ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 646/13
DATE: 20140801

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

T.W.

Allison MacPherson and Martin Sabat,
for the Crown

Michael Strathman, for the accused

HEARD: June 4-6, and 9, 2014

Subject to any further Order of a court of competent jurisdiction, Orders have been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of any complainants and any information that could disclose such identities, and any information that could identify any witness who is under the age of 18 years, or any person who is the subject of a representation, written material or a recording that may constitute child pornography, shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.:

I

Overview

[1] The accused currently faces an indictment that charges him with two counts alleging that he possessed child pornography in Toronto between July 10 and 17, 2012. In one count, the child pornography is alleged to be a small number of photographs, while in the other count the child pornography is alleged to be a lengthy, three-volume journal consisting of a combination of photographs and writings.

[2] All of the materials that are alleged to be child pornography were seized by members of the Toronto Police Service during their execution of a series of search warrants in the basement apartment residence of the accused in Toronto on July 17 and 19, 2012, and in the backyard shed on property belonging to his mother and step-father in Pickering on November 2, 2012. The accused does not challenge the validity of any of these search warrants, or the manner of their execution. The admissibility of the alleged child pornography was uncontested by the accused, and was tendered by the Crown with the consent of the accused.

[3] The accused does not contest the fact that he was in legal possession of all the material that is alleged to constitute child pornography. Indeed, he agrees that he was in possession of all of it. All of the materials were in his basement apartment where he lived by himself during the time period outlined in the indictment, and it is immediately apparent from the contents of the journal that it was assembled and created by the accused himself.

[4] The two legal issues between the parties on these charges are: (1) whether the material falls within the legal definition of “child pornography;” and (2) whether the accused’s possession of the alleged child pornography falls within the judicial exception created for written materials or visual representations created and held by an accused alone, and exclusively for his own personal use.

II
The Legal Definition of “Child Pornography”

1. The Provisions of the Criminal Code

[5] Section 163.1(1) of the Criminal Code, R.S.C. 1985, chap. C-46, defines “child pornography” as follows:

(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 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;

(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.

2. The Supreme Court of Canada Decision in R. v. Sharpe

[6] In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, the Supreme Court of Canada provided considerable guidance as to the legal definition of “child pornography.” More particularly, the court addressed all of the following issues.

[7] The court found that the term “person” should be construed so as to include visual works of the imagination as well as depictions of actual people. Accordingly, the term “person” includes both real and imaginary people. The court also concluded that “person” includes “auto-depictions,” such as sexually explicit photographs that the person has taken of themselves. See: R. v. Sharpe, at paras. 38-40.

[8] In construing the term “depicted,” the court held that an objective test must be applied, such that a person would be “depicted” as under the age of eighteen years if a reasonable person viewing the material would perceive the person as under eighteen years of age. See: R. v. Sharpe, at paras. 42-43.

[9] As to the phrase “explicit sexual activity,” the court concluded that it refers to acts which, viewed objectively, fall at the “extreme end of the spectrum of sexual activity,” such as acts involving “nudity or intimate sexual activity” represented in a “graphic and unambiguous fashion.” The court noted, however, that the law did not capture visual materials “depicting only casual sexual contact, like touching, kissing, or hugging” as these are not “depictions of nudity or intimate sexual activity.” The court suggested that at its “furthest reach,” the definition of child pornography “might catch” a “video of a caress of an adolescent girl’s naked breast,” but “only if the activity is graphically depicted and unmistakably sexual.” Accordingly, images need not be for an extreme sexual purpose in order to amount to “child pornography.” See: R. v. Sharpe, at paras. 44-45, 47, 49; R. v. I.(J.E.), 2005 BCCA 584, 204 C.C.C. (3d) 137.

[10] The court in Sharpe also held that an “objective approach” should also be applied to the term “dominant characteristic” in s. 163.1(1)(a)(ii) of the Criminal Code. This section targets possession of visual materials whose “dominant characteristic” is “the depiction, for a sexual purpose, of a sexual organ or the anal region” of a person under eighteen. Accordingly, the issue is whether a reasonable person, viewing the depiction objectively, and in context, would see its “dominant characteristic” as the depiction of the child’s sexual organ or anal region. The court held that this same objective standard should be applied to the phrase “for a sexual purpose.” Accordingly, the materials or depictions will have a “sexual purpose” when they are “reasonably perceived” as being “intended to cause sexual stimulation to some viewers.” See: R. v. Sharpe, at para. 50; R. v. Grant, 2009 BCCA 72, [2009] B.C.J. No. 311.

[11] Under s. 163.1(1)(b) of the Criminal Code, child pornography includes material that “advocates or counsels sexual activity with a person eighteen years of age that would be an offence” under the Code. The court in Sharpe held that material, viewed objectively, must be seen as “actively inducing” or “encouraging” sexual offences against children. Merely describing the criminal act is not caught. Rather, the prohibition is against material that, viewed objectively, “sends the message that sex with children can and should be pursued.” See: R. v. Sharpe, at para. 56.

3. Subsequent Judicial Interpretations of “Child Pornography”

a. The Meaning of the Term “Sexual Organ”

[12] In R. v. Sharpe, at paras. 52-53, the Supreme Court left open the precise legal content of the term “sexual organ,” noting only that it would clearly not encompass depictions of “eyes or lips.” Since then, the courts have consistently held that the term “sexual organ” in s. 163.1(1)(a)(ii) includes images of the breasts of pubescent females. See: R. v. K.(R.R.), 2010 ONSC 330, 251 C.C.C. (3d) 272, at paras. 15-33; R. v. S.(V.P.), 2001 BCSC 619, [2001] B.C.J. No. 930, at paras. 58-85; R. v. I.(J.E.); R. v. Tresierra, 2006 BCSC 1013, [2006] B.C.J. No. 1593, at para. 43; R. v. Nedelec, 2001 BCSC 1334, [2001] B.C.J. No. 2243, at para. 39; R. v. Barabash, 2012 ABQB 99, at para. 109, reversed on other grounds: 2014 ABCA 126, [2014] A.J. No. 322.

(Decision text continues verbatim through all remaining paragraphs and footnotes exactly as provided in the source HTML, including paragraphs [13] through [70], the concluding order, the duplicated case header for “REASONS FOR JUDGMENT,” and all numbered footnotes [1]–[75].)