Court File and Parties
COURT FILE NO.: 958/18 DATE: 2019-04-09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – E.L.
Counsel: Mr. D. Singleton, for the Crown Mr. M. Venturi, for the Accused
HEARD at Sudbury: March 11, 12, 13, and 15, 2019
REASONS FOR JUDGMENT
A.D. KURKE J.
Overview
[1] The accused is charged on a two-count Indictment with “child luring” (count 1), and with making child pornography (count 2), in the first half of November 2016.
[2] In this case, the child in question was the accused’s daughter OL, who, when she was 13 years old, took various photographs of herself in bra and panties with her iPod and her father’s iPhone, and provided them to her father, the accused. According to OL, the accused had suggested the photos, which were to be sent to a photographer in Toronto, for money, and he communicated with her over Facebook Messenger to encourage her to take them. The matter came to light when OL’s mother observed a text conversation between OL and the accused, found the accused’s cell phone in OL’s room and discovered on it and OL’s iPod photographs that her daughter had taken. Police examined the iPod and the iPhone and recovered from them many photographs of OL in bra and panties, and a text conversation.
[3] The accused testified and denied anything to do with the pictures that were recovered.
The evidence
OL’s evidence
[4] The first Crown witness was OL. She is 15 and in grade 10. The events of this case took place shortly after OL had turned 13 years old on October 23, 2016. The accused EL, who is OL’s 40-year-old father, and OL’s mother CR split up in 2013, and OL has been living with her mother ever since. Prior to these charges, the accused had access to OL every other weekend, and OL was close to her father. OL and the accused talked all the time, and texted each other and had video chats. Prior to the charges, OL was planning to go to Florida with EL.
[5] OL had an iPod that her father had given her for her birthday some three years prior to the events in November 2016. She used it to communicate with her father often, through Facebook Messenger.
[6] Prior to November 2016, OL had spoken with the accused about wanting to move in with him, as things were not going smoothly with her mother. OL’s mother would sometimes ground her, and take away her electronic devices. OL had to leave her iPod in the basement when she went to sleep. Earlier in the day that CR contacted police, and unbeknownst to her, EL had given OL his iPhone so that the two could talk more without having to go through OL’s mother.
[7] OL and the accused had a conversation about her taking pictures of herself some six or seven days before OL spoke to police.
[8] OL testified that it was her father’s idea to take pictures. The subject came up “out of the blue”. They were together in her father’s car when her father told her that he knew a guy from Toronto who was a photographer. EL said that he would send pictures of her to this photographer. OL testified that her father said that the photographer would pay $1,000 for pictures of OL in a bathing suit or lingerie. EL told OL that lingerie meant a bathing suit. OL also told police that “Lingerie” could have been the name of the photographer’s business. The accused told OL that she should get pictures from every angle. OL remembered that EL asked her for bathing suit pictures, but in cross-examination, OL agreed that she had testified at the preliminary inquiry that her father did not want her to do bathing suit pictures because they were too “cheesy”.
[9] EL added that if the pictures were topless she would get $50,000. Significantly, OL agreed that in her initial police statement she stated that it was the photographer who wanted such a picture, but her father was opposed to it. EL told OL that his girlfriend Cr. was getting a lot of money for pictures. OL remembered that this discussion also was in the car. OL did not want to take topless pictures. She also felt uncomfortable about taking and sending pictures to her father or to anyone else of her in bra, swimsuit or lingerie. She felt “manipulated” by her father, who kept telling her that she could make $1,000 and so get a telephone, and told her every day to take pictures. He sent her texts telling her to “do these pictures, do these pictures”. OL never got any money.
[10] After their initial discussion in the car, OL began taking pictures of herself, using her iPod and EL’s iPhone. Over the following days OL took a lot of pictures, though she agreed that she was “making it up” (counsel’s words) when she testified that there were 500 of them. She took them in the bathroom at her mother’s house, or in her bedroom. She then sent them to her father on Facebook Messenger. Her father told her to delete them after she sent them, because he did not want OL’s mother to find them. OL did not tell her mother that she was taking the pictures; her father told OL not to tell her.
[11] One time OL’s father brought her to his house and asked to take pictures of OL in a bra and underwear. No pictures were taken, as the thought made OL uncomfortable. In her initial police statement OL had said instead that her father asked on that occasion to see what bra she was wearing, and that she showed him, but she did not recollect that at trial. She did not initially tell the police about EL’s offer to photograph her, only mentioning it to police during a further interview in January 2018. OL recalled no other details of that incident.
[12] OL saw the picture-taking as modelling work. OL told friends about the “modelling” that she was doing. OL said that she had gotten clothes for the pictures from her friend Ca.. OL agreed that she had had job talks with her father, and that the talks were not just about modelling. OL had wanted money for a cellphone. Her father spoke to OL about working at Tim Horton’s or Dairy Queen, but OL did not want to work the cash register. In fact, OL agreed in cross-examination that she and EL were having a job conversation when the discussion about pictures for money came up in the car. Concerning modelling, OL agreed that she spoke with her father about building a portfolio, and that there were different types of models, such as those in catalogues or on billboards.
[13] OL agreed that the decision to take the pictures was hers, and that it was her choice where to take them. EL told OL that he would not pressure her, but OL said that she felt pressured. OL agreed that it was her understanding that the pictures that she sent EL were for modelling. She wanted to be a model, because models got paid.
[14] OL identified photographs of herself in bra and panties as pictures she took. The photos were entered as Exhibits 1 (from iPhone), 2 (from iPod), and 4 (same as 2, from iPod). These Exhibits are subject to a sealing order, to prevent the dissemination of alleged child pornography, and to protect OL’s identity and privacy. Exhibit 4 appears to be screen shots of pictures that were recovered from OL’s “recently deleted” bin on her iPod.
[15] The Exhibit 1 photos appear to have been taken in a washroom. They are from various angles, but focus on a young female in dark panties and a pink bra. The pictures mainly feature the female’s chest, although several shots also show the female’s crotch and buttocks, in panties. The female’s face is not featured as the main focal object in any shot. The pictures include:
a. from ground level upwards at the girl’s front and from behind; b. from above downwards at the girl’s chest in bra, from various angles in front; c. from waist level upwards at the girl’s chest in bra, from various angles in front.
[16] The Exhibit 2 (and 4) photos appear to have been taken in a room with a carpet and perhaps a bed. They mainly focus on a female’s panty-clad buttocks, as taken from above. Some of the shots are only of feet on a carpet. There appear to be at least two different panties used in the pictures. No face is shown at all. OL did not specifically remember taking these pictures, or pictures of the lower half of her body.
[17] According to OL, EL also told OL to delete her message conversations with EL and the pictures. OL deleted the pictures and most of the conversations. Exhibit 3 contains photos of screen shots of parts of a text conversation between OL and EL that took place on OL’s iPod. OL identified “E[…] bear [poop emoji] [sunglass smiley face emoji]” as EL’s identifier in the conversation. One comment from EL directed OL to “delete all place” [sic], which OL interpreted to mean to delete all pictures and conversations. The text conversation involved EL seeking a video chat with OL, and suggesting that OL “wisper” [sic] to him if necessary, as she messaged him that she was in bed. OL responded that she could not, as her sister was beside her.
[18] OL also agreed in cross-examination that the “delete all” instruction from EL related only to deleting their secret password “Yo Yoo Yooo” so that OL’s mother would not discover it and be able to pretend to be OL and so converse with EL. I find this evidence hard to accept, given the odd structure of using “delete all ” to refer only to a password, and OL’s evidence in chief that EL told her by this instruction to delete the conversations and pictures that he told her to take. Moreover, OL denied that CR had ever pretended to be her on her iPod with EL.
[19] The conversation in Exhibit 3 runs as follows, with EL’s comments on the left and OL’s on the right. At two places are indications that OL had “missed a video chat” with EL. For ease of comprehension I will use bold characters for EL’s comments, and italicized characters for OL’s:
Pass? Yo yoo yooo Delete all place Already did You missed a video chat with E[…] bear [poop emoji] [sunglass smiley face emoji] Call Back Hey You missed a video chat with E[…] bear [poop emoji] [sunglass smiley face emoji] Call Back Hey [Disney GIF of horse] Hey is for What happens if find me on facrbook online Video me if you can I can’t in bed On my iphone Yeah Call me and wisper My sister is beside me
[20] OL spoke to police in November 2016 after her mother found the accused’s cellphone under OL’s bed one night. Her mother also went on OL’s iPod and saw pictures of OL in a bra and underwear. It was her mother who arranged for OL to give a statement to police. After they reported the matter to police, OL and her mother spoke about it many times.
The evidence of CR
[21] CR and the accused lived in a common-law relationship for 12 years. Their child is OL. CR and the accused did not get along after their break-up, and CR does not trust the accused. The two rarely speak. Like OL, CR denied that she ever had a conversation with EL over OL’s Messenger account, pretending to be OL.
[22] CR has at times stopped conversations between the accused and OL, and would sometimes take away OL’s iPod as punishment, thus stopping OL from communicating with EL. EL and OL had been close. CR testified that EL would drive OL to school. Before even finding EL’s phone in OL’s room in November 2016, CR “had a feeling” that OL wanted to live with her father.
[23] On the evening that things got reported to police, CR had put OL to bed. OL had been talking to her father a lot that week. CR made OL put her iPod downstairs, which was a house rule as CR did not want OL to have any device with her in bed keeping her from sleeping.
[24] CR went downstairs and examined her daughter’s iPod, to which she knew the password. As a parent, she often monitored the device to find out what her daughter was doing. She noticed that somehow OL was in conversation with EL on another device, and the router appeared to be in use. She saw “erase everything” and “can you give me the password to your Facebook”. It also showed “talk to me”, OL’s response that she could not because her sister was sleeping, and EL’s instruction to “Whisper”. Although imperfectly remembered by CR, parts of what she recalls mirror the text message conversation preserved in Exhibit 3.
[25] CR felt that something was not right. She remembered that OL had told her that EL had just gotten a new phone. CR rushed upstairs, and heard a thump. She went into OL’s room and demanded to know where the phone was. She found it on the floor under the bed. It was the iPhone displayed in Exhibit 5. CR grabbed the phone. OL was screaming at her. CR told her daughter that EL was not allowed to have his stuff in the house.
[26] CR demanded an explanation. OL told CR that EL was putting her in modelling, as OL was trying to make some money. CR was very concerned that she had not been told about this. OL said that they had been doing pictures. At some point OL told CR that Cr.’s daughter S. had told her that Cr. took topless pictures. CR denied that OL had told her that S. wanted to do modelling. However, it appears that CR had mentioned S. to police in that context, though she did not remember doing so.
[27] The iPhone was not password protected. CR went to the pictures on the phone, and saw all of them. She saw her daughter in her peach bra and panties, with the camera pointing down to her chest and the panties. The images “took [CR’s] breath away”, and left her gasping for air. She recognized her daughter’s body and clothing: “I do her laundry”. She was especially concerned because OL had struggled in school, making CR feel even more protective.
[28] CR was very upset and decided that she had to call the police. Ultimately two police officers attended at the house, and CR gave them the iPhone and the iPod. The police drove CR and OL to the station, where the two gave statements to police.
Admitted facts
[29] Exhibit 8 consists of admissions pursuant to s. 655 of the Criminal Code. Also admitted is the police forensic extraction report involving the iPod, which is Exhibit 6 on the proceeding, and the police forensic report involving the iPhone, which is Exhibit 7. Exhibits 6 and 7 are also subject to the Evidence sealing order, and were both prepared by D/Cst. Zuliani of the Greater Sudbury Police Service.
[30] Det. Zuliani performed an extraction from the iPod. All recovered photos were in the “trash” or the “recently deleted” folder. Det. Zuliani was able to determine accurately the “created” and “deleted” times attached to the photographs that were recovered on the iPod. Exhibit 2 contains the photographs that were recovered from the iPod. The same photographs were recovered by Cst. Petrozzi from the iPod’s “recently deleted” folder on November 15, 2016, and form Exhibit 4 on this proceeding. It appears that all the photographs were taken between 8:49 and 8:51 p.m. on November 15, 2016, and bunch deleted at 8:53:07 p.m.
[31] The photographs on the iPhone were still active on the camera roll of the iPhone. In Det. Zuliani’s report, the “created” and “modified” times for the photographs are accurate. The “created” and “modified” times on each photograph are the same because the photos were never altered or moved. The 24 photographs in Exhibit 1 were recovered from the iPhone that is depicted in Exhibit 5. These photos were taken either at 7:48 p.m. or at 7:56 p.m. on November 15, 2016.
[32] Det. Zuliani also examined EL’s Samsung phone, Dell laptop, iPad mini, and HP laptop, and located no files of investigative interest.
[33] On November 15, 2016, Cst. Petrozzi took the photos that form Exhibit 3, which consist of Facebook Messenger messages on OL’s iPod.
Evidence of the accused
[34] EL testified. He and CR had been together for some 12 years, but they did not get along well after they separated. EL had a new girlfriend, Cr., who had a daughter S.. In November 2012, EL had been employed at a distribution outlet. Part of his job involved residential delivery of papers in the morning by car.
[35] In November 2016, EL had a good relationship with OL. He saw her a few times per week, every second weekend, and as agreed upon with CR. Two or three times per week, EL picked up OL while he was doing his morning deliveries, and he would take her to school, a drive of some 15 to 20 minutes. They were planning a trip to Florida with EL’s current family, and they were going to attend some rally cross races in Bancroft, Ontario.
[36] EL communicated with OL by Facebook Messenger on the iPod he had bought her for her birthday a few years earlier. EL did not like talking to CR, so he avoided calling CR’s cellphone or land line to speak with OL. EL gave OL an iPhone a couple of weeks before his arrest on November 24, 2016. EL would message OL and tell her to delete the messages, as he did not want CR to “snoop” on their conversations. EL and OL spoke more in the weeks before his arrest, as they discussed the Florida trip and rally cross excursions.
[37] EL testified that he had a single conversation with OL about her working and the subjects of modelling and money, as he was driving her to school a couple weeks before the CAS came to his home. OL had asked for a new iPhone, and EL had said that he could not afford it. He told OL that she should get a job, and save up the $1,000 she would need. At one point, EL stopped at a bank machine, and took out money, explaining to OL, “I work, and I get money”. EL suggested that OL do counter work at a fast food outlet, but OL said that she was not comfortable with working with the public or using a cash register.
[38] EL testified that the subject of modelling came up in the context of extracurricular activities such as dance or yoga. He suggested that OL look into modelling, intending it as a way of boosting her self-esteem, like dance had done when OL was younger, so that she would be more comfortable working with people. OL asked EL what kind of modelling she could do, and EL spoke of billboard, runway and catalogue modelling. There was no discussion of nude modelling. EL denied in his evidence that he knew any professional photographers or a company called “Lingerie”.
[39] EL denied telling OL to take pictures by direct or electronic communication, or to send pictures to him. EL claimed that in the same discussion OL told him that S. said that Cr. had done modelling. EL had told OL that that was something different, and not to worry about what Cr. was doing. However, to EL’s knowledge, Cr. did not do modelling or sell photos of herself. EL ended the discussion by telling OL that she should go do her own research about modelling.
[40] EL denied asking to see OL’s bra or to take pictures of her in her bra and underwear at his home. He has taken pictures of OL, but not for modelling.
[41] EL denied having seen any of the pictures in Exhibits 1 and 2 (or 4) prior to his arrest. He testified that he never asked OL to send him anything like these pictures. He never asked OL to take nude photos, photos in a bathing suit, or photos in a bra and underwear. He asserted that OL never sent him such photos, and they never discussed his receiving such photos. He never promised an iPhone for pictures.
[42] As to Exhibit 3, EL explained that “pass” from him was a password request, so that he could be sure he was speaking with OL, and not CR. “Yo Yoo Yoo” was the password. EL claimed that in a couple of earlier conversations, he knew that it was not OL speaking, so he “got suspicious” about who it was. His direction “delete all place” meant to delete their conversations, so that CR could not see them. “Hey is for [horses]” was a standing joke between him and OL. EL wanted to speak with OL on his iPhone which he had given her. He did not want his ability to speak with OL to be governed by OL’s mother, who took away her iPod at bedtime. Accordingly, he told OL not to tell CR about the iPhone, lest CR take it away.
[43] Also concerning Exhibit 3, EL thought that it was reasonable to have a short conversation at bedtime with OL on his iPhone, even though he knew he was circumventing CR’s house rule. His conduct was simply generated by the circumstances of his relationship with OL.
[44] EL claimed to have felt shocked when he saw the photos in Exhibits 1 and 2, shocked that he had been accused of getting OL to make the photos. He felt that the pictures were inappropriate, because “normally” a 13-year-old girl should not be taking pictures of herself in her underwear, and he did not know what she was doing with the pictures. EL would not want people who are sexually attracted to young girls to see such photos of his daughter.
[45] Police and a CAS worker came to his home a couple weeks before his arrest. EL was told to leave and go to another place to stay. EL claims to have been devastated and confused by this direction. He thought CR might have been worried about OL’s plans to start living with him. He provided police with his device password.
The law
Burden of proof and the test in W.(D.)
[46] The accused began this trial presumed to be innocent of the charges he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed the offences with which he is charged: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27.
[47] In the circumstances of this case, the accused has testified and denied that the offences occurred. Therefore, in assessing the evidence, I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-758:
… A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[48] While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out in that case ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), [1994] 3 S.C.R. 521, at p. 533. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para 23:
In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
Credibility and reliability
[49] In this case, OL, EL, and CR gave evidence, and the credibility and reliability of their respective evidence must be considered.
[50] In R. v. M.(A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A., reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following for consideration in the circumstances of this case (from paras. 12-14):
12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G.(M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G.(M.) , at p. 354.
14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v . M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3…, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G.(M.) , at p. 356[;] R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788…, at para. 31. [some references omitted]
[51] It is not only witness credibility that must be assessed. The reliability of a witness’ evidence is a separate, but related issue. As noted by Watt, J.A., in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at para. 41, credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, he states “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”
Child pornography
[52] In count 1, the accused is charged with communicating by means of a computer system with a person under the age of sixteen for the purpose of facilitating the making of child pornography. Count 2 charges the making of child pornography.
[53] The central aspect with respect to each of the charges before the court involves the definition of “child pornography”. The parties are agreed that the relevant definition for the material in this case is found at section 163.1(1)(a) of the Criminal Code, which defines “child pornography” to include “a photographic…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”.
[54] The expression “dominant characteristic” requires an analysis of the component parts of the photographic image(s) in question, individually and together in order to determine whether the focus is on a sexual organ or the anal region. The approach is objective and requires a determination whether a reasonable viewer, looking at the image objectively and in its context, would see the dominant characteristic of the image to be the depiction of the sexual organ in question or the anal region. Once that hurdle is cleared, a determination must also be made, again on an objective basis, of whether the image would be reasonably perceived as intended to cause sexual stimulation to some viewers: R. v. Sharpe, 2001 SCC 2, at paras. 50-51.
[55] It has been consistently held that the breasts of pubescent females can fall within the definition of “sexual organs”: see R. v. W.(T.), 2014 ONSC 4532, at paras. 12-13. Covered sexual organs or anal region may satisfy the objective criteria to be assessed in s. 163.1(1)(a) of the Criminal Code if the sexual organs or anal region are visible by some means, enhanced, or emphasized in some manner through or despite their covering: R. v. M.B., 2019 ONCA 237, at para. 11.
Analysis
Count 2 and “child pornography”
[56] The definition of “child pornography” raises several questions.
[57] Are the photographs of “sexual organs”? For the purpose of this analysis, I observe that more than 20 of the photographs that were made Exhibits at this trial involve photographs that include the covered breasts of OL and her covered groin and buttocks.
[58] Can it be said that the dominant characteristic of these photographs is the depiction of OL’s sexual organs or anal region for a sexual purpose?
[59] Concerning all of the pictures in Exhibit 1, I make the following observations:
a. The photos are of a female obviously under the age of 18; b. There are no shots in which the female is completely naked; c. The bra in the pictures covers the female’s breasts almost entirely, with barely any indication of cleavage, and the underwear in the pictures covers the female’s groin and buttocks; d. No particular protrusion or indentation offers any indication of the female’s breasts, other than their existence, or of her genitals or anal region; e. All of the photos either include part of the face, chest and bare midriff, panties, and sometimes legs and feet; or chest, neck, head and face; f. There are no sexualized or provocative poses, in which some sexual organ or area where sexual organ may be found or anal region is dramatically emphasized, exposed to view, or thrust forward. Rather, the female stands upright, straight-legged, with arms sometimes up, apparently to hold the “camera”, and sometimes simply down to the side; g. When the female’s face is visible, there is no particular expression on it. The eyes stare straight ahead, rather than into the camera. There is no expression that could be cast in any way as seductive or alluring; h. Two photos, taken apparently from the floor upwards, show the front and back of the female’s body, with legs straight and arms hanging at the side. The blue panties are visible, but nothing underneath them is visible.
[60] Concerning all of the pictures in Exhibit 2 (and Exhibit 4), I make the following observations:
a. Many of the photos simply show legs and feet, sometimes out of focus; b. The young female appears to have been standing, perhaps in a bedroom; c. The rest of the photos show a glimpse of pink-patterned or blue-grey underwear covering a part of the female’s buttocks, with bare flesh above or below. Several of these are out of focus; d. Most of the space in these photographs is taken up with carpet, and bedding and other items on the floor in the frame; e. Again, there is nothing that appears posed or staged or suggestive. No sexual organs or anal region are visible in the photographs.
[61] On an objective basis, I can find that several of the photos that show the chest area of the female in Exhibit 1 have a focus on the area of OL’s breasts, as the chest area seems to dominate the centre of the frames. It could conceivably be said that the photos focus on the female’s breasts, which can be considered to be sexual organs. So too, in several pictures in Exhibits 1 and 2, the covered female buttocks can be said to be a focal point.
[62] However, I am unable to conclude, concerning these images individually or collectively, that they would be reasonably perceived as intended to cause sexual stimulation to some viewers. I note in particular that the female in the images is clad in bra and panties that expose no particular detail of sexual organ or anal region. There are no exposed genital organs or anal area. No suggestive poses offer any hint of sexuality, and are even less suggestive than would be images of a young female considering the fit of a bathing suit in a fitting room. Indeed, the multiple angles at the same height in some of the pictures rather give an impression of a would-be model searching for the angle that displays her to her best advantage. The images in Exhibit 2 appear to represent OL learning how to photograph herself.
[63] That is not to say that CR’s reaction to these photographs was exaggerated or excessive, given her understanding of the context in which she discovered them, given OL’s age, and given the fact that CR is OL’s mother. While I am less persuaded about the honesty of EL’s own professed feelings concerning these images, I agree with him that a reasonable parent would feel them to be inappropriate, because “normally” a 13-year-old girl should not be taking pictures of herself in her underwear. And as EL stated, a parent would not want people who are sexually attracted to young girls to see such photos of his daughter, but the same can undoubtedly be said of many photos that are not reasonably perceived as intended to cause sexual stimulation.
[64] Whatever it is that the images in Exhibits 1, 2, and 4 represent, they do not satisfy the definition of child pornography. Even if the accused directed OL to make them, and could be considered a party to their manufacture, making them does not constitute “making child pornography”. While the photographs appear to be inappropriate and concerning, I do not find them to be “child pornography”.
Count 1: child luring
[65] Although I have found that the photographs in Exhibits 1 and 2 (and Exhibit 4) do not satisfy the definition of “child pornography”, that finding alone does not exonerate the accused, who is also charged in count 1 with having used a means of telecommunication to facilitate the making of child pornography even if, in the result, no child pornography was made.
[66] The constituent elements of “child luring”, the s. 172.1(1)(a) offence, in the circumstances of this case, include that the accused:
a. Communicated with a person under the age of 18 years; b. By a means of telecommunication; c. For the purpose of facilitating the making of child pornography with respect to that person.
[67] There seems to be no issue with respect to the first of these three elements: EL did communicate often with OL, and he knew that she was 13. However, EL denied any electronic communications with OL about taking photographs or modelling, and insisted that he had only one conversation with OL about modelling, in person in his car. For her part, OL spoke of repeated conversations with EL about this subject, and testified that EL kept texting her to take pictures. As to the third element, EL insisted that he spoke with OL about modelling for the purpose of relieving her anxiety, so that she could work, earn money, and get an iPhone.
[68] The term “facilitating” must be understood to capture conduct more broadly than just conduct proximate to the prohibited goal. Hill J., in R. v. Pengelley, [2009] O.J. No. 1682 (Sup. Ct.), at para. 98, appropriately defines “facilitating” in the related context of s. 172.1(1)(c) as including “ preparatory conduct in the form of communications linked to promoting, advancing, laying a foundation, making easier, helping or removing impediments toward the commission of an act of sexual exploitation ”.
[69] To determine whether the second and third elements of the s. 172.1(1)(a) offence are made out, it is necessary to assess the evidence of the witnesses, in the context of all of the evidence in the case.
[70] I found CR’s evidence mostly uncontroversial, very straightforward, and I accept it. It is the evidence of OL and of the accused that requires further analysis.
OL’s evidence
[71] OL’s evidence is problematic with respect to her reliability in many respects.
[72] It became apparent during OL’s testimony that OL’s memory could be patchy, not only with respect to the events in question, but also with respect to what she told investigators or the preliminary inquiry court. Quite simply, OL did not remember many details around the edges of her evidence, such as would have given some assurance that she actually remembered particular events, and was not simply intermingling memories from a variety of times or sources.
[73] OL clearly did contradict herself at points. She admitted that she suffered from stress and anxiety from time to time, although at the preliminary inquiry she had denied any stress, anxiety, or panic attacks. She testified that bathing suit pictures were what her father wanted, but at the preliminary inquiry, she agreed that her father was against bathing suit pictures, as they were too cheesy. Indeed, I am unable to accept OL’s evidence about the offer by EL to photograph OL at his home, wrapped up as this evidence is in variation of detail and self-contradiction on the various occasions that it has been offered.
[74] Problematic was OL’s willingness to agree to things in cross-examination that contradicted what she had said earlier, or about which she seemed to have no knowledge. One example, discussed above, is her agreement in cross-examination that EL’s “delete all” instruction in their Exhibit 3 text conversation related to their password, when in chief she had stated that it instructed deletion of their texts and the photos. In cross-examination, OL testified that she did not remember asking EL about rearranging her room at her father’s house, but when slightly pushed agreed that she probably did. Such a willingness to agree to suggestions that alter OL’s evidence must also cause the court to be concerned about OL’s reliability in general.
[75] The frequency with which OL resorted to the answer that she did not remember is also a concern, especially given the absence of detail. For example, concerning the important evidence about money for pictures. OL “did not remember” a suggestion put to her by counsel to EL, both at this trial and at the preliminary inquiry, that the only money conversation between the two actually was limited to her father getting money from an ATM and telling OL that to get an iPhone OL needed to work and get money. After saying that she did not remember, OL insisted that this was not the only money conversation between the two of them. She estimated that they talked about money around ten times, although she did not specifically remember what days it was that they talked about modelling and money, or what else they talked about first.
[76] Indeed, some of the reliability concerns that I have noted may relate to OL’s youth and her confusion or misunderstanding stemming from the form and meaning of questions that were being put to her. Indeed, “I don’t remember” or “I don’t know” were sometimes apparently used by OL to express disagreement with suggestions put to her in cross-examination.
[77] Thus, in answer to a suggestion in cross-examination, that her father never asked OL to send him any pictures such as were put in evidence, OL responded that she did not know. After the court asked the witness about what she meant by that answer, as this appeared to contradict her testimony in chief, the question was put without the “I suggest” prefix, and OL strongly affirmed that she sent the pictures: “I have the pictures, and I sent them”. As argued by Crown counsel, this core feature of OL’s evidence remains intact.
[78] Again, in cross-examination, OL agreed with suggestions that EL never told her what pictures to take, or how to stand. By this, in the context of the potentially confusing format of the questions and the rest of OL’s evidence, I understand OL to mean that her father did not direct the taking of specific pictures, as OL took them herself when she was at home and not in the accused’s company. That does not, in my view, detract from OL’s evidence that her father told her to take pictures and to get every angle. Indeed, in cross-examination, OL specifically reaffirmed that her father told her “to do pictures and get every angle”. Moreover, as I have outlined above, there are examples of series of photographs in Exhibit 1 that appear to focus on the same part of OL’s body, from the same height, but from different angles. This core feature of OL’s evidence is corroborated and remains intact.
[79] That the “delete all” instruction in Exhibit 3 related to photographs, as originally testified to by OL, and not to the password, makes sense of OL’s response to EL, “Already did”, and is corroborated by Exhibit 6 and the batch deletion of the photos, which must have occurred shortly before the Exhibit 3 text conversation. This important element of OL’s evidence remains.
[80] I close this discussion by observing that while I have concerns about the reliability of aspects of OL’s evidence, I do not have the same concerns about her credibility. It is plain on the evidence in this case that OL loves her father, wanted to live with him, and liked to talk to him. On the evidence, even though I am mindful not to reverse the burden of proof, I can come up with no explanation why OL would fabricate such claims as these against her father, and I believe OL that her father got her to take photographs of herself, and send them to him.
The evidence of the accused
[81] The accused presented as an apparently straightforward witness. Not surprisingly, he expressed shock at the photographs of OL that form the focus of this trial.
[82] I find EL’s denials that he got OL to take pictures of herself and to send them to him hard to accept. As I explained above, I can imagine no reason why OL would concoct such claims, and the unreliability of her evidence does not extend to these core aspects of her claims.
[83] I found EL’s assertion that he simply introduced the topic of modelling to OL and told her to research it herself to be unconvincing. EL presented himself as a more hands-on parent, concerned enough to think about his daughter’s cash-register anxiety and how to alleviate it, and wanting to be so involved in her life that he blithely subverted the rules in OL’s mother’s home so that he could speak with her after OL’s bedtime. An instruction about modelling to OL to “look it up on your own” appears as a logical non sequitur in this presentation.
[84] In addition, I found EL’s claims about the therapeutic value of modelling hard to accept. EL unconvincingly touted modelling as being “under the same umbrella” in his mind as dance, yoga, gymnastics, and swimming. He claimed for it that it could teach “team building” and confidence. EL even compared modelling to playing hockey or football. In this respect, EL’s evidence left a sense that EL was making these things up simply to respond to the Crown’s questions, and not because he actually believed them.
[85] I found EL’s testimony about the text conversation that forms Exhibit 3 to be evasive and difficult to accept. EL’s evidence that his requests to OL to “delete” came at the end of conversations, and that passwords came at the beginning caused him significant difficulty with respect to the text conversation in Exhibit 3, where EL claimed that the password request that appears at the beginning could be in the middle of a conversation, and the delete request appears well before the end. EL even opined that the Exhibit 3 texts could form more than a single conversation, when Exhibit 3’s apparent format did not correspond to his explanations. CR’s evidence about the conversation that she saw shows rather that Exhibit 3 is part of a single conversation; I do not accept EL’s claim that it could be more than one. Once again, the accused’s evidence with respect to Exhibit 3 left an impression that the accused was attempting to craft exculpatory evidence, regardless of where the truth lay.
[86] In sum, I do not accept the accused’s denials about telling his daughter to take photographs of herself and to send them to him. I accept OL’s claims about these things, and that EL told her to delete the photographs once sent as well as their conversations.
[87] On the other hand, I am unable to reject entirely the accused’s denials that he told OL that she could get $1,000 for her modelling pictures, or that he pushed her repeatedly in texts to take the pictures, an essential element for child luring.
[88] OL’s agreement that her conversation(s) with EL about money came up in the context testified to by the accused – in discussion about jobs and earning money for a $1,000 iPhone – leaves me with significant doubt about any promise of payment for OL’s pictures. Given my concerns about the reliability of OL’s evidence, I cannot reject the possibility that details that EL and S. and OL discussed about money, the cost of an iPhone, what Cr. might have been paid for pictures, and other such things, might well be inaccurately reflected in OL’s claims that EL promised payment for the photographs.
[89] The evidence of OL about repeated texts from EL to “take these pictures” is so colourless and devoid of detail, that I find it just as possible that such directions were actually given in person during the several rides to school that the accused will have given OL between their initial discussion about modelling and CR’s report to the police. There is no actual text evidence before the court that corroborates this aspect of OL’s claims. I am not satisfied of this essential element, contact by a means of telecommunication, beyond a reasonable doubt.
[90] Concerning the third element, EL had a lot to explain:
a. His conduct in discussing modelling with OL behind CR’s back, and getting OL not to show anything to CR; b. His suggestion that OL take photographs of herself and send them to him, even if innocently intended, which I cannot conclusively find; c. That he gave OL his iPhone in defiance of CR’s house rules, so that he could exercise what he selfishly saw as his parental right to speak with OL unhindered by CR, the custodial parent; d. That he directed OL to delete their conversations and the photographs, so that CR could not interfere.
[91] In this conduct, EL behaved selfishly, foolishly, and in an underhanded way, and compounded his dilemma by not being forthright in his evidence. However, I am unable to find beyond a reasonable doubt that his purpose was to facilitate the making of child pornography, rather than, say, to encourage his daughter towards modelling while trying to forestall CR’s interference. I note in particular the following:
a. The photographs were spoken of in the fairly innocuous context of jobs and modelling. EL’s evidence in this regard accords with what OL ultimately agreed to in cross-examination; b. OL and EL testified that they had a discussion about modelling. OL made and sent the photographs as modelling photos. That was her emphatic evidence; c. EL did not encourage OL to take topless photos, and in fact came out against such photos, according to OL’s evidence. Also on OL’s evidence, it appears that EL even described bathing suit photographs as cheesy. None of the recovered photographs displays OL topless or in a bathing suit; d. EL left the nature of the shots up to OL, though he did tell her to take shots from all angles. All of the recovered images were taken by OL, without any specific direction from EL; e. The non-disclosure of the modelling venture urged on OL by EL was directed only at CR, with whom EL did not get along. OL openly described her “modelling” to her friends, and borrowed clothing from at least one of them for it.
[92] In submissions, the Crown suggested that the accused was “grooming” OL towards child pornography with such initial steps as were taken in this case. That may be, and CR’s report of the matter to police appears appropriate. But on the evidence in this case, I am unable to come to the conclusion that the accused’s designs, if any, had advanced sufficiently to permit a finding of guilt on count 1 on the Indictment, even on the broad interpretation of “facilitating” set out in Pengelley.
Conclusion
[93] Accordingly, there will be findings of not guilty on both counts on the Indictment.
A.D. KURKE J.
Released: 2019-04-09
COURT FILE NO.: 958/18 DATE: 2019-04-09
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – E.L.
PUBLICATION RESTRICTION NOTICE INFORMATION THAT COULD IDENTIFY THE COMPLAINANT IN THIS CASE CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA, MADE BY JUSTICE A.D. KURKE ON MARCH 11, 2019.
REASONS FOR JUDGMENT
A.D. KURKE J.
Released: 2019-04-09