COURT FILE NO.: CR-17-10000820-0000 DATE: 20200427 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANDRE AZONWANNA

Ms. B. McCallum, for the Crown Mr. A. Marchetti, for Mr. Azonwanna

HEARD: Dec 2-6, 9 and 10, 2019, January 17, and February 10, 2020

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code.

Justice J. Copeland

Reasons for Decision on Directed Verdict Motion

Introduction

[1] At the close of the Crown’s case, on December 9, 2019, the defence brought a motion for a directed verdict on the count that alleged that the defendant made child pornography. I dismissed the motion that day, with reasons to follow. These are my reasons.

[2] The count at issue alleged that, on or about November 26, 2016, the defendant made child pornography, particularized as a film, contrary to s. 163.1(2) of the Criminal Code.

[3] The context of this allegation was that the defendant was also charged with one count of sexual assault. The complainant was 17 years old at the time of the alleged offences, and the defendant was 20. The Crown alleged that the sexual contact between the defendant and the complainant was not consensual. The defence position on the sexual assault count was that the sexual contact was consensual. It was alleged that during the sexual contact, the defendant made a video on his cellphone of the complainant performing fellatio on him. As a 17 year old, the complainant was old enough to consent to sexual contact. Thus, whether the Crown had proven non-consent beyond a reasonable doubt was an issue I had to decide on the merits of the sexual assault count (the trial decision on the merits is now reported at R. v. Azonwanna, 2020 ONSC 1513). However, the effect of s. 163.1 of the Criminal Code is that, whether or not the complainant consented to the sexual contact, making a video of her performing fellatio constitutes making child pornography (if the relevant mens rea is proven).

[4] For purposes of the directed verdict motion, the defence only raised arguments in relation to the actus reus. Although it was clear at the time this motion was argued that on the trial proper the defence intended to (and ultimately did) argue that the Crown had not proven the mens rea beyond a reasonable doubt, the defence accepted for purposes of the directed verdict test, that there was in the Crown’s case evidence from which a reasonable jury, properly instructed, could come to the conclusion that the mens rea of making child pornography was satisfied beyond a reasonable doubt.

[5] The defence argument regarding the actus reus had two parts. First, the defence argued that absent documentary evidence that a video was made, there was not evidence from which a reasonable jury, properly instructed, could conclude that a video was actually made (i.e., that a recording was made, as opposed to the phone just being pointed). The actus reus as particularized in this case requires that the defendant “make” child pornography (see s. 163.1(2)). The defence argues that absent documentary proof, there was no evidence to conclude that anything was made (i.e., recorded).

[6] Second, the defence argued that absent documentary evidence that a video was made, there was not evidence from which a reasonable jury, properly instructed, could conclude that (assuming a video was made) the content of the video fell within the definition of “child pornography” in s. 163.1(1)(a), the portion of the definition that is relevant to this case. Section 163.1(2) requires as part of the actus reus, that what was made must be “child pornography”, which must be something that “shows” “a person who is or is depicted as being under the age of eighteen years and is or is depicted as engaged in explicit sexual activity”. The defence argued that there was not evidence of what the video depicted or showed.

[7] As background, I note that there was evidence of a video on the defendant’s cellphone of the complainant performing fellatio on him. This video was obtained from the police seizure of the defendant’s cellphone when he was arrested (and the later obtaining of the cellphone password from the defendant during a custodial interview). However, I excluded that evidence because it was obtained in violation of ss. 7, and 10(b) of the Charter, and its admission into evidence would bring the administration of justice into disrepute. I also found that the Crown had not proven beyond a reasonable doubt that the statement was voluntary. Thus, there is no admissible documentary evidence of the video’s existence.

[8] The Crown argued that it is not necessary to have direct documentary evidence of the content of the alleged child pornography to prove the elements of the offence, in particular what is at issue on this motion, the actus reus. The Crown argued that the complainant’s evidence, if believed, was evidence from which a reasonable jury, properly instructed, could conclude that the actus reus elements of the offence of making child pornography was proven.

[9] The test on a motion for a directed verdict is the Shephard test: whether there is any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict: United States v. Shephard, [1977] 2 S.C.R. 1067.

[10] The law is well-settled on how this test is to be applied, both in the context of a motion for a directed verdict, and in the context of considering committal for trial at a preliminary inquiry. Assessing the quality and the reliability of the evidence is not permitted at this stage of the proceedings; rather, the Crown’s case is to be taken at its highest in those respects.

[11] Where the Crown’s case includes circumstantial evidence, the justice must engage in a limited weighing of the whole of the evidence, in order to determine whether a reasonable jury, properly instructed, could return a verdict of guilt of the charge alleged or of any lesser offence. While this weighing does not require consideration of the inherent reliability of the evidence itself, the preliminary inquiry justice must assess the reasonableness of the inferences that may be drawn from the circumstantial evidence. Where the Crown relies on circumstantial evidence, the question is whether the elements of the offence which the Crown has not proven by direct evidence may reasonably be inferred from the circumstantial evidence.

[12] To answer this question, the justice is required to engage in a limited weighing of the evidence, because with circumstantial evidence, there is, by definition, an inferential gap between the evidence adduced and the fact sought to be established. The issue is whether the evidence is rationally capable of supporting the inferences the Crown seeks to have drawn from it. It is for the jury to determine if the inferences should actually be drawn, but it is for the justice to determine whether the inferences sought may reasonably be drawn.

[13] When determining if inferences may reasonably be drawn, the justice must weigh the evidence in a limited way. If the evidence is not rationally capable of supporting the inferences the Crown seeks to have drawn, it is not sufficient evidence to warrant committal to trial, or to survive a directed verdict motion.

[14] The courts have also made clear that for an inference to be reasonable, the inference does not need to be “compelling” or “easily drawn”.

[15] I was (and continue to be) of the view that there was evidence in the case led by the Crown on which a reasonable jury, properly instructed could draw the inferences necessary to find the defendant guilty of making child pornography. Focussing on the actus reus, as that is what was in dispute in this motion, I am of the view that the complainant’s evidence, if believed, provided an evidentiary basis for a reasonable jury, properly instructed, to infer both that a video was in fact made, and that the video depicted a person under the age of 18 years engaged in explicit sexual activity. In particular, I refer to the following evidence:

• The complainant testified that she was 17 years old on the date she had sexual contact with the defendant.
• The complainant also testified that prior to when she performed fellatio on the defendant, he told her that he wanted to get her into the pornography industry, send a pornographic video of her to a production company, and that he would split the profits with her 50/50.
• The complainant testified that the defendant said to her that she had to perform fellatio on him while he recorded it.
• The complainant testified that the defendant made a first video, and played it back, and she heard her voice on it when he played it back, saying “no, do not record me” (thus providing some evidence that the defendant made a recording the first time that he said he was recording). The complainant testified that defendant then said to the complainant that he was deleting that video because it was not good.
• The complainant testified that after that, the defendant made a second video while she was performing fellatio on him. She testified that while she performed fellatio on the defendant, he said to her that he was recording it, and held his phone up so that it looked to her like he was recording, and that he turned the light (the flash) on on his phone while he was holding the phone up and saying he was recording.

[16] I note that the evidence included not only the complainant’s observations about what the defendant did and what she did, but also her evidence of the defendant saying to her that he was recording at the time that he appeared to be recording while she was performing fellatio.

[17] Based on the evidence I have outlined above, in my view, a reasonable jury, properly instructed, could infer that the defendant made a video on his phone of the complainant performing fellatio on him. This is an explicit sexual act. The complainant was 17 at the time.

[18] I see two flaws in the defence arguments on the directed verdict motion. The first is that, in substance, it would require direct documentary evidence of the content of a video (or photo) of child pornography in order for a count to survive a directed verdict motion (and by implication, would require the same for conviction). But that is not the law. As we routinely instruct juries, a conviction may be based on direct or circumstantial evidence, or some combination of the two (as in this case). The actual image or video alleged to be child pornography is not absolutely required. In any given case, if the actual image is not available for some reason, a judge considering a directed verdict motion must consider the whole of the evidence in the Crown’s case to assess whether or not there is evidence from which a reasonable jury, properly instructed, can draw the necessary inferences about the content of the image or video.

[19] The second flaw in the defence argument is that is elides the portions of the definition of child pornography that deal with people who are actually under 18 years, and actually engaging in sexual acts, with the portions that deal with people who are depicted as being under 18 years, and/or depicted as engaging in explicit sexual activity. This case does not involve the “depicted” portions of the definition. If the complainant’s evidence is believed, she was 17 years old, and she was actually engaging in fellatio. The only other necessary element of the actus reus was that the phone was actually recording, and that it captured the act of fellatio. In my view, those latter elements are ones that a reasonable jury, properly instructed could infer from the evidence of the complainant I have outlined above.

[20] I accept that if the Crown was proceeding on the basis of the “depiction” aspects of the definition, it might well be harder for the Crown to get past a directed verdict without admissible documentary evidence of the video or image – although in any given case, that would, of course, turn on all of the evidence in the Crown’s case.

[21] As I have noted above, I do not address the mens rea elements of the offence, as that was not the basis on which the defence sought the directed verdict.

[22] In summary, a reasonable jury, properly instructed, if they believed the complainant’s evidence, could infer that the defendant made a video of her performing fellatio on him, when she was under 18 years old.

[23] For these reasons, the defendant’s motion for a directed verdict on the count of making child pornography is dismissed.

[24] Because of the current restrictions on court operations due to the pandemic, this decision is official with the electronic signature below.

Justice J. Copeland

Released: April 27, 2020