provisions to catch all material that posed a reasoned risk of harm to children where the countervailing right to free expression or the public good does not outweigh the risk of harm.[^17]
[33] The Court found the provisions as drafted initially, however, overstepped in infringing the s.2(b) Charter right to freedom of expression, as they prohibited two narrow categories of privately held materials that related to the development of thought, belief, opinion, and expression while posing “no reasoned risk of harm to children”.[^18]
[34] The Court decided to “read in” to the legislation two exceptions, commonly now referred to as the Sharpe exceptions, to bring the legislation into constitutional bounds.
[35] One of those categories involved the private recording of lawful sexual activity held only for personal use. This category is not involved in this case.
[36] The other category, that the accused does rely on in this case, is purely self-created, privately held expressive material.
[37] The Court noted this exception as including only written material or visual representations confined to a single person in its creation, possession, and intended audience. The example they gave was a teenager’s diary.[^19]
[38] The concern noted by the Court, was that failing to carve out this narrow exception would result in the banning of “our own private musings” and “thus falls perilously close to criminalizing the mere articulation of thought”.[^20]
[39] Courts have interpreted the necessity that the material be created by a single person narrowly to avoid making a broad exception for people to possess child pornography for personal use merely by modifying existing creations and claiming they have solely created a new written or visual representation. This is clearly not what the Supreme Court intended, and it obviously would create a reasoned risk of harm to children by permitting people to lawfully make and utilize child pornography in a manner that would clearly reinforce cognitive distortions about the sexual integrity of children.
[40] For example, in R. v. T.W., the accused did not insulate himself from criminal liability when he created a journal of his sexualized writings for his own personal use but included pre-existing photos of children from the internet. The Court determined that using the pre-existing images in his work meant he was not solely responsible for the creation.[^21]
[41] Additionally, the accused in R. v. Houde, was also found not to be solely responsible for the creation of their own drawings of child pornography for personal use when they traced them from pre-existing images they obtained online.[^22]
THE EVIDENCE
[42] At the outset of the trial, the parties narrowed the issues and made several agreements pursuant to an agreed statement of facts, which was filed as Exhibit #1 in this matter.
[43] First, the original information charged Mr. Goodenough with possession of child pornography “in the form of a model” on or about the 30th day of October 2023. That information was amended on consent to remove the words “in the form of a model” and the date of the offence was also amended on consent to be on or about the 1st day of November 2023. This matter proceeded to trial on that information as amended.
[44] Second, the Crown had filed a voluntariness application to be heard regarding statements Mr. Goodenough made to police. However, that voir dire was formally waived by the accused, who therefore conceded his statements were voluntary and available to be used by the Crown as they saw fit.
[45] The accused also agreed to the following facts:
i. jurisdiction – the alleged offence happened in London, Ontario;
ii. date – the alleged offence occurred on November 1, 2023;
iii. identity – the accused before me is, in fact the Jeremy Goodenough named in the information, and he is also the same person who possessed the doll on November 1, 2023;
iv. continuity of the seized doll;
v. the forensic identification photographs, which are Exhibit #2, are admitted to be photographs of the doll seized on November 1, 2023, and were taken on November 7, 2023, by Detective Constable George Demopolous;
vi. on November 1, 2023, the accused was residing at 228 Suffolk Place in London, Ontario, and the master bedroom of that residence was his bedroom;
vii. the doll found on the bed in that master bedroom belonged to the accused, who had the requisite knowledge and control of it on November 1, 2023, to place him in possession of it however, he denied being aware of the criminal nature of it.
[46] Below, I will summarize the evidence of the witnesses in this matter. I do not intend to rehash the entirety of the trial but rather summarize some key aspects of the evidence given. I have reviewed the evidence given in this matter in its totality, and the findings of fact I ultimately make are based on all of the evidence, whether I specifically mention it below or not.
[47] The parties admitted on consent the evidence of Constable Oliveira for its truth. Constable Oliveira’s evidence is:
i. On Wednesday, November 1, 2023, Constable Oliveira learned that various police units were assisting in executing a Controlled Drugs and Substances Act (“CDSA”) warrant at 228 Suffolk Place in London, Ontario.
ii. Two of the subjects for that warrant were Jeremy Goodenough and Brian Goodenough, both of whom lived at 228 Suffolk Place.
iii. On November 1, 2023, Constable Oliveira attended a staging area at 8:31 p.m. for the search of 228 Suffolk Place.
iv. Constable Oliveira entered 228 Suffolk Place to execute the warrant and cleared the main floor and basement.
v. Thereafter, Constable Oliveira went to the second floor to assist in clearing it. At 9:45 p.m., he located the accused, Jeremy Goodenough, hiding in the master bedroom closet, and he was detained for a CDSA investigation.
vi. At 9:47 p.m., Oliveira was walking Mr. Goodenough out of the residence when he received information that he was arrestable for CDSA offences. He arrested him and gave him his rights to counsel and caution. He then handed Mr. Goodenough over to Detective Poustie.
[48] Detective Kenneth Poustie, a police officer with the London Police Service for some 20 years, testified for the Crown. A summary of his evidence is as follows:
i. He was involved in the warrant execution at 228 Suffolk Place. He attended the area of the residence at 4:22 p.m.; however, the warrant wasn’t executed until 9:02 p.m. as the police did a containment and callout. I understood this involved the police ensuring they had eyes on all possible exits and then calling out to the residents to exit. Detective Poustie advised that no one exited in response to the callout.
ii. He took custody of the accused from Constable Oliveira and confirmed he was aware of why he was arrested and his rights. He then handed the accused over for transport.
iii. He entered the residence at 228 Suffolk around 10 p.m. and assisted in searching the master bedroom and spare bedroom.
iv. In the master bedroom, he seized the “child-like doll” that had been modified to insert a sex toy into the area where the genitalia would be. The doll was on the bed in the master bedroom positioned towards the head of the bed. It was seized as it appeared to him to meet the legal definition of child pornography. It was turned over to the exhibit officer.
v. The spare bedroom was sparsely furnished, had no bed, and did not look like it was occupied.
vi. Upon returning to the police station just after midnight, he arrested the accused for possession of child pornography and explained it was for the doll. The accused made the following statement in response to this: “I put a pocket pussy in a doll and didn't think that was child porn.”
vii. The photos of the doll, which are Exhibit #2 in this case, show how the doll appeared when seized, including the tape and positioning of the legs.
viii. No clothing or accessories were found for the doll.
[49] The accused, Mr. Goodenough, testified in his own defence. Below is a summary of the evidence he gave:
i. The doll was brought to his house by his ex-girlfriend, and at the time she brought it over, it didn’t have a “pocket pussy” in it.
ii. He had purchased a Fleshlight from the Stag Shop in London, Ontario, which he described as a sex store that sold adult sex stuff.
iii. When asked by his counsel if the Fleshlight was marketed to be of a particular model, he stated that it was a replica vagina of a porn star whom he understood to be over eighteen.
iv. The Fleshlight was on the floor under his bed, and he stepped on the “sleeve” cracking it.
v. From that point, the device would not work the same as the sleeve was flimsy, so he put it in the doll to “sturdy it.”
vi. He made this modification probably about a year before the seizure.
vii. The doll’s face reminded him of his grandmother, which he said made him have to wrap the whole contraption up in a blanket leaving only the vagina exposed when using it so he wouldn’t see the face.
viii. Because the doll’s face looked like his grandmother to him, he could never look at it while using the doll to fulfill his sexual needs, so instead, he watched adult pornography.
ix. He referred to the doll as “creepy looking.”
x. The legs are folded up the way they are to facilitate the wrapping.
xi. He used the altered doll for a sexual purpose, including masturbating himself by inserting his penis into the doll;
xii. He agreed that before the modification, it was likely a toy that a child would play with, although in the 1930’s.
xiii. He agreed the doll appeared to him to be about a foot and a half tall, and a female with short hair.
xiv. He never had any clothing for the doll.
xv. He stated that the doll before the court was something of his own creation, it never left his house before it was seized, and he kept it in the little bedroom closet.
xvi. He stated that the little bedroom was, in fact, his bedroom, and the bigger bedroom, which had the bed where the doll was found, was not his bedroom but had, in fact, been his grandfather’s bedroom.
xvii. He stated that he never left the doll out in the open except the one time when the police came and seized it when he had left it in the master bedroom because either he had used it a few hours earlier or he thought it was possible he intended to use it but hadn’t yet.
xviii. He denied that his brother Brian Goodenough ever lived at 228 Suffolk Place.
xix. He denied the doll appeared childlike to him, stating that it had “boobs”, and then reiterated that the face reminded him of his grandmother. However, he did acknowledge that someone could reasonably see it as a child.
IS THE DOLL CHILD PORNOGRAPHY
[50] My first task in assessing the evidence in this case is to determine if the seized doll constitutes child pornography under Canadian law.
[51] In this case, the Crown alleges that the doll meets the definition of child pornography specifically under s.163.1(1)(ii), in that it is a “visual representation”, the “dominant characteristic” of which is the depiction for a “sexual purpose” the “sexual organ” of “a person under the age of eighteen years”.
[52] Defence argues that the doll is not child pornography because it does not depict the sexual organ of a person under the age of eighteen years, both because the doll had adult features and the sexual organ it depicts is that of a person over the age of eighteen.
Is the Doll a Visual Representation?
[53] I agree with the many cases cited in this judgment that a doll constitutes a visual representation of a person, albeit imaginary in this case. The definition of what constitutes a visual representation under the definition of child pornography is very broad, and as has been pointed out in previous decisions, a doll is very similar to a sculpture, and sculptures were explicitly referenced as a visual representation in Sharpe.
[54] Indeed, defence counsel did not argue otherwise, and appears to have essentially conceded this point.
Is the Dominant Characteristic of the Doll the Depiction for a Sexual Purpose of a Sexual Organ of a Person?
[55] I apply to a consideration of the dominant characteristic of this doll a qualitative assessment based on what an objective and reasonable person would perceive.
[56] In considering whether the depiction is for a sexual purpose, I again consider what an objective and reasonable person would determine from viewing the doll.
[57] Ultimately, I am left with no doubt whatsoever that an objective and reasonable person would perceive the dominant characteristic of this doll to be the depiction of a sexual organ for a sexual purpose.
[58] While this view is consistent with the stated intent of its creator, the accused, his view is not determinative of this question.
[59] The size of the doll, the placement of the replica vulva near the anatomically correct location, and the skewing of the doll’s legs, which only further draws the eye to the vulva and permits better visibility and access, all support this conclusion. The replica vulva is clearly the dominant characteristic of the doll.
[60] Further, an objective and reasonable person viewing this doll would necessarily conclude that the doll was intended to cause sexual stimulation to at least some viewers. Indeed, the only rational, reasonable conclusion one can draw from looking at this doll is that it was intended to be a “sex doll” or a representation of a person, in this case, a female, with which to simulate sexual intercourse.
[61] I also conclude that the vulva is unquestionably a sexual organ based on the case law, as that term is used in s.163.1(1). Indeed, it is part of one of the primary sexual organs, the genitalia.
Is the Depiction the Sexual Organ of a Person Under the Age of Eighteen Years?
[62] The defence argues both that the doll overall appears to depict a person over the age of eighteen and, further, that even if the doll itself depicts a person under the age of eighteen, the depicted vulva is of a person over the age of eighteen. Thus, it would still not meet the definition.
[63] In my view, these issues cannot be considered apart. In determining whether the doll depicts for a sexual purpose the sexual organ of a person under the age of eighteen, the entire doll must be looked at and considered as a whole. Once again, the issue is whether a reasonable person would perceive the visual representation as depicting for a sexual purpose the sexual organ of a person under the age of eighteen. At this stage, the views of the accused are not relevant.
[64] Indeed, if I agree with the defence counsel that the vulva, in isolation, appears to be that of an adult, that alone will not mean that the doll couldn’t meet the statutory definition of child pornography. I am aware of cases in this Province where individuals were found to have made child pornography by superimposing the faces of young children onto the nude bodies of adults.[^23] The mere fact that the sexual organ may be an adult one does not serve to insulate an overall visual representation that otherwise depicts a person under the age of eighteen from being found to be child pornography. Indeed, counsel provided me with no case that said so.
[65] Further, this makes complete sense when we return to first principles and consider two of the significant evils of child pornography:
i. it promotes cognitive distortions about children and sex; and
ii. it fuels fantasies that incite offenders to offend.
[66] Placing adult sexual organs on what is otherwise an obvious child could only serve to reinforce the cognitive distortion that children have the adult ability and maturity to engage in sexual behaviour and fuel the fantasies of those who wish to have sex with children.
[67] However, I disagree in any event that the vulva itself is of all that much assistance in determining age. Again, the issue is what a reasonable and objective person would perceive based on viewing the doll. The knowledge and views of the accused in this determination are again irrelevant.
[68] Here, the representation of the vulva does little to assist the reasonable person in determining the depicted age in isolation. There is nothing anatomically that suggests this depicts the vulva of a person over the age of eighteen as opposed to under the age of eighteen. Indeed, the most notable thing is the lack of pubic hair, which would tend to suggest a younger age, although adults can and do remove pubic hair. Further, as we are dealing with a visual representation of an imaginary person instead of a real person, it is even harder to determine this in isolation.
[69] Looking at the doll as a whole, defence argued that a number of features would cause one to conclude it is a person over the age of eighteen. They pointed to broad shoulders, the narrowing of the waist, the hairstyle and breasts.
[70] Looking at the doll and applying the perception of a reasonable and objective person, I cannot agree with the defence. I don’t see the shoulders as “broad”, and even if they were, I don’t know how that would assist me in determining the age of the person. Some children have broader shoulders, and some adults do not.
[71] Further, while I agree that the waist area is narrower than the areas directly above or below it, I do not view that feature as suggestive of an age over eighteen, even when looking at the doll as a whole.
[72] The hairstyle objectively appears child-like, although some adults may cut and style their hair in this manner.
[73] Finally, what the defence says are breasts, in my view, objectively only appears to be the development of breasts, as consistent with a pre-pubescent child. The slightly mounded areas void of any areola development or a nipple is not reasonably seen as a post-pubescent breast.
[74] When I look at the doll, applying the perception of a reasonable and objective person, I conclude beyond a reasonable doubt that the doll depicts for a sexual purpose the sexual organ of a person less than eighteen years of age. I base this conclusion on the size of the doll, the child-like face and hairstyle, the lack of representation of pubic or other post-pubescent hair and the presence of a representation of pre-pubescent breast development. Indeed, the only reasonable and rational conclusion I can draw from viewing the doll is that it is meant to represent a pre-pubescent child.
[75] In conclusion, I find beyond a reasonable doubt that the doll depicted in Exhibit #2 constitutes child pornography under s.163.1(1)(ii) of the Criminal Code. It is a visual representation, the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ of a person under the age of eighteen years.
WAS THE ACCUSED IN POSSESSION OF THE DOLL ON NOVEMBER 1, 2023?
[76] Possession of the doll by the accused on November 1, 2023, was an admitted fact in this case. As such, I accept as fact beyond a reasonable doubt that the accused was in possession of the doll on November 1, 2023.
DID THE ACCUSED KNOW OR WAS HE WILFULLY BLIND AS TO THE NATURE OF THE DOLL?
[77] As discussed above, the accused does not need to understand that the doll constitutes child pornography at law to have the mens rea for this offence. An error on his part as to the illegality of the pornography is a mistake of law for which no defence lies in Canadian Law.
[78] He does, however, need to subjectively know or be wilfully blind to the nature of the pornography that could make it child pornography. Another way to put this is whether the accused knew or was wilfully blind to the characteristics of the doll that could make it child pornography.
[79] I remind myself here that the accused has no onus in this trial. He need not prove that he did not know the above. Indeed, the Crown must prove he did beyond a reasonable doubt.
[80] However, given that the accused testified and denied knowing the character of the doll that could make it child pornography, most notably that it depicts a person under the age of eighteen, this is a convenient place to conduct a W.(D.) analysis in this case. This will, of necessity, require that I make findings of credibility and reliability of evidence using the rules I noted earlier in this decision.
[81] First, did I believe the accused when he stated that, in his mind, the doll depicts a person over the age of eighteen? If so, then he is entitled to an acquittal.
[82] I did not believe the accused’s evidence on this point. Indeed, I had many issues with the testimony of the accused that ultimately resulted in me rejecting his evidence on this issue altogether.
[83] First, the accused’s evidence was frequently nonsensical. Indeed, his evidence of how he broke his Fleshlight in the first place involved him telling me he stepped on it while it was under the bed. It is unclear to me how one steps on an object that is under a bed.
[84] Assuming for the sake of argument that the Fleshlight broke as he said it did, the testimony on how it came to be in the doll, as a method to repair the sleeve, defied credulity.
[85] The Fleshlight, as I understood it, consists of the depicted vulva, as seen in Exhibit #2, that is attached to a cylindric shaft or sleeve. The item, not surprisingly given the name, would resemble the form of a typical flashlight.
[86] As testified to, the sleeve is this cylindric shaft area that serves as a handle. It is this part the accused said was broken and made it too flimsy to use as intended.
[87] The idea that someone looked at this doll and concluded that this was the answer to this problem is, with respect, significantly far-fetched. Of all the many solutions I can perceive to reinforce the sleeve that one could come up with, including using the tape that was used all over the doll to allow for the insertion of the Fleshlight into it; putting the Fleshlight into the doll’s groin area, in my view, constitutes a chasmic leap of logic.
[88] Added to the nonsensical use of this doll as just a raw material with which to repair the Fleshlight, I also consider the fact that the accused admitted the whole purpose of this item was to pleasure himself sexually and that he found the doll “creepy” and that its face reminded him of his grandmother. In fact, so off-putting was this doll to him that he says its use required him to wrap the whole thing up in a blanket so only the sexual organ was visible.
[89] It is simply inconceivable to me that the accused would choose to repair his sex toy by adding to it an item that he finds “creepy” and that has a face that looks like his grandmother, something that he did not find sexually pleasurable. I couldn’t imagine something less associated with sexual pleasure than the way the accused described how he viewed this doll. It simply was not believable that he would choose it to fix his sex toy.
[90] I also go back to my earlier findings about the doll and state that it is evident to me that in using the doll, the accused intended to build a sex doll. That is, the doll was selected not because of its obviousness as a rigid material in which to bolster the strength of the Fleshlight sleeve but because the accused wished to create a doll that he could simulate sexual intercourse. By his own admission he used the doll by inserting his penis into the doll, which I infer was done by inserting his penis into the Fleshlight.
[91] If the doll were just repair material, there would have been no need for the accused to take steps to insert the Fleshlight into the area that is essentially the anatomically correct placement for the sexual organ. This placement was not coincidental, I find on all the evidence that it was an intentional choice to try and maximize anatomical correctness.
[92] Indeed, looking at the doll, and the splaying of the legs, I concluded, that the legs were placed that way because it facilitates access for the accused’s penis into the Fleshlight, while it occupies a position close to where the sexual organ would be in a real person. This would then allow him to best simulate sexual intercourse with a real person. I reject his explanation that the legs were placed that way because it assisted in wrapping the doll in a blanket; for all the reasons I give for rejecting his evidence, I don’t believe him.
[93] I had other issues with the accused’s evidence. One of the agreed facts in this case was that the master bedroom where the doll was found was, in fact, the accused’s bedroom. The accused, however, in his evidence, denied this and told me the other bedroom, the one the police described as sparsely furnished and seemingly unoccupied, was his bedroom. He told me the bedroom where the doll was his grandfather’s, but at the time of the seizure, his grandfather was in hospital.
[94] I am required to accept agreed facts as established facts. The accused’s evidence conflicts with that fact, and given that this is not an issue, I think the accused could be mistaken. I can only conclude he lied about this.
[95] Considering the accused’s evidence on its face, in any event, makes his version even more problematic. On his evidence, then, he was taking his sex doll, whose face reminded him of his grandmother, which to him was clearly not a good thing, from his bedroom into his grandfather’s bedroom so that he could use it there. I find this suggestion internally inconsistent with his position that he was so disturbed by the resemblance of the doll to his grandmother that he couldn’t even look at it.
[96] The accused also tried to state he never left the doll out of the closet he kept it in but then told me that coincidentally, on the day of the seizure, he may have removed the doll from the closet and left it on the bed in the open for potentially hours, explaining why it was found there and not the closet. I find this coincidence highly unlikely, and it is far more likely that the doll was frequently on the bed where it would be used by the accused.
[97] I also note that the accused agreed to the evidence of Constable Oliveira going in for its truth, which included evidence that both he and Brian Goodenough lived at the residence at 228 Suffolk. He did not cross-examine Constable Oliveira on this issue. However, in his evidence he testified that Brian Goodenough never lived at 228 Suffolk.
[98] Finally, the accused’s position that the doll looked like an adult was premised on only two factors he could articulate. One was that the face reminded him of his grandmother, and for reasons already given in this judgment, I reject that proposition. It is simply not believable that he would build his sex toy with a face that reminded him of his grandmother. Another was he said it had “boobs”. For reasons already given, I reject that anyone, including the accused, would see the modest mounded areas of this doll’s chest as adult breasts.
[99] Ultimately, I have already found that an objective and reasonable person would have no problem concluding that this doll depicted a person under the age of eighteen. In my view, this is not a close call. The doll so obviously depicts a child that I conclude, on all of the evidence, that the accused intentionally tried to mislead me about his view.
[100] I am unable to rely on his evidence that the Fleshlight he bought was a replica of an adult porn star, although I note that would make no difference to my conclusion anyway.
[101] I do not believe the accused, and for the same reasons I have stated, his evidence does not cause me reasonable doubt.
[102] Looking at all the evidence I accept, I find that the accused built this doll from a pre-existing doll, which he modified by inserting his Fleshlight into the position, which would allow him to simulate sex with the doll in an essentially anatomically correct position. I find the legs were positioned to allow access for the accused’s penis into the Fleshlight in a manner that assisted in simulating sexual intercourse. He clearly had a sexual purpose behind making this doll.
[103] Further, I conclude that he knew that this doll obviously depicted a person under the age of eighteen, and indeed, I find on all the evidence that the only rational conclusion I can reach on this evidence is that this doll was constructed in this manner to simulate having sex with a child. To put it another way, the point was to create a doll that resembled a child that had, as one of its dominant characteristics, a sexual organ that could be used to simulate sexual intercourse.
[104] As such, I have no difficulty finding beyond a reasonable doubt on the evidence I have accepted that the accused knew the nature or characte r of the doll that made it child pornography, even if he didn’t understand that the doll met the legal definition of child pornography.
[105] Having found that the doll is child pornography, that the accused possessed it on the date of the offence and that he had the requisite mens rea, a finding of guilt would follow unless I agree with the accused that he is entitled to be found not guilty because of the Sharpe exception that allows a person to possess a visual representation confined to a single person in its creation, possession and intended audience.
DOES THE SHARPE EXCEPTION APPLY TO THE DOLL?
[106] In this case the Sharpe exception does not apply because the doll is not confined to a single person in its creation. The doll is simply an amalgamation of two existing visual representations created by other people, not the accused.
[107] There is good reason to apply the Sharpe exception strictly and confine it. Indeed, correctly interpreted, it should apply only to two-dimensional works, such as an accused’s writings or drawings made entirely by their hand.[^24]
[108] Failure to apply Sharpe strictly would almost certainly cause Canada to fail in its ability to protect children from harmful sexualization here at home and also cause us as a country to fail to adhere to our international obligation to protect children from such harm as a signatory to the Convention on the Rights of the Child and the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.
[109] Indeed, if the Sharpe exception applied whenever anyone made child pornography out of existing visual representations, it would constitute a broad and easily abused exception that would clearly create a reasoned risk of harm to children. To possess a potentially limitless amount of personal use child pornography, all a user would have to do is make some modification to existing child pornography and then claim it as their own “expression”. Prior case law shows this is not permitted and I concur.
[110] The constitutional concern in Sharpe was that a law that didn’t allow a person to write out or draw their own thoughts under their own hand for their own private personal use was far too close to criminalizing the thoughts themselves. No such concern exists if a person is prevented from using existing visual representations or writings to make child pornography, even if it is for their private personal use.
[111] In striking a balance between reducing the reasoned risk of harm to children, and freedom of expression, allowing people to record their thoughts under their own hand for their own use does little to increase the risk beyond the thought itself.
[112] Using pre-existing objects to create a child sex doll to simulate having sex with a child is obviously creating a significant reasoned risk of harming children beyond just the concept of the doll in one’s mind.
[113] The need for the visual representation to be solely created by a private user under their own hand is a critical requirement for the exception to apply. Indeed, we are now living in a world where a person could have artificial intelligence create pictures of incredibly realistic child pornography.
[114] The mere fact someone makes a visual representation of child pornography for their private personal use does not itself meet the Sharpe exception.
[115] I would also point out that I had real difficulties with the accused’s evidence about who lived at the residence with him and where the doll was usually kept. I also don’t find the evidence consistent with the doll being kept exclusively private.
CONCLUSION
[116] Having found beyond a reasonable doubt that the accused knowingly possessed child pornography and that the Sharpe exception does not apply, a finding of guilt will be made on the sole count of possession of child pornography.
Released: February 11, 2025
Signed: Justice J. Miller
[^1]: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 36; R. v. Sanichar, 2012 ONCA 117 at para. 46
[^2]: R. v. W.(D.), [1991] 1 SCR 742
[^3]: R. v. A.S., [2002] O.J. No. 1950
[^4]: R. v. C.C., 2018 ONSC 1262 at paras. 61-62
[^5]: R. v. Kruk, 2024 SCC 7, [2024] S.C.J. No. 7
[^6]: Joyal et al, Prosecuting and Defending Offences Against Children, 2nd Edition (2023), ch. 7, p. 239.
[^7]: R. v. Sharpe, 2001 SCC 2
[^8]: See R. v. Petts, 2023 ONSC 6056; R. v. Morellato (October 6, 2023), Bradford 22-81301038 (OCJ); R. v. Naess, 2022 ONSC 6490; Yan v. R., [2024] Q.J. No. 2532; R. v. Gagnon, [2020] Q.J. No. 3734; Director of Criminal and Penal Prosecutions v. Renaud, [2013] QCCS 7169; R. v. Harrison, [2019] NJ No. 406
[^9]: R. v. Sharpe, supra, at para. 50
[^10]: Ibid
[^11]: Ibid
[^12]: Joyal et al, supra, ch. 7, p. 234
[^13]: R. v. Sharpe, supra, at para. 43
[^14]: Ibid, at para. 38
[^15]: Joyal et al, supra, ch. 7, p. 240
[^16]: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273 at para. 69
[^17]: R. v. Sharpe, supra, at para. 34
[^18]: Ibid, at para. 100
[^19]: Ibid, at para. 115
[^20]: Ibid, at para. 108
[^21]: R. v. T.W., 2014 ONSC 4532, [2014] O.J. No. 3667
[^22]: R. v. Houde, 2021 QCCA 1252
[^23]: See for instance: R. v. C.G., 2016 O.J. No. 7007 at para. 34
[^24]: Joyal et al., supra, ch. 7, p. 252